JUDGMENT

B. P. DAS, J. — This revision application is directed against the order dated 23.10.1998 passed by the learned Addl. Sessions Judge, Nayagarh in S.T. Case No. 96/23/150 of 1997-96 whereby accused Niranjan Mohapatra has been considered as an accomplice for commission of the offence punishable under Sec. 376 (2)(g), 302/201 read with Sec. 34, IPC.

2. The accused Niranjan Mohapatra, was the brother of the deceased Namita, and was made an accomplice in the aforesaid case. His statement was also recorded under Sec. 164, Cr.P.C. According to learned Addl. Sessions Judge, said statement of Niranjan Mohapatra was ex-culpatory and on scrutinising the evidence on record, learned Addl. Sessions Judge found that the said Niranjan Mohapatra had no involvement in the alleged crime, but only took part in cremating the dead-body of Namita, who was no other than his sister, for this, he was charge-sheeted under Secs. 201/34, IPC. Neither the investigating agency made any effort to make the accused Niranjan an approver or tendering pardon under Secs. 306, Cr.P.C. nor has he been examined in the Court during the trial of the case. The learned trial Court on evaluating the evidence on record which is primarily circumstan¬tial in nature found that the accused Ashok Mallik and Giridhari Parida have been implicated to be the perpetrators of the alleged crime of rape and murder of the deceased Namita. At the same time that is when direct evidence is available in the case on the statement of the accomplice, the prosecution ought to have uti¬lised the same in establishing the charge against the accused persons by making Niranjan an approver or tendering him pardon. The statement so recorded under Sec. 164, Cr.P.C. could not have been utilised nor could be utilised in order to establish the charge against the co-accused persons. Taking the above facts into account, the trial Court thought it proper before pronounc¬ing the judgment to take resort to Sec. 307, Cr.P.C. and accord¬ingly tendered pardon to the accomplice Niranjan Mohapatra, and thereafter proceeded to examine him as a Court witness under Sec. 311, Cr.P.C. The approver also accepted the pardon and expressed his willingness to give full disclosure of the incident which had taken place on the fateful night, and also allowed the defence to cross-examine him (approver) after his examination-in-chief. On the request of the defence counsel, the learned Addl. Sessions Judge, granted time till 27.10.1998 for cross-examination of the approver. Against the aforesaid order of learned Addl. Sessions Judge, the other accused persons filed this revision, inter alia, on the grounds stated below :

(i) The learned Addl. Sessions Judge has acted illegally in holding that he has jurisdiction to grant pardon to Niranjan Mohapatra though there is no prayer of Niranjan Mohapatra much less the Public Prosecutor in that regard.

(ii) The learned Addl. Sessions Judge has not considered the fact that Niranjan Mohapatra on the basis of the materials on record, cannot be considered as an accomplice so that Sub-section (2) of Secs. 307, Cr.P.C. would be pressed into service

(iii) The Addl. Sessions Judge acted illegally in granting pardon to Niranjan Mohapatra to be examined as a Court witness on the date to which the case was posted for hearing

(iv) The plea of the accused No.2 that he had been seriously prejudiced as the learned defence counsel had not given adequate opportunity to get prepared to defend the case.

3. The case of the prosecution, in short, is that, the deceased Namita Mohapatra was residing in her house with his brother, that is the Co-accused - Niranjan Mohapatra and her mother, Promodini Mohapatra. One of their rooms was given on rent to P.W.2, Dillip Kumar Pani. A feast was arranged in the house of the deceased Namita, and P.W.2 was invited to that feast. The petitioners and the co-accused Niranjan were also present in that feast. The present petitioners took liquor and at their instance co-accu