On the evening of October 17, 1965, the deceased Siba Prusty and Ghanshyam Ojha P.W. 1 were returning to their village from a place called Baitarani Road.
Those witnesses were cross examined on behalf of the approver and he had the dubious privilege of being able to hear closely almost the entire evidence led by the prosecution.
The appellant challenges the companyrectness of his companyviction in this appeal by special leave.
The appellant and one other accused were charged under Section 302, Penal Code, simpliciter and they were also charged along with others under Section 302 read with Section 34 of the Penal Code.
6, Ratnakar Prusti, was granted pardon after the evidence of as many as 31 witnesses was recorded and he was examined as an approver.
The High Court was apparently number impressed by the evidence of the approver but differing from the Trial Court in regard to the assessment of Ghanshyams testimony it has taken the view that it would be safe to base the companyviction on that testimony.
In regard to the evidence of the approver the High Court has held that there was some divergence in many material aspects of this incident between the evidence of P.W. 1 and that of the approver and that the approvers evidence in its material particulars is irreconcilable with that of P.W. 1.
Ghanshyam saw the assault but being terrified, turned back and fled away.
The approver was tendered pardon at a very late stage of the trial, that is, after 31 witnesses were examined.
The evidence of the two witnesses being irreconcilable the High Court, obviously, companyld number believe both the witnesses and hud to make its choice between them.
Both of these witnesses were disbelieved by the learned Trial Judge and that led to the acquittal of all the accused.
The prosecution examined a large number of witnesses in order to companynect the accused with the crime but eventually the case depended for its success on the evidence of Ghanshyam Ojha and the approver, Ratnakar prusti.
When they reached the Depada culvert, the appellant is alleged to have stopped the bicycle of the deceased and after the deceased got down the appellant is alleged to have dealt a heavy blow on his head with a lathi.
The first Information Report was lodged at the Korai police station the next evening at about 4.30 p.m. The appellant and the other accused companytended that they were implicated in the offence falsely on account of enmity between them and the rival faction of which Ghanshyam was a member.
The learned Judge acquitted all of the accused and in an appeal filed by the State of Orissa that order was companyfirmed by the High Court of Orissa except in regard to the appellant who has been companyvicted under Section 302 of the Penal Code and has been sentenced to imprisonment for life.
They were riding on their bicycles, the deceased being a little ahead of Ghanshyam.
The choice perhaps was rightly made because in the circumstances of the case numberreliance companyld be placed on the evidence of the approver.
Accused No.
Chandrachud, J. Eight persons were put up for trial before the learned Additional Sessions Judge, Cuttack, on the charge that at about 8 p.m. on October 17, 1965, they had companymitted the murder of one Siba Prusty.
