TMI Blog1973 (11) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... sses was recorded and he was examined as an approver. The learned Judge acquitted all of the accused and in an appeal filed by the State of Orissa that order was confirmed by the High Court of Orissa except in regard to the appellant who has been convicted under Section 302 of the Penal Code and has been sentenced to imprisonment for life. The appellant challenges the correctness of his conviction in this appeal by special leave. 2. 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. They were riding on their bicycles, the deceased being a little ahead of Ghanshyam. When they reached the Depada culvert, the appellant is alleged to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, could not believe both the witnesses and hud to make its choice between them. The choice perhaps was rightly made because in the circumstances of the case no reliance could be placed on the evidence of the approver. 6. The approver was tendered pardon at a very late stage of the trial, that is, after 31 witnesses were examined. 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 High Court has observed with plausibility that the prosecution has laid itself open to the criticism that pardon was tendered to one of the accused at the fag end of the trial in an effort to fill up the lacunae in its case. 7. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roborated by other evidence. In view of the basic infirmities attaching to the evidence of the approver, it was futile to seek to improve the stature of the approver by looking out for corrobration. 9. In accepting the evidence of the sole eye-witness Ghanshyam, the High Court has not given due importance to many an important circumstance. It has obderved that if Ghanshyam wanted to implicate anyone falsely he would have rather implicated the other accused with whom he had direct enmity and not the appellant with whom there was no serious conflict of interest or enmity. This itself is a sure test of truth of his testimony . Ghanshyam has himself admitted in his evidence that he, Kanhu Charan Panda (P.W. 12) and the deceased Siba Prusty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s failed to appreciate the significance of this aspect of Ghanshyam's evidence. It says That does not affect his testimony as to what he saw at the time of assault . According to Chakradhar, Ghanshyam implicated the approver and some of the other accused but not the appellant. We are unable to appreciate as to how this does not affect Ghanshyam's testimony. It is difficult to agree that this was an error of inference committed by the eye-witness, as the High Court calls it. Witnesses are expected to depose to what they have seen and heard and not to draw inferences from what they see. The privilege of drawing inferences is given to courts not to witnesses. 11. One of the reasons given by the Sessions Court for rejecting the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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