GIRIA ALIAS GIRIDHARI PARIDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision application is directed against the order dated 23 10 1993 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 offences punishable under sections 376(2)(g), 302/201 read with section 34, I. P. C. .

(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 section 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 deadbody of Namita, who was no other than his sister. For this, he was charge sheeted under sections 201/34, I.P.C. Neither the investigating agency made any effort to make the accused Niranjan an approver or tendering pardon under section 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 circumstantial 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 to when direct evidence is available in the case on the statement of the accomplice, the prosecution ought to have utilised the same in establishing thecharge against the accused persons by making Niranjan an approver or tendering him pardon. The statement so recorded under section 164, Cr; P. C, could not have been utilised nor could be utilised in order to establish the charge against the co aceused persons. Taking the above facts into account, the trial court thought it proper before pronouncing the judgment to take resort to section 307, Cr. P. C. and accordingly tendered pardon to the accomplice Niranjan Mohapatra thereafter proceeded to examine him as a court witness under section 311, Cr.P.C. The approver also accepted the pardon and expressed bis 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 :

(3.) IN course of the investigation of the case, the statement under section 164, Cr. P. C. of the co accused Niranjan Mohapatra was recorded. On perusal of the same, it transpired that the entire occurrence described vividly is nothing but a gruesome act of rape and murder,