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Babuli Alias Narayan Bahera v. State Of Orissa .
Factual and Procedural Background
On the evening of 17 October 1965, the deceased, Siba Prusty, and Ghanshyam Ojha (PW 1) were returning to their village from Baitarani Road on bicycles. Near the Depada culvert, the appellant allegedly stopped Siba, who dismounted, whereupon the appellant purportedly struck him a fatal blow on the head with a lathi. Ghanshyam, witnessing the incident, fled in fear. The first information report was lodged at Korai Police Station the following day at about 4:30 p.m.
Eight persons were charged with murder. The appellant and one co-accused faced a substantive charge under Section 302 of the Indian Penal Code (IPC) and, together with the others, a charge under Section 302 read with Section 34 IPC. After thirty-one prosecution witnesses had been examined, Accused 6 (Ratnakar Prusti) was tendered a pardon and became an approver.
The learned Additional Sessions Judge, Cuttack, acquitted all accused. In the State of Orissa’s appeal, the Orissa High Court affirmed the acquittals except for the appellant, whom it convicted under Section 302 IPC and sentenced to life imprisonment relying primarily on Ghanshyam’s testimony. The appellant obtained special leave to appeal to the Supreme Court of India.
Legal Issues Presented
- Whether the conviction of the appellant could be sustained solely on the testimony of a single eyewitness, Ghanshyam Ojha (PW 1), in light of alleged infirmities in that testimony.
- Whether the evidence of the approver, Ratnakar Prusti, tendered pardon late in the trial, was unreliable and incapable of corroborating the prosecution case.
- Whether the High Court erred in reversing the trial court’s acquittal by misapplying principles governing appreciation of evidence, particularly regarding delay in naming the assailant, possible enmity, and lighting conditions at the scene.
Arguments of the Parties
Appellant's Arguments
- The prosecution eyewitness, Ghanshyam, was unreliable: he failed to disclose the assailants’ names to numerous persons—including approximately 200 villagers—until nearly 20 hours after the incident.
- Ghanshyam’s earlier statement to Chakradhar Panda (PW 8) implicated the approver, not the appellant, indicating inconsistency and casting doubt on his credibility.
- The incident occurred in “rank darkness”; only a weak dynamo light on Ghanshyam’s bicycle was available, making identification of the assailant improbable.
- Existence of enmity between the eyewitness’s faction and the accused created a motive for false implication.
- The approver’s evidence was inherently suspect because pardon was tendered after thirty-one witnesses were examined, suggesting an attempt to fill gaps in the prosecution case.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court conducted an independent assessment of the evidence and concurred with the trial court that the approver was “an unworthy witness.” It noted the dubious timing of the pardon—granted after virtually the entire prosecution evidence had been heard—observing that this exposed the prosecution to criticism that the pardon was meant to “fill up the lacunae” in its case.
Turning to the sole eyewitness, the Court identified “serious infirmities”:
- Delay and silence: Ghanshyam did not name the appellant to Babaji (PW 2), to the gathering of villagers at the scene, or even to the police the next morning, undermining spontaneity and credibility.
- Prior inconsistent statement: According to PW 8, Ghanshyam previously attributed the fatal blow to the approver, not the appellant. The Court rejected the High Court’s view that this was merely an “error of inference.”
- Enmity: Contrary to the High Court’s assumption, evidence showed litigation and hostility between Ghanshyam’s faction and the appellant, negating the notion that absence of enmity validated the testimony.
- Poor visibility: The scene was engulfed in darkness; the deceased’s bicycle lacked a lamp and the only illumination was a weak dynamo light on Ghanshyam’s bicycle, rendering reliable identification doubtful.
Given these deficiencies, the Court held it unsafe to base a conviction exclusively on Ghanshyam’s evidence, especially when both lower courts had rejected the approver’s testimony.
Holding and Implications
APPEAL ALLOWED; CONVICTION AND SENTENCE SET ASIDE. The Court directed that the appellant be released forthwith.
Implications: The decision restores the trial court’s acquittal and underscores the Supreme Court’s insistence that a conviction for murder must rest on credible, cogent evidence. No broader legal precedent was articulated beyond the immediate assessment of witness reliability in this particular case.
Y.V 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 committed the murder of one Siba Prusty. The appellant and one other accused were charged under Section 302 of the Penal Code, simpliciter and they were also charged along with others under Section 302 read with Section 34 of the Penal Code. Accused 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 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 (PW 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 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. Ghanshyam saw the assault but being terrified, turned back and fled away. The first information report was lodged at the Korai police station the next evening at about 4.30 p.m
3. The appellant and the other accused contended that they were implicated in the offence falsely on account of enmity between them and the rival faction of which Ghanshyam was a member.
4. The prosecution examined a large number of witnesses in order to connect the accused with the crime but eventually the case depended for its success on the evidence of Ghanshyam Ojha and the approver, Ratnakar Prusti. Both of these witnesses were disbelieved by the learned trial Judge and that led to the acquittal of all the accused. The High Court was apparently not impressed by the evidence of the approver but differing from the trial court in regard to the assessment of Ghanshyam's testimony it has taken the view that it would be safe to base the conviction on that testimony.
5. 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 PW 1 and that of the approver” and that “the approver's evidence in its material particulars is irreconcilable with that of PW 1”. The evidence of the two witnesses being irreconcilable the High Court, obviously, could not believe both the witnesses and had 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. Thus the evidence of the approver has been concurrently discarded by the trial court and the High Court. That evidence need not therefore detain us, though we would like to add that we have examined it independently and have found the approver an unworthy witness. An interesting sidelight of the approver's evidence is that he put up the pretence that he was not aware that even if he honoured the terms of the pardon granted to him he could save himself from the prosecution. He also added that he did not understand the implications of a pardon and that he did not know whether the evidence which he was giving in the Court would be used against his erstwhile neighbours in the dock.
8. While criticising the tender of pardon to one of the co-accused almost at the end of the trial, the High Court observed: “If 31 witnesses for the prosecution have failed to prove the case to the hilt, the approver's evidence should not be allowed to tip the balance in its favour”. This is a very relevant consideration but then the trial court did not allow the approver's evidence to tilt the balance in favour of the prosecution. On the other hand, having rightly warned itself that the unworthy approver should not be allowed to tip the scales of justice, the High Court would seem to have fallen into that error. It did conclude that it was unsafe to place reliance on the testimony of the approver but it has also observed though in passing, that a part of the approver's evidence was corroborated by other evidence. In view of the basic infirmities attaching to the evidence of the approver, it was futile to seek to improve the statute of the approver by looking out for corroboration.
9. In accepting the evidence of the sole eyewitness Ghanshyam, the High Court has not given due importance to many an important circumstance. It has observed 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 (PW 12) and the deceased Siba Prusty were members of a faction against which the accused had commenced several litigations. He has further admitted that Kanhu had filed a prosecution against the appellant and his brother under Section 454 of the Penal Code, and that the prosecution was pending at the time of the present occurrence. The High Court is therefore in error in regarding the assumed absence of enmity between Ghanshyam and the appellant as a sure test of the truth of Ghanshyam's testimony.
10. One of the important, points in favour of the appellant was that Ghanshyam had not disclosed the name either of the appellant or of the other accused to any one of the scores of people whom he had met until the first information report was lodged about 20 hours after the occurrence. Ghanshyam met Babaji, PW 2, within minutes of the incident but told him not a word about the incident. Some time during the night he went back to the scene of offence where nearly 200 persons had gathered but he did not disclose the name of any of the accused to those persons. He went to the police station the next morning but beat a hasty retreat without giving information of the offence. But the most important point is that after meeting Babaji in a Math he went to a village called Palasa where he met Chakradhar Panda (PW 8). Chakradhar says in his evidence that Ghanshyam told him that the blow on the head of the deceased dealt immediately after the deceased got down from his bicycle was given by the approver Ratnakar. The High Court has 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 eyewitness 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 evidence of the eyewitness was that there was hardly any light at the place where Siba was murdered and therefore Ghanshyam could not have identified the assailants. Both the deceased and Ghanshyam were on their bicycles, the deceased being about 10 cubits ahead of Ghanshyam. The bicycle of the deceased had no light but that of Ghanshyam had a dynamo-light. Apart from that feeble light the scene of offence was engulfed in rank darkness. The High Court does not seem to have noticed this circumstance while evaluating the testimony of Ghanshyam.
12. These are serious infirmities which make it impossible to accept the testimony of the sole eyewitness. The appeal must therefore be allowed and the order of conviction and sentence set aside. The appellant shall be released forthwith.
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