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64. At the same time, for the offence of conspiracy allegedly committed by A2 and A3 and the 2nd respondent herein, there can be a prosecution for offence under Section 120(B) r/w 302 of IPC. But, such prosecution against the 2nd respondent cannot be based on his statement made under Section 164 of Cr.P.C. in this case and his evidence as PW64 before the trial court in the present sessions case. If there are other materials collected during investigation by which the said conspiracy could be proved against him, there can be no legal impediment to prosecute the 2 nd respondent herein along with A2 and A3 for the said offence of conspiracy by filing a separate police report. After such prosecution, the prosecution will be at liberty to approach the court to tender pardon to the 2nd respondent under Section 306 of Cr.P.C. and then to examine him as a prosecution witness in order to prove the said conspiracy, if need be.”

49. Before we part with this case, we must also place on record that during the argument and in the written submission filed on behalf of the appellant, a point is sought to be made that PW64 could not have been examined as a witness without securing pardon under Section 306 Cr.PC.

50. In the application filed under Section 319 Cr.PC before the trial Court in this regard, it is stated as follows:

“The petitioner submits that if the prosecution wants him to be a witness, he should have been made as an Approver and tender of pardon proceedings should have been taken up.”

51. It is not very clear from the judgment under appeal as to what exactly was the submission made in support of the above mentioned plea, but the High Court recorded at para 20:

“………… If it is so held, then the 2nd respondent is liable to be tried along with the other accused in the present case, undoubtedly, the examination of the 2nd respondent/P.W.64 as a prosecution witness without there being an order of pardon is illegal. But, for any reason, if it is so held tha the 2 nd respondent/P.W.64 cannot be tried together with the rest of the accused in one and the same trial on the ground that these offences have not been committed in the course of the same transaction, then, there is nothing illegal in examining the 2nd respondent as a witness for the prosecution without pardon under Section 306 of Cr.P.C. In other words, suppose, the trial of A2 and A3 is conducted in respect of the offence of conspiracy, allegedly committed by them along with the 2nd respondent, in that trial, if the 2nd respondent is to be examined as a prosecution witness, certainly, pardon under Section 306 Cr.P.C. is mandatory and without such pardon, he cannot be examined as a prosecution witness. Thus, the crux of the issue involved in this case is whether the 2nd respondent could be tried together with the rest of the accused in the present trial.”

52. The High Court recorded the conclusion that the examination of PW64 as a prosecution witness without securing pardon under Section 306 Cr.PC is illegal if PW64 is a party to the conspiracy alongwith A2 and A3 without assigning any reason in support of such a conclusion.

53. The question whether prosecution could have examined somebody as a witness against whom there is some material indicating his participation in a crime fell for the consideration of this Court on two occasions in Laxmipat Choraria & Others v. State of Maharashtra, AIR 1968 SC 938 and A.R. Antulay v. R.S. Nayak & Another, (1988) 2 SCC 602.