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TMI Blog1991 (11) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... tric light in the Angan he identified Sahendy Dusadh and: Shyam Narayan Koiri. The dacoits gave him a lathi blow on his right hand upon which he fell down. Then again he was given two lathi blows. On getting blows he cried, then his son Chandradip, who was sleeping on the roof, woke up and peeped down and made enquiry, when one of the dacoits fired from his gun hitting the son Chandradip who fell down on the roof. Again second fire was shot. In the meantime the villagers came running and Jagarnath Singh, Mukhia of the village also fired upon the dacoits upon which one of the dacoits outside the house also fired. The dacoits began to run away. While fleeing the dacoits fired outside. Hari Narayan Singh, Rameshwar Singh, Jagarnath Singh and Rajendra Singh also got injured from the gunshot. They came to the spot on hearing hulla. The dacoits ran away. One of the dacoits snatched away the wrist watch of the son of informant, namely, Munshi Singh. From his room two boxes and articles were taken away. Also from the room of Indradeo Singh articles were taken away. In his room one of the lock of Almirah was broken and the dacoits took away articles from it also. After going of the dacoits, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dead body of Chandradip Singh. P.W. 9 Ashok Kumar Sharma, a Taid was proved the fard-beyan (Ext. 3) and the first information report (Ext. 4). Par am Hansh the investigating officer of this case has not been examined. 5. The learned trial Court after considering the entire material on the record has convicted and sentenced the appellants as said above. 6. Learned counsel for the appellant has urged that the order of conviction of the appellants is bad in law. The material witnesses gave not been examined to unfold the prosecution story. Even Mukhiya Jagranath Singh has not been examined. Both injured Jagranath Singh and Rajendra Singh have been withheld and only injured P.W. 2 Hari Narain Singh and P.W. 4 Raj Nath Singh being the son and grand son of the informant have been examined besides the informant himself. There is discrepancy in the statement of the witnesses about light, specially, in the statement of P.ws. 1, 2 and 4. It is difficult to understand as to how the neighbours would commit dacoity in the house without concealing their identity. On account of non-examination of the doctor prejudice has been caused to the appellants, specially the postmortem report cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He had gone out after the dacoits had gone out. It was dark night. He did not remember about galmuchha. The bulb was fixed in a stick and was burning even after going of the dacoits. None came on alarm on account of fear of the gun fire. He identified Rajendra and Shyam Narayan and also said about Lok Nath. He told the villagers to have identified the dacoits. 8. Besides this informant there are other witnesses, namely, Rameshwar Singh who is said to have been declared hostile. He has said that dacoity had taken place in the mid night. He woke up and went to the house of the informant. Dacoits fired hitting him in his left hand and so he fell down. There was no electric light and it was darkness and so he did not identify any one. He admitted that Ram Lagan Singh is Mausera Bhai. P.W. 2 is Harinarain Singh youngest son of the informant. He was sleeping at the time of occurrence at his boring. He woke up on hulla and then rushed towards his house and when he was at about 20 to 25 steps distance the dacoits fired and he was injured by the pellets in the abdomen, concealed himself behind the shade and he identified Loknath going with box and Shyam Narayan and Rajendra also going wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his grand father the informant and sent the informant in Angan where dacoits assaulted him. He went in the gali where he found dacoits. He went to Mukhia raising alarm and when he returned he found his uncle Chandradip dead. His grand-father was also injured. Dacoits had took away articles. He said that on his return he found that all the males and females of the family were asleep. Blood of Chandradip had fallen on the roof as well as in the Angan. He had gone in the light but none of the dacoits had seen or stopped or assaulted. When grand-father was being assaulted he was present there concealing himself. There was sufficient light. He ran away...while his grand-father was being assaulted. He was then student of Class VIII aged about 13 years. He went to the place of Mukhiya whose residence is at a distance 150 yards, but he did not say any one about the occurrence. While going and coming he was under fear of being assaulted by the dacoits. None of the family members went to the police-station in the night. ChaUkidar had not come to his house. All the accused belong to his village. He denied to have any enmity with the accused. He identified Surendra. He told the police that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lagan Singh with four injuries right hand, right wrist, right knee and left knee and according to him all injuries caused by fire and blunt substance. His injury report is Ext. 1/C. Besides this witness P.W. 7, is P.W. 8 Ramchandra Pandey Head clerk of the CM. Officer who said that Dr. Baleshwar Singh had died and the postmortem report is in his writing which he identified and it was marked Ext. 2. In cross-examination he said that he did not remember the date and month of the death of the doctor. He was in the office in the year 1976. He said that he has got no personal knowledge of the contents of the report and nor the same had been written before him. P.W. 9 Ashok Kumar Sharma is a Taid who said that fard-beyan is in the writing and signature of Suraj Narain Singh which he identified. It was marked as Ext. 3. The first information report is in the hand writing of Param Hans Singh. He could not say as to whether they are dead or not. Both the Exts. had not been written before him and he did not know about the contents of the aforesaid documents. 9. As to the contention of the learned counsel for the appellants that only relation witnesses have been examined and no outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .W. 6 and his brothers. As the occurrence had taken place near the house of P.W. 6, they must have necessarily witnessed the occurrence. It is not as if they were residing elsewhere and had come upon the scene of occurrence by chance. Such being the case, their evidence cannot be stigmatised as interested testimony. As regards the non-examination of other residents of the locality, we have no evidence that any of them was present at the time of occurrence and had witnessed the attack on the deceased. In the case of Anvaruddin v. Shakoor, AIR 1990 SC 1242 at page 1247: (1990 Cri LJ 1269 I at p. 1274) (para 11) Supreme Court observed :- In his substantive evidence before the Court P.W. 1 explained that others had collected at the scene of occurrence shortly after the incident and that is why he inferred that they had witnessed the incident. It must be remembered that the incident occurred in the house of Siraj which was bounded on all sides by a compound wall of the height of 4 to 5 feet. The prosecution case is that the assailants sealed the wall from the side of Fayaz's house and entered the open space where the deceased were working on the machine. Therefore, it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be easily brushed despite the carping criticism to which it has been subjected by the learned counsel for the appellants. His evidence received ample corroboration from the medical evidence and also from the circumstantial evidence. In the case of Ram Manorath v. State of Uttar Pradesh 1981 SCC (Cri) 581 again the Supreme Court observed that three out of the four eye-witnesses were indisputably injured during the course of the incident in question and that circumstance affords a strong guarantee of their presence at the scene of offence. Again in the case of Sevi v. State of Tamil Nadu, AIR 1981 SC 1230: (1981 Cri LJ 736) the Supreme Court observed in para 3 : ...All the eye-witnesses are partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. In the case of Maqsoodan v. State of U.P., AIR 1983 SC 126 : (1983 Cri LJ 218) the Supreme Court has observed at page 128 (of AIR) : (at p. 220 of Cri LJ) in para 6:- These four witnesses are the injured witnesses having received the injuries during the course of the incident. Their presence at the time and place of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case of Anvaruddin v. Shakoor (AIR 1990 SC 1242 : 1990 Cri LJ 1269) (supra) the Supreme Court has said in para 8 at page 1246 (of AIR): (at p. 1273 of Cri LJ):- It is well settled law that evidence of witnesses to the occurrence cannot be thrown overboard merely because they are interested and partisan witnesses. All that the law demands is that their evidence should be scrutinised with great care and caution to safeguard against the normal temptation to falsely implicate others. The trial Court had adopted that approach in evaluating the evidence of the eye-witnesses. On a critical examination of their evidence it concluded that their evidence stood corroborated by medical evidence. 11. Not only these two injured witnesses of the house, even hostile witness Rameshwar Singh, who is injured has also said that he reached the spot from his house and dacoits had fired and he was hit in his eyes and he fell down. The doctor had examined him and the injury report is Ext. 1/b. It is something different that he had been declared hostile as he said that he could not identify the dacoits in absence of light. But the fact remains that he also corroborates the commission of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had gone in the light but no dacoit had seen him. P.W. 5 has said in para 1 that he had identified the accused in the electric light who were armed with gun. In para 7 of the evidence he has said that the bulb was hanging one cubit above the roof and which was burning and that bulb was hanging in the Angan fixed in a wood stick. Further in para 9 he said that the aforesaid bulb was shown to the investigating officer. P.W. 6 further said in para 13 of the evidence that he was paying electric charge and the said paper was with him but not shown to the investigating officer. He did not remember the power of the bulb. Only one bulb was burning and that was burning on the roof at a height of 8 to 9 feet from the roof. It was fixed with a stick. Even after going away of the dacoits bulb was burning. Thus from these evidence, it appears that at the time of occurrence the bulb light was there, and in that light appellants had been identified. P.W. 4 has identified Sheo Nath Koeri, P.W. 2 had identified Lok Nath, Rajendra and Shyam Narayan. P.W. 5 also said that he had identified the appellants in the electric light. Not only the electric light but also the light of torches of the dacoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is essential to unfold the prosecution story. If during the course of committing an offence, somebody reaches there from outside and happens to see the occurrence, then his evidence may be of some consequence. But if a person, who was not at the time of occurrence but came when the occurrence was over or only chasing, was there of the culprits or to whom the occurrence has been given out by the inmates of the house and their relations, then his evidence may be of some importance. Such witness will also given out about the immediate version given to him or he had chased the accused persons and he might have identified running away persons on account of actually seeing them, but he is not material witnesses for the purpose of occurrence which has taken place inside the house. The Mukhiya, who is said to have fired from his house, has not been examined and so also Rajendra. One of the injured witnesses, namely, Rameshwar Singh has been examined who has been declared hostile because he resiled from his statement given to the police and has given out that he was not able to identify any one. For this reason the prosecution cannot be held guilty of withholding outsiders. A witness fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no doubt true that some persons who could have supported the eye-witnesses as independent witnesses have not been examined. But the reason is not far to seek. The appellants, if they could commit the ghastly crime for the type of enmity which they had with the family of Dhana Singh no independent person could dare come and depose against them. The High Court has rightly rejected this point.... Prosecution in the circumstances, was not expected to examine any other so called independent witness whom it thought not safe to examine as due to one reason or the other by giving hand with the accused did no longer remain independent. It was again observed in the case of Sarwan Singh v. State of Punjab AIR 1976 SC 2304 : (1976 Cri LJ 1757) the Supreme Court observed at page 2311 (of AIR): (at pp. 1765-66 of Cri LJ) in para 13 :- But it is not the law that omission to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well settled that the prosecution is bound to produce only such witness as are essential for unfolding the prosecution narrative. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Court, after due deliberation, refused to exercise its power under Section 540, Cr. P.C. That is one aspect of the matter which we have to take into account. In the case of Amar Singh v. State of Haryana AIR 1973 SC 2221 : (1973 Cri LJ 1409) the Supreme Court observed at page 2223 (of AIR): (at pp. 1410-11 of Cri LJ) in para 8 :- Counsel for the appellant contended that all the material witnesses examined in the case were either related to Thandu Ram or interested in him and disinterested neighbours who had seen the occurrence were not examined. There is no evidence that any person other than P.Ws. 3, 4 and 6 saw the occurrence. P.Ws. 3, 4 and 5 have been believed by the trial court as well as by the High Court. We see no force in the contention that because neighbours residing near the place of occurrence have not been examined therefore these witnesses should not have been believed. In the case of State of Assam v. Sofiuddin Sheikh 1981 Cri LJ 4 (Gauhati) it has been observed that non-examination of witnesses who gathered at the place of occurrence after hearing the hulla cannot affect the prosecution case. No doubt , examination of neighbours and persons who re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses to stay away from the witness box. Some succumbed to the threats and pressure while some others did not and displayed courage to give evidence and state the truth. In this backdrop, if the prosecution did not examine Jallaluddin, Ram Chandra Prasad and Bhikhari Mian on learning that they were won over it cannot be said that the prosecution was unfair to the accused persons. Mr. Garg submitted that there was nothing to show that the accused persons were in any way guilty of pressurising or threatening the witnesses. That is beside the point. What is relevant is the fact it so happened. Therefore, the non-examination of the aforesaid witnesses cannot affect the probative value of the evidence of other prosecution witnesses. 16. As regards the non-examination of the investigating officer learned counsel for the appellants has tried to impress upon the Court that prejudice has been caused to the appellants and so the case of the prosecution should be doubted. It has been argued that if the investigating officer would have been examined then he would have ascertained about the electric light by seeing the spot. Further we would also have given out as to how he got informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined not promptly but on the basis of the evidence of the informant and other a few witnesses, the weight of prosecution allegation levelled against the appellant Bhagwan Singh could not be dispelled. 30. Non-examination of the investigating officer will not make the place of occurrence vague and doubtful because the evidence of the witnesses are sufficient to fix the place of occurrence as unfolded by the prosecution. Moreover, in the facts and circumstances of the case, no exception or exoneration can be awarded to the appellant Bhagwan Singh or any justification for the use of the gun. 31. Absolutely, no contradiction has been pointed out and thus no case of prejudice has been made out in absence of examination of the investigating officer and, therefore, non-examination of the investigating officer cannot be said to have prejudiced the defence to the extent that the allegations directed against appellant Bhagwan Singh has to be rejected. In the case of Brahmdeo Hajra v. Harendra Prasad out of the witnesses named in the FIR some of the witnesses had not been examined and these examined had not supported the case of the prosecution and further there was material contrad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The problem has to be faced in case the investigating officer is dead or he retires from service and in the case of latter in spite of prolonged adjournments the evidence is not proceeded. 18. The Criminal Procedure Code has been making provisions for the production of the witnesses from time to time. In the old Code there was Section 353(2) providing that witness, in cases, started otherwise than on police report, could be summoned by the court on request being made by the prosecution. By the Amending Act XXVI of 1955, Section 251A was introduced in the Code of 1898 for the purpose of warrant cases. This was interpreted by the Courts to mean that it did not enjoin upon the magistrate to compel the attendance of any witness, unless applied for, and it was the duty of the Magistrate to take even coercive measures as provided under law in this behalf. Section 90 of 1898 Code (new Section 87 of 1973 Code) also provided for issue of warrants in lieu of or in addition to summons. Section 90(b) (old) is relevant in cases where summons has been issued and the witness does not appear. Section 90(b) runs thus :- 90. A Court may, in any case in which it is empowered by this Code to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resort to the provisions contained in Sections 242(2), 244(2) and 254(2) of the Code as the case may be. Resort can be had to provisions under Section 230 of the Code in suitable case for issue of process for compelling the attendance. Yet if the witness does not appear, the court can take resort to the provisions contained in Section 87 of the Code for issue of warrant in lieu of or in addition to summons; or even to the Section 250 of the 1973 Code, for punishment for non-appearance in obedience to summons, Section 350 runs thus: 350. (1) If any witness being summoned to appear before a criminal court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or departs from the place where he has to attend before the time at which it is lawful for him to depart, and the Court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such a witness should be tried summarily, the Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attendance of any witness unless it is applied for. In State of Orissa v. Sibcharan Singh a learned single Judge said at page 201 (Cri LJ) para 6: The courts are not therefore absolutely powerless when the parties fail to produce evidence relevant in the case. On the other hand the power of the court in this respect is very wide and the court may at any stage of the proceeding summon any witness in order to determine the truth or otherwise of the facts of a case under trial before him. In the present case when prosecution reported to the court that after all efforts made by it, the prosecution witnesses could not be traced out at Rourkela and wanted sometime on that score in order to make an attempt to trace the witnesses in their respective villages, and to summon them, the court should not have rejected that prayer. In fact, it was one of the duties of the court to enforce attendance of the witnesses even by coercive process. Merely because the prosecution could not produce the witnesses before the court, that by itself cannot be a ground to acquit the accused persons without making efforts to secure the presence of the material witnesses before the Court. In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf helpless in such a situation and should exercise its inherent powers under Section 540 of the Code to summon such witnesses as he thinks necessary for the ends of justice. If the prosecution by its negligence or otherwise fails to discharge its responsibility in producing witnesses, it is incumbent upon the courts to examine such witnesses as it considers necessary in the ends of justice . In the case of State v. Kali Ram Nand Lal a Division Bench considered the various views. It referred to the view that no duty is cast upon the Magistrate to summon the prosecution witnesses (as held in State of Gujarat v. Bava Bhadya 1962 (2) Cri LJ 537 (2), and State v. Ram Lal 1961 (2) Cri LJ 92. The Bench also referred to the other view that the court could issue even coercive process, if prayed for by the prosecution agency, as said in State of Bihar v. Polo Mistry (1964 (2) Cri LJ 175) (Patna) (supra) and Public Prosecutor v. Sambangi Mudaliar (1965 (1) Cri LJ 53) (Madras) (supra). Then the Bench said at page 87 (para 14) that it did not subscribe to the view that if the prosecution fails to produce the witness in a warrant trial or police report then the court is neither competent to sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Though it is true that the magistrate should not be in a hurry to close the prosecution evidence, yet at the same time the magistrate must be vigilant enough to see that the process of the Court is not abused by the prosecution obtaining unnecessary adjournment resulting in harassment of the accused. In the case of Babu Chand Prasad v. Rambabu Gope 1979 BBCJ (HC) 306 it has been held at page 308 (para 7): It is, no doubt, true that on the date fixed for hearing the prosecution has to produce all such evidence in support of its case, but the prosecution is also certainly entitled to seek the assistance of the court in securing the attendance of any witness or production of any document or other things. Even when this new Code was not in force, it was observed by a Bench of this Court in Md. Yasin v. The State (that where witnesses on being summoned did not turn up it was the bounden duty of a court to see that its orders were obeyed, and any one guilty of disobedience of the orders of the court should be proceeded against according to law. It was further observed that the courts were not powerless or helpless in this matter and a court should take action where there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to issue summons to the witnesses mentioned therein, it is the duty of the Court to issue summons to those witnesses and insist on their attendance. If the witnesses do not come to court in spite of the summons, it is open to the Court to issue a warrant and see that the witnesses appear before the Court. In the case of Muqtipada Mondal v. Abdul Jabbar 1973 Cr LJ 1246 at page 1248 (Cal) in paras 6 7 the learned single Judge has said that Section 251A of the Code casts no duty on the magistrate for the attendance of witnesses, but there is nothing in the Code to prevent him from issuing summons at the instance of the prosecution and if the magistrate issues summons to the witnesses, then he cannot dispense with their attendance simply because they fail to turn up in spite of repeated adjournments by the prosecution and so the magistrate could go to the whole length of exhausting process for securing their attendance and should not close the evidence of prosecution on account of their absence. In the case of State v. Mangilal Ram, a Division Bench of this Court observed that in a warrant case instituted on a police report it was the primary duty of the prosecution to produce th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded in Section 254(2) in summons cases in order to give the Magistrate the power to refuse to issue such summons if he thinks it proper to do so. The words if he thinks fit in Sub-section (2) of Section 254, further indicate that the Magistrate has to apply his mind when an application is made by the prosecution or the accused to issue such summons. Therefore, even in regard to warrant cases instituted on police report a duty is cast on the Magistrate to take all evidence that may be produced by the prosecution as well as a duty to facilitate the production of evidence by the prosecution, by issuing summons to witnesses on the application of the prosecution and likewise a duty has also been cast on the prosecution to produce all evidence in support of its case. Since both in Section 254(1) as well as in Section 242(3), the words 'as may be produced for us to examine the connection of the words' as may be produced. 11. In State of Orissa v. Sibcharan Singh, it has been observed as follows (Head-note):- 'The word 'produced' in Sub-section (7) of Section 251 (a) Cr. P.C, 1898 and analogous to Section 242(3) cannot be given any restricted meaning as to sadd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the case. Thus their Lordships referred to Sections 62, 63 64 of the new Code of 1973 dealing with the service of summons. They also referred to Section 69 of the new Code and observed at p. 265 AIR 1980 Mad 260) (FB) (para 13) as follows:- This provision is a new one incorporated in the Criminal Procedure Code of 1973 and was not in the old Criminal Procedure Code. This provision, in our experience, has not been resorted to by any Magistrate as far as we know. Of course, it is not practicable to adopt this procedure in every case, for it would result in heavy expenditure to the State. Nevertheless, where summons issued has not been served on the witness by a police officer under Section 62, repeatedly, the Magistrate may resort to this provision of issuing the summons and sending it by registered post to the witness. Of course, if after due service, the witness does not appear before the Court, the Court should issue coercive processes for securing the presence of the witness before the court. In suitable cases, or in cases of chronic or persistent failure to appear in response to the summons, a complaint can be laid under Section 174, I.P.C. Then again, the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summons to any witness to come and depose before the court or produce any document or anything in that regard. This is also in the case of warrant, in the sessions case or even the summons case under Sections 230, 242(2) or Section 254, Cr. P.C. when the summons are issued the witnesses are required to appear. But if the witness does not appear the court should give opportunities and reasonable opportunities to the prosecution to produce the witnesses, but it cannot go on giving repeated and unreasonable opportunities to the detriment of the accused and also at the cost of the accused who appears on every date faces the ordeal of the prosecution, and finds that for the one or lame excuses of the prosecution the case is adjourned. 22. The Courts have been holding that the power vested in the court under the provision of Section 311 of 1973 (old Section 530) should also be exercised by the court in suitable cases, when the court is of bona fide opinion that exercise of this power is for the just decision of the case. The Supreme Court in the case of Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 at page 181 : (1968 Cri LJ 231 at p. 234) (para 10) observed thus : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inclusive and speculative presentation of facts, the ends of justice would be defeated. A learned single Judge of this Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . and in case of his failure and there being no laches on the part of the prosecution and sufficient opportunities have already been given by the court, the court can resort to coercive measures provided under the Code for his attendance in court and can even resort to the provisions contained in Section 350 of the Code. 23-24. A Division Bench of this Court in the case of Sk. Rashid v. State of Bihar (1987 BBCJ (HC) 151 (supra) has said at page 155 (para 6) thus :- True, non-examination of investigating officer is not fatal to the prosecution. A Court has to see whether the evidence of the investigating officer is essential for the case of the prosecution to succeed or not. The Court has to see at the same time that the accused is not unnecessarily harassed and unless it sees that for inevitable reasons the prosecution fails to produce the investigating officer, it may pronounce the judgment without the evidence of the investigating officer. The Court, if it is satisfied that the evidence of the investigating officer is essential, must take coercive measures to compel his attendance as a witness. Difficulty however, which the Courts in Bihar face, is that even for executin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When they issue warrant, compliance thereof has to be reported by the police. Lamentations and even reprimand have failed to awaken the police administration of the State. Until now the administration of the State has not shown any awareness much less concern to ever deteriorating investigation and ever increasing default of its officers in providing necessary evidence to the Court. 9. The learned Sessions Judge, as already noted above has said that the investigating officer could not be examined in spite of all sincere effort. Does it mean that all that a Court of law is required to do is to issue process and if the prosecution is unable to secure attendance of essential witnesses, ignore it and proceed to deliver judgment. That in our opinion, shall be giving to the erring officer (investigating officer) encouragement to ignore process of the Court and decide either to connive with the prosecution or with the defence. This case by way of illustration can be cited as an example of the investigating officer, providing to the defence a weapon to defeat the process of law by just deciding not to depose as a witness. No reason can justify non-examination of an essential witness. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prosecution. But when the I.O. like any other witness cannot be easily available for his examination, the prosecution cannot be condemned. In this situation I would like to observe that it is unfortunate that the police administration in this State has proved to be a stumbling block in the disposal of criminal cases. The police of this State is probably interested in the case till the submission of the charge-sheet only. The trial is delayed for want of examination of the Investigating Officer whose attendance sometimes is difficult during the trial. It shows non-cooperation on the part of the police administration of the State. Justice suffers on this account, but in special circumstances absolute result could not be allowed to depend on the attitude of the police if truth cannot emerge from the evidence on the records. Sri Srivastava was in service until his superannuation on 27-12-1984 and was given extension of two years and thus until effective retirement being with effect from 27-12-1986. It cannot lie in the mouth of the State that Sri Srivastava could not be examined as a witness in the trial Court because he had no information. Informations, if any, including thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case diary has not been proved on the record and in the circumstance it has been rightly urged that serious prejudice has been caused to the appellant. In the case of Laxmi Narain Singh v. State of Bihar 1988 BLJ 235 : 1987 Pat LJR 804 in para 5 at page 327, observed :- ..It is only for the prosecution to produce and examine the I.O. we get from the judgment of the Court below that the I.O. of this case was dead and in that circumstance the prosecution should have fairly got the relevant part of the Diaries proved in evidence to avoid prejudice. In the case of P.C. Purushottama Reddiar v. S. Perumal, AIR 1972 SC 608, a case arising out of election petition, the Supreme Court has observed at page 613 (para 19). Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evident-as the Head Constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility. see Bhagat Ram v. Khetu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' has been used in Sub-section (1) of Section 296, Cr. P.C. with respect to the affidavit of persons whose evidence is of a formal character. The phrase 'used in evidence and read in evidence', in our opinion, have the same meaning, namely, read as substantive evidence. 9- It is open to the prosecution or the accused to dispute the genuineness of a document filed by the opposite party under Sub-section (1) of Section 294, Cr. P.C. In such a case the signatory of the document must be examined by the party filing the document to prove his signature and also the correctness of its contents and the evidence of the signatory will be the substantive evidence and the document may be used to corroborate or discredit his testimony. But where the genuineness of a document filed by the prosecution or the accused under Sub-section (1) of Section 294, Cr. P.C. is not disputed by the opposite party, Sub-section (3) of Section 294, Cr. P.C. is applicable and such a document may be read as substantive evidence. Section 294, Cr. P.C. is new section as it had no equivalent in the Code of Criminal Procedure, 1898. It is based on the rule of evidence that facts admitted need not be prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutor, not disputing the genuineness of the documents sought to be used against them. Such contemplated dispensation is not restricted to any class or category of documents as under Section 293, in which ordinarily authenticity is dependent more on the mechanical process involved than on the knowledge, observation or the skill of the author, rendering oral evidence just formal. Nor it is made dependent on the relative importance of the document or probative value thereof. The documents being primary or secondary or substantive or corroborative, is not relevant for attracting Section 294 of the Code. Not disputing its genuineness is the only solitary test therefor. In the case of Thakur Mahto v. State of Bihar 1991 BLJ 245, P.W. 7 brought on record the fard-beyan (Ext. 4 and F.I.R. 3), which he recognised to be in the writing of one Ram Dayal Singh for whom he could not say as to whether he was in service or not and further he did not have personal knowledge of the contents of these two exhibits nor any one had written before him. He also said on recall about the inquest report (Ext. 4) to have been prepared by Ram Dayal Singh. He further said about paragraph No. 17 of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances. In the case of Basant Singh v. State of Bihar (supra) it has been said at page 1410 (paras 26(d), 27 and 31) as follows :- 26(d) If investigating officer not examined, prejudice to the accused as claimed by the defence has to be considered and looked into and even after perusal of the diary, so permitted, the element of prejudice persists, benefit should be given to the accused of course depending upon the facts and circumstances of each case. 27. Of course, it is true, the Investigating Officer is an important witness, but cannot be substituted for an inevitable witness. If on account of certain compelling circumstances his attendance could not be procured, the extent of impact upon the prosecution case on account of absence of the Investigating Officer shall depend upon the facts and circumstances of each case. 31. Absolutely, no contradiction has been pointed out and thus no case of prejudice has been made out in absence of the examination of the Investigating Officer and, therefore, non-examination of the Investigating Officer cannot be said to have prejudiced the defence to the extent that the allegations directed against appellant Bhagwan Singh has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the prosecution so that on the basis whereof the prosecution may stand on its own leg. It is he who is to explain his each and every act and action at every stage of investigation. But it cannot be said that if the I.O. has not been examined, the case of the prosecution cannot proceed. Then the statement of the eye-witnesses and other evidence produced by the prosecution is trustworthy, reliable, then this lacuna cannot have any fatal effect. Non-examination of the investigating officer will not make the place of occurrence vague and doubtful if the evidence of the witnesses is such which fixes the place of occurrence. Similarly other matters which have been seen by the witnesses during the course of investigation and are being deposed by the eye-witnesses, the absence of the I.O. will not have any effect. Similarly if no contradiction is pointed out in the statement of the witnesses and the statement given by the witnesses leading to the investigation by the I.O., then also absence of I.O. will not have any effect. But if there is contradiction between the statement of the witnesses in court and one giving under Section 161, Cr. P.C. then it is essential to produce the I.O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the occurrence had not taken place in front of the house of the deceased and P.W. 1. The evidence of P.Ws. 2 and 3 could not, therefore, be rejected as unreliable as has been done by the learned Sessions Judge. We agree with the High Court that as the occurrence had taken place in front of the house of deceased. P.Ws. 2 and 3 who are members of the family of the deceased and P. W. 1 is natural witness who had come out of the house on hearing the alarm of the deceased who had received as many as 34 injuries. Similarly non-sending the blood-stained earth to the chemical examiner will not have any adverse effect if other evidence is reliable. In the case of Raghunandan v. State of U.P., AIR 1974 SC 463 at P. 468 : (1974 Cri LJ 453 at p. 458) (para 17), the Supreme Court has observed:- We think that a failure of the police to send the blood for chemical examination in a serious case of murder, such as the one before us, is to be deprecated. In such case, the place of occurrence is often disputed. In the instant case, it was actually disputed. However - such an omission need not jeopardise the success of the prosecution case where there is other reliable evidence to fix the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement of a witness recorded by an investigating officer under Section 161, Cr. P.C. is truthful. So the purpose of contradicting a witness who has deposed to certain facts in Court with his earlier police statement is primarily to shake his credit on the ground that he has made contradictory statements on two different occasions. Hence, the question whether the credit of a witness has been impeached successfully or not, depends on various factors including, of course, the contradictions, if any, which may appear in his deposition in court and his previous statement to the police. The Supreme Court has observed in the case of Tahsildar Singh v. State of U.P., AIR 1959 SC 1012 at P. 1026 : (1959 Cri LJ 1231 at P.I 244) that a statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose and it is for the trial Judge to decide in each case after considering the part or parts of the statement recorded by the police with that made in the witness box to give a ruling whether the recitals intended to be used for contradiction satisfied the requirements of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness before the police are also important. If these omissions are sought to be pointed out in the statements that will need the examination of the investigating officer to get it as omission or even contradiction. Usually statements before the police are brief and give out broad features and details are not given, which came later on in court when examined and cross-examined. If these details coming in court are vital and go to the root of the case by filling the lacuna, and deficiency, then such omission need not be ignored, but if they are minor and give out only details of the occurrence, then such omissions are not material. In the case of Matadin v. State of U.P., AIR 1979 SC 1234 at 1235 : (1979 Cri LJ 1027 at p. 1028) (para 3), the Supreme Court said:- ...The statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the court. Where the omissions are vital, they merit consideration but mere small omissions will not justify a finding by a court that the witnesses concerned are self-contained basis. In the case of Gurnam Kaur v. Bakshish Singh, AIR 1981 SC 631 : (1981 Cri LJ 34) the Supreme Court sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een shown or found to be material witnesses whose evidence was essential to unfold the prosecution story; nor any attempt for getting them examined had been made, as such their non-production, in face of other eye-witnesses whose evidence does not suffer from any vice, has no effect. When the witnesses have not been cross-examined nor even suggestions have been made to them in the court below then the claim of so-called prejudice on account of non-examination of I.O. is not tenable and is baseless. Prejudice can be claimed only when some factual background exists. There shall be demonstrable prejudice and not an imaginative and non-existent one. In spite of this the Court below should have taken all legally permissible steps under Sections 69 and 350 of the Code and even coercive steps for the appearance of the I.O. specially when the order sheet dated 17-1-1989 shows that I.O. was posted at Patna and in spite of sufficient opportunity he did not turn up in court. An investigating officer is a responsible arm of law. He is given an unfettered power of investigation to bring the facts before the Court for dispensing justice. Not only that even the public at large looks with confiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of post-mortem examination or examination of the injuries of an injured on touching the injuries is a corroborative one. It gives out, on touching the injuries, about the nature of the injuries caused, how caused and by which weapon, time of injuries and duration of injuries, cause of death and such other details, which help the Court in appreciating the ocular account of the occurrence or circumstances under which the injuries, fatal or otherwise, have been caused. Doctors observations are opinion of the expert in this branch on that subject. These reports help the investigating officer in the investigation about the cause of death, the nature of injuries, how they were caused, and who might have caused the same. The injury report and post-mortem report form part of the police papers and are produced before the Court by the police along with the report of investigation for or against an accused. The value of the report, whether post-mortem report/ injury report, is only corroborative and it only shows as to how the injury was caused. The accused can use the same to show that the injuries could not have been caused in the manner as alleged by the prosecution. The post-mortem repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performed the postmortem examination on a dead body for forming his opinion as to the case of death. If instead of orally deposing before the Court about the individual observations made by him, the medical officer states that the notes maintained correctly set out his observations and the notes are then tendered in evidence, no fault can be found with the admission of those notes on the record. We may hasten to observe that the notes of the post-mortem examination are of course not intended to be mechanically admitted on the record of the case. In any case when the medical officer is I examined before the court to establish the cause of death disclosed by a post-mortem examination he must be called upon to give evidence about the matter which have a bearing on the question to be decided by the Court and he must also be called upon to depose whether the record made by him in the notes of post-mortem examination is true and if the medical officer deposes to the truth of the record made by him, the record itself may be treated as evidence. Admission of the notes in evidence is but a convenient method of maintaining the record of the observations made and the opinion formed by the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P.W. 10), who happened to be the clerk of the Public Prosecutor. The medical officer performing post-mortem examination and who had written the Ext. 7 has not been examined. The report prepared by him may be admissible, but at the same time two conditions must be fulfilled for the same. The first being that the Medical Officer is not easily available. 'Easily not available will not mean that if a summon is issued and when the Medical Officer does not turn up for evidence. The term not easily available is synonym to the word quite not available . It may be illustrated that if the Medical Officer has gone abroad and there is no likelihood of attending the court within a reasonable time, it would be said that the Medical Officer is not easily available . Even if there is likelihood of return of the Doctor within a reasonable period without affecting the trial on the ground of delay, in my opinion, it will not satisfy the condition of 'not easily available' as there is every likelihood of his being available eliminating the condition of easily not available . In the instant case, it appears that only once a summon had been issued and thereafter the post-mortem report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owledge connected with the medical jurisprudence. Such document should not be brought in evidence mechanically only for the sake of empty formality, but if taken in evidence it should be meaningful and purposeful. Under the circumstances, in case of injury reports and post-mortem reports, the right person for substituting in place of the Doctor author would be a Doctor competent to reply the questions to be but on behalf of both the prosecution and the accused, or a witness having technical knowledge only can be said to be the competent person to even say about the writing of the Doctor who had written out such report for admitting it in evidence. 35. As seen earlier new Section 294 of the 1973 Code has tried to solve the problem of the non-appearance of the I.O. and doctor if ', the documents are admitted by the accused or prosecution as genuine. But in the case of Ramdeo Yadav v. State of Bihar a learned single Judge observed :- ... It is unfortunate that the doctor, who had examined their injuries, has not been examined in the case and their injury reports have been simply taken in evidence under Section 294 of the Code of Criminal Procedure. Apparently, these injury ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries said to have been sustained by them but, they are sufficient to establish the broad fact that they had sustained some injuries in course of dacoity. In the case of Behadaria v. State of M.P. 1979 Cri LJ (NOC) 19 (Madh Pra) a Division Bench has said that the P.M. report is the finding of an expert on the basis of which the opinion is given about the cause of death. Such opinion in evidence is admissible under Section 45 of the Evidence Act and it could not be disputed that an opinion cannot be admitted in evidence without the evidence of the expert. In a case though the genuineness of the P.M. report is not disputed by the doctor and the opinion as to the cause of death, nature of injury and effect of injury are matters which can only be admitted in evidence if the expert is examined in court as the mere certificate is not evidence. It cannot be doubted that Section 294 of the Code of Criminal Procedure does not in any way modify the law of evidence. In the case of Kudumula Pratap Reddy v. State of A.P. a Division Bench has said at page 1449 as follows: Sections 293 and 294, Cr. P.C. are obviously intended to slim the proceedings by dispensing with elaborate and someti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the accused could not be read as substantive evidence under Section 294, Cr. P.C. These two Division Bench decisions have been overruled by the two Full Bench decisions of Allahabad and Bombay High Courts in Saddiq v. State (supra) and Sheikh Farid Husainsab (1983 Cri LJ 487) (supra), in the case of Saddiq (supra) the Full Bench held at page 381 (para 10), at page 382 (para 11): 10. An injury report filed by the prosecution is obviously a document as defined in Section 29, I.P.C. Before the Code of Criminal Procedure, 1973 came into force an injury report could not be read in evidence as it was only a writing of the doctor made at the time of the examination of the injuries of the injured person. It contained his observations regarding the nature, dimension and location of the injuries and also his opinion regarding their duration and the instrument with which they were caused. The doctor who prepared the injury report was required to enter the witness box during the inquiry or trial to prove the injuries of the injured person. He could refresh his memory Under Section 159, Evidence Act by referring to the injury report prepared by him and the injury report was proved by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (3) of Section 294, Cr.P.C. The other Full Bench in Sheikh Farid Hussainsab (1983 Cri LJ 487) (Bombay) (supra) has said at page 489 (para 9) and 490 (para 13):- 9. Now the post-mortem report is also a document as any other document. Primary evidence of such a document is the report itself. It is a contemporaneous record, prepared in the prescribed form, of what the doctor has noticed in the course of post-mortem of the dead body, while investigating the cause of the death. It being relevant, it can be proved by producing the same. But production is only a step towards proof of it. It can be received in evidence only on the establishment of its authenticity by the mode of its proof as provided under Sections 67 to 71 of the Evidence Act. Section 294(1) of the Code enables the accused also, to waive the mode of proof, by admitting it or raising no dispute as to its genuineness when called upon to do so under Sub-section (1) Sub-section (3) enables the Court to read it in evidence without requiring the same to be proved in accordance with the Evidence Act. There is nothing in Section 294 to justify exclusion of it, from the purview of documents covered thereby. The mode o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tendered under any relevant provisions of the Chapter II of the Evidence Act and that the reasons are found to be sufficient, then the nature of the injuries can be looked into which the victim might have received. But in that event too the opinion about the cause of death cannot be relied on. In no event the postmortem report or the injury in the absence of doctor who examined the victim, can be treated as substantive evidence. In the case of Dhobi Yadav v. State of Bihar 1989 (2) Pat LJR 867 : (1989 Cri LJ NOC 193) again the learned single Judge considered this aspect and after referring to the several decisions (some of them already quoted earlier) has observed at page 879 (Para 32) :-- In the present case, as mentioned, above, the injury report has been brought on the record through the statement of P.W. 7. He is not the person before whom the post-mortem examination has been conducted or the notings have been done. He has simply brought the post-mortem, report on the records. The prosecution has not taken resort to the provisions of Section 294, Cr. P.C. Eye witnesses said that the victim received the injuries. C.W. 1 says that he had received an O.D. slip on 17-10-7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xhibited in court in evidence. It has been marked as Ext. 2. The case diary written by 1 the investigating officer has also been proved and marked as Ext. 3 and the inquest report has been marked as Ext. 4. These documents have been proved by P.W. 8 who is the clerk of an advocate practicing in the Court at Jahanabad. We refrain ourselves in making any comments as to how these documents were proved in evidence through an advocate clerk but we must state that such practice should be deprecated. 38. Recently the Supreme Court in the case of Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883 at page 1902) : (1989 Cri LJ 1 at p. 20) para 42 has observed:- In view of such clear evidence about the cause of death, the post-mortem examination loses all its suggestions. It becomes important only in cases where the cause of death is to be established and is a matter of controversy. Further observed at page 1964 (of AIR) : (at p. 81 of Cri LJ) (para 320):- It is not always necessary to have a complete post-mortem in every case. Section 174 of the Code confers discretion to the police officer not to send the body for post-mortem examination if there is no doubt as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r abdomen. On post-mortem examination:- (i) The left lung was poured (pierced) at many places by the pellete, chest cavity was full of blood, the heart and pericardium was also pierced by the pellets. Five pellets recovered from the heart and chest cavity. ii) The neck veins were too pierced by the pellets and clots were seen around the neck. iii) Five pellets recovered from the arm wounds. According to the opinion the cause of death in this case was due to shock and haemorrhage, caused by above mentioned injuries, and the death was within 24 hours caused by same firearm. The pellets found near glass nail, handed over to the constable. The standard about the distance has been given by Modi on the basis of standard weapons. There is nothing to show that any standard weapon has been used and so with an exactitude and precision difference cannot be said that in the sort of firing this particular result will follow. Direct evidence of shooting and medical evidence corroborating the same is there which establishes that the victim had been shot dead and so in these circumstances the variation in distance cannot have any adverse effect. There is not even suggestion to the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that though there were no infirmities of Khengar's evidence as it stood but in view of the fact that he was a young boy it would be prudent to seek corroboration of Khengar's evidence. Discussing the evidence of this young lad of 13 years we find that his evidence in cross-examination does not suffer from any infirmity or anything to show that he has been tutored. He is a natural evidence which has been corroborated by other circumstances and so there is no reason to discard his ) testimony as being an evidence of child. 42. Lastly, it was contended that appellant Rajendra Singh was a child, as the occurrence is said to have taken place on 13-10-1974. Under Section 313, Cr.P.C. on 30-8-1989 he has given out his age 30 years and so at the time of occurrence he was about 15 years old child. Learned counsel for the appellants has relied upon the decision reported inKrishna Bhagwan v. State of Bihar, in which a question arose as to what procedure should be followed where a child within the meaning of Children Act been tried and convicted by ordinary criminal court and the plea regarding bar of his trial by the ordinary criminal court was taken for the first time at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there is no question of holding any enquiry in respect of the accused being a child on the relevant date but, if the finding of the guilt recorded by the Court below is affirmed and this Court on the basis of materials on record is prima facie satisfied that the accused may be a child/ juvenile within the meaning of the relevant Act on the date of the commission of the offence, it should call for a finding from the Children's Court/Juvenile's Court in accordance with Section 32 of the Act. If the finding so received is accepted by this Court, then this Court in terms of Section 26 of the Juvenile Act should pass an order directing the Juvenile Court to pass orders in accordance with Sections 21 and 22 of the Act. Further the Full Bench has observed in para 17:- Now coming to the facts of the present case the appellant has been convicted under Section 302 read with other sections and has been sentenced to undergo rigorous imprisonment for life. In the statement under Section 313 as well as in the judgment, the age of the appellant has been mentioned as 25 years. According to the procedure, indicated above, the appeal has to be heard on merit first to determine the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect that the conviction be sustained and the accused be released on good conduct upon executing a bond to the satisfaction of the Sessions Judge, Jaunpur. 7. Having considered the gravity of the offence, we also direct that the accused shall pay a fine of Rs. 2000/- which shall be recovered and paid to the members of the deceased family. 43. Section 22 of Juvenile Justice Act, 1986 says that any delinquent child shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default furnishing security. In the instant case appellant-Rajendra Singh has given out his age as 30 years in 1989. The learned Sessions Judge has also mentioned his age as 30 years on 22-7-1989 in the judgment and the same has not been challenged anywhere by the prosecution or any one. In these circumstances, the age of this appellant at the time of occurrence may be accepted about 15 years. So treating this appellant as juvenile under Section 3 of the Act and exercising powers of Juvenile Court Under Section 7(3) of the Act, while maintaining the conviction of the appellant under Section 302, IPC I direct the appellant to be released on probation of good conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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