Sunday, 22 October 2017

When non examination of investigating officer is fatal to prosecution case?

The effect of non examination of Investigating Officer has
been discussed in detail in the case of Lahu Kamlakar Patil v. State
of Maharashtra as reported in (2013) 6 SCC 417, under para-18
which is as follows:-
“18. It is an accepted principle that non-examination
of the Investigating Officer is not fatal to the prosecution
case. In Behari Prasad v. State of Bihar[(1996)2 SCC
317], this Court has stated that non-examination of the
Investigating Officer is not fatal to the prosecution case,
especially, when no prejudice is likely to be suffered by
the accused. In Bahadur Naik v. State of Bihar[(2000)9
SCC 153], it has been opined that when no material
contradictions have been brought out, then nonexamination
of the Investigating Officer as a witness for
the prosecution is of no consequence and under such 
circumstances, no prejudice is caused to the accused. It is
worthy to note that neither the trial judge nor the High
Court has delved into the issue of non-examination of the
Investigating Officer. On a perusal of the entire material
brought on record, we find that no explanation has been
offered. The present case is one where we are inclined to
think so especially when the informant has stated that the
signature was taken while he was in a drunken state, the
panch witness had turned hostile and some of the evidence
adduced in the court did not find place in the statement
recorded under Section 161 of the Code. Thus, this Court
in Arvind Singh v. State of Bihar[(2001)6 SCC 407],
Rattanlal v. State of Jammu and Kashmir[(2007)13 SCC
18] and Ravishwar Manjhi and others v. State of Jharkhand
[(2008)16 SCC 561], has explained certain circumstances
where the examination of Investigating Officer becomes
vital. We are disposed to think that the present case is
one where the Investigating Officer should have been
examined and his non-examination creates a lacuna in
the case of the prosecution.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.296 of 2015

 Deo Kumar Mehta, The State of Bihar

CORAM:  MR. JUSTICE ADITYA KUMAR TRIVEDI

Date: 10-03-2017

Appellant, Deo Kumar Mehta has been found guilty for
an offence punishable under Section 326 of the IPC and sentenced to
undergo RI for seven years as well as to pay a fine of Rs. 10,000/- and
in default thereof to undergo RI for one year additionally in Sessions
Trial No. 144/2008 arising out of Bhimpur PS Case No. 16/2007 vide
judgment of conviction dated 28.04.2015 and order of sentence dated
29.04.2015 passed by Additional Sessions Judge-1
st, Supaul.
2. Jagdeo Mehta (PW 5) filed a written report on
27.04.2007 alleging, inter alia, that in the preceding night while was
sleeping at his Verandah , at about 11:00 PM, one person threw acid
over his body, on account thereof, his chest, face began to burn. Then
thereafter, he raised alarm over which his wife, Manju Devi came
outside and identified the assailant to be Deo Kumar Mehta, his co-2
villager over which, he also identified. Previous animosity has been
shown to be the cause of occurrence. It has further been stated that
today on 27.07.2007, he has gone to Chhatapur Hospital where Doctor
has examined him and then, directed him to go to the police station.
3. On the basis of aforesaid written report, Bhimpur PS
Case No. 16/2007 was registered followed with investigation. After
concluding the investigation, charge-sheet was submitted facilitating
the trial which ultimately concluded in a manner, subject matter of the
instant appeal.
4. The defence case as is evident from the mode of crossexamination
as well as statement recorded under Section 313 Cr.P.C.
is of complete denial of the occurrence.
5. Further it has been suggested that Manju Devi, wife of
informant, happens to be of dubious character which was being
protested by the informant and on account thereof, she herself had
committed such an offence and then got the appellant involved and to
substantiate the same, eight DWs have been examined.
6. In order to substantiate its case, prosecution had
examined altogether 10 PWs out of whom, PW-1, Sita Devi, Bhaujai
of informant, PW-2, Manju Devi, informant, PW-3, Sarpat Mehta,
PW-4, Ramdeo Mehta, PW-5, Jagdeo Mehta, PW-6, Ramchandra
Mehta, PW-7, Upendra Mehta, PW-8, Ganesh Mehta, PW-9, Hiralal
Mandal and PW-10, Dr. Lalan Kumar Thakur. Side by side, also 3
exhibited, Ext-1, signature of informant over written report, Ext-
3(wrongly numbered), injury report issued by Dr. Lalan Kumar
Thakur (PW-10). Also exhibited, Material Ext-1, Chadar, Material
Ext-2, positive photograph of Jagdeo Mehta. As stated above, defence
had also examined eight DWs out of whom, DW-1, Upendra
Mukhiya, DW-2, Jairam Mandal, DW-3, Sheo Ram, DW-4, Sheo
Mukhiya, DW-5, Bachcho Mandal, DW-6, Jugal Kishore Mandal,
DW-7, Buchendra Mehta and DW-8, Balram Paswan. Nothing has
been exhibited on behalf of appellant.
7. Now coming to the status of the witnesses, PW-1 is
Bhaujai of informant, PW-2 is wife of informant, PW-4 is brother of
the informant and PW-5 is informant himself who have supported the
case of the prosecution while PWs, 3, 9 became hostile and PWs, 6 , 7
and 8 have been tendered. PW-10 is the doctor who examined the
injured.
8. From the injury report, it is evident that on 27.08.2007,
PW-10 had examined the informant, Jagdeo Mehta and found
following injuries over his person:-
1. Chemical burn on face, left side of neck, left
shoulder, some front part of chest caused by chemical liquid
(corrosive) as the chemical which happens to be sulphuric
acid and it caused discoloration of necrosis of the tissues,
scarring and contracture of the affected part. As the face and
neck is involved, therefore, injury has been identified as
grievous in nature.
Age of injury- within 12 hours. 4
9. From his deposition it is evident that this PW was not at
all cross-examined at the end of the appellant and on account thereof,
the finding having been recorded by the doctor, (PW 10) remained
intact.
10. From the written report, as is evident, the informant did
not claim identification at an initial stage till presence of his wife,
Manju Devi (PW 2). Then thereafter, informant asserted that he also
identified. Furthermore, there also happens to be absence of source of
identification. In the aforesaid background, now ocular evidence has
to be dealt with and for that first of all, evidence of PW-5 is taken up.
11. During examination-in-chief, PW-5 has stated that after
taking meal, he had gone to sleep. As he was about to sleep, Deo
Kumar Mehta sprinkled acid over his body and rushed away. He
raised alarm and then saw, Deo Kumar Mehta fleeing away therefrom
after pouring acid. He sustained burn injuries over his chest, neck and
face which he shown to the court. He had also stated that bed-sheet
was also burnt which he produced and marked as Material Ext-1. He
had further stated that on his cry, his wife Manju Devi came out
flashed torch and further identified Deo Kumar Mehta fleeing
therefrom after pouring acid. The motive of occurrence has been
shown as at the time of Mukhiya Election, a year ago, Deo Kumar
Mehta had misbehaved with his niece, Veena Kumari and during
course thereof, he was apprehended and assaulted by his brother. He 5
had further stated that written report was scribed by Dinesh Kumar
Mehta over which he put his signature, (Ext-1). He had further
exhibited positive photograph. During cross-examination, at para-8,
he had stated that soon after sprinkling of acid, he got up and found
Deo Kumar Mehta. In para-9, he had stated that at that very time, he
was in deep slumber. After sprinkling of acid, he got up. In para-10,
he had admitted inter se relationship.
12. PW-2, Manju Devi is his wife who had stated that on
the alleged date and time of occurrence, her husband was sleeping at
cattle shed while she was sleeping inside her house in a room. After
hearing alarm of her husband, she came out from her room and saw
Deo Kumar Mehta coming out after sprinkling acid over body of her
husband whom she identified. Then thereafter, he managed to escape.
She had gone near to her husband and found his face, chest and
shoulder burnt on account of acid. Bed as well as mosquito net was
also burnt. It has also been deposed that about a year ago, Deo Kumar
Mehta had misbehaved with the daughter of her Bhainsur and during
course thereof, her husband had caught hold of him. Being annoyed
therewith, Deo Kumar Mehta had committed this offence. During
cross-examination, at para-6, she had admitted inter se relationship.
Further, she had shown presence of different persons in between her
house as well as the house of Deo Kumar Mehta. At para-8, she had
further stated that she had got only one house. Cattle shed is outside 6
the house. Kitchen is adjacent to her room. House is fenced by
thatched wall. She had shown boundary of her house. North-Ganpat
Mehta, South-Laxman Mehta, East-Nathuni Sah and West-Open land.
In para-8, she had stated that her husband happens to be three
brothers. Remaining two brothers are elder to her husband, having
their houses adjacent to her house. In para-10, she had stated that her
husband slept after taking meal. She was also going to sleep. Her
house is not electrified but lamp was burning. In para-11, she had
stated that 10-15 villagers had assembled on an alarm raised by her
husband. In para-12, she had stated that when she came out from her
room, she found Ganpat Mehta, Sumat Mehta, Arun Mehta, Dinesh
Mehta, Siya Mehta, Rajesh Mehta, Laxman Mehta, Ramchandra
Mehta, Yogendra Mehta near her husband. She talked with her
husband and then took him to the place of doctor Ravindra along with
Ganpat, Shyam, Ramchandra, Devendra and Surpat. She had stated
that she returned back and then on the following morning, she had
gone to Govt. Hospital where her husband was treated. She had
further stated that police came.
13. PW-1 had stated that on the alleged date and time of
occurrence, she came out from her house after hearing alarm. She saw
her Devar, Jagdeo (informant) was sleeping at verandah where Deo
Kumar Mehta had sprinkled acid over his body as a result of which,
there was injury over his chest and face. On account of previous 7
enmity, occurrence was committed. During cross-examination, she at
para-4 had admitted inter se relationship with appellant. In para-6, she
had admitted that on account of misbehaviour having been done by
the accused with the daughter of her Bhainsur, parties were at strained
relationship. In para-13, she had stated that when she reached at the
place of occurrence, she saw Sheo Kumar Mehta, Yugal Mehta,
Ramchandra Mehta, Ravindra Mehta, Ramdeo Mehta, Banshidhar
Mehta, Ganpat Mehta. Then thereafter, Jagdeo was taken to the
hospital where doctor was not available and so, Jagdeo came back. At
para-15, she stated that Jagdeo was not in a fit condition whereupon,
she had not talked. In para-16, she had stated that first of all, injured
had taken bath with hot water and then injury was cleaned with petrol.
14. PW-4 had deposed that on the alleged date and time of
occurrence, while he was sleeping at his verandah, there was uproar
over which he ran along with torch. When he flashed torch, he found
Deo Kumar Mahto running from the house of Jagdeo Mehta. At that
very time, he was wearing black T-shirt and Lungi. Then he came
near his brother, Jagdeo Mehta and saw his face, chest burnt. Bedsheet
was also burnt. His belly was also burnt. Smoke was coming
out. Then thereafter, other persons came. Jagdeo was groaning. Then
they took Jagdeo to private doctor who was not available. Then
thereafter, the injury was washed with hot water and petrol. On the
following morning, Jagdeo was taken to hospital and then to PS. He 8
had further stated that at an earlier occasion, Deo Kumar had
misbehaved with his daughter for which he was apprehended and
assaulted. In para-4, he had admitted inter se relationship.
Furthermore, in para-11, he had stated that informant has
accompanied him. Informant had stated him as to what to depose but
not today. In para-12, he had stated that when he reached at the place
of occurrence, he found 20-25 persons. Then thereafter, other villagers
also came. They talked over in what manner treatment is to be
provided. On the following morning, they had taken the injured to the
hospital.
15. The evidences of remaining witnesses are not at all
relevant in the background of the fact that they had already been
tendered. Admittedly, the Investigating Officer has not been
examined. The effect of non examination of Investigating Officer has
been discussed in detail in the case of Lahu Kamlakar Patil v. State
of Maharashtra as reported in (2013) 6 SCC 417, under para-18
which is as follows:-
“18. It is an accepted principle that non-examination
of the Investigating Officer is not fatal to the prosecution
case. In Behari Prasad v. State of Bihar[(1996)2 SCC
317], this Court has stated that non-examination of the
Investigating Officer is not fatal to the prosecution case,
especially, when no prejudice is likely to be suffered by
the accused. In Bahadur Naik v. State of Bihar[(2000)9
SCC 153], it has been opined that when no material
contradictions have been brought out, then nonexamination
of the Investigating Officer as a witness for
the prosecution is of no consequence and under such 
circumstances, no prejudice is caused to the accused. It is
worthy to note that neither the trial judge nor the High
Court has delved into the issue of non-examination of the
Investigating Officer. On a perusal of the entire material
brought on record, we find that no explanation has been
offered. The present case is one where we are inclined to
think so especially when the informant has stated that the
signature was taken while he was in a drunken state, the
panch witness had turned hostile and some of the evidence
adduced in the court did not find place in the statement
recorded under Section 161 of the Code. Thus, this Court
in Arvind Singh v. State of Bihar[(2001)6 SCC 407],
Rattanlal v. State of Jammu and Kashmir[(2007)13 SCC
18] and Ravishwar Manjhi and others v. State of Jharkhand
[(2008)16 SCC 561], has explained certain circumstances
where the examination of Investigating Officer becomes
vital. We are disposed to think that the present case is
one where the Investigating Officer should have been
examined and his non-examination creates a lacuna in
the case of the prosecution.
16. Although, there happens to be some sort of lapses at the
end of appellant while cross-examining the informant, but from
perusal of the written report, it is evident that on all the relevant
points, where date is scribed by the use of whitener, the same has been
erased and further is found substituted by date ‘6’ as well as ‘7’. In
likewise manner, when the injury report, Ext-3 (wrongly mentioned)
has been gone through, the same has got over-writing. ‘7’ is found
scribed by way of over-writing. After perusal of the formal FIR as
well as written report, it is apparent that the same has been received
by the CJM on 30.07.2007. Certainly, on account of non examination
of the Investigating Officer, the aforesaid eventuality is found
unexplained and further, if taken together, in consonance with the 10
receipt of the FIR at CJM’s office on 30.07.2007, it may suggest, the
status of the present litigation in ante-dated manner.
17. Though there happens to be no controversy with regard
to status of the appellant, apart from being co-villager, is inter-related.
Therefore, even in absence of source of light, proper identification
would not be improbable one. It the aforesaid backdrop, it would
have been more acceptable for the prosecution to stick over initial
version, which, as is evident, been left out and substituted with
introducing theme of source of light for proper identification against
the appellant. However, after going through the evidence of PWs, it is
evident that PW-1, PW-2, PW-3 have not shown any kind of source of
light while PW-4 had stated that he rushed with torch, at the other
hand PW-5, informant had said that his wife had flashed torch. So,
none of the PWs had identified other to have torch in his/her hand and
on account thereof, the story of source of light became doubtful. In
likewise manner, there happens to be inconsistency over place of
occurrence, amongst the PW. As per evidence of PW-1, PW-4, PW-5
have identified verandah to be place of occurrence where informant,
PW-5 was sleeping while PW-2, his wife had stated that he was
sleeping at cattle shed. Therefore, on account of non examination of
I.O., the place of occurrence has also not been properly found
substantiated.
18. As held above, being a co-villager, known to each 11
other being relative, would not have required source of light to
facilitate identification, however, prosecution in order to affix as well
as to strengthen manner of identification, which as per initial version,
found shaky, introduced the same and on account thereof, its
authenticity is to be adjudged. None of PWs have stated that they have
seen the accused as well as identified in torch light, though PW-4 had
stated that he rushed with torch and on flash, he saw accused, while
PW-5, informant had deposed that in the torch light flashed by PW-2,
his wife, he saw the accused, which not at all corroborated. In remote
places, the villagers are accustomed to early bed and early rise, and on
account thereof, having PW-2 awaken upto 11 PM, that too having no
electric connection, also improbabilizes her version, moreover, is
found not supported with the evidence of PW-5, informant.
Therefore, non examination of the Investigating Officer has again
caused prejudice to the appellant who, in case, would have been
examined, must have deposed over the factum of production of source
of identification before him.
19. Apart from this, from the evidence of PW-1, PW-2, it
is evident that though claimed to arrive at the place of occurrence after
hearing cry of PW-5, informant which PW-5 raised after sustaining
injuries, but they posed themselves to be an eyewitness to occurrence.
PW-4 also imbrued himself on this very score. That being so, their
activities are found influenced with juggle. 12
20. From the evidence having adduced on behalf of
respective parties, it is evident that nature of the injuries not at all
been controverted. Even then, on account of persistence of infirmities
as indicated herein above, it looks unsafe to encircle the appellant to
be author of the injury. Enmity, as is evident, is persisting. Enmity
happens to be double edged sword. It may be motive for commission
of the occurrence, while it may be a cause for fake implication.
Furthermore, it is settled at rest that suspicion cannot substitute proof.
That being so, giving anxious consideration over materials having
available on the record, it is found that appellant, at least, is found
entitled for benefit of doubt, and on account thereof, the judgment of
conviction and order of sentence recorded by the learned lower court
is set aside. Appeal is allowed.
21. Appellant is under custody, hence, is directed to be
released forthwith, if not wanted in any other case.
 perwez
 (Aditya Kumar Trivedi, J)
AFR/NAFR AFR
CAV DATE 01.03.2017
Uploading Date10-03-2017
Transmission
Date
10-03-2017
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