Criminal Appeal No. 385 of 1989 (DB)

18th November, 1991.

Petitioner Counsel: Birendra Pd. Verma, M.S.K. Sinha, Pankaj Kumar, Murli Manohar Singh and Pramod Mishra, s
Respondent Counsel: Satya Narayan Prasad, A.P.P., .

Cases Cited:
1991 Cri LJ 1521,AIR 1991 SC 1346 [Para 22]
1991 Cri LJ 1283,1989 Pat LJR (HC) 507 (2),AIR 1989 Pat 217 (FB) [Para 42]
1991 BLJ 245 [Para 26]
1990 Cri LJ 1269,AIR 1990 SC 1242,1990 All LJ 281 [Para 9]
1990 Cri LJ 1601,AIR 1990 SC 1628 [Para 10]
1990 Cri LJ 1710,AIR 1990 SC 1709 [Para 28]
1990 Cri LJ 2604,AIR 1991 SC 31 [Para 10]
1990 Cri LJ 2650,AIR 1991 SC 43,1990 All LJ 780 [Para 29]
1990 Cri LJ 2671,AIR 1989 SC 1329,(1989) 3 SCC 1,1990 All LJ 65 [Para 42]
1989 Cri LJ 1,AIR 1988 SC 1883 [Para 42]
1989 Cri LJ 299,AIR 1988 SC 2249 [Para 38]
1989 Cri LJ 1466,1989 SCC (Cri) 490,AIR 1989 SC 1456 [Para 10]
1989 Cri LJ 2167,1990 SCC (Cri) 179,AIR 1989 SC 2004 [Para 12]
1989 Cri LJ NOC 193,1989 Pat LJR 867 (2) [Para 15]
1989 Pat LJR (HC) 259,(1989) 2 Crimes 89 [Para 9]
1989 Pat LJR 405 [Para 36]
AIR 1988 SC 1028,1988 All LJ 555 [Para 23,24]
1988 Cri LJ 981 (Gujarat) [Para 21]
1988 Cri LJ 1215 (Orissa) [Para 22]
1988 Cri LJ 508,1987 Pat LJR 1003 [Para 27]
1988 Cri LJ 734,1987 BBCJ (HC) 340 3 [Para 36]
1988 Cri LJ 1288,1988 BLJ 60 [Para 15]
1988 Cri LJ 1390,1987 Pat LJR (HC) 1166 [Para 29]
1988 Cri LJ 1431,1987 BBCJ 775 [Para 29]
1988 BLJ 235,1987 Pat LJR 804 25 [Para 37]
1987 BBCJ (HC) 151,1987 BLJR (HC) 335 [Para 16]
1986 Cri LJ 1732,AIR 1986 SC 1769 [Para 25]
1986 Cri LJ 1101 (Delhi) [Para 25]
1985 Cri LJ 902,AIR 1985 SC 880,1980 All LJ 241 [Para 23,24]
1985 Cri LJ 1446 (Andh-Pra) [Para 27]
1985 Cri LJ 1406 (Patna) [Para 35]
1985 BBCJ 322,1985 East Cri C 567 [Para 21]
1985 BBCJ 632,1985 Pat LJR 1019 [Para 23,24]
1984 Cri LJ 168,AIR 1984 SC 237 [Para 27]
1984 Cri LJ 559 (Cal) [Para 10]
1984 Cri LJ 217 (Gauhati) [Para 29]
1983 Cri LJ 218,AIR 1983 SC 126,1982 All LJ 1524 [Para 28]
1983 Cri LJ 1272,AIR 1983 SC 680 [Para 35]
1983 Cri LJ 487 (Bombay) (FB) [Para 16]
1982 Cri LJ 1000,AIR 1982 SC 685 [Para 17]
1981 Cri LJ 34,AIR 1981 SC 631 [Para 27]
1981 Cri LJ 736,AIR 1981 SC 1230 [Para 34]
1981 SCC (Cri) 581,1981 Cur LJ (Cri) 107 [Para 34]
1981 Cri LJ 379,AIR 1981 NOC 74 (All) (FB) [Para 37]
1981 Cri LJ 538 (Delhi) [Para 42]
1981 Cri LJ NOC 4 (Gauhati) [Para 33]
AIR 1980 SC 184,1980 All LJ 16 [Para 33]
1980 Cri LJ 853 (Bombay) [Para 10]
1980 Cri LJ NOC 155,AIR 1980 Mad 260 (FB) [Para 13]
1979 Cri LJ 700,AIR 1979 SC 1173 [Para 9]
1979 Cri LJ 1027,AIR 1979 SC 1234 [Para 26]
1979 Cri LJ 1031,AIR 1979 SC 1347 [Para 27]
1979 Cri LJ 236 (All) [Para 35]
1979 Cri LJ NOC 19 (Madh Pra) [Para 42]
1979 BBCJ (HC) 306,ILR (1978) 57 Pat 810 [Para 30]
1978 Cri LJ 484,AIR 1978 SC 414 [Para 10]
1977 Cri LJ 273,(1976) 4 SCC 158,AIR 1977 SC 472 [Para 10]
1976 Cri LJ 1736,AIR 1976 SC 2263 [Para 26]
1976 Cri LJ 1757,AIR 1976 SC 2304 [Para 35]
1976 Cri LJ 1835 (Andh Pra) [Para 33]
1975 Cri LJ 1218,AIR 1975 SC 1411 [Para 15]
1975 Cri LJ 1405,1975 BBCJ 317 [Para 9]
1974 Cri LJ 453,AIR 1974 SC 463 [Para 35]
1974 Cri LJ 221 (Patna) [Para 20]
1973 Cri LJ 1181,AIR 1973 SC 2195 [Para 28]
1973 Cri LJ 1409,AIR 1973 SC 2221 [Para 15]
1973 Cri LJ 1246 (Cal) [Para 20]
AIR 1972 SC 608 [Para 25]
1971 Cri LJ 927,AIR 1971 SC 1064 [Para 41]
1971 Cri LJ 226,AIR 1971 Mysore 60 [Para 20]
1968 Cri LJ 231,AIR 1968 SC 178 [Para 20]
1968 Cri LJ 369,AIR 1968 Punjab 87 [Para 22]
1967 Cri LJ 1369,AIR 1967 Raj 228 [Para 20]
1965 (1) Cri LJ 226,AIR 1965 SC 202 [Para 20]
1965 (1) Cri LJ 542,AIR 1965 AP 162 [Para 21]
1965 (1) Cri LJ 53,AIR 1965 Mad 31 [Para 15]
1965 (2) Cri LJ 48,AIR 1965 Mysore 167 [Para 20]
1964 (1) Cri LJ 727,AIR 1964 SC 900 [Para 20]
1964 (2) Cri LJ 472,AIR 1964 SC 1563 [Para 20]
1964 (2) Cri LJ 175,AIR 1964 Pat 351 [Para 29]
1962 (2) Cri LJ 537 (2) (Gujarat) [Para 29]
1962 (2) Cri LJ 200,AIR 1962 Ori 157 [Para 20]
1961 (2) Cri LJ 92 (Kerala) [Para 20]
1960 Cri LJ 1327,AIR 1960 Bom 461 [Para 20]
1960 Cri LJ 463,AIR 1960 Cal 263 [Para 21]
1959 Cri LJ 1231,AIR 1959 SC 1012 [Para 20]
1956 Cri LJ 904,AIR 1956 Mysore 51 [Para 33]
1954 Cri LJ 123,AIR 1954 Mad 169 [Para 20]
1954 Cri LJ 1437,AIR 1954 Pat 437 [Para 29]
AIR 1929 PC 110 [Para 16]
(1923) 24 Cri LJ 91,AIR 1922 Patna 582 [Para 22]
(1900) ILR 27 Cal 295,4 Cal WN 129 [Para 20]
(1883) ILR 9 Cal 455,11 Cal LR 569 [Para 25]

JUDGMENT

S. H. S. ABIDI, J. :-Appellant Shyam Narayan Singh, Lok Nath Singh and Rajendra Singh have been convicted under Section 396 of the Indian Penal Code and sentenced to rigorous imprisonment for life each.

2. The case of the prosecution appears to be that in the night between 13/14th October, 1974 at about 1 a.m. when the informant Ram Lagan Singh (P.W. 6) was sleeping in southeast facing room of his house having a western door, then P.W. 4 Raj Nath Singh (grandson) came and said to him that the dacoits had come in and he was sleeping. He got up and went into his Angan and saw about 10 or 12 dacoits there and the dacoits were taking out articles from the rooms and they were lightening their torches. In the torchlight as well as in the electric 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, Jagranath Singh, Rameshwar Singh, Guput Singh, Cibil Barahi Radhey Shyam Singh and others collected and then the informant gave out about the occurrence and identification. His son Sheopujan Singh, who at that time was inside the room, identified through window Shyam Narayan Koiri taking away the goods and identified appellant Rajendra Singh also. Dacoits also went upon the roof and disconnected the line on account of which light got off. After dacoity when he was going to inform the police by telephone, then Raj Nath Singh informed him that the victim had died and then he came back.

The officer-in-charge Param Hansh Singh (not examined) came to the spot the same

night and recorded the fard-beyan (Ext. 3) on. 14-10-74 at 4 a.m. in which the details of articles looted have been given. On the basis of the said fard-beyan the first information report (Ext. 4) was instituted on the same day at 6 a.m. at Dehri Police-station against the named accused. The investigation started. The dead body was sent for post-mortem examination which was done by Dr. Baleshwar Singh (since deceased) who submitted post-mortem report (Ext. 2) which has been proved by P.W. 8 Ram Chandra Pandey. The injuries of injured Rameshwar Singh, Hari Narain Singh, Ram Lagan Singh (P.Ws. 1, 2, and 6) and Rajendra Singh (not examined) were examined by Dr. Rameshwar Singh (P.W. 7). After completing investigation charge-sheet was submitted against the appellants.

3. The accused, in defence, denied the prosecution case and said that they have been falsely implicated in this case. No witness, in defence, however, has been examined.

4. The prosecution in support of its case produced nine witnesses, Rameshwar Singh (P.W. 1) though reached the spot and got injured, has been declared hostile. P.W. 2 Harinarain Singh younger son of the informant and one of the injured deposed as eye witness. P.W. 3 Sheopujan Singh the eldest son of the informant has been tendered. Raj Nath Singh (P.W. 4) grand son of the informant and P.W. 5 Indradeo Singh another son of the informant and also Ram Lagan Singh the informant have deposed as eye witnesses. P.W. 7 is Dr. Rameshwar Singh, who had medically examined the injured P.Ws. 1, 2 and 6 and one Rajendra Singh. P.W. 8 Ram Chandra Pandey Head clerk has proved the post-mortem report (Ext. 2) submitted by Baleshwar Singh (since deceased) after the examination of the 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). Param 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 cannot be relied on. The investigating officer has also not been examined and so prejudice has been caused to the appellants on account of his non-examination. Appellant Rajendra Singh was a minor at the time of occurrence and so he should not have been tried along with the other appellants and should have not been given life sentence. To appreciate the contentions the evidence on the record will have to be scrutinised with care and caution.

7. P.W. 6 is the informant Ram Lagan Singh who has said that 13-14 years back at about 1 a.m. he was sleeping in the Angan of his house, he was assaulted. He woke up on account of assault. He saw 10-12 dacoits. Some of the dacoits were assaulting him and some were taking away the articles. Out of the dacoits, he identified Rajendra Singh, Lok Nath Singh, Shyam Narayana Singh and Sahendy Dusadh. In the Angan electric bulb was on and in its light he identified them. His son Chandradip was sleeping on the roof who woke up and said it was not going well. Lok Nath ordered to kill. Rajendra fired from the gun. Chandradip was hit by gun fire and he fell down. Gun was fired from the house of Mukhiya, Dacoits ran away. He came out and raised alarm. Dacoits took away all goods, clothes, ornaments etc. He went to Chandradip and found him dead. The Investigating

Officer came to his place to whom he gave his statement. He gave his thumb impression or not, he did not remember. Witnesses Hari Barahi, Ram Kamlesh Singh and Dhori Dusadh do not want to give evidence on account of fear. In cross-examination he said that earlier than the occurrence he had not filed any case against Sadhu and Sitaram in survey proceedings. He deposed about relationships. Sadhu has got sons, namely, Lok Nath Singh (appellant No. 2), Ram Bilash whose son is Rajendra Singh (appellant No. 3). He showed his injuries to the investigating officer and went to the hospital. His statement was recorded at his house and the investigating officer sent the dead body of his son. First he was assaulted and then his son was assaulted. Some of the dacoits had galmuchha and some did not. He was assaulted by lathis and on receiving nine lathis he fell down and he was treated in Dehiroonsone Hospital. The occurrence is of night and none of the family members had gone to police-station. But the investigating officer came at about 4 a.m. He used to pay charges of the electricity. 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 with guns and boxes. Lok Nath and Rajendra are of his village while Shyam Narayan has got his Sasural in Sadhu Singh's house. There was light in the house of Sheolagan and he identified the accused. After going of the dacoits when he went to his house he found his elder brother dead and his father told him about the dacoity. He was treated by Dr. Rameshwar Singh (P.W. 7). In cross-examination he said that Rajendra Singh's brother is Ras Bihari who had filed mar-pit case against him, Jagranath Singh, Up-Mukhiya, Ram Sigasan and Ramasis, in which he was convicted. Rajendra Singh had appeared as witness in that case. He did not know of any case under Ss. 107 and 144 Cr. P.C. with the accused. There was no electricity in the house at the time of occurrence. Sheolagan Yadav is the Chaukidar of the village, who came on the next day. The name of the accused was not given to him. Rajendra Singh was about 26-27 years old and he was also student of matric and he passed matric in the year 1974 and also appellant Rajendra was student with him in the school. He reached Dehri Hospital about 10 a.m. Rameshwar Singh (P.W. 1) had also gone to the hospital where they were not examined. At about 3 p.m. he reached home. They have not gone to the police-station. His house is about 12 feet high. Sheolagan's house is about 10 yards away. On the railing of the house of Sheolagan, electric bulb was burning. He was about 10-15 yards away west from the electric light and the electric light did not fall on him. He concealed in the shade of hutment. He denied the suggestion that he did not say to the police that he had seen the dacoits in the electric light after concealing himself in the shade. The dacoits were running away through the parti land and he saw the dacoits from 30-40 yards. Dacoits had not concealed their faces. P.W. 3 is Sheolagan the eldest son of the informant and father of P.W. 4, has been tendered but he was cross-examined. He admitted that a case under Sections 107 and 144 Cr. P.C. from before the

occurrence was with the accused P.W. 4 Raj Nath Singh is son of P.W. 3 and grand-son of P.W. 6 the informant who has said that in the night of occurrence when he was returning after seeing Ramlila from Bhusaula at about 1 a.m. he saw 8 to 10 dacoits. The electric light was burning and he identified Lok Nath and Rajendra armed with gun in Angan. He went to awake 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 when he reached then Rajendra had killed his uncle Chandradip by firing.

P.W. 5 Indradeo Singh is son of the informant. He also says that in the sight of occurrence he was sleeping at the roof with Chandradip. He heard alarm that accused were assaulting. He saw the appellants 1, 2 and 3 and Sahendy Ram in the electric light. Dacoits had guns and when he and Chandradip peeped in the Angan one of the dacoits fired and Chandradip got injured and fell down. Again Rajendra Singh fired whereupon he died. Dacoits began running away. Mukhiya has also fired from his gun. Dacoits ran towards west and the villagers chased them. No family member sent to the police-station. He gave statement to the police. Besides the appellants, there were several others. The wives of four brothers were there in the night of the occurrence. His wife was not there at that time. All were sleeping in the house. There was electric bulb about a feet high from the roof hanging by a stick. The body of Chandradip was adjacent north to the bulb. In the first floor he was injured is his chest. There were four firings in the Angan. He got afraid on the first firing. Blood spots were found in the angan which were shown to the investigating officer, besides the spots of blood on the roof. He identified the dacoits in the angan in the light. While the dacoity was going on, none of the villagers came and he came down. Dacoits were going away flashing torches outside. When he got down he could not say as to who had come and he could not given out the names of those. He did not say as to whether he had been during this time. The investigating officer came to the spot at 7 am.

Besides the eye-witness account of P.Ws. 1 to 6, is the evidence of Dr. Asis Singh (P.W. 7) who was said that on 14-10-74 at about 11.30 a.m. he examined Rajendra Singh with one injury, with blackening and scorching of skin small bail head about 16" in diameter x 1/4 on the back of right side. Injury was caused by fire arm. Injury report is Ext. 1. He also examined Hari Harain Singh at 11-45 a.m. and found small blackened skin 1/6" diameter in the abdomen wall, caused by fire arm, being simple in nature. The report is Ext. 1/1. Again he examined Rameshwar Singh at 11.48 a.m. who had one swelling 1/4" in upper eyelid and by fire arm, being simple in nature. Pellete was excised out from the swelling. At 3.20 p.m. he examined Ram 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 C. M. 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 outsider had been examined, the fact remains that P.Ws. 2, 3, 4, 5 and 6 are the members of the family in whose house the dacoity has been committed. In the dead night when the dacoity is committed the members of the family are most natural and probable witnesses. They are not chance witnesses. They are bound to be present on the spot and they can see the occurrence. As the neighbours cannot be expected to be present at dead of night or odd hours so family members are.....host witnesses. For that reason they cannot be said to be interested or they cannot be discharged. In the case of State of U.P. v. Hakim Singh, AIR 1980 SC 184 their Lordships observed at page 184 :-

"One of the general grounds on which evidence of these two witnesses was rejected by the High Court was that these witnesses were partisan or interested witnesses. Being near relations and living practically in the same house, these witnesses cannot be said to be interested witnesses, but are very natural witnesses as held by this Court in the case of Mst. Dalbir Kaur v. State of Punjab, (1976) 4 SCC 158 : (1977 Cri LJ 273). Moreover, as the murder took place near about midnight inside the house we could not have expected witnesses from outside to see the occurrence."

In the case of Rana Pratap v. State of Rajasthan, AIR 1983 SC 680 : (1983 Cri LJ 1272) the Supreme Court while dealing with the chance witnesses observed at page 683 (of AIR) : (at p. 1274 of Cri LJ) in para 3 :-

"Murders are not committed with the previous notices to the witnesses, soliciting their presence. If murders committed in a dweeling house the inmates of the house are natural witnesses."

In the case of Pattad Amarappa v. State of Karnataka, 1990 SCC (Cri) 179 : 1989 Suppl (2) SCC 389 : (1989 Cri LJ 2167) the Supreme Court observed at page 189 in para 26 :-

"The further argument of Mr. Javali was that the prosecution had chosen to examine only the close relations of the deceased, viz. P.W. 1 to 5, and not any of the neighbours or independent witnesses, to speak about the attack on D-1 to D-4, and therefore, on this ground alone, the prosecution case should be rejected. It is true that P.Ws. 1 to 5 are closely related to D-1 to D-3 and that no one residing near P.W. 6's house had been examined in the case. It must, however, be noticed that P.Ws. 1 to 5 are natural witnesses and not chance witnesses. They were all residing with P.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 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 possible that the neighbours would have collected immediately the assault was launched. It may be possible that the neighbours may have collected sometime after hearing the gun shots. The incident could not have lasted for long and, therefore, the explanation given by P.W. 1 in this behalf cannot be said to be false. Non-examination of Anvaruddin, also a family member, cannot make any difference. In these circumstances we think that the High Court was not right in concluding from this solitary statement in the FIR that the prosecution was guilty of keeping back independent witnesses. It must also be remembered that accused Shakoor was a village headman since almost a decade and wielded considerable influence. Having regard to the manner in which he and his companions had done to death both the deceased, it is difficult to expect residents of that village to come forward to depose against him."

To expect others at the dead of night to come and see the actual occurrence is something difficult, though not impossible, as on account of alarm being raised or getting information some neighbours or villagers may come. In this case, the neighbours and villagers came after the occurrence and took part in chase also. Their non-examination cannot be said to be the purposely withholding of the witnesses, specially when the appellants are residents of the same village and had perpetrated such ghastly crime and so, as said by informant (P.W. 6) the witnesses Hari Barhi, Ram Kamlesh Singh and Dhori Dusadh were not prepared to give evidence on account of fear. For these reasons all inmates of the house are most natural and probable witnesses.

10. P.Ws. 2 and 6 Hari Narain and Ram Legan are injured. Their presence on the post on account of injuries cannot be doubted. Their injuries guarantee that they had been there and they could have opportunity to see the occurrence. It is something different that their version is to be believed or not. These injured witnesses have said about the occurrence. In the case of Vishvas Aba Kurane v. State of Maharashtra, AIR 1978 SC 414 : (1978 Cri LJ 484) the Supreme Court has observed at page 417 (of AIR) : (at p. 488 of Cri LJ) in para 6 :-

"........The evidence of Shankar (P.W. 2), the injuries found on person by Dr. B. T. Akkole lend assurance to his presence at the time and place of occurrence has, in our opinion, a ring of truth and cannot 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 indesputably 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 the occurrence cannot be doubted; in fact it has not been challenged by the defence."

In the case of U. P. v. Brahma Das, AIR 1986 SC 1769 : (1986 Cri LJ 1732) the Supreme Court has observed at page 1772 (of AIR) : (at p. 1735) in para 5 :-

"............ The most important evidence is that of P.W. 14 Jokhal Das whose presence at the scene of occurrence cannot be doubted in view of the fact that he has sustained grievous injuries in the course of this very transaction. The incident occurred in day light at about 5 p.m. and since his presence cannot be disputed and he himself has sustained injuries in the course of the very transaction, it stands to reason to hold that he had witnessed the incident. There is no reason why he should exculpate the real accused and implicate Brahma Das and others."

In the case of Gurnek Singh v. State of Punjab, AIR 1988 SC 2249 : (1989 Cri LJ 299) the Supreme Court observed at page 2251 (of AIR) : (at p. 301, of Cri LJ) para 5 :

"The presence of these three witnesses at the time of occurrence is beyond question having regard to the fact that all the three of them have sustained injuries by pellets on account of the gun shots fired at them in the course of the very same transaction at the very time and place of occurrence. The fact that they are related to the deceased victim does not detract from the value of their evidence having regard to the fact that their presence at the scene of offence is natural and their presence near the deceased has been established beyond a shadow of doubt by reason of the fact that they themselves have sustained injuries attributable to fire-arms at the same time and on the same spot. We have, therefore no hesitation in upholding the finding recorded by the trial court as confirmed by the High Court that the evidence of these three witnesses as regards their presence is reliable."

In the case of U. P. v. Moti Ram, AIR 1990 SC 1709 : (1990 Cri LJ 1710) the Supreme Court has observed at page 1717 (of AIR) : (at pp. 1718-1719 of Cri LJ) in para 32 :-

"The very fact that these two witnesses have sustained certain guns shot wounds probabilises the presence of these two witnesses at or about the time of occurrence at the scene. Therefore, their evidence might command acceptance provided their evidence inspires confidence in the minds of the Court and that the said evidence is free from any infirmity."

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 dacoity at the relevant time.

Besides, the statements of P.Ws. 1 to 6 about the occurrence in the night there was prompt recording of the fard-beyan (Ext. 3) at 10 a.m. on the spot by Suraj Narain Singh which had been brought on the record by P.W. 9 and then the first information report being registered at 6 a.m. on 14-10-1974 being Ext. 4 brought on record by P.W. 9. The occurrence and the manner of occurrence has been given out and the dacoity has been even challenged by the defence. So factum of dacoity has been well proved by this evidence.

12. As regards the participation of the

appellants in the offence, the opportunity of seeing the accused is a most important factor. If there is no light on the spot then identification becomes difficult. If the existence of light is established then it has to be seen as to whether there was sufficient light and sufficient opportunity for the witnesses to see the occurrence. In the case of Gurnek Singh (AIR 1988 SC 2249 : 1989 Cri LJ 299) (supra) their Lordships observed at page 2251 (of AIR) : at p. 301 of Cri LJ) in para 5 :-

"It is, no doubt, true that the fact that they were present does not mean that they had identified the assailants. The evidence of these witness reveals that there was electric lamp nearly and there was sufficient light to enable the witnesses to identify the assailants."

13. As regards the presence of light, learned counsel for the appellants has pointed out that there was no light on the spot. In the fard-beyan it has been said that the dacoits were identified in the torch light which they were flashing and also in the electric bulb burning in the Angan. P.W. 1 has said that near the house of Lallan Singh light was not burning and so he was declared hostile. He said that he had not said before the police that he had identified the accused in the burning light. P.W. 2 has said in para 5 of his evidence that at the time of occurrence in his house electric wire was not fitted. In paragraph 12 of the evidence he said that it was not correct that he had not given statement before the police that in the house of Sheolagan electric light was burning and in that light he had identified the accused, wherefrom he was seeing the things by concealing himself. P.W. 3 is a tendered witness. Though he has been cross-examined but this aspect has not been put to him. P.W. 4 had said in para 4 that 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 dacoits flashed by them has been mentioned as a source of identification by the said witnesses. It is also difficult to believe that the dacoits would have committed dacoity in the darkness without light. They had also with them their own means of light. Mention of the torches as well as electric light is the earliest version in the fard-beyan and it has been given out by the inmates of the house who were injured in this very transaction and were medically examined. From all these statements, it can be safely concluded that there were not only torches with dacoits, but electric light but inside and outside the house when dacoity was committed and in that light the injured witnesses identified the accused, who were known from before and so their names were given out in the fard-beyan recorded by the police officer at the spot at 4 a.m. within three hours of the occurrence at 4 a.m. In the case of Maqsoodan v. State of U.P. (AIR 1983 SC 126 : 1983 Cri LJ 218) (supra) Supreme Court has observed at page 128 (of AIR) : (at p. 220 of Cri LJ) (para 6).

"It may also be remembered that the FIR was lodged within half an hour of the occurrence. There was little time lost. The occurrence took place at about 6-00 a.m. on 8-6-72. It is nobody's case that the witnesses were unable to recognise the real culprits. The accused persons were well known to the

witnesses from before. They did not have any reason to omit the real culprits and implicate falsely the accused persons. The evidence of P.Ws. 1, 2, 3 and C.W. 1 could have been accepted even without corroboration."

14. As regards the non-examination of the Mukhiya and the other villagers including one Rajendra Singh who is said to have been injured learned counsel for the appellants submitted that the members of the house had not enmity with the appellants and so they have falsely implicated the appellants and the non-examination of these persons means withholding the material witnesses. The evidence of relation witnesses cannot be ignored simply because they are relation witnesses and the mechanically discarding their evidence which, if on scrutiny, does not suffer from any infirmity, is to brush aside the reliable and trustworthy evidence. Besides the relation witnesses, if it is found that there are other witnesses who had seen the occurrence, then their non-examination may be insisted upon, unless their evidence 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 from outside has been produced and he turned hostile, though he gave out the version and he was injured and was also medically examined.

15. As regards non-examination of others, the circumstances of the case cannot be forgotten that the accused-appellants are also of the same village and there is said to be enmity between the appellants and the prosecution witnesses already examined. Other persons could not be produced as the informant has said that Hari Barhai, Ram Kamlesh Singh and Dhori Dusadh were not prepared to give evidence on account of fear. This appears to be something material and probable in the circumstances, when the appellants could commit such heinous offence, they might have terrorised the other witnesses. P.W. 1 though injured, has deposed about commission of dacoity, but gave out that there was no light and so no identification was possible. Consideration of safety is of prime importance to every-one. The accused appellants are residents of the same village and so besides fear there could be factors and circumstances like considerations, specially for a Mukhiya or Up-pradhan, who have to seek election and so far considerations best known to them they preferred to stay away from the case, for both the sides. In State of U.P. v. Ram Swarup, AIR 1988 SC 1028 the Supreme Court has observed at page 1030 in para 10 :-

"There is no rule of law to the effect that the evidence of partisan witnesses cannot be accepted. The fact that the witnesses are associated with the faction opposed to that of the accused by itself does not render their evidence false. Partisanship by itself is no ground for discarding sworn testimony. Interested evidence is not necessarily false evidence. In a small village like the one under consideration where people are divided on caste basis the prosecution may not be able to get any neutral witness. Even if there is any such neutral witness, he will be reluctant to come forward to give testimony to support one or the other side. Therefore, merely because the eye witnesses are associated with

one faction or the other, their evidence should not be discarded. It should, no doubt, be subjected to careful scrutiny and accepted with caution."

In the case of Gurdas Singh v. State of Rajasthan, AIR 1975 SC 1411 : (1975 Cri LJ 1218) the Supreme Court has observed at page 1416 (of AIR) : (at p. 1222 of Cri LJ) in para 12 :-

"It 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 other words, before an adverse inference against the prosecution can be drawn it must be proved to the satisfaction of the Court that witnesses who had been withheld were eye-witnesses who had actually seen the occurrence and were therefore, material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than quantity of the evidence that matters...... In the instant case the evidence of eye-witnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country there is a general tendency amongst the witnesses in mofussil to shun giving evidence in Courts because of the cumbersome and dilatory procedure of our Court, the harassment to which they are subjected by the police and the searching cross-examination which they have to face before the Courts. Therefore, nobody wants to be a witness in murder or in any serious offence if he can avoid it........

In the case of Masalti v. The State of U.P. AIR 1965 SC 202 : (1965 (1) Cri LJ 226) the Supreme Court observed at page 209 (of AIR) : (at p. 232 of Cri LJ) in para 12 :-

"It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses and if the prosecutor honestly and bona fide believes that some of his witnesses have been gained over it would be unreasonable to insist that he must tender such witnesses before the Court. It is undoubtedly the duty of the prosecution to lay before the Court all materials for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been own over or terrorised. In such a case, it is always open to the defence to examine such witnesses as their witnesses and the Court can also call such witnesses in the box in the interest of justice under S. 540, Cr. P.C. As we have already seen the defence did not examine these witnesses and the Court, after due deliberation, refused to exercise its power under S. 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 NOC 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. Nodoubt, examination of neighbours and persons who reach after the occurrence is worthy of consideration, but seeing the condition of the villages and the towns because of rivalry between the parties and reluctance of the witnesses to appear for many considerations even their own safety of life and another interest, the insistence to examine the witnesses who are not eye witnesses to the occurrence, who have come to the spot after the occurrence and who are not material to unfold the prosecution story does not affect the prosecution case, specially more so when the witnesses already examined are injured, inmates of the house of occurrence and had seen the occurrence with their own eyes and their eye witness version does not suffer from any legal infirmity and also inspires confidence. In the instant case P.W. 1 has been examined and has been declared hostile. For the other witnesses, if they did not turn up, then it is nothing but apathy, interestedness reluctance on fear that people of the locality even getting the injury and firing from the gun from the roof, did not come forward for giving evidence and for that reason the evidence of the natural and probable witnesses, being injured and victim in the occurrence, cannot be discarded. In such circumstances the Court has to only consider the broad spectrum of the prosecution case and try to find out the truth in the evidence. Truthful evidence which clinches with the issue and which proves the guilt of the accused to the hilt cannot be brushed aside on account of the non-examination of other persons when one of the persons has already been examined and turned hostile, though he was himself injured. This is sufficient to show that the persons, who came after the occurrence, have been either terrorised or won over and so their non-production cannot be said to be without reason and therefore has got no adverse effect. The Court has, therefore, to consider and conclude one way or the other taking into consideration the probable value of the evidence of the witnesses already produced who are the natural and probable and some of them are injured. Relationship and living in the same house will not be a ground to discard their evidence. In the case of Allauddin Mian v. State of Bihar 1989 SCC (Cri) 490 : (1989) 3 SCC 5 : (1989 Cri LJ 1466) The Supreme Court has observed at page 500 (SCC (Cri)) para 7 as follows :-

".......There is ample material on record to conclude that considerable pressure was exerted on the prosecution 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 learing 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 information to come to the spot and record the fard-beyan at 4 a.m. when occurrence had been at 1 a.m. and lastly if he would have been examined the evidence of the witnesses could have been evaluated in the light of his statement. No doubt, the investigating officer has not been examined. The order sheet of the trial court dated 17-1-1989 mentions that the investigating officer is posted at Patna, a wireless message had been sent to him and no reply had been received in spite of the sufficient opportunity having been given. Non-examination of the investigating officer has become these days a regular feature and in spite of the efforts of the prosecution the investigating officers do not turn up. So not only the defence but the prosecution suffers. But every non-examination cannot be a ground for acquittal. An investigating officer gives his objective findings on going to the spot and also examining the witnesses but his evidence cannot be substitute for the eye-witnesses account. It is only corroborative piece of evidence and how far non-production of the corroborative evidence has prejudiced, it has to be seen and judged in each case. In the case of Niru Bhagat v. Emperor AIR 1922 Patna 582 at 585 : (1923 (24) Cri LJ 91 at pp. 93-94) a Division Bench of this Court observed :-

"....the non-examination of such material witness as the Investigating Officer is a serious omission which cannot but throw suspicion on the whole prosecution case."

In the case of J. K. Devaiya v. The State of Coorg, AIR 1956 Mysore 51 at page 55 : (1956 Cri LJ 904 at p. 908) it has been held :-

"......an accused is entitled to know from the investigating officer what witnesses have been examined in the course of investigation, whether the witnesses examined in Court were examined by him or not. What story the witnesses told before him and whether the same is consistent with the evidence given before the court. The non-examination of the Investigating officer in this case is also a serious omission on the prosecution."

In the case of Basant Singh v. State of Bihar 1985 Cri LJ 1406 a Division Bench of this Court observed at page 1410 in paras 29, 30 and 31 :-

"29. Even considering the admitted facts, mentioned above, the non-examination of the investigating officer in this case cannot be said to be a matter of such prejudice making entitled appellant Bhagwan Singh for acquittal. Even accepting the fact that some of the witnesses, as stated above, have been examined 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 1987 BBCJ (HC) 340 : (1988 Cri LJ 734) 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 contradiction in the evidence of the

witnesses examined as regards the manner or occurrence and the weapons used by the accused, the Court observed at page 344 (of BBCJ ) : (at p. 737 of Cri LJ) in paragraph 11 :-

"Non-examination of the investigating officer is a serious lapse on the part of the prosecuting agency which we find in this case. The obscurity appearing in the case remained unexplained. We could not get what were the objective findings noted by the police officer which would have been helpful in appreciating the correctness or otherwise of the prosecution version. We have seen some important contradictions elucidated in the statements of the witnesses made earlier before the police under S. 161 of the Code of Criminal Procedure and remained on the record of the deposition of those witnesses without clarification to the great prejudice to the accused. Not only that the investigating officer was not examined, even the police diary was not put in evidence or proved to enable the Court to consider the admissible part of the record to analyse and appreciate and to test the credibility of the oral testimony of the witnesses."

17. Undoubtedly an investigating officer is a material witness in a case both for the prosecution as well as defence, yet the failure in appearance on the part of the investigating officer occurs. There are provisions in the Code for securing the attendance of the public witnesses like investigating officer and other police witness connected with the case, medical officers conducting the post-mortem examination or examination of the injuries of the injured in the case, and such other officers whose attendance in connection with the case is essential for the sake of justice. The prosecutor is to produce these witnesses. He can also seek the help of the Court agency for their production and if the prosecution seeks such help, then the court has to take all such steps and process as provided under law for this purpose. In the case of Basant Singh v. State (1985 Cri LJ 1406) (supra) at page 1409 (Patna), it has been observed :-

"During the recent times, it has been noticed that court has to face tremendous difficulties in procuring the attendance of the investigation officer for the reasons that they are transferred frequently and the Sessions trial is taken up after some delay from the time when the investigation had been completed in the case. 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 S. 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, S. 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. S. 90 of 1898 Code (new S. 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. S. 90(b) runs thus :-

"90. A Court may, in any case in which it is empowered by this Code to issue summons for the appearance of any person other than a jubr.... issue, after recording its reasons in writing, a warrant for his arrest -

(b) If at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure."

19. In the new Code of 1973 in Chapter XIX dealing with trial of warrant cases by magistrate, for the issue of summons, are two Sections; S. 242(2) in cases instituted upon public report and S. 244(2) in cases instituted otherwise than on public report. In chapter XX dealing with trial of summons cases by

magistrate, is S. 254(2). The language of all the three Sub-Sections is the same and is reproduced :

"(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend and produce any document or other thing. "But in S. 230 (in Chapter XVIII dealing with trial before a court of session), it has been said" If the accused refuses to plead or does not plead or claims to be tried or is not convicted under S. 229, the Judge shall fix a date for the examination of witnesses and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the prosecution of any document or other thing."

Chapter VI of the Code deals with process to compel attendance (A) Summons and (B) warrants, S. 62(1) says that every summons shall be served by a police officer or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant. In S. 69 there is provision for service of summons by registered post upon the witnesses where he ordinarily resides, or carries on business or personally works for gain. In S. 66; is the provision for service of summons on government servant, by sending the summon in duplicate to the head of the office in which such person is employed and such head of department shall cause the summons to be served in the manner provided under S. 62 and shall return it to the court under his signature with the endorsement required by that Section and such signature shall be evidence of the service. Thus under the said provisions in Ss. 62, 66 and 69 of the Code the service can be effected after taking resort to the provisions contained in Ss. 242(2) 244(2) and 254(2) of the Code as the case may be. Resort can be had to provisions u/S. 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 S. 87 of the Code for issue of warrant in lieu of or in addition to summons; or even to the S. 250 of the 1973 Code, for punishment for non-appearance in obedience to summons, S. 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 him to fine and exceeding one hundred rupees.

(2) In every such case the Court shall follow, as nearly as may be practicable the procedure prescribed for summary trials."

Not only these provisions, there is S. 311 also (old 540) which empowers the Court to summon material witness. Thus from all these provisions it is clear that on the prayer by the prosecution, the Court is to issue summons to a witness to appear before the Court for evidence or producing any document or other thing. Summons on Government servant can be served through the head of department, further summons can be served by post also. In case he does not appear without any reasonable cause, the court can resort to the issuance of warrant or his summary trial and also a fine of Rs. 100/-. The court can also exercise its power under S. 311 of the Code. The court on the non-appearance of the person summoned, besides summary procedure for punishment, can take coercive measures by issuing process so as to secure the appearance in obedience to the summons issued by court on the request of the prosecution. The court is thus, not powerless and can get its summons obeyed by the summonsee and can take recourse to coercive measures for appearance of the witness or for the production of any document or any other thing. The court in seisin of the case, in suitable and appropriate, should adopt the

measures provided under the Code for the ends of justice to the prosecution as well as to the accused, not only on the prayer of the prosecution but also suo motu in the exigencies of the situation. The Judge Magistrate should not be a silent spectator and should not allow the things to go on as they are going, but he has to apply his mind and take an initiative and steps for dispensation of justice by resorting to provisions of law in exercise of power by enforcing the attendance of a witness, who is failing and defaulting for no valid and cogent reason.

20. In such a situation, when the attendance of the investigating officer becomes a problem for a just decision of the case, Courts in India have been expressing concern from time to time as to who should produce and how to be produced. In the case of Smt. Jyotirmoyee Bose v. Birendra Nath Prodhan, AIR 1960 Cal 263 : (1960 Cri LJ 463), it was held by a Division Bench that S. 231-A does not enjoin upon the magistrate any duty to compel the attendance of any witness unless it is applied for. In State of Orissa v. Sibcharan Singh 1962 (2) Cri LJ 200 : AIR 1962 Orissa 157 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 of State of Bihar v. Polo Mistry, AIR 1964 Patna 351 : (1964 (2) Cri LJ 175) it was said :

"It is not the sole duty of the prosecution to produce the witness whom it wants to rely and when the prosecution has taken recourse to the agency of the court for securing attendance of the witness through its own agency, then it becomes the obvious duty of the Magistrate to take all coercive measures provided under the law to compel the attendance of the witnesses as provided under S. 90(b) of the Code.

In the case of Public Prosecutor A. P. v. Pachiyappa 1965 (1) Cri LJ 542 : (AIR 1965 Andh Pra 162) it has been said :

"In a warrant case, once the magistrate takes cognizance, it becomes his bounden duty to go to the root of it and do justice in the matter...... If the prosecution is slack and negligent in its duties, it does not follow that the Magistrate should fall in line with it. Where the accused in a warrant case pleads not guilty and claims to be tried, but the Police Inspector fails to produce the witness on the date of hearing, it is for the Magistrate to compel their attendance to dispose of the case according to law. The magistrate has to exhaust all his powers before he makes his mind to dismiss the case."

In the Public Prosecutor v. Sambangi Mudaliar, AIR 1965 Madras 31 : (1965 (1) Cri LJ 53) the Court held at page 32 (of AIR) : (at p. 54 of Cri LJ) para 4 :-

"....all the powers available to the court for the examination of witnesses are exercised for a just declaration of the case, irrespective of the laches of the complaint. Such powers include the powers under S. 540, Cr. P.C. to summon witnesses on the motion of the court."

In the case of State of Mysore v. N. G. Narasihma 1965 Cri LJ 48 : (AIR 1965 Mysore 167)

the Court held that necessary steps could be taken for the attendance of the witnesses on non-service of the report specially when there is no material to show that there had been remissness on the part of the prosecution agency. In the case of State v. Nand Kishore 1967 Cri LJ 1369 : AIR 1967 Raj 228 observations were made "there is nothing in S. 251-A(7) which precludes the court from issuing summons to the witnesses if so required by the prosecution. Further if the prosecution does not produce any witness, it is the duty of the court to examine such witnesses as are necessary for the ends of justice before proceeding to act under S. (11). It was observed that the Magistrate should not feel himself helpless in such a situation and should exercise its inherent powers u/S. 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 1968 Cri LJ 369 : (AIR 1968 Punjab 87) 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 summon the witnesses nor is under a duty to compel their attendance. It also did not subscribe to the view that the court has no power to acquit the accused in such case and is duty bound to summon the prosecution witnesses in exercise of the power under S. 540 of the Code. The Bench after referring S, 251-A of the Code, said at page 372 (of 1968 Cri LJ 369) (Punjab) (paras 10 and 11) as follows :-

....From this it clearly follows that the magistrate is not under an obligation to acertain the names of the prosecution witnesses and to summon them, but it is for the prosecution to disclose the names of its witnesses and to produce them.

This, however, does not tantamount to saying that where the names of the witnesses are disclosed by the prosecution and it requires the assistance of the magistrate to procure their attendance, the magistrate has no authority to summon the witnesses and must proceed to acquit the accused notwithstanding the fact that the failure of the prosecution to produce its witnesses is not due to the any remissness or default on its part. After the case is instituted in court the police has no power to summon the witnesses. Apart from this, there may be witnesses like the Government servants who have to be summoned through head of their departments, and it is obvious that to secure the attendance of such witnesses it may become necessary for the prosecution to apply to the court for summoning them, and if need be to compel their attendance by coercive process.

The duty to summon the witnesses in the course of the trial is that of the magistrate or the court concerned. I do not find anything in S. 251-A or in any other provision under the Criminal Procedure Code which debars the magistrate from summoning the prosecution witnesses or enforcing their attendance if they refuse to appear on the date fixed for their evidence despite the fact that the prosecution had directed them to attend the Court on that day.

11. This, however, does not mean that the magistrate conducting the trial u/S. 251-A of the Criminal Procedure Code must go on adjourning the trial till it suits the convenience of the prosecution to produce its evidence. Whether or not the magistrate will proceed to enforce the attendance of the witnesses for the prosecution and grant

adjournment for that purpose would depend upon the facts and circumstances of each case. 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 (1954 Cri LJ 1437) 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 reasonable explanation for disobedience of its orders of ignoring of its summonses. The Supreme Court also in the case of Jamatraj Kewalji Govani v. State of Maharashtra (1968 Cri LJ 231), while dealing with S. 540 of the old Code observed that this provision conferred a wide jurisdiction on a court to be exercised at any stage of the trial to summon witness or examine one person in court or even recall a witness already examined. This was made rather a duty and obligation of the court provided the just decision of the case demanded it. This court was faced with a similar situation in the case of State v. Mangi Lal Ram (1974 Cri LJ 221) (Patna) again a case under the old Code. In that case in a warrant trial instituted on a police report some witnesses were not turning up, and it was observed, by this court that the correct position of law in this regard was that in a warrant case instituted on police report, the primary duty was of the prosecution to produce witnesses, but since the prosecution which was the State or the public prosecutor had no power or machinery to compel attendance of the witnesses. It was fully justified in seeking the help of the court for their production. Help of the court may be asked for by praying to the court to issue summons to the prosecution witnesses. It was further observed that even if after service of summons a witness did not appear, the prosecution might ask the court to issue warrant of arrest, although in the absence of a prayer to this effect, the court was not obliged nor was its duty to issue any warrant of arrest. It was further observed that even if the prosecution did not make a prayer for issue of summons or for issue of warrant of arrest in a given case, the court was not powerless to issue such a process under the general powers of the court. The position on coming into force of the new Code has improved in this regard and a provision has now been made in S. 230 of the Code, specifically providing for on making of an application by the prosecution issuing any process for compelling the attendance of any witness or the production of any document or other thing."

In the case of the State of Mysore v. Kalilulla Ahmde Sharif 1971 Cri LJ 226 : AIR 1971 Mysore 60 in para 5 at page 228 (of Cr LJ) a Division Bench has held :-

"In a case like this where the prosecution has not undertaken to produce the witnesses and where they have made a specific prayer in the charge-sheet 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 and 7 the learned single Judge has said that S. 251-A 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 1974 Cri LJ 221 : 1973 Pat LJR 455, 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 the witnesses and since the State Public Prosecutor has no power or machinery to compel attendance of the witnesses, it was fully justified in seeking the help of the court for issuing of summons and in case of nonappearance on the basis of summons, then issue warrants. In both the cases of summons and warrants the public prosecutor is to make prayer to the court. The court even without prayer could exercise its power u/S. 540 of the old Code; either on being asked or suo motu. The suo motu power could be exercised when the prosecution was negligent or did not try pray for issuance of summons or warrant, as the case may be. In the case of Public Prosecutor v. Gundu Rao 1976 Cr LJ 1835 at page 1836 (para 8) a learned single Judge observed thus :

"Duty is cast on the magistrate to take coercive steps to compel the attendance of the witnesses. Merely because the prosecution is lethargic and negligent in producing its witnesses, it does not follow that the magistrate has no power to compel the attendance of the witnesses."

21. In the case of State v. Veerappan, AIR 1980 Madras 260 the Full Bench has considered the points as what steps can be taken for the production of the witnesses specially by the prosecution on its own and with the help of the court and also in case of non-appearance of the witnesses whether to acquit the accused. The Bench has noted that for trial of summons case u/S. 254 and also in warrant cases instituted on police report u/S. 242(3) of the Code, the magistrate may take all such evidence, as may be produced in support of the prosecution. It was observed at page 263 (of AIR) (paras 10 and 11) :-

"10. It might be noted that as in S. 254, Cr. P.C. relating to the trial of summons cases, the Magistrate even in warrant cases instituted on a police report is enjoined by Sub-Sec. (3) or S. 242 to take all such evidence as may be produced in support of the prosecution and a provision has been made in Sub-Sec. (2) of S. 242, for the issue of summons to any witness directing him to attend or produce any document or other thing on the application of the prosecution. It may, however, be noted that while under S. 254(2) the Magistrate 'may if he thinks fit' issue such summons under S. 242, the Magistrate 'may issue' such summons. Apparently the words 'if he thinks fit 'have been included in S. 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-Sec. (2) of S. 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 S. 254(1) as well as in S. 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. Sibeharan Singh, AIR 1962 Orissa 157 : (1962 (2) Cri LJ 200), it has been observed as follows (Head-note) :-

'The word 'produced' in Sub-Sec. (7) of S. 251 (a) Cr. P.C., 1898 and analogous to

S.242(3) cannot be given any restricted meaning as to saddle the prosecution with the entire responsibility of producing the evidence. A duty also is cast upon the courts for enforcing attendance of witnesses by the process provided in the Criminal Procedure Code. The Courts are not therefore absolutely powerless when the parties fail to produce evidence relevant in a case'.

In State v. Nandkishore, AIR 1967 Raj 228 : (1967 Cri LJ 1369), it has been observed as follows (Head-note) :-

"The word 'produced' in Sub-Sec. (7) includes the bringing forward of the witnesses by the prosecution at its own instance or through the process of the court whom it desires to examine at trial. Besides in the administration of Criminal justice a duty is cast upon the court to arrive at the truth by all lawful means though the primary responsibility of prosecuting cognizable offence is on the executive authorities."

We are in respectful agreement with the aforesaid observations of the Orissa and the Rajasthan High Courts. The Rajasthan High Court went on to point out that the Magistrate should not feel himself helpless in such situation and should exercise his inherent powers under S. 540 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 on the court to examine such witnesses as it considers necessary in the ends of justice."

After quoting the S. 540 of the old Code of 1898, their Lordships said in para 12 -

"The analogous and corresponding provision in the present Code of Criminal Procedure is S. 311. Thus the court cannot absolve itself of its responsibility to summon and examine all witnesses whose evidence appears to it to be essential to a just decision of the case, merely because the prosecution does not produce such witnesses owing to its negligence or otherwise. It being clear that it is the duty of the Magistrate to issue summons and secure the presence of witnesses and examine them, when the prosecution seeks the Court's assistance by means of an application, the Court is further obliged in discharge of its duty to arrive at the truth by all lawful means in furtherance of the administration of criminal justice to suo motu take all steps to secure the presence of witnesses where evidence appears to it to be essential to a just decision of the case."

Thus their Lordships referred to Ss. 62, 63 and 64 of the new Code of 1973 dealing with the service of summons. They also referred to S. 69 of the new Code and observed at p. 265 (of AIR 1980 Madras 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 S. 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 S. 174, I.P.C. Then again, the explanation (2) in S. 309, Cr. P.C. also can be made use of in suitable cases by the Magistrate for that explanation states' the terms on which an adjournment or postponement may be granted include in appropriate cases the payment of costs by the prosecution or accused. We might also note here that no rules have been framed by the State Government under S. 62, Cr. P.C. Therefore, as it is, there appears to us to be no bar to the serving of summons by an officer of the court or other public servant."

Ultimately, it was said at page 269 (of AIR), (para 24) as follows :-

"After carefully considering all the aforesaid decisions and the views expressed therein, we are of the view that if the prosecution had made an application for the issue of summons under S. 242(2) or 254(2) of the Criminal Procedure Code it is the duty of the court to issue summons to the prosecution witnesses and to secure the witnesses by exercising all the powers given to it under the Criminal Procedure Code, as already indicated by us and if still the presence of the witnesses could not be secured and the prosecution also either on account of pronounced negligence or recalcitrance does not produce the witnesses after the Court had given it sufficient time and opportunities to do so, then the Court, being left with no other alternative would be justified in acquitting the accused for want of evidence to prove the prosecution case, under S. 248, Cr. P.C. in the case of warrant cases instituted on a police report and under S. 255(1), Cr. P.C. in summons cases, and we answer the two questions referred to us in the above terms."

A learned single Judge in the case of Bishundeo Mishra v. State of Bihar 1989 Pat LJR 405 at p. 417 had made the following observation, as quoted in the case of Sk. Rashid v. State of Bihar 1987 BBCJ (HC) 151 at page 154 (para 6) :

"The prosecution is bound under law to produce the entire evidence in support of its case, be it the oral evidence eye-witness, witnesses on circumstance or other witnesses on questions of fact. It is also required to produce the medical witnesses as well as the witness on investigation, specially, the investigating officer. Various provisions contained under the law call upon the prosecution to produce its witness and for that end in view the prosecution can request the court on an application for issuing 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 Ss. 230, 242(2) or S. 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 S. 311 of 1973 (old S. 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 :

"....As the Section stands there is no limitation on the power of the Court arising from stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly."

As seen earlier the Full Bench in the case of State v. Verrappan (1980 Cri LJ NOC 155) (Madras) (supra) has said that if this power can be exercised when the prosecution is negligent or otherwise in producing evidence in the court, an application to it or suo motu to arrive at the truth and for just decision of the case, can take all steps to secure the presence of the witnesses. In the case of Rengaswami Naikar v. Murugu Naikar 1954 Cri LJ 123 : AIR 1954 Madras 169 it has been held thus :-

"A Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them and that duty is to investigate."

Recently the Supreme Court in the case of Mohanlal Shamji Soni v. Union of India, AIR 1991 SC 1346 at page 1349 : (1991 Cri LJ 1521 at p. 1524) para 10, has said :-

"It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to S. 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and 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 S. 540 of the Code (S. 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 said in the case of Bisundeo Misra v. State of Bihar (supra) 1989 Pat LJR 405 at page 418 (para 29) :-

"The purpose of law is to give reasonable opportunities at every stage both to the prosecution and the defence to produce the evidence in support of its case. One should not be denied opportunities on unreasonable grounds and there should be no hot haste by the court. But it is not the purpose of law that this process of adjournments on one or the other grounds whether taken by the prosecution or the accused should continue and the case should linger on to the great detriment, prejudice and torture of the party concerned. The court is to exercise its power and see that there should not be unnecessary delays. If even after repeated adjournments the prosecution fails to produce its evidence, the court is not to be a silent spectator to the laches and lapses of the prosecution. Justice should be done to both sides. The court is to see that the accused is not harassed. Similarly, the court is also to see that for inevitable reasons if the prosecution fails to produce the witness, then for that reason the court should not acquit without exercising its powers and in suitable cases it can be to the extent of coercive measures as permitted under Cr. P.C. to compel the attendance of the witnesses. If an application is made to the court by the prosecutor or the court suo motu orders for the same to compel the attendance of the witnesses then it can resort even to the provisions contained under S. 350, Cr. P.C. which provides for the summary trial of the defaulting witnesses and also a fine to the extent of Rs. 100/-. Thus a doctor, who conducts the post-mortem or a doctor who examines injury of an injured and whose opinion is essential for the success of the case of the prosecution or to whose opinion is also essential for the accused to get an acquittal, is

not produced, similarly if an investigating officer, whose evidence is essential for the case of the prosecution to succeed or that the accused who confronts him with the investigation, an objective findings he has given and also the statements which have been recorded by him under S. 161, Cr. P.C. during the investigation and also for other collateral purposes during the investigation is not produced, then in any event the court is not powerless to summon for the appearance of the Doctor or the I.O. 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 S. 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 executing the process of the Court help of police hierarchy is necessary. Without them and without they desiring to implement the summons and warrant of the Courts, all efforts of the Courts for securing the attendance of the witnesses fail, what has alarmed us, however, is the recessive tendency of the police personnel they are taking the processes of the Courts as lazily and as casually as they can, as they have no priorities for the proceedings in the Courts one before attending to the other works for which they have their reasons of preference. As in this case in many of cases Courts have to face a predicaments which the prosecution alone can solve, where it does, however, but to tell the Court that it has no other witnesses to examine and to take summons only to inform the Court that it has heard nothing from the police about the service thereof. Several adjournments given by the Courts at the instance of the prosecutor only for ensuring the attendance of the official witnesses including the investigating officer keep the trials pending for years and even after inordinate wait, the Courts are compelled to decide the cases without their evidence. A certain amendment has been made in the Code of Criminal Procedure by the State of Uttar Pradesh and for such defaulting witnesses adequate provisions have been made to punish both judicially and administratively. It is high time that in the State of Bihar also some provisions are made and in the case it is found that a certain officer of the State has ignored the summons or warrant of the Court adequate action is taken against him. The administration of the State, even without any such amendment is fully empowered and competent to take notice of the default of its officers in responding to the summons and warrants of the Court and it can immediately start taking notice of the conduct of the investigating officers of the police by suitably punishing there by a wording of remarks at least two for default in each case."

In the case of Hazari Choubey v. State of Bihar, 1987 Pat LJR (HC) 1166 at pages 1170-71 : (1988 Cri LJ 1390 at pp. 1393-94) (paras 7, 9, 11, 12 and 13) it has been said :-

"7. The Courts have to depend upon the machinery provided by the State Government for service of notices and summons, particularly for execution of warrant of arrest the police has to act. The law for ensuring appearance of witnesses provides for Courts issuing processes including warrants of arrest. 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. The Administration of the Government of the State of Bihar has to take the blame and it alone has to suffer the consequence.

11. We would have considered remitting the case for retrial and examining the investigating officer before and rehearing the matter but for the fact that the occurrence had taken place in October, 1979 speedy and public trial is the hall-mark enshrined in Article 21 of the Constitution of India. Retrial after a lapse of eight years shall be in teeth of the said right. A retrial, in our view, therefore, shall be a miscarriage.

12. We cannot, however, refrain from taking notice of the failure of the State Government in exercising the control upon its police force and not punishing the defaulting officers for such serious dereliction as one in the instant case. Only way to deal with the matter is to award a cost of rupees twenty thousand against the State Government to compensate the informant for the loss that has been occasioned only on account of the default of the investigating officer in not discharging his duty in accordance with law. It shall be open to the State Government to proceed against the erring officer (investigating officer) and realise from him the cost awarded against it and compensate itself accordingly.

13. We are making this order keeping in view the submissions of the learned Advocate General, who has agreed that it is high time for administration of the Government of the State to read the writing on the wall and shake its lethargy off. He has, however, suggested that a modest beginning be made and so we keep the cost limited to a sum of Rs. 20,000/- (twenty thousand) only although, according to the evidence on record, the informant had sustained a loss of about two lakh rupees in the dacoity."

In the case of Awadheshwar Singh v. State of Bihar, (1989) Pat LJR (HC) 259, the Division Bench of this Court has quoted the observations of the trial Court and also held at pages 268 and 269 (para 17) thus :-

"The I.O. was transferred and his whereabouts could not be located for a pretty long period. Efforts were made to procure his attendance but when the efforts proved futile the same was given and the prosecution case was closed without evidence of the I.O.... There cannot be any doubt about it that in a case of this nature examination of the I.O. is essential and the non-examination of the I.O. is also fatal to 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. Information's, if any, including through the processes of the Court were required to be given to him by one or the other agency of the State of Bihar. That there is no effective machinery at work is a fault which the State must immediately correct. If it does not do it miscarriage of justice shall be entirely due to the fault of the State of Bihar.

These observations show the scandalous, deliberate and rather apathetic attitude on the part of the police administration to put hindrance in the administration of justice. The judicial records of this Court as well as the Court below will bear out that it is due to the non-examination of the I.O. that the disposal of this case was delayed. It will be in the fitness of things now that the Courts below should adopt the attitude of coercive measures after giving due and reasonable allowance for non-appearance of the I.O. Service of notice should be effected through the SPs. I.Gs. or the D.I.Gs. of the range. The Courts below must understand that the police witnesses are just like ordinary witnesses and they do not deserve any extra importance at the cost of the justice. It is a case the judgment of which must be sent to the Chief Secretary, Bihar, Director General of Police, Bihar and the Inspector General of Prosecution, Bihar for a serious consideration and to know as to which stage the incompetency, lethargy slackness, inefficiency and to some extent collusion with the other side for the reasons best known to the officers concerned have gone and on account of this attitude of the police administration how far justice is suffering, backlog of cases are increasing and the people of the State are losing faith in the institution of the Courts and are thinking that it is a State in which there is no respect of law."

25. In spite of this, the case diary should be brought on record so that the Court may look into the admissible part to analyse and appreciate the oral testimony of the witnesses. In the case of Brahmdeo Hazra, (1988 Cri LJ 734) (Patna) (supra), the Court said that even the case diary has not been brought on record to consider the admissible part of the record to analyse, appreciate and test the credibility of the oral evidence. Similarly in Rajawa Kebat alias Rajendra Mandal v. State of Bihar, (1988 BLJ 60) : (1988 Cri LJ 1288), it was said in para 5 at page 62 (of BLJ) : (at p. 1289 of Cri LJ) :-

"..Non-examination of the Investigating Officer is a serious lacuna. We do not find any adequate explanation for non-production of this witness in court. Even 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 evidence 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 Ram, AIR 1929 PC 110."

26. But in the new Criminal Procedure

Code, S. 294 has been introduced to shorten the proceeding so that each party may admit or deny the correctness of any document. If the prosecution or the accused files any document before the Court and particulars of the document are included in a list and then the prosecution or the accused, as the case may be, shall be called upon to admit or deny the genuineness of the document and if the genuineness of the document is not disputed, then such document shall be read in evidence in enquiry or trial or other proceedings before (sic) without proof the signature of the person who is purported to have signed it, unless the Court in its discretion requires such signature to be proved. Such a document brought on record shall be read as substantive evidence to prove a fact and it shall not be the evidence meant to contradict or corroborate the statement in Court. A Full Bench of the Allahabad High Court in the case of Saddiq v. State, 1981 Cri LJ 379, has observed about this aspect of the matter at pages 380-81 (paras 8 and 9) as follows :-

"8 In our opinion, if the prosecution or the accused does not dispute the genuineness of a document filed by the opposite party under Sub-Sec. (1) of Section 294, Cr. P.C. it amounts to an admission that the entire document is true or correct. It means that the document has been signed by the person by whom it purports to be signed and its contents are correct. It does not only amount to the admission of it being signed by the person by whom it purports to be signed but also implies the admission of the correctness of its contents. Such a document may be read in evidence under Sub-Section (3) of S. 294, (Cr. P.C. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory as it is admitted to be true or correct. The phrase 'read in evidence' means read as substantive evidence, which is the evidence adduced to prove a fact in issue as opposed to the evidence used to discredit a witness or to corroborate his testimony. It may be mentioned that the phrase 'used in evidence' has been used in Sub-Section (1) of S. 283, Cr. P.C. with respect to the reports of the Government scientific experts mentioned in Sub-Section (4) of S. 293, Cr. P.C. and the phrase 'read in evidence' has been used in Sub-Section (1) of S. 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 S. 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 S. 294, Cr. P.C. is not disputed by the opposite party, Sub-Section (3) of S. 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 proved contained in S. 58, Evidence Act. The object of enacting this Section appears to be to avoid the time of the Court being wasted by examining the signatory of the document filed by the prosecution or the accused under Sub-Section (1) of S. 294, Cr. P.C. to prove his signature and the correctness of its contents if its genuineness is not disputed by the opposite party. If the signature and the correctness of the contents of a document filed by the prosecution or the accused under Sub-Section (1) of S. 294, Cr. P.C. whose genuineness is not disputed by the opposite party are still required to be proved by examining the signatory of the document, the very object of enacting Section 294, Cr. P.C. will be defeated. We are, therefore, of the opinion that all documents filed by the prosecution or the accused under Sub-Section (1) of S. 294, Cr. P.C. whose genuineness is not disputed by the opposite party may be read as

substantive evidence under Sub-Section (3) of S. 294, Cr. P.C.

Yet in another Full Bench of Bombay High Court in Shaikh Farid Hussainsab v. State of Maharashtra, 1983 Cri LJ 487, it has been said at pages 488-89 (paras 7 and 8) as follows :-

"Section 294 of the Code, is introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the documents sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of no dispute as to the genuineness, proof of documents is reduced to a sheer empty formality. The Section is obviously aimed at undoing the judicial view by legislative process.

8. The preceding Sec. 293 of the Code also dispenses with the proof of certain documents. It corresponds with Sec. 510 of the repealed Code of Criminal Procedure. It enumerates the category of documents, proof of which is not necessary unless the Court itself thinks it necessary. Section 294 makes dispensation of formal proof dependent on the accused or the prosecutor, 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 Sec. 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 Sec. 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 diary in the pen of Assistant Sub-Inspector of Police Bachan Prasad Singh. These documents were brought on record by this P.W. 7 under Section 294(3) of the Code, though not on the basis of any application, yet the genesis of these documents was not disputed and so the documents were read in evidence under the provisions of Section 294 of the Code.

27. In spite of these provisions of law, about the investigating officer being summoned to give evidence and produce documents and in spite of Section 294 about bringing on record the documents and on account of genesis of the documents not being disputed and so being read as substantive evidence, if there is miscarriage of justice or prejudice is caused to the accused, the court should do justice. But this miscarriage or prejudice should be demonstrable and not merely apprehensive. In the case of Shaikh Farid Hussainsab (1983 Cri LJ 487) (Bom) (supra) the Full Bench has observed at page 491 (para 15) thus :-

"...Raising no dispute to the genuineness of any document implies their considered decision of further details being irrelevant. The Court has ordinarily to accept this decision and refrain from entering into the arena itself unless miscarriage of justice is apprehended on demonstrable grounds. The Section also invests the Court with a discretion to examine the doctor or any such witness in that case. The Section itself thus furnishes in-built protections to the defence or the prosecutor against possible lapses. It was open to the Court in its such discretion to examine the doctor or any other witness it apprehended

miscarriage of justice. Mere such apprehension cannot justify interpreting the Section differently and hold it inapplicable to postmortem reports in the face of its plain language indicating to the contrary."

The Court should get the investigating officer of the relevant witness summoned, if the place of occurrence cannot be fixed for want of the evidence of investigating officer or the objective findings of the investigating officer cannot be relied on without his examination or the contradictions in the statement cannot be held to be without the statement of the police. In case of failure of appearance of such witness, in spite of adopting the measures provided under the Code, the Court should give all benefit of such a situation even to the extent of acquittal if necessary in the circumstances. In the case of Basant Singh v. State of Bihar (1985 Cri LJ 1406) (Pat) (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 rejected."

In the case of Sk. Rashid v. State of Bihar (1987 BBCJ (HC) 151) (supra), the Division Bench held at page 156 (para 7) :-

"This case has to, however, and in the acquittal of the appellants for the sole reason that it shall not be proper to act upon the evidence of P.W. 7 alone, particularly, when the investigating officer has not been examined and even the first information report has not been proved in original. The appellants can legitimately complain that due to non-examination of the investigating officer they have been prejudiced in their defence and this prejudice has been caused, we have already noticed due to the negligence and recalcitrance of the investigating officer."

In the case of Hazari Choubey v. State of Bihar, 1987 Pat LJR (HC) 1166 : (1988 Cri LJ 1390) (supra), a Division Bench of this Court referring to the observations in Sk. Rashid's case (1987 BBCJ (HC) 151) (supra) said in para 6 at page 1169 (of Pat LJR) : (at p. 1393 of Cri LJ) as follows :-

"...this Court has said that non-examination of investigating officer is not necessarily 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. If it finds that no genuine complaint of denial of fair play or prejudice to the defence can be made in a particular case, it may pronounce its judgment without insisting for the examination of the investigating officer. In a case however, in which there are genuine reasons to think that the defence can legitimately complain of denial of opportunity but demonstrate that the prosecution has not correctly stated its case or that it has otherwise been prejudiced it must insist for the examination of the Investigating Officer. Non-examination of the Investigating Officer in that situation may provide to the defence the benefit of doubt as to the veracity of the prosecution case..."

In the case of Bisundeo Mishra v. State of Bihar (1989 Pat LJR 405) (supra) a learned single Judge of this Court has held at page 411 (para 14) as follows :-

"As regards the evidence of investigating officer (shortly put as I.O.) it is also very material for the prosecution case. Similarly his non-examination has got bearing on the case. He investigates the matter, prepares the case diary, receives the post-mortem report, goes to the place of occurrence and collects the material and evidence 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. so that question may be put to him to test as to whether those particular portion of the statement which is said to have been given to him or not have been given to him, have been given or not given. If the I.O. is produced and he says that the witness has not given the statement whereas the witness in court says that he has given the statement, then the statement of the witness in court is to be looked down with suspicion and be not relied on, as he has not given out that matter at the earlier opportunity. But if that matter is very minor and is in continuation of detail already given, then it will not have any effect. But if that matter deposed in a court has not been stated earlier before the police and is being stated in the court then contradiction may be there or which may be a sort of improvement or embellishment for which the presence of the I.O. is essential. So in any case the non-examination of the I.O. will have to be considered looking to the circumstances of each case. The accused shall point out the prejudice which has been caused to him on account of non-examination."

28. As regards the proof of place of occurrence, the Supreme Court has observed in the case of Dharam Dass v. State of U.P., AIR 1973 SC 2195 at page 2197 : (1973 Cri LJ 1181 at p. 1184) (para 9) :-

"...The question of recovery of bloodstained earth has also been dealt with by the High Court in a detailed manner and according to that Court non-recovery of the bloodstained earth from the other places near the scene of occurrence could not in any way weaken the prosecution case provided the testimony of eye-witnesses was found to be credible. The High Court has then considered the testimony of the three eye-witnesses disbelieved by the trial Court. After closely examining their testimony, the High Court believed it and in our opinion rightly."

It has been said by Supreme Court in the case of Ram Avtar Rai v. State of U.P., AIR 1985 SC 880 at page 882 : (1985 Cri LJ 902 at p. 904) (para 10) :

"It is true that the blood-stained earth has not been recovered from the scene of occurrence by the investigating officer though as stated earlier the deceased had sustained as many as 15 lacerated injuries besides a number of contusions and abrasions. From the failure of the investigating officer to recover blood-stained earth from the scene of occurrence it is not possible to infer that 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 scene of occurrence."

In Laxmi Singh v. State of Bihar, AIR 1976 SC 2263 at P. 2270 : (1976 Cri LJ 1736 at P. 1743) (para 13) the Supreme Court said :

"In almost all criminal cases, the bloodstained earth found from the place of occurrence is invariably sent to the chemical examiner and his report along with the earth is produced in the Court and yet this is an exceptional case where the procedure was departed for reasons best known to the prosecution. This also, therefore shows that the defence may be true."

In the case of B. N. Singh v. State of Gujarat, 1990 Cri LJ 1601 at P. 1604 : (AIR 1990 SC 1628 at P. 1631) (para 10), Supreme Court has said :

"The High Court has held that the evidence of P.W. 4 is corroborated by the circumstances namely that the complaint was given within 20 minutes and the medical evidence, panchnama of the scene of occurrence and the evidence of P.W. 5 also corroborate. But, these circumstances only at the most may establish the place and time of occurrence and the nature of the weapons used but the corroboration should be in respect of the complicity of the accused and incriminating."

29. Besides the place of occurrence, the investigating officer is at times felt necessary when the contradictions in the statement of the witness u/S. 161 and the evidence in Court are sought to be elucidated and also improvements are to be brought out upon the earlier statement in the deposition in the witness box. A learned single Judge has said in the case of Gunanidhi Sundara v. State of Orissa, 1984 Cri LJ 1215 at P. 1217 (Orissa) (para 5) :

"The fundamental and elementary legal position is that a statement made to a police officer by any person examined in the course of Section 161, Cr. P.C. is not and cannot be treated as substantive evidence except when falling within the provisions of clause (1) of Section 32, Evidence Act or with regard to a discovery u/S. 27 of the same Act. It may be used only for the purpose of contradicting the evidence of the prosecution witnesses and not for the purpose of contradicting their evidence nor for contradicting a person examined in the course of investigation who later figures either as a court witness or as a defence witness."

Similarly in Ramesh v. The State, 1986 Cri LJ 1101 at P. 1109 (Delhi) para 24, a learned single Judge said :

"There is no presumption of law that the statement of a witness recorded by an investigating officer u/S. 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 of P. 1244) 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 law. In the case of Dahyabhai Chaggan Bhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 at page 1571 : (1964 (2) Cri LJ 472 at p. 480) (para 13), the Supreme Court said :

"The statements made in the deposition are really inconsistent within the meaning of Section 162 of the Code of Criminal Procedure. We cannot place any reliance on the evidence of these witnesses, it is an obvious development to help the accused." About the earlier statements recorded before a Magistrate in the hospital, the Supreme Court said in the case of Moti Singh v. State of U.P., AIR 1964 SC 900 at page 901 : (1964 (1) Cri LJ 727 at p. 728) (para 5), thus :-

"Those statements could have been used only in either corroborating or contradicting the statements of these witnesses in court. If these witnesses were not to be believed, their statements could not be used as independent evidence in support of the other prosecution evidence."

In the case of Baldev Singh v. State of Punjab, AIR 1991 SC 31 at page 33 : (1990 Cri LJ 2604 at p. 2606) (para 6), the Supreme Court observed :-

"Needless to stress that the statement recorded under Section 161 of the Code of Criminal Procedure shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to S. 162(1) and that the First Information Report is not a substantial piece of evidence."

A Division Bench in Hamidullah Bismillah Khan Nawab v. State of Gujarat, 1988 Cri LJ 981 at page 982 (para 19) has said :

Any part of a statement of a witness before the investigating officer can be brought on record only by way of contradiction as per Section 162 of the Code. What came to the knowledge of the investigating officer while recording the statement of a witness cannot be allowed to be brought on record as allowed in the present case by the learned Additional Sessions Judge. A question is first required to be put to the witness about the contradiction, if any, between the evidence of the witnesses and his statement recorded by the investigating officer and if the witness denies then that contradiction has to be proved by the evidence of the police officer who has to look into the statement of the witness and give reply in this regard. A general statement as is brought on record at para 4 of the deposition of P.S.I. could not and shall not have been permitted.

30. The omissions in the statement of the witness 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 said at page 633 : (1981 Cri LJ 34 at p. 37) (paras 7 and 8) :

"the First Information Report by a rustic lay woman is not to be treated as or equated to the summary of the entire prosecution and a mere omission to mention an incidental fact could not have the effect of nullifying an otherwise prompt and impeachable report."

... "8. Regarding the failure of P.W. 2 to mention the fact in her statement to the police, we note again that it is a mere omission and not a contradiction..."

31. Thus the examination of the investigating officer (for short I.O.) in this case, will not have any adverse effect, as nothing has been brought on record to show that on account of the non-examination of the I.O. the place of occurrence could not be fixed, or there are contradictions or omissions which are vital and necessary to be elucidated from the I.O. No contradiction otherwise is there between the statement before the police and evidence in court. No demonstrable prejudice has been placed before the court. Only apprehensive prejudice and supposed unfairness cannot be a ground to discard an otherwise reliable and trustworthy evidence. As for non-examination of the I.O. on account of failure on the part of the I.O. to appear, does not tell upon the prosecution version and the evidence of the trustworthy and reliable witnesses is not at all affected. It was contended that if the I.O. had been examined, he would have given out about the existence of the means of identification i.e. electric light in the angan, the distance between the angan (courtyard) and the roof and the railings on the roof, the distance between the houses of informant Sheolagan and Lallan Singh. But for these suggestions have not been made even the eye-witnesses and other witnesses that the light was not there and that the identification was not possible and that the distance between the houses of the informant and witnesses were such that they could not come and see the occurrence. Further it was said that Jaganath, Rajindra Singh, Guput Singh and Radhey Shyam though mentioned as witnesses in the First Information Report, yet they were not examined. As to this, unless these witnesses are found to have been examined by the investigating officer during investigation, there is no question of getting contradictions in the statements of these persons from the I.O. Further then four persons have not been 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 u/Ss. 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 confidence upon the investigating agency for justice to the guilty and also to the innocent. If the apathy, lethargy, incompetency, corruption of any kind, or pressure, of any nature or any motive, hidden or known to all, causes the investigating officer not to do his legally expected duty for the dispensing of justice by court, then not only the prosecution and accused but other innocents and society at large suffer, which should be avoided and courts should take all possible measures permitted under law in this regard, except only in circumstances when the non-appearance is beyond the legal and physical control of the I.O. and which is justified under law and reason. Every non-appearance of the I.O. should not be presumed to be causing prejudice to the accused. Each and every case is

to be judged in the light of its circumstances and exigencies of the situation and the accused should be given benefit of all such situation and circumstances which he is entitled to be found; may be an acquittal or even compensation in suitable cases. It will be in the fitness of the things if it is provided and made as imperative for a police officer, be an investigating officer or any other officer concerned with the investigating to give information to the officer incharge of the police station as well as to the Superintendent of Police and also Public Prosecutor of the district, in case that police officer is transferred from the police station of the district, as the case may be, giving out the reference of the cases in which that officer was concerned, so that the officer incharge and the Superintendent of Police as well as the Public Prosecutor may keep information about the movements of the officers in the district as well as outside the district, in the whole of the State, and whenever needed the process of courts may not be disturbed and summons or registered notices or any communication in connection with the case may be served upon the officers concerned and they may appear in court to save delays and harassment to all including themselves.

32. A doctor, like investigating officer, is also a material witness, as he performs the post-mortem examination or examines the injuries of the victims of assault in the occurrence and so his evidence is also an important one in appreciating the evidence of the eye-witnesses. The evidence of the medical men, who during the course 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 report/injury report, can be best judged when the author of the report i.e.. doctor, who had occasion to examine the deceased/injured and prepare his report of opinion, is examined in court. But the doctor's absence is also a general trend these days, like that of the investigating officer. The Doctors also do not appear in the court in spite of best efforts by the prosecution as well as the courts. Therefore, the court should also adopt the procedure laid in Section 350, 242(2), 244(2) or 254(2) of the Code as the situation may be. He should also resort to the provisions of Section 69 of the Code. Even coercive measures should be adopted in suitable situations if it is found that the doctor in spite of service of summons is avoiding appearance in court for some ulterior motive and there is no slackness on the part of the prosecution in spite of repeated opportunities being given to the prosecution. At times, the court should exercise its powers u/S. 311 of the Code by calling the medical witness, so that prosecution may establish that the injuries were caused in the manner alleged and the defence may also cross-examine him to show to the court that the injuries could not have been possible to be caused in the manner alleged and that the possibility of the version given by the prosecution is completely ruled out.

33. The courts in India had been holding that unless the doctor is examined the postmortem report/injury report could not be placed and could not be taken in evidence. (i) In the case of Raghuni Singh v. Emperor, (1883) ILR 9 Cal 455, a Division Bench held that the evidence of a medical man, who has seen and made examination of the corpse of the person touching the injury is admissible,

firstly to prove the nature of the injuries which he observed and secondly as evidence of opinion of an expert as to the cause of death; (ii) In Queen Empress v. Jadub Das, (1900) ILR 27 Cal 295, the medical officer conducting the post-mortem examination was not examined, though Civil Surgeon was examined as an expert and the Court held that the report is not admissible as evidence except to contradict the offence who made it; (iii) In Loku Basappa Pajari v. State, AIR 1960 Bom 461 : (1960 Cri LJ 1327), it was said at page 462 (of AIR) : (at P. 1328 of Cri LJ) :-

"The notes on post-mortem examination are but contemporaneous record made by the medical officer who 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 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 medical officer, when he orally deposes in a comprehensive form to the correctness of all the statements recorded therein."

(iv) In the case of Bhupat v. State, 1975 BBCJ 317 : (1975 Cri LJ 1405), it has been said :-

"The notes of P.M. could be admissible when the doctor was examined."

(v) In the case of State v. Gian Singh, 1981 Cri LJ 538 at 541 (Delhi), a Division Bench has held :-

"It is well settled that P.M. report and Injury Report is not substantive evidence. It has to be proved by the maker of it."

(vi) In the case of Bhande Garh v. State of Assam, 1984 Cri LJ 217, a Division Bench said :-

"We are also of the opinion that the injury report Ext. 5 cannot be admitted in evidence and relied on by the prosecution because the doctor who examined them was not put in the witness box."

(vii) In Gafur Sheikh v. State, 1984 Cri LJ 559 at page 562 (para 29) (supra), Calcutta Division Bench has observed :-

"Normally the post-mortem report is used by the doctor who conducted the postmortem examination for the purpose of refreshing his memoray as permitted by law while giving substantive evidence in court. No evidence has been led in this case to show that the post-mortem report was being tendered in evidence under any of the relevant provisions of Chapter II of the Evidence Act."

34. In the case of Tamizuddin v. State of Bihar, 1985 BBCJ 322, where the investigating officer tried to prove the injury report on account of non-examination of the doctor, a Division Bench of this Court held at page 326 (para 11) :-

"This doctor has not been examined by the prosecution. The injury reports which are said to have been prepared by the doctor have been proved by the I.O. in the trial Court. The contention of the learned Counsel that this Report could not be proved by the I.O. as the I.O. is not the proper person to prove the same is correct. The I.O. has not said that he had seen the doctor writing or that injury report has been prepared in his presence. In these circumstances the injury report could not be admitted in evidence. So in the absence

of the injury report it could not be said that the aforesaid persons received injuries." Again a Division Bench in the case of Shri Govind Bin v. State of Bihar, 1985 BBCJ 632 has said at pages 634-36 (paras 11, 12, 14, 15, 16, 17 and 18) :

"It appears that the post-mortem report (Ext. 7) has been marked as exhibit and admitted in evidence on the evidence of one Imtiaz Ahmad (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 (Ext. 7) has been admitted in evidence on the basis of the statement of a Clerk of the Public Prosecutor, I am afraid, the condition that the Medical Officer was "not easily available" was not at all satisfied.

12. However, that independent in itself will not make the post-mortem report always inadmissible as it is more based upon the rule of prudence than the rule of law.

14. The post-mortem report is an extremely relevant and important document in a trial for murder both for the prosecution and the defence. All hurts are not punishable under the Indian Penal Code. Different types of hurts have been put under different categories linked with different extent of punishment. In addition that such reports apparently may speak out a few details, the existence of certain connected facts invariably necessitate explanation, elucidation and making available expert's opinion. By and large they are needed and f that is shut up, a definite prejudice is caused to the accused and the prejudice is to the extent that it will have adverse impact upon the charge of assault fastened upon an accused.

15. The importance of getting all such documents proved by such persons having knowledge of medical science can well be illustrated that the nature of injuries, at times, becomes quite relevant to find out as to whether the injured would have been in a condition to speak out after getting type of injuries indicated in the post-mortem report and as to whether he was able to make out a dying declaration. Further the nature of injuries will also clearly indicate the type of weapons used.

16. That being so, when accused is expected to have a fair trial and the entire trial is within the ambit of statutory laws, in absence of expositions of such concealed and hidden connected facts, behind the injuries, will mean definite prejudice to the accused and any consideration of such document will amount to an arbitrary act which is definitely against the principles of fair trial. Naturally in the instant case, Ext. 7 which has been proved by the clerk of the Public Prosecutor is meaningless and non-purposeful.

17. Therefore, proof of writings and reports by any other persons than the real author, the Doctor, who had written out and signed the report, be by such who can be said to be "a competent person" to answer to give out such explanations based upon the technical knowledge 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, 1987 BBCJ 775 : (1988 Cri LJ 1431 at p. 1433), 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 reports cannot be used by the prosecution for proving the injuries on the injured when the doctor who had examined the injuries has not been examined. A person, who claims to have seen anything must evidence in Court as to what he had seen and found. This is manifest from a bare perusal of Section 60 of the Indian Evidence Act, which lays down that oral evidence must in all cases, whatsoever, be direct. It specifically provides that if the evidence refers to a fact which could be seen it must be evidence of a witness who says he saw it. Evidently, the doctor had seen the injuries and, so, the evidence should have been given by the doctor himself as to what he had seen and found. Section 294 of the Code of Criminal Procedure has been provided in the Code for obviating that difficulty of formal proof of certain document and not for providing a substitute for direct evidence of witnesses like the doctor. This Section simply says that where the genuineness of a document is not disputed it may be read in evidence in any enquiry or trial. It is significant that Section 294, Cr. P.C. does not refer to a document which even if exhibited, cannot be read as a piece of evidence. In injury report by itself does not prove anything, as it is not a substantive piece of evidence. It is the evidence of the doctor on oath is regard to the injuries which alone is substantive evidence. The injury report then only be used to corroborate or contradict the doctor and it cannot be a substitute for the evidence of a doctor. Of course Section 32 of the Evidence Act provides an exception to this general principle but evidently, the present case does not come within any of the clauses of Section 32 of the Evidence Act. That being so the injury reports of witnesses as also of accused Dukhi Yadav referred to by the learned trial Court in its judgment have to be excluded from consideration. But even if these injury reports are excluded from the evidence, their remains sufficient material on the record to prove in general way the fact that these witnesses had sustained injuries in course of the occurrence. Indeed, their own evidence is also there on this point. Then there is also the evidence of the investigating officer who had found injuries on their persons and had referred them to the doctor for medical examination. Of course, these materials cannot be enough to prove the specific injuries 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 u/S. 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 S. 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. 1985 Cri LJ 1446 a Division Bench has said at page 1449 as follows :

"Ss. 293 and 294, Cr. P.C. are obviously intended to slim the proceedings by dispensing with elaborate and sometimes long drawn procedure of examining the concerned person when the genuineness of document is not in dispute. To refrain from such procedure is not invariable and the court is empowered to examine depending upon the circumstances and expediency. The report of the Deputy Controller of Explosive is taken as evidence in the absence of any demur and the court did not consider it necessary to examine the expert in view of express consent for reception of the report. Similarly Ex. P16 is admitted as evidence as no exception is taken for reception of the same. S. 294, Cr. P.C. empowers court to admit the document as evidence in the situations embodied in S. 294 Cr. P.C. namely, when no objection is taken as to the admission of the document by either side and when it is not possible to examine the person connected with the document. In the instant case both the requirements have been satisfied as there was no objection for the admission of the document and further the doctor who conducted the post-mortem was laid up in the hospital. The post-mortem certificate clearly discloses that the face is disfigured and blasted and four glass pieces were recovered from the injured person and the opinion as to the cause of death was shock and haemorrhage. In the circumstances, the learned Sessions Judge is justified in admitting the report of the Deputy Controller of Explosives and post-mortem report as evidence without insisting upon the evidence of expert or doctor. We are unable to subscribe to the view of the Allahabad High Court that the doctor should be examined in all cases and that the reception of documents necessitating formal proof only can be admitted under S. 294, Cr. P.C. The distinction highlighted by the Allahabad High Court is not borned out by S. 294, Cr. P.C. and the. documents satisfying requirements in S. 294, Cr. P.C. can be admitted as evidence."

A Division Bench decision in the case of Jagdeo Singh v. State 1979 Cri LJ 236 held :-

"........It was not permissible to exhibit the post-mortem report u; S. 294 Cr. P.C. and even if it was done, the report could not be used as a substitute piece of evidence unless the doctor concerned was examined in court.

So were the observations made by another Division Bench in the case of Ganpat Raoji Survanshi v. State of Maharashtra 1980 Cri LJ 853 (Bom) that the post-mortem report even if admitted to be genuine by the accused could not be read as substantive evidence u/S. 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 (1981 Cri LJ 379) (supra) and Sheikh Farid Husainsab (1983 Cri LJ 487) (supra). In the case of Saddiq (1981 Cri LJ 379) (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 S. 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 S. 159, Evidence Act by referring to the injury report prepared by him and the injury report was proved by him under S. 67, Evidence Act and it corroborated his deposition in Court under S. 157, Evidence Act. Under Sub-Sec. (3) of S. 294, Cr. P.C. an injury report filed by the prosecution under Sub-Sec. (1) of S. 294, Cr. P.C. may be read as substantive evidence in place of the deposition of the doctor who prepared it if its genuineness is not disputed by the accused. If its genuineness is disputed

then the doctor who examined the injured person must appear in the witness box to prove his injuries and also to prove the injury report and in such a case the statement of the doctor would be the substantive evidence and the injury report may be used to corroborate or discredit his testimony."

"11.....It is true that prior to the coming into force of the Code of Criminal Procedure, 1973 the post-mortem report after it was proved was not substantive evidence but only corroborated the statement of the doctor made in Court and even now if the genuineness of the post-mortem report is disputed by the accused, the doctor must be examined to prove the injuries found on the body of the deceased and also the post-mortem report and the post-mortem report may only be used to corroborate or discredit his testimony which is the substantive evidence. This, however, cannot lead to the conclusion that the post-mortem report cannot be read as substantive evidence under Sub-Sec. (3) of S. 294, Cr. P.C. if its genuineness is not disputed by the accused. As already mentioned, the very object of enacting S. 294, Cr. P.C. would be defeated if the signature and the correctness of the contents of the postmortem report are still required to be proved by the doctor concerned even if its genuineness is not disputed by the accused. S. 294, Cr. P.C. is clear and unambiguous. It is only when the genuineness of the post-mortem report filed by the prosecution is not disputed by the accused that Sub-Sec. (3) of S. 294, Cr. P.C. is applicable and the post-mortem report may be read as substantive evidence and the signature and the correctness of its contents need not be proved by the doctor concerned. We are, therefore, clearly of the opinion that if the genuineness of the post-mortem report filed by the prosecution under Sub-Sec. (1) of S. 294, Cr. P.C. is not disputed by the accused, it may be read as substantive evidence under Sub-Sec. (3) of S. 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 Ss. 67 to 71 of the Evidence Act. S. 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-Sec. (1). Sub-Sec. (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 S. 294 to justify exclusion of it, from the purview of "documents" covered thereby. The mode of proof of it also is liable to be waived as of any other document.

13....... Ordinarily, the entire medical evidence i.e. the doctor's oral evidence and his reports, happens to be corroborative as against the substantive eye-witness account of any assault. Thus, even the doctor's oral evidence itself is corroborative in nature. Authenticity of a document which is determinative of its reception in evidence is altogether a different factor unconnected with its probative value and its being corroborative or substantive."

36. In the case of Bisundeo Mishra v. State of Bihar (supra) 1989 Pat LJR 405, a learned single Judge of this Court after referring to some of the decisions in para 12 (as quoted earlier) has said at page 411 (para 13) as follows :

"Thus notes on post-mortem examination constitute a very valuable material for checking the correctness of the medical and other evidence. It is, a record made by the medical officer while conducting the post-mortem examination for forming his opinion as to the cause of death. If the medical officer, who conducts the said examination, is examined in

court, then the notes which are tendered in evidence, can be looked into and then he will be able to establish the cause of death disclosed by the post-mortem examination, and then he will be required to give in evidence the matters which have bearing on the question. Thus without examination of a doctor, post-mortem report cannot be looked into specially for the purpose of ascertaining the cause of death as it is the opinion of the doctor which it is he alone, who can substantiate in his evidence. Similar is the position of the injury report, when a doctor gives his opinion about the nature of injury. If the doctor is examined then he will not only give reasons for his opinion, but also give an opportunity to the defence to cross-examine him as to the cause and reason for holding such opinion. It is very valuable right which a defence cannot be refused by withholding of the doctor by the prosecution. This non-examination of the doctor may be for reasons beyond the control of the prosecution or for any other reasons. But if the prosecution fails to give any satisfactory evidence that the doctor is not available then in no case the opinion of the doctor about the cause of death in the post-mortem report can be looked into. However, if the post-mortem report is 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 Pat LJR 867 (2) : (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 S. 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 17-10-78 from the hospital where he met the injured Ganga Singh and recorded his Fard-beyan. He further says that. the condition of the victim was serious and so he asked the B.D.O. to record the dying declaration of the victim. He (C.W. 1) had examined the body of the victim. All these show that the victim was assaulted, the Ext. 5 which has been brought on the record as post-mortem report appears to have been done by Dr. Gupta whose writing has been proved by P.W. 7. Thus it appears that the post-mortem has been done and even if the Doctor has not been examined this much can be inferred that the post-mortem of the victim has been done and he has received the injuries. The oral evidence is that the victim has received the injuries and thereafter he died. In spite of all this it cannot be said that what was the cause of death of the victim. So in these circumstances post-mortem report cannot be accepted in absence of the examination of the doctor. But only this much is established that the victim was assaulted by the accused persons and the victim received the injuries. And so the contention of the learned counsel for the appellants that the case u/S. 302, IPC against the appellant is not made out may be accepted.

37. The Courts have also deprecated the tendency of the prosecution to bring on record the police papers and medical reports through Taiyd (clerk) in the office of Advocates or the Public Prosecutors. In the case of Sheo Govind Bin v. State of Bihar (supra) 1985 BBCJ 632 (in paras 11 and 16 as quoted above) the Division Bench has not appreciated the admission of post-mortem report (Ext. 7) on the basis of the statement of clerk of the Public Prosecutor and held the same as meaningless and non-purposeful. Similarly in the case of Shyam Deo Singh v. State of Bihar

1987 Pat LJR 1003 : (1988 Cri LJ 508) a Division Bench has said about police report and post-mortem report at page 1004 (of Pat LJR) : (at p. 509 of Cri LJ) (para 5) as follows :-

"Before we discuss the evidence regarding the merit of the case, we would like to record here that the police officer who investigate the case has not been examined. It was P.W. 1 another police officer who finally submitted charge-sheet and the evidence of this witness needs no discussion. Even the doctor who conducted post-mortem examination was not brought in court. The prosecution therefore, took steps to get the post-mortem report exhibited in court in evidence. It has been marked as Ext. 2. The case diary written by 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. S. 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 the cause of death. If the cause of death is absolutely certain and beyond the pale of doubt or controversy, it is unnecessary to have the post-mortem done by the medical officer."

39. In the instant case the post-mortem report (Ext. 2) has been brought on record by the Head clerk (P.W. 8). The doctor is said to have died and so the report is admissible u/S. 32 of the Evidence Act. It fully supports and corroborates the ocular testimony. No prejudice or discrepancy or contradiction is there. As such non-examination of the doctor conducting post-mortem report was beyond the control of the prosecution and further no demonstrable prejudice is there, so it has no effect upon the prosecution case.

As regards the contention that the distance between the roof and the Angan was such that the firing said to have been done by the accused would have brought out a different result than that found by the doctor, learned counsel referred to P.W. 2 who said in paragraph No. 11 that his house is pucca built and the roof from the ground was 12- in height and round it were railings. P.W. 4 in para 10 said that the roof from the Angan was about 15' in height. Learned counsel also referred to Modi's Medical Jurisprudence and Texicology, Twentieth Edition, 1977 at page 227 dealing with "Distance of the Firearm". Blackening is found if firearm like gunshot is discharged from a distance not more than 3' and a revolver or pistol discharged within about 2'. In the absence of blackening no distinction can be made between one distant shot and another, as regards to distance. Scorching in the case of the latter fire-arms is observed within a few inches, while some evidence of scorching in the case of shot guns may be found even at 1 to 3 feet. Moreover, these signs may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gunpowder will all follow the track of the bullet in the body."

In the post-mortem report (Ext. 2) brought on record by P.W. 8 Ramchandra Pandey, Headclerk, the following ante mortem injuries have been noted and the opinion given :

"1. Multiple small black charred wounds over the left arm and shoulder.

2.Three small black wounds over the left side of the neck and chest.

3.Multiple small black over the left side of the chest and upper 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 witnesses that aforesaid Chandradip was killed or fired at some other place and so for that reason it cannot be said that on account of distance in the Angan and Chhat the occurrence had not taken place at that particular place and for that version the prosecution case on that score is not to be relied.

41. As regards P.W. 4, it has been said that he was child. He has himself said that he was 13 years old and was student of 8th class. In the case of Tehal Singh v. State of Punjab AIR 1979 SC 1347 : (1979 Cri LJ 1031) the, Supreme Court observed at page 1350 (of AIR) : (at p. 1034 of Cri LJ) (Para 5) :

"5. Hardip Singh is a lad of 13 years. In our country and particularly in the rural areas it is difficult to think of a lad of thirteen years as a child. A vast majority of boys round about that age go to the fields and do men's work. They are certainly capable of understanding the significance of the oath and the necessity to speak the truth. The learned Sessions Judge who had the opportunity of seeing the witness Hardip Singh in the witness box did not consider it necessary to treat him as a child witness. A perusal of his evidence also shows that he has certainly attained a measure of mature understanding. We do not think we can accept Dr. Chitaley's argument and proceed on the basis that Hardip Singh is a child witness. Even otherwise, having gone through his evidence we are satisfied that his evidence does not suffer from any infirmity. He was cross-examined at great length but nothing was elicited from him to dub him as a false or a tutored witness. The mere circumstance that he is the son of one of the deceased person does not justify our looking at his evidence with any suspicion."

In the case of Dalip Singh v. State of Punjab, AIR 1979 SC 1173 : (1979 Cri LJ 700) the Supreme Court observed at page 1176 in para 7 (of AIR) : (at pp. 702, 703 of Cri LJ) :-

".......The third criticism against the evidence of these two witnesses was that they were tutored witnesses and had given the prosecution version parrot like. Both of them were teenaged children of Teja Singh and their version was so truthful that it was rightly believed by the courts below";

In the case of Bharvad Bhikha Valu v. State of Gujarat AIR 1971 SC 1064 : (1971 Cri LJ 927) the Supreme Court observed at page 1067 (of AIR) : (at p. 930 of Cri LJ) in para 17 :

"The High Court adopted the correct approach in finding 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 S. 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 in 1989 Pat LJR (HC) 507 (2) : (1991 Cri LJ 1283) Krishna 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 the appellate stage. The Bench made a reference to the decision in the case of Gopinath Ghosh v. The State of West Bengal AIR 1984 SC 237 : (1984 Cri LJ 168) in which Juvenile delinquent had given his age as 20 years before the learned Additional Sessions Judge and neither in the trial nor at the appellate stage in High Court the jurisdiction for trial was challenged. But the Supreme Court where the question was taken for the first time, observed at page 249 (of AIR) : (at p. 171 of Cri LJ) (para 10) :

"....However, in view of the underlying intendment and beneficial provisions of the Act read with clause (f) of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical contention that this contention is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it."

The Supreme Court set aside the conviction and the case was remanded to the learned Magistrate for disposal in accordance with the West Bengal Children Act. The Full Bench observed at page 519 in paragraph, 15 :-

"....Once the legislature has enacted a law to extend special treatment in respect of trial and conviction to juveniles, the Courts should be jealous while administering such law so that the delinquent juveniles derive full benefit of the provisions of such Act but, at, the same time, it is the duty of the Courts that the benefit of the provisions meant for juveniles are not derived by unscrupulous persons, who have been convicted and sentenced to imprisonment for having committed heinous and serious offences, by getting themselves declared as children or juveniles on the basis of procured certificates. According to me, if the plea that the accused was a child or juvenile on the date of the commission of the offence is taken for the first time in this Court, then this Court should proceed with the hearing of the appeal, as required by S. 26 of the Juvenile Act and should record a finding in respect of the charge which has been levelled against such an accused. If such an accused is acquitted, 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 S. 32 of the Act. If the finding so received is accepted by this Court, then this Court in terms of S. 26 of the Juvenile Act should pass an order directing the Juvenile Court to pass orders in accordance with Ss. 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 S. 302 read with other Sections and has been sentenced to undergo rigorous imprisonment for life. In the statement under S. 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 guilt of the appellant and if the finding recorded by the trial court is affirmed, then the next question has to be examined as to whether it is a fit case where a finding be called for, in accordance with S. 32 of the Juvenile Act, while is now in force, regarding the age of the appellant on the date he is alleged to have committed the offence. Thereafter the appeal has to be disposed of in accordance with the procedure indicated above."

In the case of Bhoop Ram v. State of U.P. AIR 1989 SC 1329 : (1990 Cri LJ 2671) the Supreme Court has said at page 1331 (of AIR) : (at p. 2673 of Cri LJ) in para 8 :

"Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent, to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra v. State of U.P. (1981) 4 SCC 149 : AIR 1982 SC 685 : (1982 Cri LJ 1000) that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" under S. 2(4) of the U. P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentences imposed upon the appellant are quashed."

In the case of Krishan alias Pandit v. State of Uttar Pradesh AIR 1991 SC 43 : (1990 Cri LJ 2650) the Supreme Court has observed at page 44 (of AIR) : (at p. 2651 of Cri LJ) in paras 5, 6 and 7 :-

"5. The question of application of Sub-Sec. (a) to S. 33 does not arise since the accused has already been convicted. He cannot now be discharged with admonition. He could be dealt with either under Sub-Sec. (e) or (g). Similar view was taken by this court in Bhoop Ram v. State of U.P. (1989) 3 SCC 1 : (1990 Cri LJ 2671) where conviction was sustained but sentence, was quashed.

6. In the instant case, we are of the opinion that the accused may be given the benefit of the probation of good conduct. We, accordingly, direct 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 S. 3 of the Act and exercising powers of Juvenile Court u/S. 7(3) of the Act, while maintaining the conviction of the appellant under S. 302, IPC direct the appellant to be released on probation of good conduct on executing a bond to the satisfaction of the trial court that he will keep peace and be of good behaviour for a period of three years. He is further directed in the circumstances of the case to pay a sum of Rs. 5000/-

as fine, which shall be paid as compensation to the widow of deceased Chandradip Singh, though this amount is not an adequate compensation to her for the loss she has suffered.

44. As regards the other appellants, the conviction and sentence imposed upon them by the trial court are found to be well made out and so they are affirmed and their appeal is dismissed. The appeal of appellant Rajendra Singh is also dismissed with the modification in sentence as mentioned above.S. K. SINGH, J. :- 45. I agree.

Appeal Dismissed