STATE OF KERALA Vs. VARGHESE

JUDGEMENT

(1.) THIS is an appeal tiled by the State challenging an order of acquittal passed by the Judicial Magistrate of II Class. Thiruvalla, in a case where the accused-respondent was charge- sheeted for offences punishable under S.279, 337 and 338 I P C. and S.89 (a) and (b) of the Motor Vehicles Act.

(2.) THE case against the respondent was that he on January 29,1975 at about 9.30 p m. drove a taxi car KLA 4771 in a rash and negligent manner along the Thiruvalla-Kozhencherry public road and at a place near Muttuman at Pulladu dashed against pw 1 who was passing along the road as a result of which he was thrown into the field nearby and sustained injuries on his head, leg and other parts of the body THE car also hit against pw 2 and he also sustained injuries On the first information statement (Ext. P1) given by pw. 1, a case was registered and on the conclusion of the investigation a charge-sheet was laid against the respondent for the offences mentioned above.

(3.) IT is seen from the judgment that pws. 1 to 8 have deposed to the entire case in necessary details, and that the learned Magistrate has duly and carefully considered their evidence and found their evidence, especially that of Pw. 4 is satisfactory and reliable. The judgment does not show that any case diary contradiction, whether material or not, has been brought out during cross-examination of the prosecution witnesses On going through the materials placed before this Court and the judgment of the trial court, I find the non-examination of the Investigating Officer in this case has not in any way caused prejudice to the respondent. If the Investigating Officer did not appear in pursuance of the summons issued to him it was the duty of the court to have taken coercive steps to secure the presence of the Investigating Officer and initiate necessary action for the disobedience of the summons of the court. The non-examination of an Investigating Officer does not per se furnish a ground for acquittal, although it is a circumstance which may be taken into consideration by the court depending upon the facts and circumstances of the particular case. But in certain cases, the non-examination of the Investigating Officer may deprive the accused of a valuable right and opportunity to prove the material case diary contradictions brought out during the cross-examination of the prosecution witnesses or other important facts and circumstances favourable to the defence resulting in serious prejudice to the accused. In such a case, the non-examination of the Investigating Officer may adversely affect the prosecution. IT is seen from the Order Sheet that on 17-2-1976 there was a direction to issue summons to Cws. 7, 10 and 11 and of these, Cws. 10 and 11 are said to be Investigating Officers and the case was adjourned to 26-2-1976. As the summons did not return, the case was adjourned to 18-3-1976. There was no sitting on that day. On 27-3-1976, as the respondent was absent and as the summons also did not return, the case was again adjourned to 15-4-1976. On that day also the summons sent to CWs. 10 and 11 had not been returned. Thereafter no summons was issued to the Investigating Officers, nor any coercive steps taken against them to secure their presence. In the circumstances the prosecution cannot be blamed for the non-examination of Investigating Officers and the acquittal of the respondent on this ground is wrong and is liable to be set aside.