BABULAL SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner faced prosecution under sections 448,323, and 325 read with section 34, I.P.C. along with two others who have since been acquitted at the appellate stage. The learned trial court found all the accused guilty of the charges and sentenced them to R.I. for one month under section 448, I.P.C. for four months under section 323, I.P.C. and R.I. for one year under section 325, I.P.C. and fine of Rs. 500/-, in default to undergo R.I. for one month more. In appeal the learned Additional Sessions Judge set aside the conviction and the sentence of the other accused but maintained the conviction and the sentence of the petitioner under section 323, I.P.C. while acquitting him of the other charges. The narration of the prosecution case is that P.W. 4 had been to his father-in-law's house and while he was there, on 21.2.1984 at about 8 p.m. the two acquitted accused Satyananda and Sadananda came and called him to come outside as he was wanted by a contractor. His mother-in-law P.W. 5 dissuaded him from going out but after P.W. 4 had come out he was dealt a lathi blow on the left hand by the petitioner who was concealing himself. P.W. 1, the brother-in-law of P.W. 4 came to his rescue but was also assaulted by a lathi receiving injury to his face. Both P.Ws. 1 and 4 went back into the house and bolted the door from inside but the accused persons pushed an iron rod inside through a hole in the door which injured the left eye of P.W. 2, the father-in-law of P.W. 4 and also caused an injury near the left ear of P. W. 3. They raised hulla for which the accused went away. The F.I.R was lodged by P.W. 4 the next day at around 10 a.m. with the explanation that as they were afraid to come out, the information could not be lodged earlier. The investigation having been taken up and completed the charge-sheet was submitted. The defence of the petitioner was denial and of the case having been falsely foisted against him.

(2.) Mr. Misra, the learned counsel appearing for the petitioner has urged in assailing the conviction and the sentence of the petitioner, that in the case the Investigating Officer was not examined, the F.I.R. was not proved and there was delay in lodging the F.I.R. and that since P.Ws. 1 and 4 stated that it was a dark night and it was particularly the statement of P.W. 4 that he could not identify everybody, the case ought to have ended in acquittal.

(3.) In support of the submission regarding non-examination of the Investigating Officer, Mr. Misra placed reliance on Sk. Makbul Khan v. State, in which the observation was made that in case of non-examination of any Investigating Officer two courses are open to the revisional court; either to remit the matter back to the trial court or to direct an acquittal, depending upon the circumstances of the case. Mere non-examination of the Investigating Officer who is after all only a witness in the case would not automatically vitiate the prosecution case. No doubt the Investigating Officer is an important witness who deposes regarding the manner of his conduct of the investigation. His evidence often becomes important for the purpose of bringing on record the omissions and contradictions of the witnesses. Hence to succeed in nullifying a prosecution for his non-examination, it is necessary for the accused to establish that in fact his non-examination has contributed incurable prejudice to the defence. It may be shown that had the Investigating Officer been examined, questions which were essential to be put to him could have been put or any question arising out of his investigation or rather the defect in h could also have been brought out through his mouth. But the onus to establish such prejudice lies on the person who complains of it. In the present case no such case is made out. The only submission is that it was the statement of P.W. 5 that two other independent witnesses were present at the time of occurrence but that they have not been examined as witnesses. The fact is already on record and the examination of the Investigating Officer could have hardly improved the matter. So far as the decision in Sk. Makhul Khan v. State (supra) is concerned, it docs not take any contrary view. No doubt the observations were made by the learned Judge in a broad manner that when the Investigating Officer is not examined the two courses open to the revisional court are either to acquit the accused or remand the matter. But what was really meant that such courses to be adopted by the revisional court only in the event the court comes to the conclusion that adoption of either of the methods is necessary. The conclusion has to be first reached by the court that in fact the non-examination of the Investigating Officer has caused prejudice to the accused which warrants an interference in the revisional jurisdiction. Once that conclusion is reached, the case can only end in acquittal or be remanded for examination of the Investigating Officer. This submission of Mr. Misra hence must fail.