IMPORTANT POINT
Once the eye witnesses are believed, the lapse on part of the Investigating Officer in not observing the provisions of Section 172 Cr.P.C., unless some prejudice is shown to have been caused to accused, will not affect the finding to guilt recorded by the Court.

Headnote:(i) Criminal Procedure Code, 1973-Section 172 r/w Rule 164 of Bihar Police Manual-Obligation on part of Investigating Officer to record day to day proceedings in case diary -Record time at which information was received, place visited by him-To send blood stained clothes and earth seized from place of occurrence for chemical examination-Failure to comply is serious lapse. (Para 5)
       (ii) Indian Penal Code, 1960-Section 302/34-Appeal against conviction-Serious lapse on part of Investigation Officer in not observing mandate of Section 172 Cr.P.C.-No prejudice shown caused to accused-Judgments of Courts below would not suffer.
       Held : We, therefore, take it that, in fact, there was serious lapse on the part of the investigation Officer in not observing the mandate of Section 172 Cr.P.C. while investigating the case which has given rise to this appeal. But the question that arises for consideration is, has any prejudice been caused to the accused in the trial by non observance of rule by the Investigating Officer ? The evidence on record before the Sessions Court and the appellate Court does not show that due to the lapses on the part of the Investigating Officer in not sending the blood stained clothes the earth seized from the place of occurrence for chemical examination and further not noting down the time of recording the statement of the witnesses in the Diary has resulted in any prejudice to the defence of the accused. In the present case, the place of occurrence and the identity of the deceased are not disputed. Further, the testimony of the eye witnesses which is consistent and does not suffer from infirmity, was believed by both the courts below. Once the eye witnesses are believed and the courts come to the conclusion that the testimony of the eye witnesses is trustworthy, the lapse on the part of the Investigating Officer in not observing the provisions of Section 172 Cr.P.C. unless some prejudice is shown to have been caused to the accused, will not affect the finding of guilt recorded by the Court. Neither before the High Court nor before this Court, it was pointed out in what manner the accused was prejudiced by not-observance of the provisions of Section 172 Cr.P.C. and the rules framed in this regard. We are, therefore, of opinion that judgments of Court below do not suffer on account of omission on the part of Investigating Officer in not sending the earth seized from the place of occurrence for Chemical examination or in not entering the time of recording the statements of witnesses in the Diary. (Para 5)
       (iii) Indian Penal Code, 1860-Section 302/34-Appeal against conviction-Names of accused not mentioned in the inquest report-No column in inquest report to mention names of accused-Report was not a complete document-Not safe to entertain argument in this appeal when no such argument was advanced during trial or in High Court. (Para 7)

JUDGMENT

V.N. Khare, J.-By this appeal, the appellants, who have been found guilty for the offence under Section 302 read with Section 34 of the India Penal Code, question the correctness of the judgment rendered by the High Court of Patna, dismissing their appeals and upholding the judgment of the Additional Sessions Judge, Bhagalpur in Sessions Trial Case No. 333 of 1982.

2. The prosecution case which has given rise to this appeal is, that on December, 3 1981 at about 2.30 p.m. one Rudan Mandal (PW.11), while getting his work done in his field heard the cry of his nephew Natheshwar Mandal which was coming from the field of one Ekbal Mandal situated to the west of his field. On hearing the cry, Rudan Mandal ran towards that direction raising alarm. When Rudan Mandal arrived near the place of occurrence he witnessed the accused Dasrath Mandal and Baleshwar Mandal assaulting the deceased Natheshwar Mandal with Dabiya and Kulhari , respectively. On alarm being raised, the villagers from neighbourhood arrived and thereafter both the accused managed to escape from the place of occurrence towards north. Further case was that Kashi Mandal (PW.1), Tarni Mandal (PW.4), Kailash Mandal (PW.2), Tetar Mandal (PW.10) and Biddi Mandal (PW.3) saw the accused cutting the deceased - Natheshwar Mandal with Dabiya and Kulhari, as a result of which Natheshwar Mandal died and accused fleeing away after they were being identified. I.O. Rajnandan Singh (PW.15) arrived at the place of occurrence at about 4.30 p.m. when he recorded the Fardbayan of PW.11 - Rudan Mandal. The Investigating Officer seized the blood stained clothes and earths of place of occurrence and prepared the inquest report and site plan and thereafter recorded the statements of witnesses. The Fardbayan was sent to the Police Station through special messenger and on the basis of Fardbayan, the First Information Report was lodged next day.

3. The Court of Session having found both the accused have committed murder of Natheshwar Mandal, sentenced them for imprisonment of life. The appeal preferred by the appellants was dismissed by the High Court.

4. In this appeal, it was urged on behalf of the appellants that due to the serious lapses on the part of the Investigating officer (PW.15) in not sending the blood stained clothes and earths seized from the place of occurrence for chemical examination, inasmuch as in not noting down the time of examination of the witnesses in the diary and further non-examining the appellants, the trial of the appellant resulting in conviction of appellants was vitiated and the appeal is to be allowed only in this ground.

5. Under Section 172 Cr.P.C. read with Rule 164 of Bihar Police Mandal dealing with the investigation, an Investigating Officer investigating a crime in under obligation to record all the day to day proceedings and information in his case diary, and also record the time at which the information was received and the place visited by him, besides the preparation of site plan and other documents. The Investigating Officer is also required to send blood stained clothes and earth seized from the place of occurrence for chemical examination. Failure on the part of the Investigating Officer to comply with the provisions of Section 172 Cr. P.C.. is a serious lapse on his part resulting in diminishing the value and credibility of his investigation. In this case the Investigating Officer neither entered the time of recording of the statements of the witnesses in the Dairy nor did he send the blood stained clothes and earth seized from the place of occurrence for examination by a serologist. The High Court also adversely commented upon the lapses on the part of the Investigating Officer in not complying with the provisions of Code of Criminal Procedure. We, therefore, take it that, in fact, there was serious lapse on the part of the investigation Officer in not observing the mandate of Section 172 Cr.P.C. while investigating the case which has given ri

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1997 Supreme(SC) 1078

IMPORTANT POINTOnce the eye witnesses are believed, the lapse on part of the Investigating Officer in not observing the provisions of Section 172 Cr.P.C., unless some prejudice is shown to have been caused to accused, will not affect the finding to guilt recorded by the Court.

IMPORTANT POINT
Once the eye witnesses are believed, the lapse on part of the Investigating Officer in not observing the provisions of Section 172 Cr.P.C., unless some prejudice is shown to have been caused to accused, will not affect the finding to guilt recorded by the Court.