IMPORTANT POINT
Non-examination of investigating officer is not fatal to prosecution case especially when no prejudice was likely to be suffered by accused.

ORDER

The State of Karnataka has filed this criminal appeal challenging the acquittal of respondents 1 to 4 for the offence punishable under Section 304 Part II read with section 149 IPC and Section 324/148 IPC and Section 143 IPC. Respondents 1 to 4 were found guilty by the Sessions Court, Karwar and aggrieved by the same they filed criminal appeal before the High Court and the appeal was allowed.

2. The prosecution case was that the respondents 1 to 4 along with three others went to the residence of deceased Prakash Manjunath Talekar at about 7.30 p.m. on 20.9.1993. These respondents and others were armed with cycle chains, belts and clubs. Deceased Prakash was dragged out of his house by the first respondent and another to a distance of 75 feet where he was attacked by the accused with belts, cycle chains and clubs. PW-1, Shobha, the wife of the deceased Prakash came to the rescue of her husband and she was assaulted by the accused. PW-2 Tarabai who was present in the house of deceased at the time of incident was also assaulted by the accused. Prosecution alleged that PW-10 Sithabai who was coming after attending some function was attacked by these accused on her way to her house. Prakash died about 10 minutes after the incident. PW-1 was afraid to go to the police station and on the next day morning she went to the nearby police station and gave FI statement. Her statement was recorded and the case was registered.

3. On the side of the prosecution PW-1 to PW-11 were examined. The post mortem of deceased Prakash was conducted by PW-11. There were as many as 22 injuries on his body and most of the injuries were abrasions and the internal injuries show that there were fractures to the 7th, 8th, 9th and 10th ribs on the left side. There were blood clots surrounding entire left kidney. PW-11 who conducted the post mortem deposed that all injuries were ante mortem and that the injured died of shock and haemorhage caused due to multiple injuries sustained by him.

4. The Sessions Court relied on the evidence of PW-1, PW-2 and PW-10 and held respondents 1 to 4 guilty. In the appeal preferred by them, the learned Judge of the High Court reversed the conviction and sentence solely on the ground that the investigating officer and constable who recorded the FI statement were not examined as prosecution witnesses. As regards the evidence adduced by eye, witnesses, no adverse comments were passed by the learned Single Judge.

5. The counsel for the State submitted that the acquittal of the accused is not sustainable in law as the accused had not suffered any prejudice because of the non examination of the investigating officer and the constable who recorded the FI statement.

6. In the instant case, the Sessions Judge issued summons to these two witnesses but these police officers did not turn up for giving evidence and Sessions Judge closed the prosecution case as one of the accused had been in prison as an under trial for fairly long period. The counsel for the respondents 1 to 4 though contended that they were seriously prejudiced by the non-examination of the investigating officer, this plea could not be substantiated by cogent facts and circumstances. It is true that as a part of fair trial the investigating officer should be examined in the trial cases especially when a serious sessions trial was being held against the accused. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under Section 161 Cr.P.C. or if there is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating officer who must have recorded the statement of these witnesses under Section 161 Cr.P.C. In the present case, no such serious contradiction is pointed out in respect of the evidence of the important eye witnesses PW-1, PW-2 and PW-10. So also the non-examination of head constable who recorded FI statement is not of serious consequence as P