Non-examination of crucial witnesses such as the Investigating Officer and the doctor conducting the post mortem can be fatal to the prosecution's case.

( 1 ) WE have heard the learned State Counsel and the learned Counsel who represents the respondents-accused. This is a case in which there are as many as 34 persons who have been charge sheeted with having committed offences of being members of an unlawful assembly, rioting, causing injuries to as many as six of the prosecution witnesses, attempt to murder and murder. The allegation is that these accused persons formed a group, that they were armed with deadly weapons such as cycle chains, choppers, axes, clubs, stones and the like and in the course of the incident, Thirumalappa sustained fatal injuries and six other persons sustained injuries, some of which are serious injuries. The learned trial Judge recorded an order of acquittal in favour of the accused which Order is under challenge through the present appeal.

( 2 ) PURSUANT to notice from this Court, the respondents have appeared through their learned Counsel, we have heard both the learned Counsel in appeal on facts and in law and reconsidered the entire case on merits. Simultaneously, we have also reviewed the record for purposes of ascertaining as to whether on the basis of this record the verdict of the lower Court acquitting the accused is justified or whether it is required to be reconsidered and some or all of the accused be convicted. For this purpose, it was necessary for us to re-scrutinise the oral evidence and having done so as we find that it does not bear the credibility levels nor it is comprehensive enough to establish the charges.

( 3 ) THE serious infirmity that has been recorded by the trial Court is that the Investigating Officer was not examined. Some other officer, who was to a limited extent dealing with this investigation, has been examined and certain reasons have been set out on behalf of the State as to why this had happened. Since the full facts are not before us, we do not desire to make any comments with regard to the non examination of the Investigating Officer beyond pointing out that the trial Court was right when it recorded a finding to the effect that the non examination of the Investigating Officer is fatal to the prosecution. One of the submissions canvassed on behalf of the State is that in this case the other officer was examined and therefore, if the proving of any omissions or contradictions was to be done that this was feasible through the officer who has been examined and secondly what is contended is that the examination of the Investigating Officer in the majority of instances is only a formality. We are unable to accept this last submission because the Investigating Officer is the principal architect and executor of the entire investigating. He is a crucial witness for purposes of establishing that there are omissions and contradictions but more importantly, it is always open to the defence to question the honesty and caliber of the entire process of investigation. It is well settled law that where an investigation is defective, insufficient or dishonest that these factors prove fatal to the prosecution. In the given instance, the accused was totally precluded from any opportunity of being able to establish the infirmities in the prosecution case and on this ground alone the Order of acquittal will have to be confirmed.

( 4 ) ANOTHER serious fault that has been committed during the present trial is the fact that doctor who conducted the post mortem has not been examined. It is very important particularly in cases of the present type that the prosecution has to establish beyond doubt that the death was homicidal and for this purpose, the evidence of the doctor cannot either be diluted or done away with. The aggravating Circumstance comes in from the fact that even the post mortem report was not tendered and under these circumstances it would be impossible to hold that the death was homicidal. Secondly, the non-examination of the doctor would give rise to serious infirmities in so far as the Court is required to categories h

Click Here to Read the rest of this document