IMPORTANT POINT
Non-examination of Investigation Officer in a criminal trial causes serious lacuna in prosecution case and prejudice to accused. The tendency of I.O.'s to keep away from court is not good.

JUDGMENT

M.P. Varma and S.H.S. Abidi, JJ. - The appellant on the record has been named as Rajawa Kebat alias -Rajendra Mandal on of Late Mushahru Mandal alias Mishilal Mandal resident of village Jai Rampur, police station Raiganj district Madhipura. He is the sole appellant. He has been convicted of the charge under section 396 of the Indian Penal Code (in short the Code) for having committed dacoity in the house of Sushil Kumar Singh (P.W. 5) along with 10-12 persons. The dacoity was committed in between the night of 13/14th May 1978 at village. Rupauli Hatia Tola, Police Station Banmankhi in the district of Purnia. In course of commission of dacoity two persons are said to have been killed one was Mohan Mahto, Servant of Sushil Kumar Singh (P.W. 5) and other was Upendra Mahto.

2. The prosecution case in short is that all of a sudden in the mid night a few dacoits broke open the door of the house of the informant (P.W. 5), entered inside the room and demanded the cash and ornaments. They ransacked the whole house and looted away properties worth several thousands. The details of the articles looked away have been given in the F.I.R. The case is that some of the dacoits tied the hands of Shiva Nath Singh (P.W. 2) who was sleeping in the Verandah of the house and some other dacoits opened fire causing injury to Mohan Mahto. The informant's brother (P.W. 6) also sustained Injuries by the gun shot fired by some of the dacoits. There was hue and cry and Hulla was raised and the dacoits while retreating suddenly fire on Upendra Mahto son of Badri Mahto (P.W. 3) at a place about a mile away from the house of the informant.

3. Sushil Kumar Singh, the informant, (P.W. 5) rushed to Banmankhi Police Station where he lodged the information. The police drew up the F.I.R. (Ext. 3) and took up the investigation of the case. Mohan Mahto who was seriously injured was removed to hospital but he too ultimately died. The dead body was sent for post-mortem examination. Dr. A.K. Choudhary (P.W. 9) had conducted postmortem examination. Earlier in the hospital he was treated by some other doctor namely Dr. K.P. Modi but Dr. Modi has not been examined in court. The doctor A. K. Choudhary (P.W. 9) has stated that on the section of the body be could recover 4 pellets from the abdominal cavity and this injury was the cause of death. We could not get from the records regarding any postmortem over the dead body of another deceased Upendra Mahto. The appellant was arrested on 15-10-78 about 5 months after the incident and he was put on test identification parade on 20-12-78.

The informant (P.W. 6) had identified this appellant as one among the dacoits who committed dacoity in his house. The police after completing investigation submitted charge-sheet and the appellant was thus put on trial.

4. In fact the charge sheet was submitted against 10 accused persons including the present appellant and the police showed nine of them as absconder, it is not yet clear to us what happened to the case of other nine accused as the case of this appellant alone was committed to the court of sessions for trial The prosecution examined 10 witnesses in all to substantiate the charge of dacoity and murder against this appellant but it is important to note that P.W. 5 is the solitary witness who claimed to have identified this appellant as one among the dacoits. His evidence alone deserves importance to be commented upon coupled with the statement of Md. Sagir Ansari (P.W. 1), Munsif Magistrate, who conducted T.I. parade. T.I. chart is Ext. 1.

5. We need not discuss the evidence of other witnesses because the learned counsel either for the appellant or for the respondent also did not refer to the evidence of any other witnesses except that of P.W. 5 and the Magistrate (P.W. 1) who conducted the T.I. parade. The Investigating Offence of the case has also not been examined. Non-examination of the Investigation Officer is a serious lacunae. We do not find any adequate explanation