Important Point
It will not be safe to rely upon evidence of eye-witness of an incident of murder when there was unexplained delay of 15 days in recording their statements during investigation, though recorded under Section 164 Cr.P.C. and no statement recorded under Section 161 Cr.P.C.

Judgment (Oral)

D.D. Sinha, J. - Heard Mr. Daga, learned counsel for the appellant and Mr. Fulzele, learned Additional Public Prosecutor for the respondent-State.

2. The appellant-accused has challanged the judgment and finding of conviction recorded by the trial court in the present appeal for the offence punishable under Section 302 of the Indian Penal Code.

3. Mr. Daga, learned counsel, contended that in the instant case the prosecution has examined eleven pro-secution witnesses. However, the mate-rial witnesses are Istari Sakharwade (PW-1), the father of the deceased, Shankar (PW-2), who claims to be an eye-witness to the incident, and is the elder brother of the deceased Some-shwar, Smt. Lalitabai (PW-3), the mother of the deceased, Smt. Gopika-bai (PW-4), another eye-witness, and Dr. Gopal (PW-8). It is contended that the other witnesses, i.e., Pisharam (PW-5) and Dnyaneshwar (PW-6) are the Panch witnesses examined by the prosecution in order to prove seizure of clothes of accused, Spot Pancha-nama, Inquest Panchanama respec-tively. Janba (PW-7) is a witness who tried to get an ambulance to carry the injured to the hospital. Gangadhar (PW-9) is the Police Constable, who had carried the axe to the Medical Officer for obtaining his opinion. Mahendraraj (PW-10) is Asstt. Police Inspector, who has registered the First Information Report (Exh.31) and thereafter han-ded over the investigation to Rajendra (PW-11), who is Police Sub-Inspector and the Investigating Officer in the present case.

4. Mr. Daga, learned counsel, contended that the direct evidence adduced by the prosecution is that of Shankar (PW-2) and Gopikabai (PW-4). It is submitted that during the course of investigation, the prosecution has not recorded the statements of these witnesses under Section 161 of the Criminal Procedure Code though they were available and there is no reason given by the Investigating Officer for not recording their statements under Section 161 of the Code. It is further contended that Shankar (PW-2) and Gopikabai (PW-4) were not produced by the Investigating Officer before the Magistrate who had recorded their statements under Section 164 of the Criminal Procedure Code. It is conten-ded that these two witnesses on their own went to the court of the Magis-trate and asked the Magistrate to record their statements under Section 164. It is contended that the Magis-trate recorded the statements of these witnesses under Section 164 and those statements were kept in a sealed cover and they were never made available to the defence in order to prove the omissions and contradictions.

5. Mr. Daga, learned counsel, contended that the Apex Court in Jogendra Nahak and others v. State of Orissa and others1, has held that Section 164 of the Code of Criminal Pro-cedure does not empower a Magistrate to record statement of witness on his request even though asked for by Investigating Agency to do so. It is contended that in view of the ratio laid down by the Apex Court in the above referred case, the statements of Shankar (PW-2) and Gopikabai (PW-4) (alleged eye-witnesses to the incident) recorded by the Magistrate on the request made by these witnesses cannot be admitted in the evidence and the same also cannot be relied on. It is submitted that if the evidence of these two eye witnesses is excluded, then the remaining evidence adduced by the prosecution is totally inade-quate to bring home the guilt of the accused for the offence under Section 302 of the Indian Penal Code. The learned counsel, therefore, contended that the finding of conviction recorded by the trial court relying mainly on the evidence of Shankar (PW-3) and Gopikabai (PW-4) is not sustainable in law in view of the law laid down by the Apex Court and, therefore, the judg-ment and order impugned in the pre-sent appeal may be quashed and set aside.

6. Mr. Fulzele, the learned Addi-tional Public Prosecutor, contended that Rajendra (PW-11), the Investi-gating Officer, in his examin