The non-examination of the Investigating Officer does not per se furnish a ground for acquittal, but in certain cases, it may deprive the accused of a valuable right and opportunity to prove material case diary contradictions or other important facts and circumstances favorable to the defense, resulting in serious prejudice to the accused.

1. This is an appeal tiled by the State challenging an order of acquittal passed by the Judicial Magistrate of II Class. Thiruvalla, in a case where the accused-respondent was charge-sheeted for offences punishable under S.279,337 and 338 I P C. and S.89 (a) and (b) of the Motor Vehicles Act.

2. The case against the respondent was that he on January 29,1975 at about 9.30 p m. drove a taxi car KLA 4771 in a rash and negligent manner along the Thiruvalla-Kozhencherry public road and at a place near Muttuman at Pulladu dashed against pw 1 who was passing along the road as a result of which he was thrown into the field nearby and sustained injuries on his head, leg and other parts of the body The car also hit against pw 2 and he also sustained injuries On the first information statement (Ext. P1) given by pw. 1, a case was registered and on the conclusion of the investigation a charge-sheet was laid against the respondent for the offences mentioned above.

3. In support of the prosecution case, pws.1 and 2, the injured in the case, pws. 3 and 4, eye-witnesses to the occurrence, pw. 5 who reached the scene immediately after the occurrence and pw. 6 who was present at the time of preparation of the scene mahazar (Ex. P2) and who attested the same, were examined. pw. 7 Assistant Surgeon of the Government Hospital, Kozhencherry, who examined and treated pws 1 and 2, and the Assistant Motor Vehicles Inspector, pw 8, who tested the car, were also examined, besides marking Ex. P1 to P5, on the side of the prosecution. The learned Magistrate after a due consideration of the evidence of the eye-witnesses and the other material witnesses found that the respondent drove car KLA 4771 along the public road at the material time in a rash and negligent manner and that he tailed in observing his duty as a driver and dashed against pws.1 and 2 causing injuries to them. The trial court also found that pw. 4 is an independent witness, that his evidence is convincing and consistent and that his evidence could not be discredited by the defence. It was further found that pws.1 to 4 gave consistent and convincing evidence regarding the occurrence in the case. But the trial court acquitted the respondent on the ground that the prosecution did not examine the Investigating Officer in spite of granting more than one adjournment for the purpose.

4. The learned Public Prosecutor submitted that the order of acquittal is wrong and illegal, that no proper opportunity has been given to the prosecution to examine the Investigating Officer, that it was not correct that a few adjournments were given to the prosecution for the purpose of examining the Investigating Officer, that the Investigating Officer attended the court on 18-3-1976, that there was no sitting on that day and that subsequently no summons was sent to or served on the officer or officers.

5. It is seen from the judgment that pws.1 to 8 have deposed to the entire case in necessary details, and that the learned Magistrate has duly and carefully considered their evidence and found their evidence, especially that of pw. 4 is satisfactory and reliable. The judgment does not show that any case diary contradiction, whether material or not, has been brought out during cross-examination of the prosecution witnesses On going through the materials placed before this Court and the judgment of the trial court, I find the non-examination of the Investigating Officer in this case has not in any way caused prejudice to the respondent. If the Investigating Officer did not appear in pursuance of the summons issued to him it was the duty of the court to have taken coercive steps to secure the presence of the Investigating Officer and initiate necessary action for the disobedience of the summons of the court. The non-examination of an Investigating Officer does not per se furnish a ground for acquittal, although it is a circumstance which may be taken into consideration by the court depending upon the facts and