1. The challenge is against the judgment of conviction and sentence dated 10.4.2008 made in SC 158/2005 on the files of the Sessions Court, Kozhikode Division. The conviction is under Section 489 C of IPC. The sentence is to undergo rigorous imprisonment for four years and to pay a fine of Rs.50,000/- with default rigorous imprisonment for one year.

2. The question raised in this appeal is that when witnesses are questioned by more than one investigating officer and non furnishing of statements of witnesses recorded by one of the investigating officer will vitiate the whole trial?

3. The facts necessary for disposal of this appeal is as follows:

On 2.3.2002 at about 6.20 p.m, the appellant herein along with another person was found in possession of counterfeit currency notes. The accused were arrested by the Circle Inspector of Police. The counterfeit notes were seized, crime registered and preliminary investigation was conducted by the local police itself. Thereafter the detective inspector of C.B.C.I.D, conducted investigation and after getting an expert opinion regarding the seized notes, filed charge. Prosecution altogether examined 6 witnesses. Exts.P1 to P14 were marked. MOs 1 to 8 were also identified. After appreciating the evidence, the court below convicted the accused and sentenced as stated above.

4. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before the court that even though originally there were two accused, who faced the trial, the second accused absconded during trial and his case was transferred to L.P. Register. It is the submission made before me that here is a case where the whole prosecution case was suspicious. To buttress this argument, the learned counsel brought to my notice the suppression of statements recorded by PW1, the detecting officer himself at the earliest point of time i.e. during the investigation conducted by himself in this case. It is the submission that it is an admitted case of the prosecution that the statements of witnesses who were cited as charge witnesses were recorded by PW1, but it was not made available to the accused. The said fact was brought to light during the trial and that was also considered by the trial court. It is the submission made before me that it is a settled position that it will go to the root of the prosecution case and when the prior statements were not provided, the appellant will be entitled for an acquittal. It is the further submission that in Purushottam Jethanand v. The State of Kutch [AIR 1954 SC 700] the Hon’ble Supreme Court considered this aspect and held that it would vitiate the entire trial. While rendering this decision, the Hon’ble Apex Court considered the dictum laid down in Pulukuri Kottaya & Ors. v. Emperor [AIR 1947 Privy Council 67]. It is also the submission made by the learned counsel that it was not a mere omission, in respect of one witness, but it was relating to the whole witnesses except PW1. PW1 is none other than the officer who recorded the statement. It is the further submission made before me that the matter cannot be considered as not prejudicial, especially when it is a settled position that if any of the witnesses who were not examined by the prosecution, was examined by the defence, the said statement can be made use of. That right is now denied by the prosecution. It is also the submission that it is true that the court called the case diary by invoking the power vested upon it under Section 172 of Cr.P.C. But the right of the defence, to make use of the material was seen lost. It is also the submission that when apparently the statements of the witnesses were seen suppressed by the prosecution, it cannot be considered by the trial court that the earliest statements are identical with the subsequent statements. The submission was that the court below erred in fathom out the prejudice caused. It is also the submission that in this case, other attending circumstances