The importance of primary allegations in the first information report, the need for trustworthy prosecution witnesses, and the non-production of material evidence can lead to a miscarriage of justice.

JUDGMENT :

Heard learned counsel for the parties.

2. The instant criminal revision application is directed against the judgment dated 12.04.2006, passed by learned Additional Sessions Judge-XIII, Dhanbad, whereby the Cr. Appeal No. 25 of 2001, preferred by the petitioners has been dismissed and the judgment of conviction and order of sentence, both dated 17.02.2001, in S.T. No. 513 of 1993, passed by the learned Assistant Sessions Judge-I, Dhanbad, whereby the petitioners were convicted and sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.2,000/- each under Section 395 of the Indian Penal Code, and in default of payment to further undergo R.I. for one year each has been affirmed with modification in sentence from 7 years RI to 5 years RI.

3. The prosecution case in brief is based upon the written statement of the informant for which an FIR has been lodged against the petitioners under Sections 395 of the Indian Penal Code. After investigation, police submitted chargesheet and cognizance has been taken against the petitioners; for which the petitioners pleaded not guilty and claimed to be tried. After trial, the petitioners were found guilty for the offence and they were convicted and their appeal was also rejected by the learned appellate court.

4. Mr. Jai Prakash, learned senior counsel for the petitioners submits that out of total six witnesses P.W.1 has been declared hostile and P.W. 2 has been declared tendered, P.Ws. 3 & 4 were hearsay witnesses, P.W. 5 was the informant and P.W. 6 is the Doctor. He further draws attention of this Court towards deposition of P.W. 5 and simultaneously he also referred to first information report though the same has not been exhibited. Learned senior counsel contended that on the one hand in the FIR, the informant has said that he was having his own potato shop and after closing the shop the money of that day was being carried by him and when he came to his house he was attacked by the accused persons with Farsa and other substances; whereas in the cross examination it has been admitted that he was a full time employee of BCCL; thus, this vital contradiction between the FIR and admitted version of the informant makes the prosecution case weak to the extent that when he was an employee of BCCL, how he came to know about the amount of cash which he alleged to carry on the date of occurrence as he was not having any potato shop.

As a matter of fact, the potato shop was of his brother, namely, Mitthu Ravidas who is P.W. 4. Thus, it is clear picture of depart from the original allegation and it can be inferred that the main witnesses of prosecution is not trustworthy.

He further draws attention to other paragraphs of P.W.5 wherein the informant has stated that in the torch light he saw the accused persons. In this regard he contended that the said torch was not produced before the Court and further referred to the judgment passed by the Hon’ble Patna High Court in the case of Mashi Das Minz Versus State of Bihar reported in 2000 (1) PLJR 86 wherein at para 15 the Hon’ble Court has held as under :

“15. I have already discussed above that neither the Investigating Officer nor the doctor has been examined in the case and none of the villagers supported the prosecution case in any manner, except PWs 5 and 7 who claimed to have seen the occurrence at the first instance and again they returned back to the village and later on again they rushed to the spot, but in the second time they were not allowed to see the occurrence. Such story as propounded by both the witnesses does not appear to be probable and convincing in absence of any other independent witness to support the said story. Examination of Investigating Officer, particularly, in a murder case becomes essential when there is contradiction in the deposition of eye-witnesses who are also in inimical terms from before. In the instant case, the Investigating Officer has not been examined which also causes the appellants case prejud