Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Counsel for the Parties:
For the Appellant:Mr. A. Das, Advocate.
For the Respondent:Mr. R.C. Debnath, Advocate.

IMPORTANT POINT
Witnesses essential to the unfolding of the narrative on which the prosecution is based, must be examined and where some of the eyewitnesses to the occurrence are not produced before the trial court even after examination of the investigating agency and also some material witnesses were, though present at the time of occurrence, not examined by the investigating agency without giving explanation and reason created doubt on the version of the prosecution story.

Headnote:Indian Penal Code, 1860—Section 307—Appellant assaulted victim with dao (Sharp-cutting weapon) on the head—Trial Court recorded conviction relying sole testimony of victim—Appeal—Father of appellant and another person had rushed to scene of occurrence and weapon was snatched from appellant by father of appellant—They were material witnesses but not examined in trial—Reasons for such non-examination and non-recording of statement under Section 161 Cr.P.C. were not explained—It prejudiced appellant from taking proper defence—Dao (chopper) was not sent for chemical examination which created doubt regarding use of same—Conviction could not be sustained.
       Held: After proper scrutiny of the evidence, this court is of the opinion that only PW 7, the victim himself is the eyewitness of the occurrence and in his statement, he specifically stated that when he was shutting the door of his shop he found the appellant coming in front of the shop with a dao (chopper) from his back side and suddenly struck a blow on his head and he received severe bleeding injury and when the appellant again tried to struck on his body by the said dao (chopper), he tried to resist with his left hand and as a result, his fingers of the left hand were cut and he received bleeding injury. The father of the appellant and some others including Indrajit Saha rushed to the spot and Indrajit Saha snatched the dao from the hand of the appellant. As a result of the blow, the victim fell down on the ground and gradually lost his sense. The informant, PW1 has disclosed in his desposition that the accused happened to be his cousin brother and his father was his maternal uncle and he heard that the accused took some loan from the victim. According to PW2, there was a ‘maramari’ (scuffling) between the appellant and the victim which was supported by the statement of PW4 who, in his deposition, stated that while, he was returning home from his office, his neighbours told him that the victim learned the appellant had some altercation on the issue of some transaction.
       It is an admitted position that Indrajit Saha is one of the vital eyewitnesses who snatched the dao used in the alleged offence from the appellant and kept the same in the shop of the victim in presence of the father of the appellant and some others who rushed there. Though examined by the IO, the said Indrajit Saha including the father of the appellant, the material eyewitness was withheld by the prosecution at the time of trial and other material eyewitnesses including the father of the appellant, were not examined by the IO and recorded their statement under Section 161, Cr.P.C. The reasons for such non-examination and non-recording of statements were also not explained and such non-production and non-examination of material witnesses obviously prejudiced the appellant from taking his proper defence when, it is well settled by the Apex Court that witness essential to the unfolding of the narrative on which the prosecution is based, must be examined and where some of the eyewitnesses to the occurrence are not produced before the trial court even after examination of the investigating agency and also some material witnesses were, though present at the time of occurrence, not examined by the investigating agency without giving explanation and reason created doubt on the version of the prosecution story. (Paras 10 & 11)
        It was also the duty of the trial court to ask the prosecution to produce such material witness before the court and if the prosecution failed to discharge the duty, then it is the court that is to call the said material witness for examination as a court witness to unveil the actual truth. Had those material witnesses including Indrajit Saha been produced and examined, the appellant would have got the opportunity to reverse the story of the prosecution and proved his innocence and the prosecution story also could have been otherwise. Such action of non-examination of eyewitnesses who were admittedly rushed and present at the time and place of striking the dao blow and non recording of their statement by the Investigating Officer under Section 161, Cr.P.C. created a doubt even regarding the function of Investigating Officer, as that was his bounden duty to record such statement and non-production of the material witness before the trial court creates a doubt about the prosecution story. It is not only the duty of prosecution to punish the alleged accused but to place the materials and witnesses before the trial court. In the instant case, though it is evident from the prosecution story that there was scuffling (maramari) between the victim and appellant and the appellant allegedly struck dao blow on the body of the victim as evident from the deposition of PW8 before the trial court, the court did not try to find out who was the real aggressor and from whose end, the said scuffling was started and whether there was any provocation on the part of the victim inviting the appellant for committing such offence as alleged. It is also an admitted position that the dao (chopper) in question was not sent for chemical examination as to whether the said dao was stained with blood of the victim and it was used by the appellant for committing the alleged offence. Such non-examination of dao also creates a doubt regarding the use of the same. Even the final injury report was also not produced before the court/not only that the Doctor, who examined and treated the victim at Udaipur as well as at Agartala Hospital, was also not examined and produced before the court by the prosecution to prove the charge. Except the victim himself, no other eyewitness was available. Though on the basis of the lone statement of victim conviction is permissible, but it is not a fit case where order of conviction can be passed on the basis of such statement where the material witnesses were withheld by prosecution and the victim is also inimical to the appellant. The prosecution has failed to prove conclusively that the appellant has committed the offence under Section 307 IPC. (Para 17)
       Result: Appeal allowed.

Sadhan Chowdhury VS State of Tripura