Patna High Court
Ganesh Ram @ Ganesh Chamar vs State Of Bihar on 16 March, 1989
Equivalent citations: 1990(1)BLJR462
JUDGMENT S.H.S. Abidi, J.
1. Appellant-Ganesh Ram @ Ganesh Chamar has been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Other accused, namely, Dhanesh Chamar, Etwaru Chamar and Dashrath Chamar were also chargesheeted but they absconded, and hence the case proceeded only against the appellant.
2. The case of the prosecution was that on 23.3.1984 at about 10.30 a.m. in village Itbandh, police-station Hussainabad, district Palamu, the victim Smt. Sahodari Devi wife of Sudarshan Ram and sister-in-law of Lakhan Ram (P.W. 4) was going to Japla Bazar from her house and when she reached in front of the house of the appellant Ganesh Ram, the accused took her inside the house and then she was assaulted. She cried. The informant also reached there and saw that the appellant was assaulting her with lathi on the head. Other accused had given fits and kicks. The informant got her relieved from their clutches and raised alarm which attracted Raghuni Ram, Charitar Ram and others, whereupon the accused ran away. She had received severe injuries and became unconscious. Then she was taken to Hussainabad Hospital but died in way. The Doctor declared her dead. The motive of the offences was said to be old enmity and property dispute. Thereafter the victim was taken to the police-station and first information report (Ext. 4) was lodged on 29.3.1984 at about 2.30 p.m. against the appellant, Dhanesh Chamar, Etwaru Chamar and Dasrath Chamar under Section 302/34 of the Indian Penal Code (for short I.P.C.) at Hussainabad police-station, whereafter investigation proceeded. The postmortem examination (Ext. 5) had been conducted by Dr. S.A. Hatiz, Assistant Civil Surgeon, Sadar Hospital, Daltanganj on 30.3.1984 at 9 a.m.. Though the said Doctor has not been examined but the postmortem report has been proved by P.W. 8 Ram Kishore Pandey, Taid (clerk) to the Advocate. After investigation chargesheet was sumitted by Satyendra Singh Sub-Inspector of Police who has also not been examined as witness.
3. The accused, in defence, denied the prosecution case. From the trend of the cross-examination of the prosecution witnesses and the statements recorded under Section 313 of the Code of Criminal Procedure and the evidence produced on behalf of the defence it appears that the informant and others had suspicion that the deceased Sahodari Devi was entangled with the appellant. At the time of occurrence she had gone to the house of the appellant to take fire and then the informant and others reached there and assaulted her as well as the appellant Ganesh Chamar with lathi resulting into her death and very serious injuries to the appellant. Had the appellant been not treated at Sadar Hospital, Daltanganj and Ranchi Medical College Hospital, Ranchi, he would have not been saved. It was to cover up his own deeds that the informant has lodged the first information report in collusion with the police. Later on the appellant-Ganesh Chamar had filed complaint Case No. 279/1984 in the court of the learned Chief Judicial Magistrate, Daltonganj. The defence in support of its case examined two witnesses, namely, Mababir Prasad Kushwaha (D.W. 1) and Mahesh Prasad Sharma (D.W. 2). D.W. 1 has said that the appellant was admitted in the Hospital on 29.3.1984 at 3.30 p.m. and was discharged from the Hospital on 31.3.1984 at 6 p.m. D.W. 2 is said to have examined the appellant on 31.3.1984 Ext. C is the injury report of the appellant.
4. The prosecution in support of its case has produced eight witnesses. P.W. 1-Ram Lal Rajwar, not named in the first information report, says that he had seen the victim being taken by the accused inside their house. P.W. 2 Charitra Yadava (named as a witness in F.I.R., has also said that he had seen the victim being taken inside the house of the appellant. P.W. 3 Laxaman Ram son of the deceased has been tendered from the cross-examination. P.W. 4 Lakhan Ram is the informant and dewar of the victim. P.W. 5 is Phool Kumari Devi, wife of America Ram, brother of the informant. She has not been mentioned in the first information report. She has said that while she was going to Bazar she had seen that the victim was being taken by the accused and assaulted and then the villagers came and then she died. P.W. 6 Maldeo Das constable is a witness of the inquest report. P.W 7 Ramdhyan Pandey constable has said that he had gone with the dead body. P.W. 8 Ram Kishore Pandey Taid (clerk) of an Advocate has proved the first information report and the postmortem report, as neither the investigating officer nor the Doctor have been examined.
5. The learned trial court after considering the entire material on record has convicted and sentenced the appellant as said above.
6. Learned Counsel for the appellant urged that in this case neither the first information report nor the postmortem have been proved, and neither the investigating officer has been examined nor the doctor who had conducted the postmortem examination have been examined and as such prejudice has been caused to the accused on the ground of non-examination of the investigating officer as well as the Doctor and so it cannot be said as to what injuries had been received and what was the cause of death. Next, it was argued that the witnesses in this case are relation and interested and their evidence is to be discarded not on the ground of enmity and interestedness but also on the ground that from their evidence no case is made out against the appellant. It was also urged that the appellant had received injuries which have not been explained by the prosecution which creates doubt about the authenticity of the prosecution case and further lends support to the defence case that the victim as well as the appellant were assaulted by the informant and his party who had suspicion about ilicit connection between the victim and the appellant and this prosecution is a cover up to the own deeds of the informant and his party who had killed the victim.
7. To appreciate the contentions let us first examine the evidence led on behalf of the prosecution. P.W. 4 Ram Lakhan Ram who is the informant the deceased is the wife of his brother Sudarshan Ram. He says that on the day of occurrence at about 10.30 a.m. he was in his field where is also the house of appellant Ganesh Chamar. He saw that the victim was going towards Japla Bazar and when she reached in front of the house of the appellant, she was assaulted by the accused with lathi and while assaulting they took her inside their house in the court-yard. His court-yard is open. There the appellant assaulted the victim and Etwaru, Dhanesh and Dasharat assaulted her with firsts and kicks. She became injured. Her head was broken. He reached the place of occurrence at the time of assault and raised alarm after coming out from the angan of the appellant which attracted the villagers. When the villagers come, the accused started fleeing. The villagers charges the accused. He did not see if the appellant received any injury during the course of chase. Thereafter he made arrangement and took the victim to Japla-Hussainabad Hospital where the Doctor declared her dead and then he went to the police station and lodged a report. In his cross-examination he has said that he had told the investigating officer that the villagers had come and assaulted the appellant. He has not said as to who had assaulted the appellant. His house is at a distance of one Jarib from the house of the appellant and there is no house in between and their houses are in front of each-other. He had seen the occurrence near the house of the appellant. To Court he has said that he was walking ten to fifteen steps behind the victim. In his field there is house of Sahodari Devi (victim) and so he was walking behind her from his field. She was his Bhabhi. His house is in village Itbandh where his family members reside. He was going from Pahi to Itbandh to his house. In village he has his residential house where the victim was residing along with her husband and children. The appellant started dragging the victims from the way to his house whereupon she raised alarm. He did not see injury on the person of the appellant at the time of occurrence or to anybody to have assaulted the appellant on his head. He has also said that the victim filed a case of theft of fix against the appellant in which he was a witness. There was no other quarrel about the land or property between the appellant and the deceased or the family. He has denied the suggestion of ilicit relations between the victim and the appellant.
8. P.W. 2 Charitar Yadav is one of the witnesses named in the first information report. He has said that at the time of occurrence he was in his khalihan and he saw the victim going to Bazar from her house and when she reached near the house of the appellant, then she was caught hold of and assaulted by the accused. The other accused assaulted the victim with fists and kicks and then she died. The motive for the offence is said to be old enmity. In cross-examination this witness has said that a case under Section 145 Cr.P.C. was going on between him and one Kail Ram and Faguni in which the appellant had deposed against him (the witness). Further the appellant had given an appelication to the Superintendent of Police before the murder of Sahodari Devi. There was no dispute about the land with Ganesh (the appellant). He had not counted as to how many lathi assaults had been made upon her, but her head was broken. He further says that he had not seen any injury on the parson of the appellant.
9. Out of the witnesses mentioned in the first information report only Charitra Mahto (P.W. 2) had been examined. Raghuni Ram father of the informent had not been examined. The other witnesses, namely, Ram Lal Rajwar (P.W. 1) and Ful Kumari Devi (P.W. 5) not named in the first information report have been examined. P.W. 1 Ram Lal Rajwar has said that the victim was going to Bazar and when she reached in front of the house of the accused, the accused caught hold of her and started assaulting while taking her inside their house. At that time he was thrashing crops nearby the place of occurrence. From there he went running to the place of occurrence. The other accused were assaulting the victim with fists and kicks and then she became unconscious. While she was being taken to Hussainabad Japla Hospital, she died on the way at a distance of about a mile. There was a case under Section 145 Cr.P.C. between this witness and P.W. 2 Charitra Mahto on the one hand and Kailu on the other hand in which the appellant had deposed against this witness. He has further said that the victim had received four or five lathis inside the house in the Angan. Her head was broken. When he went to the place of occurrence the accused started running away. Accused Dhanesh had sit on the belly of the victim. He has not seen any injury on the person of Ganesh Chamar (appellant).
10. P.W. 5 Phool Kumari Devi is another eye-witness, not named in the first information report. She is wife of Amerika Ram brother of the informant. She says that the victim was going to Bazar and when she reached in front of the house of the appellant she was caught hold of and she was assaulted and then villagers came and the accused ran away. She died on the way to Hospital. In the cross-examination she has said that she had heard alarm of the victim and so she also raised alarm. Whereupon she went in the house of the accused and before her Lakhan (P.W. 4) had arrived. Her house is near the house of Lakhan. She, Lakhan and his father were running, She did not count the lathi assaults on the victim. This is the entire evidence consisting of the eye-witnesses. Out of them P.Ws. 2 and 4 are named in the first information report and P.Ws. 1 and 5 are not named.
11. As to the witness not named in the first information report, it appears that it was given out that others had arrived. The witnesses not named in the first information report cannot be discarded on the ground that their names have not been given, specially, when the informant had said that the others had also arrived. A witness not named in the first information report can also be considered like any other named witness if he is able to explain his presence at the place of occurrence. The Supreme Court in the case of Narpal Singh and Ors. v. State of Haryana observed:
Secondly, the mere fact that his name was given in the F.I.R., though of some relevance, would not be sufficient by itself to entail rejection of the testimony of this witness. We must realise that five persons had been killed and the informant Sadhu Ram must have been stunned and stupefied at the ghastly murders that took place in his presence and had picked up sufficient courage to run to the police station to lodge the F.I.R. It may be that in view of that agitated mental condition he may have omitted to mention the name of Rattan Singh.
Later on in the case of State of U.P. v. Lalla Singh and Ors. the Supreme Court observed in para 11:
These two witnesses are not mentioned in the First Information Report but from their testimony it is clear that they are natural witnesses to the occurrence and there are no grounds for disbelieving their testimony. P.W. 2 stated that about 7 O'clock in the morning when he was going to answer the call of nature and while he was near the culvert of Mannia he heard an alarm raised by the Chaukidar that the accused were be labouring Phool Singh and Mukhtar Singh. He saw the incident and the accused chasing P.W. 1 Satya Pal Singh. The main reason given by the High Court for disbelieving this witness is that the witness being an important personality of the village P.W. 1 would not have omitted to mention his name in the First Information Report. P.W. 2 as well as P.W. 8 belong to Mannia. The scene of occurrence is different from the village in which the deceased and these two witnesses were living. Though P.W. 1 knew P.W. 2 there is nothing improbable in P.W. 1 not mentioning P.W. 2's name in the First Information Report. It is not necessary that the names of all the eye witnesses should be mentioned in the First Information Report. P.W. 1 while narrating the occurrence and the part played by the accused also mentioned the witnesses who accompanied the party and were prominent in his mind. The mere non-mention of the names of the eye-witnesses will not justify the rejection of the evidence of the eye-witnesses.
In a Division Bench Judgment in the case of Narendranath Panigrahi and Ors. v. State of Orissa 1985 CrLJ (NOC) 5, it was said that "mention in F.I.R. that occurrence was seen by certain prosecution witnesses and others. Names of three other witnesses not mentioned. All the witnesses staying near the spot of occurrence and their evidence was consistent--non-mention of the names of other aye-witnesses would not materially affect the prosecution case"
12. Thus P.W. 1 has said that he was going to Bazar and he saw the occurrence on arriving at the place of occurrence. P.W. 5 being the Bhabhi of the informant living in the same house had heard alarm of the victim from the house of the accused and she reached the spot. She is also a natural witness. Simply because their names have not been mentioned in the first information report, although they are eye-witnesses, will not be a reason to discard their testimony. The same will have to be considered along with the other witnesses with all the tests of scrutiny. After applying the tests their evidence does not suffer from any infirmity and illegality which may create suspicion about its reliability and trustworthiness. There appears to be a ring of truth in their statement and if some deficiency is there that does not make the same worthy of disbelief. Minor discrepancies on trivial matters, which do not touch the core of the case, have no effect on honest, truthful and reliable witnesses. It was next contended that they are inimical and relation witnesses Relation witnesses are most material witnesses. They cannot be regarded as interestedness witnesses specially, when they say that they have seen the occurrence. Relation witnesses will not falsely implicate an innocent person and leave the real culprit. Their evidence has to be scrutinised and not to be discarded on that score. In the case of Sarad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 162 the Supreme Court observed in para 48 :
In view of the close relationship and affection any person in the position of the witness would naturally has a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done conspicuously but even unconsciously to love and affect for the deceased would create a pychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.
13. As regards the relation or partisan witness in the case of State of Gujarat v. Maginbhai Dhulabhai Patel and Ors. 1983 Cr.L.J. 1112 : 1983 SCC (Cr) 590 it has been held that being the relation or partisan witnesses would not itself be sufficient to discard their evidence straightway unless it is proved that their evidence suffers from infirmity which raises considerable doubt in the mind of the Court. In the case of State of U.P. v. Ballabh Das and Ors. the Supreme Court observed:
The evidence of interested witnesses is not like that of an approver which is presumed to be tained and requires corroboration but the said evidence is as good as any other evidence. In a faction ridden village, it will really be impossible to find independent persons to come forward and give evidence and in a large number of such cases only partisan witnesses would be natural and probable witnesses. Once it is found by the court, on an analysis of the evidence of an interested witness that there is no reason to disbelieve him then the mere fact that the witness is interested cannot persuade the court to reject the prosecution case on that ground alone.
Thus the evidence of the witnesses who have been mentioned in the first information report and those not mentioned in the first information report, on scrutiny with care and caution has been found to be trustworthy and not suffering from any infirmity or improbability and there is nothing to disbelieve them. In such circumstances their evidence has to be relied on and their relationship and interestedness is not shaking their credibility. It will not be out of place to mention the latest observation of the Apex Court in the case of State of U.P. v. Anil Singh :
It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case over board, if true, in the main. If there is a right of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to sec that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.
14. In this case as pointed out by the learned Counsel for the appellant the injuries of the accused have not been explained which according to him are very relevant and material and for that he has submitted that the prosecution story as a whole should be disbelieved. This contention requires consideration. No. doubt, two defence witnesses, namely, Mahabir Prasad Kushwaha and Mahesh Sharma have been examined. D.W. 1 Mahabir has said that the petitioner was in Hospital from 29.3.1984 upto 31st March, 1984 and the D.W. 2 Mahesh Prasad Sharma is X'ray Technician who had proved the admission register as well as the X'ray report which have been marked as Exhibits and brought on the record.
15. In the Full Bench decision in the case of State v. Rishi Deo it was held that whole evidence is to be considered and the balance of probabilities are to be considered. The Supreme Court in a number of cases including in the case of Munne Khan v. The State of Madhya Pradesh ; Bankey Lal v. State of U.P. ; Bhagwan Tana Patil v. The State of Maharashtra ; Kishan v. The State of Madhya Pradesh AIR (sic) SC 244 and Onkarnath Singh and Ors. v. The State of U.P. has observed that the entire prosecution is not to be thrown for non-explanation of the injuries of the accused and no hard and fast rule can be made about the explanation of the injuries of the accused. In the case of State of Gujarat v. Bai Fatima and Ors. the Supreme Court observed in para 17:
In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
These observations have also been referred to in the case of Gajendra Singh v. State of U.P. . In the case of Lakshmi Singh and Ors. v. State of Bihar the Supreme Court observed in para 11:
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution case.
Later on the Supreme Court in the case of Jagdish v. State of Rajasthan has observed that the injuries on the person of the accused must be serious and severe and not superficial and that the injuries must nave been caused at the time of occurrence in question. In the later case of Abdul Waheed v. State of Maharashtra AIR 1979 SC 1828 the Supreme Court observed that the mere presence of the serious injuries is no ground for acceptance of the detence version. It was, at last, in the case of Hare Krishna Singh and Ors. v. The State of Bihar the Supreme Court considered all these aspects and observed in paragraphs 18 and 20;
We have referred to the above decisions in extenso in order to consider whether it is an invariable proposition of law that the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain me injuries on the person of the accused would mean that the prosecution has suppressed the truth and also the genesis or origin of the occurrence. Upon a conspectus of the decisions mentioned above, we are of the view that the questions mentioned above, we ate of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.
All the decisions of this Court which have been referred to and discussed above, show that when the Court has believed the prosecution witnesses as convincing and trustworthy, the Court overruled the contention of the accused that as the prosecution had failed to explain the injuries sustained by the accused in the same occurrence the prosecution case should be disbelieved and the accused should be acquitted. Thus, it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence, the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence.
16-A. Thus following the observations made by the apex body the non-explanation of the injuries of the accused in this case will not have any effect. Rather from the evidence, which has been produced by the prosecution, it offers that the villagers had come and they had chased the appellant. The prosecution was expected to prove its case beyond shadow of reasonable doubt by reliable and cogent evidence, which has been done as seen above. The prosecution is not obliged to explain the injuries of the accused and in what manner he has received the injuries. Yet from the evidence of the prosecution, it is clear that the villagers had come who had chased the assailants. The prosecution witnesses do not depose about any injury to the appellant on the spot. So possibility of the accused getting injuries during chase cannot be ruled out. As held in the case of Suresh Singh v. State of U.P. the appellant himself receiving quite large number of injuries during the incident proves his presence in the house at the relevant time beyond the shadow of doubt. Further as held in the case of Bhagwan Dass v. State of Rajasthan the presence of the injuries on the accused lends support to the prosecution case. Thus the contention about failure of the explanation of the injuries of the appellant fails.
17. The appellant has taken the defence that the victim had come to his house for taking fire and as the informant and his party, who were suspecting illicit relations between the victim and the appellant came and assaulted the appellant and the victim resulting in death of the victim and injuries to the appellant and thereafter false implication of the accused. Though the defence of the accused cannot be a support to the prosecution, as the prosecution has to stand on its own legs, yet this defence version does not falsify the prosecution version of the appellant's presence on the spat. In support of this defence, no specific witness has been examined by defence though suggestions have been. Suggestions cannot take place of proof. The suggestions have been denied by the witnesses, specially, the informant (P.W. 4). If, at all, there was an affair like that, there should have been some evidence on the side of the accused to establish the same. The accused is entitled to take any plea by way of defence, but that should be made out from the evidence on the record which is not made out here from the evidence on the record. Rather this defence appears to be scandalous and character assassination. If the victim would have been alive she would have been the best person to reply to such insinuations and false allegations. The victim was aged about 40 years and the accused was 35 years of age and the son of the victim P.W. 3, who has been tendered from cross-examination, is also a grown up boy aged about 20 years. Thus this defence taken by the accused is not only false but scandalous and has been taken with a view to spirit of revenge and vengeance as enmity is said to be between the appellant and the deceased and by taking such defence not only his enmity it exposed, but he wanted to assassinate her character even after her death.
18. In the case of Shankarlal Gyarasilal Dixit v. State of Maharashtra the Supreme Court has held that the falsity of defence cannot take the place of proof of facts which the prosecution has to establish and a false plea of defence can, at best, be considered as an additional circumstances, if other circumstances point unfailingly to the guilt of the accused. In the case of Sharad Birdhichand Sarda v. State of Maharashtra it has been observed by the Supreme Court in para 150:
It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view, What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.
19. In this case, the prosecution, in spite of producing these witnesses has not examined the doctor, who had conducted the postmortem and also the investigating officer who had investigated the case. The postmortem report (Ext. 5) has been brought on record by P.W. 8 Ram Kishore Pandey, clerk of an Advocate. The inquest report has been proved by P.W. 6 Maldeo Das. The order sheet of the court below shows that after examination of the witnesses the prosecution had been given opportunities on various dates to produce the doctor and the P.Ws. Order-sheet dated 24.7.1985 shows that on that date the learned A.P.P. had said that the doctor had been transferred to Darbhanga Medical College Hospital so be prayed for the issue of summons which appears to have been issued. From then onwards is the story of non-appearance of the prosecution witnesses and the A.P.P. taking time and the court granting time after time. It was at last on 31 March, 1987 that the entire prosecution case was concluded and then judgment given. Neither the A.P.P. prayed to the court to take coercive step for production of the investigating officer or the doctor nor the court on its own took any step or action in the interest of justice for the examination of these witnesses as provided under law. So the non-examination of the doctor and the investigating officer is a matter which needs consideration, as the submissions of the learned Counsel for the appellant are that by the non-examination of the doctor it has not been established as to what injuries had been received by the victim and what was the cause of her death, as these things can be established by the postmortem report, which is a very material corroborative evidence in relation to the oral testimony of the witnesses and further the postmortem report (Ext. 5) which the prosecution has brought on the record is of no avail to it. Further the investigating officer has also not been examined for which the defence claims that it has been prejudiced and suffered irreparably. We will have to seriously consider this matter.
20. As regards the postmortem report and non-examination of the doctor who had examined the deceased, it has been said in the case of Raghuni Singh v. Emperor ILR 9 Calcutta 455 by a Division Bench of the Calcutta High Court that the evidence of a medical man, who has seen and mad e a postmortem examination of the injuries of the deceased is admissible, firstly to prove the nature of the injuries which he observed and secondly, as evidence of the opinion of an expert for the cause of death. Similarly in Queen Empress v. Jadul Das ILR 27 Cal 295 it was said that the report is not admissible as evidence except to contradict the officer who made the examination. It may, however, be used by the officer when under examination for the purpose of refreshing his memory. Similar was the view in Rangappa Gondan v. Emperor ILR 59 Mad 349 that it is not an evidence and it can be used as an aid to a memory of the doctor, who did postmortem examination report. In Lokn Basappa Pujari and Anr. v. State (1960) Bom 461 it was said that the postmortem examinations are not intended to be mechanically admitted on the record of the case and when the Doctor has examined the injuries, when he must be called upon to give evidence about the matter which have a bearing on the question and the Doctor can be called upon to depose about the notes of the postmortem examination and if he deposes about the truth of the record made by him, then it can be treated as evidence. A Division Bench of our Court in Bhupat Kumar v. State (1975) BBCJ 317 observed that if the postmortem report is removed from consideration then there will be some difficulty in determining the cause of death, though it is possible to infer from the fact that the victim died immediately after assault made upon him and that most probably he died as a result of the injuries. But that could not be enough to sustain a conviction under Section 302 as the Doctor who had stated that one or more injuries were such which could have resulted in the death, rather the medical officer would have also shown that the injuries inflicted on the victim were such which the assailant must have known that they were likely to result in the death of the victim and so in the absence of such evidence it becomes difficult to hold that the assailants intended to cause the death of the victim and that they knew that the death would must likely result in death due to assault committed by them. A Division Bench of the Delhi High Court in State v. Gyan Singh 1981 CrLJ 538 observed that the opinion of the medical officer contained in the postmortem report is only to aid the investigating officer in investigation and that the postmortem report and the injury report are not a substantive evidence and the same has to be proved by the maker of it and cannot be termed as a public document as provided under Section 74 of the Evidence Act, A Division Bence of the Assam High Court in Bhanda Garh v. State of Assam 1984 CrLJ 217 has said that the injury report cannot be admitted as evidence it can be relied only by the prosecution where the Doctor is examined and his evidence except in the case covered by Section 291, Cr.P.C. cannot be dispensed with. The evidence of the Doctor is relevant as an expert under Section 45 of the Evidence Act, but by virtue of Section 4 he has to state his opinion as a witness in Court. In Gofur Sheikh v. State 1984 CrLJ 559 a Division Bench of the Calcutta High Court observed that the postmortem report can be used for refreshing the memory of the doctor while giving evidence in the court and that the postmortem report can be tendered in evidence under any relevant provisions of Chapter II of the Evidence Act which deals with the fact which need not be proved.
21 In the case of Sheo Govind Bin and Anr. v. The State of Bihar 1985 BBCJ 632 a Division Bench of this Court considering the matter of non-examination of doctor and the finding of the postmortem report in evidence observed at page 635 in para 11:
The Medical Officer performing postmortem examination and who had written the Ext. 7 has not been examined. The report prepared by him may be admissible, but at the same time two conditions must be fulfilled for the same. The first being that the Medical Officer is not easily available. "Easily not available" will not mean that if a summon is issued and when the Medical Officer does not turn up for evidence. The term" not easily 'available "is synonym to the word quite not available". It may be illustrated that if the Medical Officer has gone abroad and there is no liklihood of attending the court within a reasonable time, it would be said that the Medical Officer is "not easily available." Even if there is likelihood of return of the Doctor within a reasonable period without affecting the trial on the ground of delay, in my opinion, it will not satisfy the condition of "not easily available" as there is every likelihood of his being available eliminating the condition of "easily not available" In the instant case, it appears that only once a summon had been issued and thereafter the postmortem report (Ext. 7) has been admited in evidence on the basis of the statement of a clerk of the Public Prosecutor. I am afraid, the condition that the Medical Officer was not easily available" was not at all satisfied.
It was further observed at page 636 in para 17:
Therefore, proof of writings and reports by any other person than the real author, the Doctor, who had written out and signed the report, be by such who can be said to be "a competent person" to answer or give out such explanations based upon ,the technical knowledge connected with the medical jurisprudence. Such document should not be brought in evidence mechanically only for the sake of empty formality, but if taken in evidence it should be meaningful and purposeful. Under the circumstances, in case of injury reports and post mortem reports, the right person for substituting in place of the Doctor author would be a Doctor competent to reply the questions to be put on behalf of both the prosecution and the accused, or a witness having technical knowledge only can be said to be the competent person to even say about the writings of the Doctor who had written out such report for admitting it in evidence.
In the case of Ramdeo Yadav v. State of Bihar 1987 BBCJ 775 a learned single Judge has observed in para 6:
Evidently, the doctor had seen the injuries and, so the evidence should have been given by the doctor himself as to what he had seen and found Section 294 of the Code of Criminal Procedure has been provided in the Code for obviating the difficulty of formal proof of certain document and not for providing a substitute for direct evidence of witnesses like the doctor. This section simply says that where the genuiness of a document is not disputed it may be read in evidence in any inquiry or trial. It is significant that Section 294 Cr.P.C. does not refer to a document, which, even if exhibited cannot be read as a piece of evidence. The injury report by itself does not prove anything, as it is not a substantive piece of evidence. It is the evidence of the doctor on oath in regard to the injuries which alone is substantive evidence. The injury report can only be used to corroborate or contradict the doctor and it cannot be a substitute for the evidence of the doctor. Of course, Section 32 of the Evidence Act provides an exception to this general principle but evidently, the present case does not come within any of the clauses of Section 32 of the Evidence Act. That being so, the injury reports of the witnesses as also of accused Dukhi Yadav referred to by the learned trial court in its judgment have to be excluded from consideration. But, even if these injury reports are excluded from the evidence, there remains sufficient material on the record to prove in general way the fact that these witnesses had sustained injuries in course of the occurrence. Indeed, their own evidence is also there on this point. Then there is also the evidence of the investigating officer who had found injuries on their persons and had referred them to the doctor for medical examination. Of course, these materials cannot be enough to prove the specific injuries said to have been sustained by them but, they are sufficient to establish the broad facet that they had sustained some injuries in course of dacoity.
22. Thus the injury report and the postmortem report are not substantive evidence. They are only notes which are prepared by the Doctor at the time of examination of the injured or the deceased. They become evidence only when the doctor is examined and cross-examined in court and says that he had examined the injuries of the injured or the deceased. His evidence will clearly given out the nature of injury and also the weapons used or the manner of assault and in the case of postmortem it will show the cause of death of the deceased. These are relevant things as corroborative piece of evidence to the oral evidence of the witnesses. But these evidence (injury report and post mortem report) can be used only to contradict or corroborate the doctor. The injuries of the victim may be noticed and observed even by a layman, but this layman cannot give the opinion about the cause of death, which is given by the doctor after examination of the dead body, as an expert. Further if a man receives injuries and then dies immediately thereafter, inference may be drawn that these injuries may be the cause of death. But such inference is not sufficient for purposes of conviction for murder. A doctor alone can give the opinion that the victim died as a result of injuries or that the injuries were such that the assailant must have known that it was likely to cause death. Section 32 of the Evidence Act provides exception to the general rule about the injury report or the postmortem report. Similarly Section 294 Cr.P.C. though provides for no formal proof of certain documents, but it cannot take the place of the direct evidence of tae doctor. It refers to only that document which can be needed in evidence and the postmortem report or the injury report cannot be read in evidence unless the doctor is examined, subject to exceptions provided under Section 32 of the Evidence Act. The Court will have to consider the other evidence on the record if any help, at all, is available, which may show the injuries, but that cannot become substitute for the injury report or the postmortem report in the absence of the examination of the doctor barring the case covered by Section 32 of the Evidence Act. If, at all, doctor is not easily available or quite easily available as he has gone abroad or is not likely to come within reasonable time and that there will be delay in the disposal of the case causing harassment to the accused, then the postmortem report may be brought on the record not by a clerk but it should be brought through some person having technical knowledge of medical science and jurisprudence or through some doctor who may be able to answer the questions put by the prosecution as well as the defence in respect of the writings of the doctor of postmortem or injury report. But this is all subject to the Evidence Act or the Code of Civil Procedure.
23. So far the investigating officer is concerned, his examination is also very material and pertinent for the decision of the case. He is also a material witness. But it will have to be considered how far the investigating officer is a material and in what circumstances and how much it affects if the prosecution is not able to examine him. The investigating officer is a material witness because he investigates the matters, records the statement of the witnesses, goes to the spot for the objective findings, prepares the case diary, receives the papers during investigation and after collecting the relevant material in support of the prosecution or against the prosecution he submits his report for or against the prosecution. If he submits report in the form of charge-sheet or in the form of final form then it is for the Court to consider the same and pass orders as provided under law. But the role of the investigating officer is very relevant and material. He gets the first version of the witnesses from which later on the court is able to judge the veracity of the evidence, as to whether the witnesses are telling, the truth or not. Similarly, on the basis of the objective findings the court also judges the statements of the witnesses. In the absence of the examination of the investigating officer, prejudice may be caused to the accused as well as the prosecution. Accused comes to know from the investigating officer the material for contradicting the witnesses on the basis of the evidence collected during the investigation and if this basis for test is not available, then it may prejudice the accused definitely the accused is entitled to the benefits of the lacunas and faults of die prosecution, not only in the statement of the witnesses but even the other materials like site plan, recovery of the articles and as such other things which are essential for judging the truth or otherwise of the prosecution version and if on account of that the defence is able to throw suspicion and reasonable doubt on the prosecution version, then it becomes relevant and gainful for the purpose of the defence. Similarly, on the basis of the materials collected by the investigating officer, the prosecution is able to establish its version which is given out in the court in the form of the evidence of the witnesses. These objective findings of the investigating officer and the correct recording of statements of the witnesses will lend support to the prosecution case. In this way the investigating officer is a very relevant and material witnesses and his examination is very essential But in every case, the non-examination of the investigating officer is not fatal because the non-examination of the investigating officer will not make the place of occurrence vague and doubtful if the evidence of the witnesses is reliable to fix the place of occurrence. Similarly, if there are no contradictions or no prejudice has been caused to the accused, non-examination of the investigating officer will not have any effect. It is only when there are contradictions, improvements or embellishments in the evidence of the witnesses that the non-examination of the investigating officer becomes the relevant. Unless it is found the serious prejudice has been caused to the accused or the case itself, the non-examination of the investigating officer is not fatal though it is a serious lapses. But the prosecution will have to explain this lapse and its negligence, if the prosecution is able to show that despite summons and warrants and making efforts the investigating officer is not available or there are certain compelling circumstance or that the investigating officer is dead and has retired and is not easily available, then this negligence or recalcitrance is to be considered by the court. But if this negligence or failure causes any prejudice to the accused, then the accused is entitled to all the benefits arising therefrom. In every case non-examination of the investigating officer is not fatal unless prejudice is shown to have been caused to the accused only.
24. It appears that in spite of efforts by the prosecution as well as the court neither the doctors nor the investigating officers appear. At times the prosecution as well as the court become a silent spectator of the drama where the doctor and the investigating officer do not appear for reasons best known to them. The courts go on giving dates after dates lingering the case and later becoming helpless and disgusted due to their non-appearance, with the result that the prosecution case is closed or accused is acquitted causing prejudice to the accused as well as the prosecution accordingly. But the law is not helpless.
25. In the old Criminal Procedure Code Sub-section (2) of Section 252 provided that in cases started otherwise than on police report the witnesses could be summoned by the court on report by the prosecution. There was no provision for the cases instituted on police report. The amending Act No. 26 of 1955 introduced Section 251-A for the purposes of warrant cases. Its object was to ensure speedy and expeditious trial either ending in acquittal or conviction. In the case of Smt. Joytimoyee Bose v. Birendernath Prodhan it was said that Section 251-A(6) does not enjoin upon the magistrate to compel the attendance of any witness unless it was applied for and that in a case tried under Section 251-A, the magistrate is not compelled he is (sic) the case is tried as a warrant case instituted other than on the police report to proceed in terms of Sections 256 and 257 of Cr.P.C. But the Allahabad High Court in the case of State v. Ram Lal 1961(2) CrLJ 331 observed that under Section 251A, no power has been given to the court to ask for the issue of summons and compel the attendance of prosecution witnesses and so the section does not authorise the magistrate to issue summons. However in the case of State of Orissa v. Sib Charan Singh it was observed that the court was not absolutely powerless when the parties fail to produce evidence relevant in a case, the court has a very wide powers and the court may, at any stage of a proceeding, summon any witness in order to determine the truth or otherwise of the facts of a case under trial before it. In fact, it is one of the duties of the court to summon to enforce the attendance of the witnesses even by coercive measures and merely because the prosecution could not produce the witnesses before that court, that by itself cannot be a ground to acquit the accused persons and the provisions of Section 251-A do not mean that it is only the prosecution which is saddled with the responsibility for producing the witnesses. Rather it is the duty of the court also to enforce the attendance of the witnesses as provided under the Code. In the case of State of Bihar v. Pali Mistry it was also observed that the provisions of Section 251-A are taken to mean that it is the sole duty of the prosecution to produce the witnesses in support of its case. The prosecutor either produce the witnesses through its own agency or at times secure their attendance in court through the agency of the court. If prosecution undertakes to produce the witnesses then it becomes its entire responsibility, But when the prosecutor takes recourse to the agency of the court then it becomes the duty of the magistrate to take steps for securing the attendance of the witnesses in the court and so the magistrate can take step to compel their attendance as provided under Section 90(b) of the Code.
In the case of State v. Narashima Godwa (1965) 2 CrLJ 48 the prosecution was given the last opportunity after several adjournments to produce witnesses, yet witnesses were not produced and there was nothing to show as to what happened to the summons issued earlier, whereupon the magistrate acquitted the accused under Section 251-A (ii) of the old Code holding that there was no evidence against the accused. It was held that after the issue of the summons, the magistrate was required to enquire about the non-return or non-service of the summons. He was also then required to secure the attendance of witnesses, if there was no fault or remisness by the prosecution, Just as law requires the State to prosecute the offender similarly law requires the court to see that justice was done by a fair and speedy trial.
In the case of State v. Nand Kishore , it was observad:
Para 7. Ordinarily, the witnesses should be bound over by recognisances to appeal and give evidence in the matter of the charge against the accused at the trial by Police Officers (Section 170(2) CrPC). In case they fail to appear the court can issue a warrant against them to secure their attendance (Section 92 CrPC). But difficulty arises in cases where no such recognisances are taken by the police officers from the witnesses and the prosecutor finds himself unable to produce them and applies to the court to issue summons to them. Can the Court refuse to do it in such a situation is the real question? .There is no provision in the Code which empowers the prosecutor to secure the attendance of witnesses through his own agency after the case has gone to the court. The only course therefore, left to him is to apply to the court to issue summonses to the witnesses for their attendance. There is nothing in Section 251-A(7) which precludes the court from issuing summonses to the witnesses if so required by the prosecution. The word "produced" in Sub-section (7) includes the bringing forward of the witnesses by the prosecution at its own instance or through the process of the court whom it desires to examine at the trial. Similar view was taken in and .... However, in my view, Section 251-A does not in any way limit the general powers of a court to issue summons to witnesses if such request is made on behalf of the prosecution.
Para 8. Looking to the Scheme of Section 251-A it is clear that the stage of passing an order of acquittal under Sub-section (11) is reached only when compliance with the other Sub-sections i.e. (8), (9) and (10) has been made. Under Section 251-A the Magistrate can discharge the accused if after perusing the documents referred to in Section 173 he finds the charge to be groundless. But in case he finds that there is ground for presuming that the accused has committed an offence he has to frame a charge against the accused. It would be defeating justice if in cases where a charge has been framed against the accused by the Magistrate, he is to be acquitted merely on this ground that the prosecution has failed to produce any evidence in the case.
The Magistrate should not feel himself helpless in such situation and should exercise his inherent powers under Section 540 of the Code to summon such witnesses as he thinks necessary for the ends of justice. If the prosecution by its responsibility in producing witnesses it is incumbent upon the courts to examine such witnesses as it considers necessary in the ends of justice. I am supported in this view by the following decisions in and 1961(2) Cr.L.J. 92 (Ker). I am, therefore, of the view that Section 251-A does not limit the powers of the Magistrate to issue process to the witnesses for their attendance if such request is made on behalf of the prosecution and secondly if the prosecution does not produce any witnesses it is the duty of the court to examine such witnesses as are necessary for the ends of justice before proceeding to act under Sub-section (11). The order of acquittal passed without examining any witnesses in the case in my opinion, is not warranted by Sub-section (11) of Section 251A.
In the case of State of Mysore v. Ramu B. 1973 Cr.L.J. 1257 the Court held that having regard to the provisions of Sub-section (7) to Section 251-A of the Code the entire responsibility of the production of the witnesses cannot be saddled on the prosecution. A duty is cast on the court also to take coercive steps.
In the case of State v. Mangilal 1974 CrLJ 221 a Division Bench of this Court observed:
The correct position of law in this regard is that in a warrant case instituted on police report, the primary duty is of the prosecution to produce witnesses; but since the prosecution which is the State or the Public Prosecutor has no power on machinery to compel attendance of the witnesses, it is fully justified in seeking the help of the Court for their production. Help of the Court may be asked for by praying to the Court to issue summonses to the prosecution witnesses. If after service of summons a witness does not appear, the prosecution may ask the Court to issue warrant of arrest. But unless such a prayer is made, it is not the duty of the Court either to issue any summons to the prosecution witnesses or to issue warrant of arrest if a prosecution witness does not appear even after service of summons. I must hasten to add that there is a difference between "power of a Court 'and' duty of a Court'. Even if the prosecution does not make a prayer for issue of summons or for issue of warrant of arrest in a given case, the power is there as some of the cases have said, under the general powers of the Court, meaning thereby the inherent power of the Court, or such power to issue summonses may be spelt out under Section 450 of the Code and the power to issue warrants of arrest is surely thereunder Section 90 of the Code. It may be exercised suo motu or may be exercised on being asked to do so. But then to say that event if the prosecution is negligent or does not make a prayer to issue warrants of arrest, it is imperative for the Court to follow suo motu the prosecution witnesses like a prosecutor, to say the least is not justified. It is also not correct to say that it is not the duty of the Court to issue summons or warrant of arrest when the prosecution asks the Court to do so. But ordinarily and generally, unless there are special reasons to refuse the prayer, it is the duty of the Court, meaning thereby, it is imperative for the Court to allow the prayer of the prosecution to issue summons or to issue warrant of arrest, as the case may be. The Court may refuse to do so, if it finds that the prosecution is guilty of remissness or laches. But then the Court cannot refuse this prayer merely because Sub-section (7) Section 251-A does not provide for this.
6. If on the facts and the circumstances of a case the Court finds that the prosecution has not been able to produce its witnesses even if the helping hands of the Court were extended to it, then it is justified, rather it will be its duty in a hard case where the accused has been harassed to attend the Court on many dates, to close the prosecution with law as provided in various sub-sections of Section 251-A after Sub-section (7)
26. In the new Code of 1973 Section 230 provides that he Judge may fix a date for the examination of the witnesses and on the application of the prosecution issue any process for compelling the attendance of any witness or the production of any document or other thing for the trial in the warrant case by the magistrate Section 242(2) has provided that the magistrate on the application of the prosecution may issue summons to any of the witnesses directing him to attend or to produce any document or other thing. Similarly for the trial of summons cases by the magistrate Section 254(2) makes a provisions. Section 350 provides for the punishment for non-attendance to a witness in obedience to the summons of the court after giving an opportunity of showing cause why he should not be punished under the said section and in this summary procedure sentence of fine not exceeding Rs. 100 can be imposed. In the case of Public Prosecutor v. Gundu Rao 1976 CrLJ 1385 it was observed that when the prosecution failed to produce the evidence, then it was the duty of the magistrate to take coercive steps to compel the attendance of the witnesses and merely because the prosecution was lathergic and neglectful in producing the witnesses, it did not follow that the magistrate has power to compel the attendance of the witnesses. If it is found that there was no laches on the part of the prosecutor, then refusal of issuing warrants against the witnesses was unjustified and if the prosecution had itself undertaken to produce the witnesses, then it was the entire responsibility of the prosecution to produce. But if the prosecution wanted the help of the court, then assistance should have been given. A Division Bench of this Court in the case of Babuchand Prasad v. Rambabu Gope and Ors. 1979 BBCJ 306 observed at page 308 (para-7):
It is, no doubt, true that on the date fixed for hearing the prosecution has to produce all such evidence in support of its case, but the prosecution is also certainly entitled to seek the assistance of the court in securing the attendance of any witness or production of any document or other things. Even when this new Code was not in force, it was observed by a Bench of this Court in Md. Yasin and Ors. v. The State that where witnesses on being summoned did not turn up it was the bounden duty of a court to see that its orders were obeyed, and any one guilty of disobediance of the orders of the court should be proceeded against according to law. It was further observed that the courts were not powerless or helpless in this matter and a court should take action where there was no reasonable explanation for disobedience of its orders of ignoring of its summonses. The Supreme Court also in the case of Jamairaj Kewalji Govani v. State of Maharashtra, while dealing with Section 540 of the old Code observed that this provision conferred a wide jurisdiction on a court to be exercised at any stage of the trial to summon witness or examine one person in court or even recall a witness already examined. This was made rather duty and obligation of the court provided the just decision of the case demanded it. This court was faced with a similar situation in the case of State v. Mangi Lal Ram and Anr., again a case under the old Code. In that case in a warrant trial instituted on a police report some witnesses were not turning up, and it was observed, by this Court that the correct position of law in this regard was that in a warrant case instituted on police report, the primary duty was of the prosecution of produce witnesses, but since the prosecution which was the State or the public prosecutor had no power or machinery to compel attendance of the witnesses, it was fully justified in seeking the help of the court for their production. Help of the court may be asked for by praying to the court to issue summons to the prosecution witnesses. It was further observed that even if after service of summons a witness did not appear, the prosecution might ask the court to issue warrant of arrest, although in the absence of a prayer to this effect, the court was not obliged nor was its duty to issue any warrant of arrests. It was farther observed that even if the prosecution did not make a prayer for issue of summons ox for issue of warrant of arrest in a given case, the court was not powerless to issue such a process under the general powers of the court. The position on coming into force of the new Code has improved in this regard and a provision has now been made in Section 230 of the Code specifically providing for on making of an application by the prosecution, issuing any process for compelling the attendance of any witness or the production of any document or other thing.
A full Bench of the Madras High Court in the case of State v. Veerappan and Ors. after considering various decisions of different Courts observed that it was a duty of the court to summon the witnesses and the entire responsibility for the production of the witnesses could not be saddled with the prosecution and the court could enforce the attendance of witnesses even by the issue of coercive process if the witnesses do not appear in spite of service of summons. These powers are to be exercised by the courts on the application of the prosecution. The following observations of the Court are relevant:
After carefully considering all aforesaid decisions and the view expressed therein we are of the view that if the prosecution had made an application for the issue of summonses to its witnesses, either under Section 242(2) or 254(2) of the Criminal Procedure Code, it is the duty of the court to issue summons to the prosecution witnesses and to secure the witnesses exercising all the powers giving to it under the Criminal Procedure Code, as already indicated by us and if still the presence of the witnesses could not be secured and the prosecution also either on account of pronounced negligence or recalcitrance does not produce the witnesses after the court had given it sufficient time and opportunities to do so, then the court being left with no other alternative would be justified in acquitting the accused for want of evidence to prove the prosecution case under Section 248, Cr.P.C. in the case of warrant cases instituted on a police report and under Section 255(1), Cr.P.C. in summons cases.
It has been observed in the case of Basant Singh v. State of Bihar (1985) CrLJ 1406 at page 1409 that "during the recent time it has been noticed that the trial court has to face tremendous difficulty in procuring the attendance of the investigating officer for reasons that they are transferred frequently and the sessions trial is taken up after some delay from the time when the investigation has been completed in the case. The problem has also to be faced in case the investigating officer is dead or retires from service and in the case of the case of the latter in spite of prolong adjournments the attendance is not procured."
In the case of State of Sikkim v. M.K.O. Nair and Anr. 1986 CrLJ 415 a learned signle Judge observed:
It was, therefore, the duty of the prosecution to see that the summonses were served and to file the report accordingly and if for any justifiable cause the summons could not be served, to bring to the notice of the court why the summonses could not be served. After intimating to the court as to what had happened to the summonses it was the duty the prosecution to take appropriate steps for the attendance of the witnesses. But the prosecution failed to say as to what had happened to the summons and made a prayer for adjournment and issue of fresh summons. On account of failure of the prosecution to show its diligence in complying with the undertaking given on the previous date, the court was not bound to grant the adjournment and order to issue of fresh summonses, Thus the court would not be acting beyond jurisdiction or contrary to law if the requests for adjournment were refused. It was equally open to the court to grant adjournment subject to payment of cost and when the prosecution expressed unwillingness to pay the cost, the court was perfectly justified in refusing the adjournment and closing the prosecution evidence.
27. Thus the prosecution is bound to produce the entire material evidence in support of its case; whether oral evidence of the eye witnesses or the medical evidence of the doctor for injuries as well as examination of the victim after death and also the evidence of the investigating officer; the prosecution has to move the court for summoning the witnesses. It may take the responsibility of the service of the summonses itself or it may take help of the court in the service of the summonses thereof, as provided under Section 254(2) in summon cases, Section 242(2) in warrant cases and Section 230 in cases before the court of session. If the summonses have been issued under those provisions of law and the witness does not appear in spite of the reasonable opportunity, then the court can be approached by the prosecutor to take coercive measures for attendance of the witnesses and the court will be justified in exercise of this power to take coercive step. The court is not expected to go on giving dates after dates to the prosecution causing untold miseries and prejudice to the accused. The court should give reasonable time to the prosecution and in that one the court should see that there are no delays and no repeated adjournments. The court is not expected to be a silent spectator to the laches and lapses of the prosecution and also to the harassment and prejudices to the accused. Similarly, the court is not expected in hot haste to refuse the request of the prosecutor for coercive steps for the attendance of the witnesses or to close the prosecution case. If the court is requested by the prosecutor then the court may compel the attendance of the witnesses and may even resort to the provisions of summary trial as provided under Section 350 of the Code. In this process the court should not spare the investigating officer or a doctor, as they are not above law. In most of the cases the trial is delayed on account of non-appearance of the investigating officer, the doctor and other officials witnesses. The non-appearance of these witnesses, whether doctor or investigating officer or any other official is also occasioned because of their transfers from one part of the State to another, thus losing contact with prosecution agency. Further they retire from service and or even die. These are genuine reasons for their non-appearance. But for all this the accused should not be harassed on account of repeated adjournments and prolonging of the case. Similarly the prosecution should not give up the examination of the witness or the court should not acquit the accused even if other evidence is available. Prosecution agency should make sincere and effective efforts for service on getting information through the heads of departments of those officiate within a reasonable time. But if the court finds that the laches or negligence is on the part of the prosecution, it may even impose costs for adjournments making clear observations in the order of adjournment. It is also open to the prosecution agency to bring the police papers on the record, in case the investigating officer is transferred or not easily available or even dead to produce any other police officer who becomes incharge of the prosecution case so that looking to the record he may given proper answer to the court. Similarly, if a doctor is not examined on account of not being easily available, retiring or even death, then some person who has a technical know how of the medical science preferably a doctor should be examined so that by looking to the papers brought on record he may be of some help to the court in dispensing judgment, he being subjected to examination and cross-examination. But all this subject to the provisions contained in the Criminal Procedure Code and the Evidence Act.
28. In present case, as seen above, the doctor and the investigating officers are not available. But the oral evidence of the eye-witnesses, both of the categories of F.I.R. and non-F.I.R., have deposed that the victim was assaulted by the accused by 'lathi' and that her head was broken and blood had come out and also that she died at a distance of one mile on way to the hospital. Not only this the accused has also taken the plea (though no advantage of it can be taken by the prosecution that the victim was assaulted at the same time and place as said by the prosecution. So this much is not disputed by the defence that she was assaulted. The prosecution, as said above, has been able to establish that the victim was assaulted by the accused. So assault upon the victim by the accused by 'lathi, on the head of the victim is very well established, somuch so, that her head was broken and immediately thereafter she died on way to the hospital. As the doctor has not been examined it cannot be said as to what was the nature of the injuries and what was the cause of death, so conviction of the appellant under Section 302, I.P.C. cannot be maintainable. But the appellant cannot get out the clutches of the law for the assault that has been made by him upon the victim. Evidence establishes that lathi, has been used which was a weapon of offence and the injuries had been caused by the appellant voluntarily, as it appears from the evidence that the victim was taken inside the house by the appellant and while being taken she was assaulted and even after taking inside, she was assaulted. On these facts and circumstances, the offence of the appellant brings him within the clutches of Section 325, I.P.C. Hence the conviction of the appellant is altered from Sections 302 to 325 of the Indian Penal Code.
29. As regards the sentence of the appellant, it appears that the appellant had been in jail for about one year and four months and the ordeal of the trial has been faced by him since the year 1984. But the fact remains that the victim woman has been assaulted and lathi injuries had been given on her head causing her death later on; though cause of death cannot be ascertained yet the offence of the appellant has been established. Had the doctor been examined in support of the postmortem report, then this offence might have been under Section 302 and not under Section 325, I.P.C. So the Court is to see that a proper sentence is awarded In the case of State of Punjab v Mann Singh and Anr. , it has been observed in para 8:
It is the duty of the Court in every case to award a proper sentence having regard to the nature of the offence, the manner in which it was committed and to all the attendant circumstances.
In another case of State of Karnataka v. Krishna it was observed in paragraph 7 that "considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of public in the efficacy of the criminal judicial system " In the case of A.R. Antulay v. R.S. Naik and Anr. while discussing the question of locus standi the Supreme Court observed:
In other words, the principle that any o e can set or put the criminal law in motion remains intact unless contradicted by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See Section 2(n) Cr.P.C.) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendatta or vengeance.
In the case of Mahesh and etc. v. State of Madhya Pradesh where the father and son had axed a person and three members of his family and his neighbour, who had intervened merely because the daughter of that person had married a Harijan, the Supreme Court held it to be a cruel, barbric and revolting act, and further held that "to give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in Courts."
30. In the case of Raman and Anr. v. Francis and Ors. 1988 CrLJ 1359, for an offence under Sections 447, 323, 324 and 326 read with Section 34 of the I.P.C., the sentence till rising of the Court was set aside by the learned Single Judge of the Kerala High Court in a criminal miscellaneous application. Various authorities have been referred to in this case. It will be relevant to reproduce below some of the references and observations made in paragraphs 4 and 5 of the said judgment:
(Para 4) ...As Jack Gibbs in 'Crime Punishment and Deterrence' stated:
Any legal theory of behaviour must assume that people by and large do not want to be punished and will act so to avoid fines, jail, whipping or electric chair. That means a threat of real punishment will deter.
Evil of punishment must exceed the advantage of the offence. The classical school of criminology was based on hedonistic psychology. Man governs his behaviour by considerations of pleasure and pain.
(Para 5) "In the words of Parker, C.J., protection of society and stamping out of criminal adventure must be the object of law and this must be achieved must be the proper sentencing policy. The same view was voiced by Butler, J. of the U.S. Supreme Court in Nice v. Minnesota (283 US 697) it was said:
Society could not long endure under such threats. If the courts did not protect the injured, the injured parties would then resort to private vengeance.
Overzealous judicial dispensation can invite ridicule.
The learned single Judge after referring to some decisions of the Supreme Court observed in para 9:
Inadequate sentences can do harm to the system. Law must meet the challenges that criminalisation offers. Maudlin sentiments, bordering or tottering weakness cannot masquerade or reformative sentiments cannot do service for a rational sentence system. Misconceived liberalism cannot be countenanced. It is well to bear in mind the counsel of Benjamin a Cardozo, J. in the exercise of discretion to the Judge:
He is to draw inspiration from consecrated principless. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise discretion informed by tradition, methodised by amalogy and disciplined system.
(The Nature of Judicial Process) The court must plainly discharge its duties and the role of deterrence could be in no doubt after the Supreme Court has spoken.
31. In this case neither Section 302 nor 304 I.P.C. is attracted, though the assault was made to the victim with knowledge on the head, but it cannot be said that the injury itself was sufficient in ordinary course to cause death and, therefore, the action of the appellant attracts Section 325, I.P.C. The Supreme Court in the case of Bablu and Ors. v. State of M.P. 1984 CrLJ 327 observed in para 11:
...Normally, for an offence under Section 304, Part II, a sentence of 5 years is awarded. It appears that the appellants have been in jail for about 31/2 years or a little more and with remission it will come to about 41/2 years or a little more. Looking to those circumstances, in our opinion, the sentence already undergone will meet the ends of justice.
So considering the entire facts and circumstances of the case it will be appropriate to award the appellant a sentence of 5 years as the period already undergone is not sufficient to meet the ends of justice.
32. In the result, the appeal is dismissed with the modification in the conviction and sentence that the conviction of the appellant is altered from Sections 302 to 325 I.P.C. and he is sentenced to 5 years rigorous imprisonment.
33. Let a copy of this judgment be sent to the Chief Secretary, Government of Bihar for consideration of the matter in the light of observations of the courts for direction to the Heads of the respective departments of the respective defaulting officials for taking suitable action against them for whose non-appearance the conviction of the appellant has to be altered from Sections 302 to 325 I.P.C. The judicial records will bear out that this is not the only case of this type, rather most of the cases meet the same fate on account of non-appearance of the official witnesses causing delay in disposal of the cases and acquittals which is not permitted by law and also harassment to the persons charged with offences.