P.S Mishra and S.K.S. Abidi, JJ.@mdashThis appeal, apart from other disturbing features, also involves a consideration of the conduct of the prosecution in not examining the investigating officer despite summons issued by the Court. Appellant No. 1 has been convicted u/s 302/142 and appellant No. 2 has been convicted u/s 302 of the Indian Penal Code and both of them have been sentenced to undergo rigorous imprisonment for life.
2. On 17th June, 1977 Prayag Singh (P W. 7), according to the information lodged by him with the police, went to see his land in Baluadiara along with his father Ram Nagina Singh and co-villagers Lallan Singh (P.W. 4), Babban Singh (P.W. 6) and Karnal Singh (P.W. 5). They reached at the field at about 10 a. m. At that place they saw the appellants and other accused persons harvesting the paddy. They protested and the harvesters left the field and went towards north. The informant and Ors.'' however, proceeded towards west in the diara, but the appellants and Ors. forming an unlawful assembly came with the respective arms and fall upon them. Appellant Mannan Mian assaulted the informant''s father Ram Nagina Singh with Bhala. Ram Nagina Singh fell down but Amzad Mian gave a Garasa blow on his face and Tahir Mian started assaulting him with bhala and Rashid Mian with Lathi. The informant and Ors. raised alarm and tried to rescue Ram Nagina Singh. At that stage, appellant Rashid Mian assaulted Lallan Singh with Lathi and the miscreants threatend other people also. The informant ran away to some distance out of fear and saw his father Ram Nagina Singh being assaulted by the accused persons. After the assault the miscreants fled away. The informant and Ors. then found Ram Nagina Singh lying injured with several injuries on his person. Accompanied by Lallan Singh, Ram Deo Singh, Kamal Singh, Babban Singh, Ratndhari Singh, Ram Lakhan Singh and Bhaiya Ram Singh and carrying the dead body of Ram Nagina Singh the informant went to the Sahebganj Police Station where he lodged the case at 4 p. m. Since, however, the bordering diara was the place of occurrence Sahebganj police forwarded the report to Amdabad Police Station. The case was thus investigated by the Amdabad police and eventually the accused persons were committed and put on trial in the Court of the 1st Additional Sessions Judge, Katihar.
3. In the trial although several witnesses were produced, except the informant none supported the prosecution case. Even Lallan Singh (P.W. 4), Kamal Singh (P.W. 5) and Babban Singh (PW 6), who according to the informant, were accompanying the informant and the victim and were present when Ram Nagina Singh was assaulted, have not supported the prosecution case P.W. 4 has said that on the date of occurrence he remained in his house and did not go out at all. According to the prosecution case, he was one who had also received injuries, but there is nothing on the record to show that any injuries were caused to him, P.W. 5 has stated that he was in Sahebganj Bazar on the date of occurrence and he did not accompany the informant and Ors. PW 6 Babban Singh has also deposed in the like manner. Several other witnesses including P.Ws. I, 2 and 3, who had accompanied the informant and carried the dead body to the Police Station, have not stated a word about either to have seen the occurrence or to have heard who had assaulted Ram Nagina Singh except saying that they learnt that there was an incident of rioting.
4. P.W. 8 Dr. Ashima Pal, who had held the postmortem examination on the dead body of Ram Nagina Singh on 18-6-1977 and found seven incised injuries and rive other injuries caused by hard and blunt substance and noticed, the fracture of two ribs on the left side and rupture of the lungs and spleen, has, however, proved that in her opinion Ram Nagina Singh''s death was caused due to the effect of ante mortem injuries caused to him and thus he met a violent death resulting in homicide. Her opinion conforms with the time of the occurrence and read with the sole testimony of the informant the. murder is proved.
5. Somehow a new trend has developed that the prosecution witnesses, who evidently support the prosecution case during the investigation before the police, do not depose in support of the prosecution, It is not the law and indeed no Court of law would ever demand that a witness deposing on behalf of the prosecution should support the prosecution case and not unfold the truth. But witnesses, who depose, as if they have come prepared to support the defence and an act in a manner that they make it obvious that they are deliberately suppressing the truth and denying the Court the truth, create a somewhat piquant situation. It has almost become ritualistic for the witnesses to take oath and then state untruth with amunity and laugh at the deflection of the course of justice. The law of the land, no doubt, provides for examination of such witnesses by leading questions and even cross-examination by the prosecutor, the idea being that all efforts should be made to elecit the truth and by dint of the reason that a certain witness has turned unfavorable to the prosecution, his evidence on that ground alone is not rejected. But even these attempts become irrelevant or at least hopelessly inadequate, when such witnesses depose the determination not to unfold the truth, what then a Court of law can do ? Should it merely reject the evidence of such witnesses as unreliable and proceed to decide the case on the residue or other evidence available on the record and thus end in its duty. We have become concerned with these questions because instances of the witnesses making volte face in the Court has now assumed alarming proportion. It is high time for the Courts to pause and ponder and to take suitable action for perjury against witnesses.
6. We could have proceeded on the sole testimony of the informant who has deposed as P.W. 7 and stood the test of cross-examination and considered as the learned Sessions Judge has considered the case, but for another serious lapse on behalf of the prosecution, the Investigating Officer has not been examined. A certain Sub Inspector of Police, namely, Jamadar Singh, who was attached with Amdabad Police Station at the relevant time, had investigated into the case and has recorded the statements of the witnesses u/s 161 of the Code of Criminal Procedure. The effect of non-examination of the Investigating Officer has been candidly discussed in a judgment of this Court in Criminal Appeal No. 391 of 1981 disposed of On 30-5-1986. A catena of decisions on the said question have been referred to in the said judgment an 1 the law has been stated in the following words;
The prosecution is bound under law to produce the entire evidence in support of its case, be it the oral evidence, eye-witnesses, witnesses on circumstances or other witness on questions of fact. It is also required to produce the medical witnesses as well as the witness on investigation, specially, the Investigating Officer. Various provisions contained under the law call upon the prosecution to produce its witness and for that and in view the prosecution can request the Court on an application for issuing summons to any witness to come and depose before the Court or produce any document or anything in that regard. This is so in the case of warrant, in the Sessions case or even the summons case, Under Sections 230, 242(2) or 254(2) or Section 254 Cr.PC When the summons are issued the witnesses are required to appear. But if the witness does not appear the Court should give opportunities a id reasonable opportunities to the prosecution to produce the witnesses, but it cannot go on giving repeated and unreasonable opportunities to the detriment of the accused and also at the cost of the accused who appears on every date face the ordeal of the prosecution, and finds that for the one or lame excuses of the prosecution, the case is adjourned.
Quoting from a decision in Basant v. State of Bihar, this Court has pointed out:
During the recent times, it has been noticed that the final Court has to face tremendous difficulties in procuring the attendance of the Investigating Officer for the reasons that they are transferred frequently and the Sessions trial is taken up after some delay from the time when the investigation had been completed in the case. The problem has also to be faced in case the Investigating Officer is dead or he retires from service and in the case of letter inspite of prolonged adjournments to the evidence is not proceeded.
True, non-examination of Investigating Officer is not necessarily fatal to the prosecution. A Court has to see whether the evidence of the Investigating Officer is essential for the case of the prosecution to succeed or not. The Court has to see at the same time that the accused is not unnecessarily harassed and unless it sees that for unavoidable reasons the prosecution fail to produce the Investigating Officer, it may pronounce the judgment without the evidence of the investigating Officer. The Court, if it is satisfied that the evidence of the Investigating Officer is essential, must take coercive measures to compel his attenance as a witness. Difficulty, however, which the Courts in Bihar face, is that even for executing the process of the Court help of police hierarchy is necessary. Without them and without they desiring to implement the summons and warrants of the Courts, all efforts of the Courts for securing the attendance of the witnesses fail. What has alarmed us, however, is the recessive tendency of the police personnel. They are taking the process of the Courts as lazily and as casually as they can, they have no priorities for the proceedings in the Courts over attending to other works for which they have their reasons of preference. As in this case in many cases Courts have to face a predicaments which the prosecution done can solve, when it does however, is but to tell the Court that it has no other witnesses to examine and to take summons only to inform the Court that it has heard nothing from the police about the service thereof. Several adjournments given by the Court at the instance of the prosecutor only for ensuring the attendance of the official witnesses including the Investigating Officer keep the trials pending for years and even after inordinate wait, the Courts are compelled to decide the cases without their evidence. A certain amendment has been made in the Code of Criminal Procedure by the State of Uttar Pradesh and for such defaulting witnesses adequate provisions have been made to punish both judicially and admistratively. It is high time that in the State of Bihar also some provisions are made and in the case it is found that a certain officer of the State has ignored the summons or warrant of the Court, adequate action is taken against him. The administration of the State, even without any such amendment, is fully empowered and competent to take notice of the defaults of its officers in responding to the summons and warrants of the Court and it can immediately start taking notice of the conduct of the Investigating Officers of the police by suitably punishing them by awarding Black marks at least two for default in each case. We cannot satisfy our concern by nearly making these observations and we feel that in the ends of justice a direction to this effect to the State of Bihar is necessary and we, accordingly, direct the State of Bihar to take administrative notice of the default of its officers in not responding to the summons and warrants of the Courts for their appearance as witnesses and after giving them opportunity to show cause to award suitable punishment, as their defaults cause injury to justice, Such defaults, undoubtedly, are acts of indiscipline and inefficiency. To begin with the Sessions Judges in each Sessions Division of the State shall be well advised to furnish to the District Magistrate and the Superintendent of Police of each administrative district of the State a list of pending cases in which official witnesses have not respondent to the summons and the warrants and also the list of the case which for default in serving summons and warrants the cases are awaiting disposal and the District Magistrate and District Superintendent of Police shall be well advised to take administrative action to ensure attendance of such official witnesses in the Court and execution of the proceeding this Court should issue a circular forthwith to all Sessions Judges to comply with this procedure and the State of Bihar should issue circulars to the District Magistrate and the District Superintendents of Police to comply with the demands of the Courts for examination of the witnesses in the trials.
7. This case has to, however, and in the acquittal of the appellants for the sole reason that it shall not be proper to act upon the evidence of PW 7 alone, particularly, when the Investigating Officer has not been examined and even the first information report has not been proved in original. The appellants can legitimately complain that due to non-examination of the Investigating Officer they have been prejudiced in their defence and this prejudice has been caused, we have already noticed due to the negligence and recalcitrance of the Investigating Officer.
8. In the result, this appeal is allowed. The appellants are acquitted of the charges levelled against them- They are, accordingly, discharged of the liabilities of the bail-bonds. Let a direction, as indicated above, issue forthwith.
