JUDGMENT
U.B. Saha, J.
1. This appeal under Section 374 Cr.P.C. has been filed challenging the correctness of the judgment and order dated 9.9.1999 passed by the learned Additional Sessions Judge, South Tripura, Belonia in Sessions Trial No. 18(ST/B) of 1999 convicting the appellant under Section 307 IPC and sentencing him to suffer R.I. for five years and a fine of Rs. 1,000, in default to suffer S.I. for six months.
2. I have heard Mr. A. Das, learned Counsel for the appellant and Mr. R.C. Debnath, learned P.P. In-charge for the respondent-state.
3. The prosecution story, in short, is as follows:
On 14.10.1998, one Milan Shil (P.W. 1) lodged an FIR with the Officer in-Charge, PR. Bari Police Station stating, inter alia, that on that day at about 13.30 hours, he went to fetch water keeping his elder brother Swapan Shil (P.W. 7) in the shop at Barpathari market and at that time, heard sudden cry of his brother, he rushed at once to the shop and found the accused Sadhan Choudhury, appellant herein, struck a dao (chopper) blow on the head of his brother causing severe bleeding injury who fell on the ground. Thereafter, on hearing his cry, the neighbouring people rushed there and caught the accused Sadhan Choudhury and his brother was taken to Belonia Hospital for treatment. From there he was referred to T.S. Hospital, Udaipur and then to G.B. Hospital, Agartala for better treatment. On receipt of the information, the police came to the place of occurrence and then the local people handed over the accused Sadhan Chowdhury to the police. The informant (P.W. 1), the brother of the victim alleged that the accused assaulted his elder brother with a view to kill him.
4. On the basis of the FIR lodged by the informant, P.R. Bari P.S. case No. 50/98 was registered under Section 307/325 of the IPC and in the course of investigation, the I.O. visited the place of occurrence, prepared a hand sketch map, seized the weapon of offence, i.e., a dao from the shop of the victim and also seized some blood stained earth by preparing the seizure list and arrested the accused from the custody of police of Belonia P.S. He also examined the material witnesses and recorded their statements under Section 161 Cr.P.C. and on a subsequent day, seized the bloodstained shirt of the victim from his house and collected injury report from Belonia Hospital. After completion of the investigation, charge sheet was submitted against the accused Sadhan Chowdhury for committing offence punishable under Section 307/326 IPC. The learned SDJM, Belonia took cognizance on the basis of the police report and committed the case to the court of Additional Sessions Judge, South Tripura, Belonia for trial.
5. On 30.6.1999, the learned Additional Sessions Judge, South Tripura, Belonia framed charges against the accused Sadhan Chowdhury under Section 307 IPC to which he pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as nine witnesses and exhibited a number of documents and articles to substantiate the charge levelled against the appellant. The defence taken by the appellant appears to be of total denial and did not adduce any evidence.
6. On conclusion of the trial, the learned Additional Sessions Judge passed the impugned judgment and order convicting the accused under Section 307 IPC and sentencing him to suffer R.I. for five years and to pay a fine of Rs. 1,000, in default to suffer S.I. for another six months. However, the period of detention during trial was set off. Aggrieved, the convict appellant has preferred the present appeal.
7. Mr. A. Das, learned Counsel for the appellant submits that the trial court was erred in law and fact convicting and sentencing the appellant by the judgment impugned, though no case was made out by the prosecution against the appellant even after examination of prosecution witnesses. Learned Counsel for the appellant also submits as regards the fairness of the trial on the ground that the prosecution had withheld the material witness, namely, Sri Indrajit Saha, who was stated to have snatched the alleged weapon of offence, namely, the dao (chopper) from the hand of the appellant and left the same in the shop of the victim injured which was subsequently handed over to the police when there was no allegation even from the prosecution that if the said material witness was produced, he would not speak the truth. As such, non-examination of the said material witness prejudiced the defence to prove its case though it was the bounden duty on the part of the prosecution to examine such a material witness. He also argued that though the victim specifically stated to the Investigating Officer that the father of the appellant was present at the time and place of incident along with Indrajit Sana, who allegedly snatched the dao (chopper). But, the Investigating Officer did not examine and record the statement of the appellant’s father under Section 161 of the Cr.P.C. and, for such non examination and recording of the statement under Section 161, being eye witness also, is nothing but an action partisan to the appellant. According to the learned Counsel for the appellant, in such circumstances, non-recording of the statement of alleged witnesses under Section 161 Cr.P.C. and withholding of material witnesses from trial caused serious prejudice to the appellant to prove his innocence. Learned Counsel for the appellant further submits that the prosecution withheld not only the said material witness Indrajit Saha, but the other material witnesses also as because, had those material witnesses been produced before the court, they would not have supported the prosecution case, rather they would have supported the case of defence. The aforesaid action of the prosecution itself is a ground for acquittal of the appellant from the charge levelled against him. As the trial court failed to properly appreciate the effect of withholding the material witnesses by the prosecution, the impugned judgment of the trial court on conviction and sentence is liable to be set aside. He has further argued that the trial court also failed to consider whether the alleged incident was caused by both the appellant and the victim under the influence of liquor and who was actual aggressor. Even if the prosecution story is presumed to be correct but not admitting, the learned trial court also tailed to consider whether the appellant had any definite intention to kill the victim using the alleged weapon namely dao (chopper) or the appellant was provoked to commit the alleged offence, learned Counsel for the appellant submits. The further submission of the learned Counsel for the appellant was that the prosecution also failed to produce the final injury report before the trial court from the District Hospital, Udaipur and failure of production of such report also caused prejudice to the appellant from taking a definite defence to prove his innocence from the charge levelled against him.
8. Mr. R.C. Debnath, learned PP has submitted that no case has been made out even from the evidence on record for conviction of the appellant under Section 307, IPC. At best a case under Section 324, IPC can be made out.
9. This Court has given anxious thought to the submissions of the learned Counsel for the rival parties as well as evidence of the prosecution witnesses recorded by the learned trial court and exhibited documents. It appears from the record that the prosecution examined as many as nine witnesses. P.W. 1 is the informant and P.W. 7 is the victim who got one sharp cut injury about 10 cm x 1 cm x 1 cm over left parital region of the skull, simple in nature, caused by sharp weapon and one incised wound measuring about 1 cm x 1 cm x 0.5 cm over left index finger, simple in nature, caused by sharp weapon as per statement of P.W 6, Dr. Tapas Majumder examined the victim at Belonia Hospital on 14.10.1998 at about 12.30 P.M. Except the victim, i.e., P.W. 7, other witnesses are not the eye witnesses. P.W. 2 and P.W. 3 are the seizure witnesses and P.W.4 Dulal Ch. Shil is a neighbour who also did not see the occurrence but heard the cry about the occurrence. P.W. 5 Manik Baidya also, though did not see the occurrence, but heard the cries of the victim and saw the appellant standing nearby the place of occurrence. P.W. 8 Dilip Paul is a shop keeper of Barapathari market where the alleged incident took place who also did not see the appellant at the time of causing the injury to the victim by the alleged weapon. He only found that the victim lying on the ground unconscious with bleeding injury and the people gathered there told that the victim had quarrel with the appellant and during quarrel they were scuffling and the appellant struck dao blow on the head of the victim. He also accompanied the victim upto T.S. Hospital, Udaipur, but he did not come to G.B. Hospital when the victim was brought to the G.B. Hospital. In his cross-examination, he also stated that the victim and the accused might have habit of consuming alcohol. P.W. 9. S.I. Kartik Jamatia is the investigating officer who specifically stated that the dao was seized from the shop of the victim and he recorded the statements of the witnesses, namely, Manik Baidya, Tapan alias Ashis Mahajan. Indrajit Saha, Dulal Shil under Section 161 Cr.P.C. When this witness was specifically asked as to why he did not examine the father of the appellant, he could not answer the reason for such non-examination, as according to him, there was nothing noted in his diary.
10. After proper scrutiny of the evidence, this Court is of the opinion that only P.W. 7, the victim himself is the eye witness of the occurrence and in his statement, he specifically stated that when he was shutting the door of his shop he found the appellant coming in front of the shop with a dao (chopper) from his back side and suddenly struck a blow on his head and he received severe bleeding injury and when the appellant again tried to struck on his body by the said dao (chopper), he tried to resist with his left hand and as a result, his fingers of the left hand were cut and he received bleeding injury. The father of the appellant and some others including Indrajit Saha rushed to the spot and Indrajit Saha snatched the dao from the hand of the appellant. As a result of the blow, the victim fell down on the ground and gradually lost his sense. The informant, P.W. 1 has disclosed in his deposition that the accused happened to be his cousin brother and his father was his maternal uncle and he heard that the accused took some loan from the victim. According to P.W. 2, there was a ‘maramari’ (scuffling) between the appellant and the victim which was supported by the statement of P.W. 4 who, in his deposition, stated that while, he was returning home from his office, his neighbours told him that the victim learned the appellant had some altercation on the issue of some transaction.
11. It is an admitted position that Indrajit Saha is one of the vital eye witnesses who snatched the dao used in the alleged offence from the appellant and kept the same in the shop of the victim in presence of the father of the appellant and some others who rushed there. Though examined by the I.O., the said Indrajit Saha including the father of the appellant, the material eye witness was withheld by the prosecution at the time of trial and other material eye witnesses including the father of the appellant, were not examined by the I.O. and recorded their statement under Section 161, Cr.P.C. The reasons for such non-examination and non-recording of statements were also not explained and such non-production and non examination of material witnesses obviously prejudiced the appellant from taking his proper defence when, it is well settled by the Apex Court that witness essential to the unfolding of the narrative on which the prosecution is based, must be examined and where some of the eye witnesses to the occurrence are not produced before the trial court even after examination of the investigating agency and also some material witnesses were, though present at the time of occurrence, not examined by the investigating agency without giving explanation and reason created doubt on the version of the prosecution story.
12. In a case of Habeeb Mohammad v. State of Hyderabad , the Apex Court in para-11 of its judgment held:
11. ***
In this situation it seems to us that Biabani who was a top ranking police officer present at the scene was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, he would not speak the truth; and in any case, the court would have been well advised to exercise its discretionary powers to examine that witness. The witness was at the time of the trial in charge of the Police Training School and was certainly available. In our opinion, not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to Section 114 of the Indian Evidence Act, but the circumstances of his being withheld from the court casts a serious reflection on the fairness of the trial. It seems to us that the appellant was considerably prejudiced in his defence by reason of this omission on the part of the prosecution and on the part of the court.
13. In another case of Narain v. State of Punjab , the Apex Court observed that the prosecution is not bound to call all the witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all the material witnesses and if a material witness has been deliberately or unfairly kept back, then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge. For better appreciation. Paras 12 and 13 of the judgment are reproduced hereinbelow:
12. It is not necessary for us, nor have we been asked, to decide the question whether Raghbir was entitled under article 20. The learned Advocate for the appellants then argued that in this view of the matter it must be held that a material witness had been kept out of court by the prosecution and that would give rise to an adverse inference against the prosecution case and cast serious reflection on the fairness of the trial. We were referred by learned Advocate to Habeeb Mohammad v. State of Hyderabad in this connection. We agree that if a material witness has been deliberately or unfairly kept back, then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge.
13. The question then is, was Raghbir a material witness ? It is an accepted rule as stated by the Judicial Committee in Stephen Seneviratne v. The King AIR 1936 PC 289 that “witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution”. It will be seen that the test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence. The test is whether he is a witness “essential to the unfolding of the narrative on which the prosecution is based”. Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. It is not however that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses.
14. The aforesaid principle regarding non-production of material witness was reiterated in Thulia Kali v. The State of Tamil Nadu . The Apex Court in Para 13 of the judgment held as follows:
13. As regards the alleged recovery of knife and ornaments at the instance of the accused, we find that the evidence consists of statements of Inspector Rajagopal (P.W. 13). Kali Goundar (P.W. 6) and Chakraborti (P.W.9). According to Chakravarthi (P.W.9), the accused handed over the ornaments in question to the witness when the accused came to the house of the witness on the evening of 12th March, 1970 and passed the night at the house. The witness also found knife in the bed of the accused after he had left on the following day. According however, to Kali Goundar (P.W. 6) the accused on interrogation by the Inspector of Police, stated that he had entrusted the ornaments to Thangam, wife of Chakravarthi (P.W.9). Apart from the discrepancy on the point as to who was the person with whom the accused had kept the ornaments we find that Thangam with whom the accused according to Kali Goundar PW had kept the ornaments, has not been examined as a witness. In view of the above statement of Kali Goundar, it was, in our opinion, essential for the prosecution to examine Thangam as a witness and its failure to do so would make the court draw an inference against the prosecution.
15. In Sawal Das v. State of Bihar in para 12 of its judgment the Apex Court further held that “in the view that the evidence of witness about what children said or did was admissible under Section 6, the children may not have been examined under Section 540 Cr.P.C. But the omission to produce the maidservant whose statement under Section 164 could be used to corroborate or contradict her if she had appeared as a witness entitled the accused to ask the court to give him benefit of presumption under Section 114 Illustration (g).”
16. This Court has also gone through the judgment of the Apex Court in the case of Pratap Sink and Anr. v. State of Madhya Pradesh reported in (2006) Cri. LJ 310, particularly paragraph 19 of the said judgment wherein their Lordships observed that even if in first information report the names of witnesses were not disclosed but if during investigation materials came to the notice of the Investigating Officer, it was his duty to examine those witnesses and record their statement under Section 161 Cr.P.C their Lordships have also drawn adverse inference for such non-recording of statement against the Investigating Officer. Para 19 of the judgment in Pratap Singh (supra) reads as follows:
The High Court, in our opinion, further committed an error in not drawing an adverse inference for non-examination of Shivrajsingh and Motiram. It was for the prosecution to prove its case. Even if in the First Information Report their names were not disclosed but if during investigation materials came to the notice of the Investigating Officer that apart from Mangal Singh two other witnesses had also witnessed the occurrence, he was duty bound to show the places wherefrom they had witnessed the occurrence in the site plan prepared by him and also record their statements under Section 161 of the Code of Criminal Procedure. We do not see any reason as to why adverse inference should not have been drawn for non-filing of the said statements before the court along with the charge sheet. We have noticed hereinbefore the adverse remarks made as against the Investigating Officer. The High Court may or may not be correct in making those remarks but we only intend to point out that a site plan is not prepared at the instance of the witnesses but is done as apart of the investigation. If a site plan has been prepared and if during investigation it has been brought to the notice of the Investigating Officer that there were some other witnesses whose evidence would be material for the purposes of proving the prosecution case namely, witnessing the occurrence by two independent witnesses, we do not see any reason why evidence of such witnesses should not have been recorded. It is correct that it is the duty of the Investigating Officer to produce the said statements with the charge sheet, but if the same had not been done, the benefit thereof must be given to the defence and not to the prosecution. The High Court, therefore, in our opinion committed a serious error in this behalf. Non-examination of the seizure witnesses also, in the peculiar facts and circumstances of the case was of some significance. The learned Sessions Judge made comments about the non-examination of the seizure witnesses only for the purpose of showing that the investigation in the matter might have been of partisan in nature at the hands of PW.7. The High Court on the one hand made adverse comments against the conduct of the Investigating Officer but on the other hand placed strong reliance on his evidence alone for the purposes of believing that several material objects including the weapons of offence, viz., Lathi and Barchhi were recovered in accordance with law.
17. It was also the duty of the trial court to ask the prosecution to produce such material witness before the court and if the prosecution failed to discharge the duty, then it is the court that is to call the said material witness for examination as a court witness to unveil the actual truth. Had those material witnesses including Indrajit Saha been produced and examined, the appellant would have got the opportunity to reverse the story of the prosecution and proved his innocence and the prosecution story also could have been otherwise. Such action of non-examination of eye witnesses who were admittedly rushed and present at the time and place of striking the dao blow and non recording of their statement by the Investigating Officer under Section 161, Cr.P.C created a doubt even regarding the function of Investigating Officer, as that was his bounden duty to record such statement and non-production of the material witness before the trial court creates a doubt about the prosecution story. It is not only the duty of prosecution to punish the alleged accused but to place the materials and witnesses before the trial court. In the instant case, though it is evident from the prosecution story that there was scuffling (maramari) between the victim and appellant and the appellant allegedly struck dao blow on the body of the victim as evident from the deposition of P.W. 8 before the trial court, the court did not try to find out who was the real aggressor and from whose end, the said scuffling was started and whether there was any provocation on the part of the victim inviting the appellant for committing such offence as alleged. It is also an admitted position that the dao (chopper) in question was not sent for chemical examination as to whether the said dao was stained with blood of the victim and it was used by the appellant for committing the alleged offence. Such non-examination of dao also creates a doubt regarding the use of the same. Even the final injury report was also not produced before the court/not only that the Doctor, who examined and treated the victim at Udaipur as well as at Agartala Hospital, was also not examined and produced before the court by the prosecution to prove the charge. Except the victim himself, no other eyewitness was available. Though on the basis of the lone statement of victim conviction is permissible, but it is not a fit case where order of conviction can be passed on the basis of such statement where the material witnesses were withheld by prosecution and the victim is also inimical to the appellant. The prosecution has failed to prove conclusively that the appellant has committed the offence under Section 307 IPC. As regards the submission of the learned P.P. that the offence has been committed by the appellant under Section 324 IPC, this Court is of the view that there is no sufficient evidence to prove that the alleged chopper was used for giving the alleged blow to the victim by the appellant as the said dao was not examined chemically as well as the witness, who snatched away the alleged dao from the appellant was also not produced as stated above and as such it cannot be presumed that the said dao was used. Unless the use of dao is proved, it cannot be said that the appellant committed offence under Section 324, IPC, as prosecution could not produce definite evidence in that aspect also. From the entire evidence and documents exhibited by the prosecution, it cannot be safely said that the appellant committed the offence either under Section 307, IPC or under Section 324, IPC. In a criminal case, conclusive proof is required to give a finding as to the accused being guilty of the charge levelled against him. In the instant case the Prosecution fails to prove conclusively the charge levelled against the accused beyond any shadow of doubt. In this view of the matter, the conviction of the appellant cannot be upheld.
18. For the reasons stated in the foregoing paragraphs, the impugned judgment of conviction and sentence cannot be sustained in law and is, accordingly, set aside. The appellant is acquitted and need not surrender to his bail. He is discharged from his bail bonds. The appeal is, therefore, allowed.