ORDER
Ram Pal Singh, J.
1. After obtaining the requisite leave, the State-appellant has preferred this appeal against the judgment of acquittal recorded by Judicial Magistrate, First Class, Sheopur Kalan, in criminal case No. 304 of 1982 dt. 24-1-1983.
2. The respondents were prosecuted by the State for having committed offence punishable Under Sections 323 and 326/148, IPC. They were, accordingly, charged for having committed these offences on 22-2-1982 at 3.00 p.m. in village Bilwara. The charge was framed by the trial Court on 10-7-1982. On 2-12-1982 the prosecution examined its witnesses Ramgopal (P.W. 1), Nanji Ram (P.W. 2) and Malkham (P.W. 3). Other present witnesses Ramsingh and Devishankar were bound over for the next day, i.e. 3-12-1982. On 3-12-1982 Ramsingh and Devishankar were examined, cross-examined and discharged. The court on that date directed rest of the witnesses to be examined and fixed the case for further prosecution evidence on 18-12-1982. On 18-12-1982 the prosecution examined Kanhaiyalal. Yogesh Gupta, the investigating officer, though served, was not present. Another prosecution witness Dr. Sonkar was also not present on that date. Hence, coercive method was used by the Court and both these witnesses were ordered to be summoned by bailable warrants of Rs. 200/- each and rest of the witnesses were directed to be called by summons. The case was listed for further evidence on 3-1-1983. On that date prosecution witness Sukhdeo was present. He was bound over, but Dr. Sonkar and investigating Officer Yogesh Gupta were neither present nor their bailable warrants had returned. They were again directed to be summoned by bailable warrants for the next date and 11-1-1983 was fixed for examination of further prosecution witnesses. On 11-1-1983 prosecution witness Sukhdeo was examined, cross-examined and discharged. The bailable warrants, which were sent, had not returned to the Court after service. Dr. Sonkar and sublnspector Yogesh Gupta were local witnesses, i.e., they resided at Sheopur Kalan. On direction of the court, the Court Moharrir tried to contact the Sub-Inspector and Dr. Sonkar on telephone, but, in spite of this, these two witnesses did not attand the Court. Hence, the case was adjourned for 13-1-1983 as the last opportunity to the prosecution to examine its witnesses. On 13-1-1983 none of these prosecution witnesses were, present, nor the processes issued had returned. From the conduct of the prosecution, the Court concluded that it is not interested in examining those witnesses. Hence, it closed the prosecution case and fixed 18-1-1983 for recording the statements of the accused-respondents. On 18-1-1983 the A.P.P. on behalf of the State filed an application Under Section 311, Cr. P.C., praying therein for examining Dr. Sonkar and Yogesh Gupta, Sub Inspector, as Court witnesses. The trial Court reasoned that both these witnesses were local, several opportunities were given to the prosecution producing them and when they were not produced and examined by the prosecution, it would not be just and proper to go on extending the date for their presence. After recording the statements of the respondents the trial Court heard arguments on 21-1-1983 and on 24-1-1983 the impugned judgment of acquittal was pronounced.
3. Shri Arvind Dudawat, learned Additional Government Advocate, attached the impugned judgment on the ground that it was the duty of the Court to summon these two witnesses, as their testimony was essential for the proper adjudication of the case. He further contended that the prayer of the prosecution made Under Section 311, Cr. P.C., should have been allowed and these two witnesses should have been examined by the trial Court as Court witnesses. He has cited a Division Bench judgment of this Court in State of Madhya Pradesh v. Ramsingh Prem Singh 1976 MpLJ 454. In this judgment this Court held that in a case instituted on a police report Under Section 251A, Cr. P.C., the Magistrate had to adopt the procedure for trial in warrant cases. It is true that in such cases no duty is cast upon the Magistrate under Sub-section (6) of Section 251-A to compel the attendance of any witness unless it is applied for. Thus, the condition precedent is that the prosecution must apply to the court for summoning its witnesses through the medium of the Court. Let us, therefore, examine whether the prosecution in this case applied for summoning the witnesses or not. On examination of the record, it is clear that it was not the prosecution which applied for summoning its witnesses to the Court. It would, therefore, he relevant to examine the provisions of S, 242 of Chapter 19 of the Cr. P.C., which contains procedure for trial of warrant cases by Magistrates. For convenience, the provision is reproduced below:
242. Evidence for prosecution. (1) If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not convict the accused Under Section 241, the Magistrate shall fix a date for the examination of witnesses.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution;
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4. It is apparent that under Sub-section (2) the Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend the Court. The prosecution did not file an application under Sub-section (2) of Section 242, Cr. P.C. Therefore, it was not incumbent upon the Magistrate to go on summoning and summoning and also using coercive methods for the production of the witnesses of the prosecution. Shri Dudawat also relied upon -State v. Veerappan a Full Bench judgment of the Madras High Court , whose relevant portion is being reproduced;
Thus, there is a duty cast on the court on an application by the prosecution to issue summons to the witnesses and secure the presence of witnesses by exercising all the powers conferred on it by the Code for that purpose and duty is also cast on the prosecution to produce all its evidence and to seek the assistance of the Court for so doing by applying to the court for the issue of summons to the witnesses.
These two decisions make it amply clear that when applied for, the Court may summon the prosecution witnesses. But a very great responsibility is also cast upon the prosecution to bring its own witnesses by taking the assistance of the Court. The prosecution cannot absolve itself from the responsibility cast on it. In this case, investigating officer Yogesh Gupta and Dr. Sonkar were local witnesses. Summons and then two coercive processes were issued by the Court for procuring their presence, but they refrained from attending the Court. The application of the prosecution for summoning those witnesses as Court witnesses was, thus, rightly dismissed by the trial Court. It is not the duty of the Court to fill up the lacuna of the prosecution.
5. But, apart from that fact, examination of the investigating officer in a criminal trial is a valuable right of the accused, and his non-examination is a serious infirmity causing prejudice to the accused by depriving him of the opportunity to show unreliability of the witnesses by proving contradiction in the earlier statements. It is due to this reason that the trial Court insisted upon the production of Dr. Sonkar and investigating officer Yogesh Gupta. Dr. Sonkar and the investigating officer were material witnesses and their non-examination by the prosecution was lapse on the part of the prosecuting agency.
6. Now, let us examine the merits of the case. The witnesses examined by the prosecution were considered in the impugned judgment. Their testimony was evaluated, appreciated and rejected by the trial Court. The trial Court, on the strength of evidence of those witnesses, examined by the prosecution, has concluded on merit that the prosecution has failed to prove the case against the respondents. On merits, Shri Dudawat, learned Additional Government Advocate challenged the findings of the trial Court.but it is a settled view that in an appeal against acquittal, the appellate Court has limited appellate jurisdiction. The appellate Court cannot totally brush aside the appreciation of the evidence by the trial Court. The reasons for reversing a judgment of acquittal should be cogent, and if two views are reasonably possible, the appellate Court should be slow in interfering with the judgment of the trial court, even if it is possible for it to take a different view after the process of laborious reasoning. Ramji Surjya . It was settled by Honble the supreme court in Ganesh Bhuvan patel,1979 Cri App R (SC)261: 1979 Cri LJ 51 that where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. If the main grounds of acquittal are reasonable and plausible and cannot effectively be dislodged or demolished this Court should not interfere with the order of acquittal.
7. Consequently, this appeal has no merit. It is, accordingly, dismissed. The order of acquittal recorded by the trial Court vide the impugned judgment is maintained.