K.C. Jagadeb Roy, J. - (1.) THE Petitioner Babaji alia's Braja Kishore Mohanty was tried under Section 325, I.P.C. on the allegation that on 17 -7 -1982 at about 7.30 p.m. he assaulted one Hemalata Bewa by means of a stick used for closing the door and caused grievous hurt to her. As many as seven witnesses have been examined by the prosecution, of whom P.W. 1 is the informant, P.W. 2 is a witness who, turned hostile, P.Ws. 3, 4 and 5 are the alleged eye -witnesses, P.W. 6 is the doctor and P.W. 7 is the investigating Officer who conducted a part of the investigation and submitted the charge sheet on the basis of which G.R. Case No. 137 of 1982 instituted against the Petitioner. The defence had examined only one witness who denied any such occurrence. He was not cross -examined by the prosecution. The Petitioner was found guilty by the trial Court under Section 325, I.P.C. and was convicted and sentenced to undergo R.I. for one year. On appeal preferred by the Petitioner before the Sessions Judge, Cuttack numbered as Criminal Appeal No. 69 of 1985, the sentence was reduced to one of four months R.I. with fine of Rs. 500/ -, in default to undergo R.I. for two months with a direction that on realisations of the fine amount, the said be paid to the informant as compensation. The sentence, however, was modified by the appellate Court.
(2.) THE prosecution case, briefly stated, is that on the day of occurrence i.e. 17 -9 -1982 at about 7.30 p.m. in village Tandara there was a quarrel between the informant Hemalata and the wife of the present Petitioner relating to damage of crop which Hemalata had alleged against the wife of the Petitioner. When this quarrel was going on between the two; being excited, the accused -Petitioner came out with a stick used for closing the door and assaulted Hemalata who sustained bleeding injury on the head and swelling injury on her left thumb. On the information having been lodged by Hemalata, at the Korei P.S., she was sent for medical examination by the police and after the doctor who examined her opined that the injuries were of grievous nature, a formal F.I.R. was drawn up by the police and further investigation was conducted before the charge sheet was submitted to initiate the proceeding in the G.R. case. In this revision, the Petitioner raised two important points: that the station diary entry dated 17 -9 -1982 by the informant was in law the F.I.R. to the police on the basis of which the injured was sent for medical examination, that it was not produced before the Court and was suppressed and that the subsequent recording of the incident by the police after the report of the doctor, was wrongly treated by the Court as F.I.R. and that on that basis the case of the Petitioner was considered by the trial Court as well as the appellate Court instead of drawing adverse inference against the prosecution for non -production of the station diary No. 353 dated 17 -9 -1982 which in the eye of law is the F.I.R., Secondly, the Investigating Officer was not examined in the case which caused great prejudice to the Petitioner and this non -examination of the I.O. by itself is a ground of acquittal of the accused.
(3.) IN a case reported in, 1986 (1) Crimes 299 (Ratha Jena v. The State of Orissa), this Court has held thus: Apart from proof of contradictions, many material facts could be ascertained for defence of a criminal charge if the Investigating Officer was examined as a prosecution witness. In this particular case the Investigating Officer seized the bullock by seizure list, Certain facts have been stated in the seizure list, The Investigating Officer had also received the F.I.R. and conducted investigation into the case. Had he been examined as a witness, the Petitioner would; have got opportunity of asking many questions to him, relating to, seizure' of the bullock, circumstances of seizure thereof, place of seizure and many other material and relevant particulars relating to the case. As the Investigating Officer was not examined as a witness, he was precluded from elucidating material facts which could have helped him in support of his defence. From the aforesaid analysis it is irresistible for me to conclude that non -examination of the Investigating Officer was a Vital defect in the prosecution case and caused serious prejudice to the Petitioner for his own defence of a criminal charge.;