THE STATE Vs. MAHESWAR ALIAS MAHI DEHURI

JUDGEMENT

(1.) THIS appeal and the three revision petitions arise out of the judgment of Sri P.R. Chandra, Sub -Divisional Magistrate, Sadar, Baripada in a case under Section 224 I.P.C. initiated by the police of Rasgovindpur out -post in Mayurbhanj district against one Maheswar Dehuri alias Mahia Dehuri.

(2.) ONE of the important points urged by the learned Government Advocate at the commencement of the hearing was that the learned trying Magistrate passed strictures on the District Superintendent of Police, Sri S.K. Ghose without giving him an opportunity of explaining his conduct by giving evidence in the case. It appears that Sri S.K. Ghose was cited as one of the defence witnesses by the accused in that case. He was, however, very reluctant to appear as so witness before the learned Magistrate and went to the length of writing a, confidential D.O. to him (No. 706 dated the 80th September, 1951) alleging that he was summoned as a defence witness by the defence Pleader Sri Kaminikanta Patnaik from purely mischievous motives. He was subsequently given up by the defence. But when the other defence witnesses gave evidence which adversely reflected on the conduct of Sri S.K. Ghose in connection with the case, a petition was filed by the Prosecuting Inspector before the learned trying Magistrate for the examination of Sri S.K. Ghose as a Court witness. The learned Magistrate rejected this prayer. The Government Advocate urged that having has declined to examine Sri S.K. Ghose as a witness and thus having deprived him of the opportunity of explaining his conduct in connection with the investigation of this case it wag not fair on the part of the learned trying Magistrate to have passed such serious adverse comments against his conduct. He, therefore, urges that this Court should exercise its powers under Section 428 Code of Criminal Procedure and permit the State to examine Sri S.K. Ghose before the appellate Court. We considered that for the ends of justice Sri S.K. Ghose should be examined even though ab the appellate stage under Section 428 Code of Criminal Procedure inasmuch as the success or failure of the case against Maheswar is closely interlinked with the conduct of Sri S.K. Ghose during the investigation of the case. Sri S.K. Ghose was, therefore, examined in the appellate Court and cross -examined by the learned Counsel for the other side. The Government Advocate further requested the appellate Court to permit him to adduce additional evidence such as the confidential diary of Sri Nandagopal Banerjee (D.W. 11) the station -diary of Morada police station and some other papers. Bat we rejected this prayer inasmuch as it was not proper to utilise Section 428 Code of Criminal Procedure to fill up the gaps in the prosecution evidence. These papers were available before the Prosecuting Inspector and they should have been proved in the lower Court while adducing evidence on behalf of the Prosecution or else when Sri Nandagopal Banerjee (D.W. 11) was cross -examined. We are also no satisfied that for the ends of justice these documents should be admitted in evidence at the appellate stage.

(3.) ON 26 -4 -51, a marwari of Amarda. Road lodged au information at about 1 p.m. at Rasgovindpur out -post regarding the commission of dacoity on the highway between Nalgaja and Amarda Railway station. He was not able to give the name of any of the dacoits. The F.I.R. after being recorded at Rasgovindpur outpost was sent to Morada police station where the formal F.I.R. was drawn up at 6 a. m. on 27 -4 -51 (Exts.l and 11). In the station diary book of Rasgovindpur out -post (see Ext. E) a summary of the information given by the Marwari was entered as required by the last portion of Section 154 Code of Criminal Procedure. The investigation of this dacoity case was taken up by S.L. Sri D. Gartia as the officer -in -charge of the out -post. He was assisted in the investigation by S.I. Sri K.M. Das (P.W. 2) Inspector Sri J.C. Chakravarty (P.W. 1) supervised the investigation of that case. Till the 28th April, 1951 no clue was obtained) but in the evening of the 28th, on receipt of some information, accused Maheswar Dehuri Bond some other persons were brought to the out -post and closely interrogated as to what happened subsequently. There is a clear conflict in the evidence of the police officers themselves.