- (1.) Both these appeals have been admitted vide order dated 12.12.2013 and the records and proceedings of Sessions Trial No.122 of 2010 as well as Sessions Trial No.129 of 2010 have been called for, for appreciating the arguments for suspension of the sentence under Section 389 of the Cr. P.C.
(2.) Having heard the learned counsel for both the sides and looking to the evidences on records, there is a prima facie case in favour of this appellant in both the criminal appeals. As the criminal appeals are pending, we are not much analyzing the evidence on record, but, suffice it to say that the case of the prosecution is based upon the sole eye witness namely Savitri Kumari, who is prosecutrix and for whom it is alleged by the prosecution that the offence under Section 366A has been committed by this appellant. This eye witness has not been examined by the prosecution, though she is mentioned as prosecution witness in the charge sheet in both the sessions trials. Looking to the other evidences on record also there is prima facie case in favour of this appellantaccused. Hence, we, hereby, suspend the sentence awarded on this appellant in Sessions Trial No.129 of 2010 as well as Sessions Trial No.122 of 2010 awarded by Additional Sessions JudgeI, Sahibganj, vide order dated 5.7.2013 in both the Sessions Trials, upon execution of bail bond of Rs.10,000/ (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of the trial court (Additional Sessions JudgeI, Sahibganj) in connection with both the Sessions Trials i.e. Sessions Trial No.129 of 2010 and Sessions Trial No.122 of 2010 on the condition that, he shall remain present before this Court as and when his presence is required by this Court in any of the Criminal Appeals and he shall not misuse the liberty granted by this Court nor he shall commit another offence of similar nature.
(3.) We had called Shri Upendra Kumar, S/o Sri B.S. Singh, who is Principal of the Police Training Centre at Hazaribgah, who is an I.P.S. officer, mainly for the reason that : (a) In this case as well as in several other cases, we have come across that the prosecution in the State is not examining their star witnesses including eye witnesses even in murder case also. In this case also the star eye witness namely Savitri Kumari is not examined in both the Sessions Trials though she is mentioned as prosecution witness in both the charge sheets. It ought to be kept in mind by the prosecution that the examination of witness is not at the sweet will of the Investigating Officer. Always, the prosecution witness should be examined as far as possible and if the prosecution wants to drop out any prosecution witness, then an application should have been preferred before the concerned trial court with reason, for not to examine any particular prosecution witness and the Court should pass the order upon such application, and thereafter, only the prosecution can drop their prosecution witness or witnesses as mentioned in the charge sheet. Whenever the prosecution is dropping the eye witness or other crucial star witness, there must be a cogent and convencing reason. (b) We have also come across the cases, in which the Investigating Officer is examined, e.g. as P.W.5, and after his examination also, several eye witnesses are being examined. This should also be avoided because the Investigating Officer should be examined as far as possible as a last witness so that the omission, improvement and contradiction could be proved. It appears that neither the public prosecutor nor the Investigating officer nor even sometimes the trial courts are aware about the purpose for which the Investigating officer is examined in the trial court. Therefore, it is the high time for the State to educate their Investigating officers in their Training Centre. (c) We have also come across the cases, in which though the eye witnesses are proving the offence of murder, but, the trial court is acquitting the accused for want of examination of the doctor or for nonexamination of the Investigating officer. The Principal of the Police Training Centre at Hazaribagh is requested that these types of eventualities may be pointed out to the Investigating officers so that the errors may not be repeated. Sometimes the Investigating officer is serving in the same district or in adjacent district upon his transfer and then also they are not going as prosecution witness. This should also be avoided and the I.O. must be informed about the duties of I.O. towards the Court at the Police Training Centre. (d) We have also come across the cases, in which the police in the State of Jharkhand is not recording the statement under Section 161 Cr.P.C. separately. In the Jharkhand Police Manual, there is a reference that the Investigating agency should record the statement of the witnesses under Section 161 Cr. P.C. separately and the gist or the summary thereof should be mentioned in the case diary. Here in the State, not in a single case, out of 100, we have come across separately about the recording of the statement by the police under Section 161 Cr. P.C. This should also be taught properly by the head of the institution at the Police Training Centre by the State. The police in the state is saving their labour because the Statement under Section 161 Cr. P.C. is to be recorded separately and in the case diary only the summary will be mentioned datewise and at regular intervals this case diary should be sent to the Superintendent of Police or such other high ranking officers as per the rules/ administrative orders of the State. Here, we have seen that the Jharkhand State Police Manual is more observed in breach than the compliance especially in recording this type of statements; forthwith this procedure should be stopped. We are not here to reiterate the Police Manual again and again. There are already provisions in the Jharkhand State Police Manual. If anybody is committing breach, departmental inquiry should be started by the high ranking officers. Too much brotherhood should have been avoided by the high ranking police officers. (e) We have also come across the several cases, e.g., for an offence punishable under Section 302 of the I.P.C. that no site map is being prepared by the police. We request the Principal of Police Training Centre, at Hazaribagh, Sri Upendra Kumar that this may also be highlighted to the Investigating officers that the site map should be prepared as far as possible in all the cases and should be presented along with the papers of charge sheet under Section 173 of the Cr.P.C. before the Court so that properly the place of occurrence can be appreciated by the learned trial court as well as by the appellate forums and thereby it will also facilitate all the courts to appreciate the evidences of the eye witness or such other witnesses. (f ) The Principal of the Police Training Centre at Hazaribagh, Shri Upendra Kumar is also requested to get such type of paper books of the decided Criminal Appeals cases from the State of Gujarat etc. so that the Investigating officers of the State may know how in detail the police is investigating in other States of this very country. A comparative study ought to have been made at the Police Training Centre at Hazaribagh and the comparative study will give better idea for improvement of the Investigating agency and the system. Otherwise, every Investigating agency will think that they are better than the best. It has also been decided by the Hon'ble Supreme Court that in the case of State of Gujarat Versus Kishan Bhai etc., in Cr. Appeal No.1485 of 2008, judgment dated 7th January, 2014, that every acquittal in the criminal case is a failure of the justice delivery system. Once the charge sheet is filed under Section 173 of the Cr.P.C., instead of filing the report under Section 169 of the Cr.P.C., there is a prima facie case against the accused persons who are charge sheeted and it is a duty of the Investigating officer to remain present whenever the criminal case is going on in the trial court and it is also the duty of the Investigating office to bring all the prosecution witnesses before the learned trial court. In the State of Jharkhand, as stated hereinabove, in several murder cases, the police is not examining the eye witness. (g) We have also seen that in several cases, in which, the Investigating officer is examined as defence witness. This is the highest mockery of the justice in this State. (h) We have also come across the cases in which the prosecution witness is also examined as defence witness and all these types of errors are ultimately resulting in the acquittal of the accused either before the trial court or before the appellate court. It appears that the Investigating agencies must be taught properly at the training centre by the high ranking officers of police. Investigation ought to have been done properly and thereafter, the case before the learned trial court should also be handled efficiently by the Investigating officers. It cannot be thrown at the mercy of the Investigating officer, especially the examination of the witnesses. Whenever, there is an acquittal in the criminal case, it has been directed by the Hon'ble Supreme Court in the aforesaid Cr. Appeal No.1485 of 2008's decision that the committee be constituted by the State by the high ranking officer to analyze the reasons of acquittal and it has also been further directed by the Hon'ble Supreme Court that in Police Training Centre, this error must be pointed out to the Investigating officers so that the multifariousness of errors or overlapping of the errors can be avoided and the history may not be repeated by the other Investigating officers because only bad thing about the history is, that it repeats. Experience teaches several things to the honest and sincere person, but if there is any dull Investigating officer, he will repeat his error again and again and to avoid these types of mistakes again, at the training centre, all care should have been taken by the Principal of the Police Training Centre and such other high ranking officers of the State, those who are faculty members.;