Benudhar Routra vs Raula alias Maheshwar Sahu and Another

V. Gopalaswamy, J.—This revision is preferred by the informant in C. R. Case No. 487 of 1984 against the judgment of the learned Judicial

Magistrate, First Class, Khurda acquitting the accused (the present opposite party No. 1) of the charge u/s 326. I.P.C.

The prosecution case, briefly stated, is as follow : On 29-9-1984 at 8 a.m. at village Kalajhara (within Begunia P.S. in Puri district) as Neba

Khujabala was filling up a ditch on the road in front of his house, one Benudhar Sahu and his father objected to it and then there was an altercation

between the parties and in the meanwhile. Raul alias Maheshwar Sahu (the present opposite party No. 1) came there and assaulted the said Neba

with a spade causing injuries on his person. The present petitioner, who is the brother of the injured Neba, lodged the FIR at Jankia Out Post at 2

p.m. on the same day and on the basis of the said report, police proceeded with the investigation of the case and on completion of the

investigation, charge-sheet was submitted against the present opposite party No. 1 u/s 326, I.P.C.

The plea of the accused opposite party No. 1 was one of denial. No witness was examined on behalf of the defence in support of the plea.

The prosecution has examined in all seven witnesses to prove its case. P. W. 2 is the injured. P. W. 1 is the informant who reported about the

occurrence at Jankia out post. P.Ws. 3, 4 and 6 are the witnesses to the occurrence. P.W. 5 is the Medical Officer who examined P.W. 2

regarding the injuries. P.W. 7 is the Investigating Officer.

On a perusal of the judgment of the learned Magistrate it is seen that the judgment of acquittal was passed mainly on the following grounds:

(1) The FIR has not been proved by the prosecution.

(2) The investigation in the case was conducted by P.W. 7, A.S.I., who was not authorised to do so.

(3) The medical evidence in the case contradicts the testimony of the eye-witnesses.

(4) The blood-stained cloth of the injured was not produced in the court.

(5) The weapon of offence was not produced in the court.

From the evidence of P.W. 1 it is seen that be gave an oral report at the out post which was reduced into writing by the Police Babu and he

proves his signature on the FIR so recorded by the police and the same was marked Ext. 1. From the above evidence of P.W. 1 it can be easily

presumed that the FIR was written by P.W. 7 and the recitals in the formal FIR (which is also not marked as an exhibit in the case) to the effect :

The FIR recorded in separate sheet are (Sic) attached"", confirm such a presumption. So the FIR could have been very easily proved in the case.

It is the duty of the prosecution to prove the FIR as well as the formal FIR. When the witnesses examined in the case could have very easily

proved such material documents as the FIR and the formal FIR but for whatever reason, the Public Prosecutor fails to get them exhibited, it is the

duty of the court to see that the same are duly proved and exhibited in the case, as the court''s function is not merely to observe the proceeding

before it as a passive disinterested spectator. In the present case from the evidence it is seen that even the defence could have very easily drawn

the attention of the court for marking the FIR as an exhibit on the side of the prosecution, if really the accused wanted to make any use of the

recitals therein to contradict the version of the informant. First information report is not a substantive piece of evidence. It is well known that it can

be used merely by way of corroboration or contradiction and no further. If the FIR is not duly proved, or if a statement recorded as an FIR cannot

be used as an FIR on legal grounds, merely for that reason the evidence of the eye-witnesses cannot be rejected if the same is found to be

otherwise reliable. The rejection of FIR Would not detract the testimony of the eyewitnesses which will have to be assessed on its own merits.

(See Somappa Vamanappa Madar and Shankarappa Ravanappa Kaddi Vs. State of Mysore, )).

From the evidence of P.W. 7 it is seen that the A.S.I, received the report from the informant about the occurrence when the officer-in-charge

was absent and immediately thereafter registered the case and took up the investigation. By virtue of the definition of the expression ""Officer-in-

charge of a police Station"" u/s 2(o) of the Code of Criminal Procedure, as the officer-in-charge (""O.I.C."" for short) of the police station was absent

at the relevant time, the A.S.I. (P.W. 7) would be deemed to be the O.I.C. of the Police Station and, therefore, he is entitled to perform all the

functions of an O.I.C. Same A.S.I. P.W. 7 was justified in denying the defence suggestion that he had no authority to investigate the case in the

absence of the O.I.C. at the Police Station.

In the decision Pari Ram v. State of U. P., (1970) 3 SCC 703 (a decision u/s 156 of the old Code which corresponds to Section 156 of the New

Code) while rejecting the contention that Section 156, Cr. P.C. has not been complied with as the investigation was conducted by a Head

Constable, the Supreme Court observed thus:

........This contention has also no merit in it. It is seen from the evidence of the Head Constable that when the first information was received in this

case, no sub-inspector was present in the police station. He was the officer-in-charge of the station at that time. Hence the law permitted him to

investigate the case.

The trial court has not properly appreciated the scope of the decision Narendra Chandra Mohanty v. State of Orissa (1972)2 CWR 1149, when

relying on it for holding that the Assistant Sub-Inspector (P.W.7) has no legal sanction for investigating the case. In that decision, on facts as it was

found that the Sub-Inspector himself was present at the police station, the A.S.I, was prohibited under law from recording the FIR or from taking

up the investigation, as the A.S.I, of Police does not come within the definition of ""Officer-in-Charge of a police station"" unless the Officer-in-

charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties. So the above referred

decision of this Court is not applicable to the facts of the present case.

Hence the trial court was not justified in holding that the A.S.I. P.W. 7, in the facts of the present case, was not competent to investigate into the

case.

In this context, the following observations of the Supreme Court in Khandu Sonu Dhobi and Another Vs. State of Maharashtra, ), are

considered relevant and material and hence quoted below (para 11):

It is well established that where cognizance of a case has, in fact, been taken by the court on a police report following investigation conducted in

breach of provisions of Section 54 of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the

investigation can be shown to have brought about a miscarriage of justice. The underlying reason for the above dictum is that an illegality committed

in the course of investigation does not affect the competence and jurisdiction of the court to try the accused.

Even otherwise also, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby.

(See Major E.G. Barsay Vs. The State of Bombay, )).

In Khandu Sonu Dhobi and Another Vs. State of Maharashtra, , relying on H.N. Rishbud and Inder Singh Vs. The State of Delhi, ), it was held

that where the trial of the case has proceeded to termination, the invalidity of the preceding investigation would not vitiate the conviction of the

accused as a result of the trial, unless the illegality of the investigation has caused prejudice to the accused.

In the present case, there is absolutely no material to hold that the accused was in any way prejudiced by the investigation being conducted by the

A.S.I., P.W. 7.

From the above cited decisions it is seen that the irregularities in the conduct of investigation are not intended to vitiate the trial before the courts.

The Magistrates are expected to decide the cases on the evidence produced before them.

What should be the approach of the court while appreciating the testimony of the eye-witnesses to the occurrence, in the light of the medical

evidence in the case, is indicated by the following observations of the Supreme Court in Solanki Chimanbhai Ukabhai Vs. State of Gujarat, ) (Para

12):

Ordinarily, the value of medical evidence is only corroborative, it proves that the injuries could have been caused in the manner alleged and

nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the

manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all

possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on

the ground of alleged inconsistency between it and the medical evidence.

In Bajwa and Others Vs. State of U.P., ) a murder case, on a consideration of the facts it was held that the mere fact that the evidence of the eye-

witnesses is inconsistent with the medical evidence will not, by itself, render the former unreliable.

So what would be the effect of the inconsistency between the medical evidence and the ocular evidence in a given case would depend upon the

facts and circumstances of that case.

As I propose to remand the case to the trial court it would not be proper for me to discuss the evidence of the eye-witnesses, in the light of the

medical evidence. However, while considering the merit of this revision, I am constrained to observe that the approach of the trial court in the

matter of appreciation of the medical evidence in the case is not in accordance with the well accepted principles of law on the aspect.

On a consideration of the evidence, the trial court should come to a finding whether or not the accused had assaulted the deceased with a

spade causing a bleeding injury on his nose. Once the court finds that such a blow was in fact given on the nose of the injured, non-production of

his bloodstained clothes in court is not of much consequence.

If the evidence placed on record establishes the fact that a blow on the nose of the injured was given with a spade (Phauda), then the non-

production of the weapon of offence, by itself, does not belie that fact.

From my above discussion it is clear that the grounds on the basis of which the trial court has acquitted the accused are not sustainable in law

and it is seen that the trial court has adopted faulty reasoning while acquitting the accused of the charge u/s 326, I.P.C.

For the purpose of appreciating the exceptional circumstances which justify the exercise of the revisional jurisdiction against an order of

acquittal u/s 401, Cr. P.C. (which corresponds to Section 439 of the old Code), the following observations of their Lordships of the Supreme

Court in the case of K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, ), are considered material and relevant and hence quoted below (para

7) :

........It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however

indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases

may be : where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out

evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to

be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on

a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of

exceptional nature, where the High Court can justifiably interfere with an order of acquittal.......

The view that the instances mentioned by the Supreme Court in Chinnaswamy v. State of Andhra Pradesh (supra) as justifying interference with

orders of acquittal in the exercise of revisional powers were illustrative and not exhaustive was approved by the Supreme Court in Ayodhya Dube

and Others Vs. Ram Sumer Singh, ).

For the reasons stated above, I am hereby setting aside the order of acquittal passed by the trial court in favour of the accused opposite party

No. 1 and directing a Tetrial of the accused by the Judicial Magistrate, First Class, Khurda.

The scope of the retrial by the lower court is very limited. Both the parties should be re-heard in the matter only on the basis of the evidence

already placed on record, for arriving at a just decision in the case. However it is open to the accused to get the FIR exhibited, if he is so advised

to do so and in that case if the accused so desires, the informant and the I.O. be recalled for further cross-examination by the accused with

reference to the recitals in the FIR and therefore, the permission to cross-examine them is confined to that purpose only. Apart from this, no further

evidence should be allowed to be adduced by either party in the case.

In the result, the case is remitted to the trial court for disposal according to law in accordance with the directions given by me in the preceding

paragraph.