Holding

A conviction for murder under Section 302 IPC does not require the corpus delicti; it can rest on direct or circumstantial evidence establishing death, and Section 106 permits an inference of guilt when the accused fails to explain facts within their special knowledge.

Summary

The appellants were convicted of murder (Sec. 302 IPC) and related offences for the killing of Krishnanand Chaudhary, despite the victim's body not being produced. The appellants argued that the prosecution failed to prove the victim's death and that the lack of corpus delicti, non‑examination of the investigating officer, and non‑production of forensic items warranted setting aside the convictions. The Supreme Court held that a body is not a sine qua non for a murder conviction; direct or circumstantial evidence that the victim died and that the accused caused the death suffices, and Section 106 of the Evidence Act allows an inference of guilt when the accused, possessing special knowledge, offers no explanation. The Court found the eye‑witness testimony reliable, rejected the claim of prejudice from the missing forensic evidence and the unexamined officer, and affirmed the lower courts' findings. Consequently, the appeal was dismissed.

Issues considered

Is the discovery of the victim's body (corpus delicti) essential for a conviction under Section 302 IPC?
Did the prosecution establish the fact of death beyond reasonable doubt in the absence of a body?
Does Section 106 of the Evidence Act shift the burden of proof to the accused in this context?
Does the non‑examination of the investigating officer prejudice the accused's right to a fair trial?
Do the non‑production of blood‑stained mud, lungi, and lanterns affect the reliability of the prosecution's case?

Legislation cited

Indian Evidence Act, 1872s. 106
Indian Penal Code, 1860s. 149, s. 201, s. 302

Subjects

murdercorpus delictiSection 302 IPCSection 106 Evidence Actcircumstantial evidenceburden of proofnon‑examination of investigating officerdeath proof

Judgment

RAM GULAM CHAUDHURY AND ORS. A
v.
STATE OF BIHAR

SEPTEMBER 25, 2001

[K.T. THOMAS AND S.N. VARIAVA, JJ.] B

Penal Code, 1860 : Sections 201, 302 rlw 149.

Murder-Corpus delicti-Whether necessary.for conviction.for murder-
Prosecution proves factum of death by reliable evidence-However corpus
delicti not found-Trial Court convicted appellants-High Court upheld
c
conviction-On appeal, held even in absence of corpus delicti direct and
circumstantial evidence go to prove that murder has been conunitted.

Evidence Act, 1872-Section 106-Burden of proving fact especially
within the knowledge of the accused-Not discharged by the accused-Held, D
there is everyjust{ficationfor drawing the inference that the accused committed
the murder-Penal Code, 1860.

According to the Prosecution the appellants-accused and some other
persons came to the house of one 'KC' and assaulted him. One of the
accused (appellant No. 9) gave a chhura blow on his chest which resulted in E
his death. Thereafter all the persons left the place taking the body of the
'deceased'. Trial Court after considering the evidence convicted the
appellant No. 9 under Section 302 IPC and the other appellants under
Section 302 r/w s.149 and sentenced all of them to life imprisonment.
Appellants filed an appeal before the High Court which was dismissed. p
Hence the present appeal.

Appellants submitted that since the prosecution had failed to prove
the murder by any reliable evidence, the conviction should be set aside.

Dismissing the appeal, the Court G
HELD : 1.1. If there is no reljable evidence proving the factum of death,
conviction under Section 302 IPC cannot be maintained. It is not necessary
for a conviction for murder that corpus delicti be found. In the absence of
the corpus delicti there must be direct or circumstantial evidence leading to
the inescapable conclusion that the person has died and that the accused are H
. 279
280 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A the persons who had committed the murder. [287-G; H; 288-A; B]

Ram Chandra v. U.P. State, AIR (1957) SC 381; Rama Nand v. State of
Himachal Pradesh, (1981) 1 SCC 511; State v. Sardara, (1974) Crl. L.J. 43;
Bandhu v. Emperor, (1924) Allahabad Law Journal 340; In Re Maya Basuva,
AIR (1950) Madras 452; Brijesh Kumar v. State, AIR (1958) Allahabad 514;
B Rama nand & Ors. v. Siate of Himachal Pradesh, (1981) 2 SCR 444 and
Sevaka Perumal v. State of Tamil Nadu, [1991) 3 SCC 471, referred to.

1.2. In the instant case, the courts below have come to the conclusion,
based upon the evidence of PWs 3 and 4 who were eye witnesses that
Appellant No.•9 had killed the accused and the body was taken away by all
c the Appellants.' The presence· of the two witnesses at the place of incident
and their evidence clearly_ indicates that the incident took place before
their eyes. Further; on reading the evidence as a whole both of them have
given positive evidence that tht; murder took place in the courtyard and
not on the road. [~88-A-DJ
D
2, Even though Section 106 of the Evidence Act may not be intended
to relieve the prosecution of its burden to prove the guilt of the accused
beyond reasonable doubt but the section would apply in the instant case
• •' • ' • 1• ~' •11 ' t ' • J ••

where the prosecution has succeeded ill proving facts from· which a
t '
' l ' .... ~
I . <ii - <I t " • • L • t" · ;

reasonable inference can. be drawn. The appellants brutally assaulted 'KC';
E "' ' - • I • j. ~ ' I

then gave a chhura blow and thereafter carried away the body. After that
.. 1 •. ~ 1' ' ; ' ' - '

as to what happened to 'KC' is within the kno~ledge of t~e Appellants and
they have given
- 4 1 •
'no
explanation. 'KC' has not been since seen alive. In.the
~ 41' I ' • ' ' t I • • ' , ' • • •

absence , of an explanation,
.• t
and considering the fact that the Appellants '!' I I • j J •

were suspecting 'KC''to'have kidnapped and killed a child in the family of
f . t • • • -, ' •~ • ...
F • , I

the Appellants, it ·was for the Appellants who by virtue of their special
knowledge should have offered an explanation which might lead the Court
to ,draw a different inference. Thus when the abductors withheld that
. ;. I I • L " • " ~ " • • • • • -

inform~tion from t~e .Court tl~ere ,is every justification for ~rawing the
inference that they had murdered 'Kq. (288-F; H; 289-A; BJ
t··
G
Shambhu Nath Mehra v. The State ofAjmer, (1956) SCR 199; Kali Ram v.
State ~f H.P., (1973] 2 SCC 808; In Re Naina Mohamed, AIR (1960) Madras
218 and Sucha Singh v. State of Pw~jab, (2000) 4 SCC 375, referred to. •
...
3. Non-examination of the. Investigating Officer _has not lead to any
H prejudice to th.e appellants as the examination would pot have shown that
174
R.G. CHAUDHURY v. STATE 281
the occurrence had taken place not in the courtyard but outside, on the A
road. The Investigating Officer was not an eye witness. The body had
already been removed by the Appellants. The Investigating Officer,
therefore, could not have given any evidence as to the actual place of
occurrence. There were witnesses who have given credible and believable
evidence as to the place of occurrence. Their evidence cannot be discarded
B
merely because the Investigating Officer was not examined. (290-D; E]

Ram Dev v. State of U.P., (1995] Supp. 1 SCC 547; Behari Prasad v.
State of Bihar, [1996] 2 SCC 317; Ambika Prasad v. State (Delhi Admn.),
[2000] 2 SCC 646 and Bahadur Naik v. State of Bihar, (2000] SCC 153,
referred to. c
4. It cannot be said that non-production of blood stained mud and
·seized lungi had resulted in prejudice to the Appellants. (290-F]

S. The evidence of witnesses exclusively established that the deceased
> and his father were having meals in the varandah and that the mother and D
sister were serving them meals. From this it is clear that they itad a source
of light at that place. Therefore it cannot be said that as the lanterns were
not seized it was not established that there was any source of light and so
the evidence of witnesses cannot be believed. [290-G; H; 291-A]
E
.B.Subba Rao v. Public Prosecuto;, High Court of A.P., (1997] 11 SCC
478, relied on. . ·

6. The submission that there was no light by which the witnesses
could have identified the Appellants or seen the incident even if it took
place in the courtyard cannot be accepted as the incident had taken place F
in a village and the ·visible capacity of urban people who are acclimatised
to fluorescent lights or incandescent lamps is not the standard to be applied
to villagers whose optical potency is attuned to country-made lamps. The
visibility of villagers is conditioned to such lights and hence it would be
quite possible for them to identify men and matters in such light. More so,
G
the Appellants were from the same village and were known to PW3 and
PW4. [291-D-F]

Kalika Tiwari v. State of Bihar, [1997] 4 SCC 445, relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1056 H
,.._
I
I
l-
282 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
A of 1998.

From the Judgment and Order dated 21.5.98 of the Patna High Court in
Crl. A. No. 293 of 1986. · '

P.S. Mishra, Ms: Manita Verina, S. Chandra Shekhar, Upendra Mishra,
B Vishnu Sharma, Tathagat Harshvardan and S.K. Sinha for the Appellants.

B.B. Singh, Ms. Sunita R. Singh and Kumar Rajesh Singh for the
Respondent.

The Judgment of the Court was delivered by
c
S.N. VARIAVA, J. This Appeal is against a Judgment dated 21st May,
199~ by which the Appeal filed by these Appellants has been dismissed. The
Appeal, before the High Court was filed by 11 pers~ns, however during. the.
pendency of that Appeal two persons viz. Bijoy Chaudhary and Mohan
Chaudhary expired. Thus, this Appeal is filed by the remaining nine persons.
D i i

Briefly stated the facts are as follows :

On 17th July, 1980 at about 8 P.M. one Krishnanand Chaudhary and his
father Nemo Chaudhary were taking their meals on the verandah of their house.
The mother and sister of the said Krishnanand Chaudhary were serving the
E meals. It is the case of the prosecution that the Appellants, along with some
other persons came to that place variously armed with lathis, bhala and chhura.
It is the case of the prosecution that they assaulted Krishnanand Chaudhary,
dragged him into the courtyard of the house and further assaulted him. It is the
case of the prosecution that when the mother and the father tried to save him
F they were also assaulted. It is the case of the prose.cution that the Appellants
took Krishnanand Chaudhary to a nearby ditch and pushed him down there.
Bijoy Chaudhary (who had expired pending the Appeal in the High Court) is
then supposed to have stated that he was still alive and should be killed. On
such statement Appellant No. 9 gave a Chhura blow on the chest of Krishnanand
Chaudhary which resulted in his death. It is the case of the prosecution that all
G those persons thereafter left the place taking away ~he body of the deceased.
According to the prosecution the motive for this is that a child of the family
of the Appellants had earlier been kidnapped and had been found dead. The
Appellants suspected · Krishnanand Chaudhary to be responsible for such
kidnapping and death. Initially 13 persons were charge sheeted. Two persons
H died before trial could commence. Thus 11 persons were tried.
R.G. CHAUDHURY v. STATE [VARIAVA, J.] 283
At the trial, the prosecution examined five witnesses, of which P.W. 5 A
was a formal witness, who proved the FIR and the seizure list by which blood
stained earth, lungi and lathi had been seized. The eye witnesses to the incident
were P.W.1-Dukha Chaudhary, who is a neighbour, P.W. 3 - Patmila Devi, who
was the mother of the deceased and who had promptly lodged the FIR and
P. W.4 - Munni Devi the sister of the deceased. Prosecution also examined P. W.
B
2 - the brother of the deceased who deposed~at when ~e returned home he
was informed about what had happened. It has Come on record that the father
of th~ deceased died before the trial started. The prosecution did not examine
the Investigating Officer.

The trial Court, after considering the evidence convicted Appellant No. c
9 of the offence under Section 302 I.P.C. and sentenced him to life imprisonment.
The other Appellants were convicted under Sections 302 read with 149 I.P.C.
and were also awarded life imprisonment. All the Appellants were also conviCted
under Section 201 and sentenced to seven years rigorous imprisonment. All the
accused then filed an Appeal. As stated above, during the pendency of the
Appeal, two of the accused persons expired. The Appeal came to be dismissed D
by the impugned Order.

Mr. Mishra submitted that this was a case where the corpus delicti had
not been found. He submitted that there was no proof that :-Krishnan and
Chaudhary has actually died. He submitted that there was no medical evidence . E
of death. He submitted that the evidence of the prosecution witnesses, to the
effect that they had seen Appellant No. 8 killing Krishnanand Chaudhary, could
not be believed. He submitted that all that the prosecution could be said to have
established was that the said boy had been assaulted and had then been taken
away by the Appellants. He submitted that the defence theory that the boy was
still alive at the time of the trial could not be ruled out. He submitted that the F
conviction under Sections 302 and 201 of the Indian Penal Code could not be
sustained.

Mr. Mishra took us through the evidence of the various witnesses. He
submitted that P.W. 1 was a neighbour who is supposed to have seen the
G
incident. He submitted that this witness has deposed that on hearing a noise he
had come out of the house and had started running. He submitted that he has
deposed about the assault on the boy and that the Appellants had caught hold
of the boy by the side of the road and had then dragged him towards northern
side. Mr. Mishra pointed out that both the trial Court and the High Court had
not believed this witness. He submitted that there was no reason why this H
1
284 SUPREME COURT REPORTS - • (2001) SUPP. 3 S.C.R.

A witness should not have been believed. He subinitted that the evidence of this
witness categorically snows th~t the assault 'was not in the courtyiird, claimed as
by the otlier witnesses, but w~s on the rciad adjoiriing th'e house. He s~bmitted
that the evidence of this witness establishes that the ottier witfiesses'~ould 'riot
have seen ''the said Knshnariand Ch~udhary being killed by the Appellants.
't u' ~It .. • t ... .,,, .. 1' {

B Mt. .. Mishra pointed out· that P.W. 2 had not- actually witnessed the
incident but had merely been told about the incident on his return iri the night.
~ t • f •

Mr. Mishra submitted that even according to P.W. 3 i.e. the mother, the
incident had taken place outside the courtyard. In support of this he relied
1
C upon the' following statement' of this witness : ' :

"My son was taken to the pit near the Kanti outside the courtyard;"
•...; .... ' ' " . '.; :, • 1

~e sub!11itted that admitt~gly r.w. 3 had.no! gone outside the courtyru:d.
He submitted t,hat this cl(!arly esta~lished that P.W. 3 ,could not be believed
D when ,she deposed that she had seen Appellant No. 9 giving a dagger bl9w
and her son had died there and then. ,j

Mr. Mi~hra submits that P.W.4 had also deposed that the Appellants had
dragged the boy to the "Tat'.'. Mr. Mishra •submits that it is well known that
a "Tat" was a manure pit which was always-outside the courtyard. He submits
E that· the evidence of this witness also show's that the incident had taken place
outside the courtyard. He submits that neither P.W.3 nor P.W.4 could have
seen the Appellants ·actually killing· Krishnana~d Chaudhary.

Mr. Mishra relied upon the decision in Ram Chandra v. U.P. State,
F reported in AIR (1957) SC 381. In that case it has been held that even though
it was not necessary for conviction that a corpus delicti should be found still
there must be other clear and reliable evidence of murder.

Mr. Mishra also relied upon· the case of Rama Nand v. State of
Himachal Pradesh, reported in (1981) l SCC 511. In that case also it was held
G that discovery of a dead body was not a sine qua non for a conviction. It was
held that a homicidal death could ·be proved even on the basis of circumstantial
evidence provided that the circumstances were of a clinching and definitive
character unerringly leading- to the inf~rence that victim concerned had met a
homicidal· death at the hands of the accused.
H
R.G. CHAUDHURY v. STATE [VARIAVA, J.] 285
Mr. Mishra also relied upon the case of Shambhu Nath Mehra v. The A
State of Ajmer, reported in [1956) SCR 199. In that case it has been held that
Section 106 of the Evidence Act does not abrogate the well-established rule
of criminal law that the burden lies on the prosecution to prove its case and
that such burden never shifts. It has been held that Section 106 of the
Evidence Act is not intended to relieve the prosecution of the burden, but that B
it only seeks to meet certain exceptional cases where it is impossible, or
disproportionately difficult, for the prosecution to establish facts which are
especially within the knowledge of the accused.

Mr. Mishra also relied upon the case of Kali Ram v. State of H.P.,
reported in [1973] 2 SCC 808. In that case it has been held that one of the C
cardinal principles which has always to. be kept in mind in our system of
administration of criminal justice is that a person arraigned as an accused is
presumed to be innocent unless that presumption is rebutted by the prosecution
by production of evidence as may show him to be guilty of the offence with

-· which he is charged. The burden of proving the guilt of the accused is upon
the prosecution and unless it relieves itself of the burden, the Court cannot
record a finding of the guilt of the accused. It is also held that if two views
are possible one pointing to the guilt of the accused and the other to his
D

innocence the view which is favourable to the accused has to be accepted.

Mr Mishra next relied upon the case of Bandhu v. Emperor reported in E
(1924) Allahabari Law Journal 340. In that case it was held that before a
conviction for murder can be recorded the Court must be satisfied that the
person alleged to have been murdered is actually dead. In this case one D was
brutally beaten with Lathis and then dragged away towards river. D was never
again seen alive. The Court held that the conclusion that D was dead could
F
not be arrived at though it was exceedingly unlikely that he was alive. The
Court held that in the circumstances the Appellants could not be convicted of
murder under Section 302 of the Penal Code but of an attempt to murder
under Section 307.

Mr. Mishra also relied upon the case of State v. Sardara reported in G
(1974) Cr!. L.J. 43. It is held that conviction need not necessarily depend
upon the corpus delicti being found. It is held that there should be reliable
evidence of murder before a conviction can take place. It must be mentioned
that in this case the bodies of the two children who had disappeared were not
found but the clothes and the Chappals had been recovered. On the basis of
H
286 SUPREME COURT REPORTS [2001] SUPP, 3 S.C.R.
A such recovery the Court held that the children had been murdered.

On this aspect Mr. B.B. Singh had also cited certain authorities. It
would be convenient to set out those also. Mr. B.B. Singh relied on the case
of Maya Basuva, reported in AIR (1950) Madras 452. In this case the Court ..
did not accept the view expressed in Bandhu 's case (supra) and held that it
B was not obligatory, for proving the death of an individual, that his dead body
should be recovered. It was held that the mere fact that the dead body had not
been found was not a ground for refusing to convict the accused person of
murder. It was held that if there were eye witnesses who had seen the accused
persons brutally beating and stabbing the victim and then carrying away the
C body it would be sufficient to record a conviction of murder.

In the case of Brijesh Kumar v. State, reported in AIR (1958) Allahabad
514, it was held that the failure on the part of the prosecution to recover the
dead body will not indicate that there was no murder. It was held that the fact
of murder can be proved by circumstantial evidence which leads only to that
D one conclusion, although no body was found.

In the case of Rama Nand & Ors. v. State of Himachal Pradesh
reported in [1981] 2 SCR 444 it was held that even though the corpus delicti
was not found still an inference of guilt could be drawn when the other
circumstances established on record were sufficient to lead to the conclusion
E that within all human probability the victim was murdered by the accused.

IIi the case of Sevaka Perumal v. State of Tamil Nadu, reported in
[1991] 3 SCC 471, it was held that it is not necessary or essential to establish
corpus delicti. It was held that the fact of death must be established like any
F other fact. It was held that in some cases it may not be possible to trace or
recover corpus delicti. It was held that a conviction for murder could, even in
absence of corpus delicti,. be based on reliable and acceptable evidence.

Mr. B.B. Singh also relied· upon the case of In Re Naina Mohamed
reported in AIR (1960) Madras 218. In this case it has been held that Section
G 106 of the Evidence Act does not shift the burden of proof in a criminal case.
It is held that the true rule is that where the accused does not throw any light
upon facts which are especially within his knowledge and which could not
support any theory or hypothesis compatible with his innocence the Court can
consider his failure to adduce any explanation as an additional link which
completes the chain. It is held that in cases where it is impossible for the
H
R.G. CHAUDHURY v. STATE [VARIAVA, J.] 287
prosecution to give wholly convincing evidence on certain issues which are A
within the knowledge of the accused it is for the accused to give evidence on
them if he wishes to escape. It is held that positive facts must always be
proved by the prosecution but that the same rule cannot always apply to
negative facts. It is held that when a person do:s not act with some intention
other than that which the character and circumstances of the act suggest, it is
B
not for the prosecution to eliminate all the other possible intentions. It is held
that if the accused had a different intention that is a fact especially within his
knowledge and he must prove the same.

Mr. B.B. Singh also relied upon the case of Sucha Singh v. State of
Punjab, reported in [2000] 4 SCC 375. In this case two persons were c
abducted by armed assailants from their house at night. The next day their
bodies were found riddled with gunshot injuries. The accused persons were
convicted by use ·of the presumption under Section 106 of the Evidence Act.
The circumstances found sufficient were, amongst others, that the incident
had taken place during the period when the Punjab was boiling with terrorist
activities; that the terrorists treated the house of the deceased as the home of D
police tout; that the accused had gone to the house of the deceased armed with
AK-47 rifles and forcibly taken away the two boys; that the deceased then did
not return home but their bodies were found the next morning riddled with
bullets. The Court held that what happened after the two boys were abducted
was within the exclusive knowledge of the accused and that they did not tell E
the Court as to w:·.~t they did with the boys after they abducted them.

Based on the principles laid down in the authorities cited by him Mr.
Mishra submitted that even though it is not necessary that corpus delicti be
found, still the prosecution must prove that Krishnanand Chaudhary had died.
He submitted that the prosecution had failed to prove this fact by any reliable F
evidence. He submitted that the testimony of PW 3 and PW 4, to the effect
that the Appellants had killed Krishnanand Chaudhary, could not be believed.
He submitted that it was proved that the alleged act took place outside the
coui1yard and thus PW3 and PW4 could not have seen the incident. He
submitted that even if they could have so seen, still it was merely their G
surmise/conjecture that Krishnanand Chaudhary had died before he was taken
away. Mr. Mishra submitted that as there was no reliable evidence proving the
factum of death the conviction under Section 302 could not be maintained.

There can be no dispute with the proposition of law set out above. As
is set out in the various authorities (referred to above) it is not at all necessary H
288 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A for a conviction for murder that the corpus delicti be found. Undoubtedly, in
the absence of the corpus delicti there.must be direct or circumstantial leading .-
to the inescapable conclusion that the person had died and that the accused are
the persons who had committed the murder. Both the Courts below have come
to the conclusion, based upon the evidence of P.Ws. 3 and 4 (who were eye
witnesses) that Appellant No. 9 had killed the accused before the body was
B
taken away by all the Appellants. We have read the evidence of all the
witnesses. We have given a careful consideration to the material on record.
We see no reason to take a different view. The evidence in this case is direct
and there is no reason to disbelieve this evidence. We see no substance in the
submission of Mr. Mishra that these two ladies could not have seen the boy
.C being killed and could not have in any case come to a conclusion that he had
died. Their presence at the place of incident could not be doubted. Their
evidence, clearly indicates that the incident took place before their eyes. We
cannot accept the submission of Mr. Mishra that their evidence discloses that
the incident took place outside the courtyard and on the road. Mr Mishra has
D relied on stray sentences. The evidence has to be read as a whole. Read as a
whole both the ladies have given positive evidence that the murder took place
in the courtyard. We also see no substance in the submission that PW 3 and
PW 4 could not positively say that Krishnanand Chaudhary had been killed.
The evidence is that Bijay Chaudhary stated that "he is still alive and should
be killed". On this statement Appellant 9 gave a chhura blow on the chest.
E The evidence is that Krishnanand Chaudhary, who was till then struggling
twitched and thereafter his body became still. From this it could be concluded
that death had taken place. It must be mentioned that even P.W. 1, whose
evidence Mr. Mishra relied upon, has deposed that Krishnanand Chaudhary
had died.
F
Even otherwise, in our view, this is a case where Section 106 of the
Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted
and then a chhura blow was given on the chest. Thus Chhura blow was given
after Bijoy Chaudhary had said " he is still alive and should be killed". The
Appellants then carried away the body. What happened thereafter to
G Krishnanand Chaudhary is especially within the knowledge of the Appellants.
The Appe1Iants have given no explanation as to what they did after they took
away the body. Krishnanand Chaudhary has not been since seen alive. In the
absence of an explanation, and considering the fact that the Appellants were
suspecting the boy to h'.lve kidnapped and killed the child of the family of the
Appellants, it was for the Appellants to have explained what they did with
H
R.G. CHAUDHURY v. STATE [VARIAVA, J.] 289
him after they took him away. When the abductors withheld that information A
from the Court there is every justification for drawing the inference that they
had murdered the boy. Even though Section 106 of the Evidence Act may not
be intended to relieve the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt, but the section would apply to cases like
the present, where the prosecution has succeeded in proving facts from which
B
a reasonable inference can be drawn regarding death. The Appellants by
virtue of their special knowledge must offer an explanation which might lead
the Court to draw a different inference. We, therefore, see no substance in this
· submission of Mr. Mishra.

Mr. Mishra next submitted that the Investiga)ing Officer was not
examined in this case. He submitted that this has caused serious prejudice to
c
the accused persons inasmuch as if the Investigating Officer had been
examined then the Appellants could have established that the assault had
taken place not in the courtyard but had actually taken place on the road. He
submitted that the non examination of the Investigating Officer has deprived
'? Appellants from showing that there was no water in the pit as claimed by P.W. D
3.

In the case of Ram Dev v. State of U.P., reported in [1995] Supp. 1 SCC
547, this Court has held that it is always desirable for the prosecution to
examine the Investigating Officer. However, non examination of the
Investigation Officer does not in any way create any dent in the prosecution E
case much less affect the credibility of otherwise trustworthy testimony of the
eye witnesses.

In the case of Behari Prasad v. State of Bihar, reported in [1996] 2 SCC
317, this Court has held that for non examination of the Investigating Officer
F
- the prosecution case need not fail. This Court has held that it would not be
correct to contend that if the Investigating Officer is not examined the entire
case would fail to the ground as the accused were deprived of the opportunity
to effectively cross-examine the witnesses and bring out contradictions. It was
held that the case of prejudice likely to be suffered must depend upon facts
/ of each case and no universal strait-jacket formula should be laid down that G
non-examination of Investigating Officer per se vitiate the criminal trial.

In the case of Ambika Prasad v. State (Delhi Admn.), reported in [2000]
2 sec 646, it was held that the criminal trial is meant for doing justice not
just to the accused but also to the victim and the society so that law and order
is maintained. It was held that a Judge does not preside over criminal trial H
290 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A merely to see that no innocent man is punished. It was held that a Judge
presides over criminal trial also to see that guilty man does not escape. It was
held that both are public duties which the Judge has to perform. It was held
that it was unfortunate that the Investigating Officer had not stepped into the
witness box without any justiifiable ground. It was held that this conduct of
.the Investigating Officer and other hostile witnesses could not be a ground for
B
discarding evidence of P.Ws. 5 and 7 whose presence on the spot was
established beyond any reasonable doubt. It was held that non-examination of
the Investigating Officer could not be a ground for disbelieving eye witnesses.

In the case of Bahadur Naik v. State of Bihar, reported in [2000] 9 SCC
C 153, it was held that non-examination of an Investigating Officer was of no
consequence when it could not be shown as to what prejudice had been
caused to the appellant by such non-examination.

In our view, in this case also non-examination of the Investigating
Officer has c.;aused no prejudice at all. All that Mr. Mishra could submit was
D that the examination of the Investigating Officer would have shown that the
occurrence had taken place not in the courtyard but outside on the road. The
Investigating Officer was not an eye witness. The body had already been
removed by the Appellants. The Investigating Officer, therefore, could not
have given any evidence as to the actual place of occurrence. There were
E witnesses who have given credible and believable evidence as to the place of
occurrence. Their evidence cannot be discarded merely because the
Investigating Officer was not examined. The non-examination of the
Investigating Officer has not lead to any prejudice to the Appellants. We,
therefore, see no substance in this submission.

F Mr. Mishra next submitted that, admittedly blood stained mud and lungi
had been seized but they were not produced. He submitted that these were
also not produced. He submitted that this has resulted in prejudice to the
.
Appellants and for that reason also the conviction should be set aside. In our
view, there is no substance in this submission. Non production of these items
has not resulted in any, prejudice to the Appellants.
G
Mr. Mishra submitted that the lanterns which were supposed to be there
on the verandah had not been seized or produced at trial. He submitted that
as the lanterns were not seized it was not established that there was any source
of light. He submitted that for this reason also the evidence of the witnesses
H cannot be accepted. We see no substance in this submission also. It must be
R.G. CHAUDHURY v. STATE [VARIAVA, J.] 291
remembered that the evidence exclusively established that the deceased and A
his father were having meals in the Varandah and that the mother and sister
were serving the meals. It is clear that they had put a source of light at that
place. This view of ours finds support from the observations made in the case
of B. Subba Rao v. Public Prosecutor, High Court of A.P., reported in (1997)
11 SCC 478. In this case also an argument had been made that the hurricane
B
lamp had not been seized and produced. This Court held that as it was proved
that the deceased was issuing copies of voters' list and caste certificates and
it was a night time, it could legitimately be inferred that there would be some
·source of light to enable him to perform his job.

¥r. Mishra next submitted that, according to the witnesses, the only c
sources of light were two lanterns which were lying on the Varandah. He
submitted that the evidence of the witnesses shows that the lanterns were

,
lying on the floor. He submitted that as the lanterns were lying on the floor
they would only cast their lights near the floor. He submitted that, therefore,
.. there was no light by which the witnesses could have identified the Appellants
or seen the incident even if it took place in the courtyard. He submitted that D
for this reason also the evidence of the witnesses could not be believed and
the Appellants should be acquitted.

We see no substance in this submission also. It must be remembered
that the incident had taken place in a village. As has been held by this Court E
in the case of Kalika Tiwari v. State of Bihar, reported in (1997) 4 SCC 445,
the visible capacity of urban people who are acclimatised to fluorescent lights
or incandescent lamps is not the standard to be applied to villagers whose
optical potency is attuned to country-made lamps. It has been held that the
visibility of villagers is conditioned to such lights and hence it would be quite

.. possible for them to identify men and matters in such light. Also the
Appellants were from the same village and were known to PW 3 and PW 4 .
F

No other point was raised before us. We thus see no substance in the
Appeal. The same stands dismissed.

N.J. Appeal dismissed.