STATE OF KARNATAKAversusBHASKAR KUSHALI KOTHARKAR AND ORS.

                      STATE OF KARNATAKA                                 A
                                   v.
          BHASKAR KUSHALI KOTHARKAR AND ORS.

                          AUGUST 19, 2004

    [K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.]                      B

     CRIMINAL TRIAL :

      Non-examination of investigating officer-Effect of-Prosecution of
accused inter alia under s. 304 (Part II) rlw. s.149 !PC-Conviction by C
trial court-Acquittal by High Court for non-examination of Investigating
Officer and Head Constable who recorded FIR-Held, as a part offair trial
investigating officer should be examined-On facts, as the accused were
not prejudiced by non-examination of the l.O. and the Constable who
recorded the FIR, High Court was not justified in reversing the conviction D
solely on the technical ground-There is very strong and convincing
evidence to prove that the accused committed the offences-Finding of
conviction record by trial court restored-Evidence-Appreciation of

    Behari Prasad and Ors. v. State of Bihar, [1996] 2 sec 317 and E
Bahadur Naik v. State of Bihar, [2000) 9 SCC 153, relied on.

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
498 of 1998.

     From the Judgment and Order dated 6.8.1996 of the Karnataka High    F
Court in Crl. A. No. 82 of 1995.

     Anil K. Mishra and Sanjay R. Hegde for the Appellant.

     R.S. Hegde, Chandra Prakash, Ms. Savitri Pandey and P.P. Singh for G
the Resondents.

     The following Order of the Court was delivered :

     The State of Karnataka has filed this criminal appeal challenging the
acquittal of respondents 1 to 4 for the offence punishable under Section H
                                  635
    636                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A· 304 Part II read with section 149 IPC and Section 324/148 !PC and Section
    143 IPC. Respondents I to 4 were found guilty by the Sessions Court,
    Karwar and aggrieved by the same they filed criminal appeal before the
    High Court and the appeal was allowed.

B        The prosecution case was that the respondents I to 4 along with three
    others went to the residence of deceased Prakash Manjunath Talekar at
    about 7.30 p.m. on 20.9.1993. These respondents and others were armed
    with cycle chains, belts and clubs. Deceased Prakash was dragged out of
    his house by the first respondent and another to a distance of75 feet where
    he was attacked by the accused with belts, cycle chains and clubs.
C   PW-I, Shobha, the wife of the deceased Prakash came to the rescue of her
    husband and she was assaulted by the accused. PW-2 Tarabai who was
    present in the house of deceased at the time of incident was also assaulted
    by the accused. Prosecution alleged that PW-10 Sithabai who was coming
    after attending some function was attacked by these accused on her way
D   to her house. Prakash died about I 0 minutes after the incident. PW-I was
    afraid to go to the police station and on the next day morning she went
    to the nearby police station and gave FI statement. Her statement was
    recorded and the case was registered.

          On the side of the prosecution PW-I to PW-I I were examined. The
E post mortem of deceased Prakash was conducted by PW-11. There were
    as many as 22 injuries on his body and most of the injuries were abrasions
    and the internal injuries show that there were fractures to the 7th, 8th. 9th
    and I 0th ribs on the left side. There were blood clots surrounding entire
    left kidney. PW-I I who conducted the post mortem deposed that all
F   injuries were ante mortem and that the injured died of shock and
    haemorhage cause due to multiple injuries sustained by him.

          The Sessions court relied on the evidence of PW-I, PW-2 and
    PW-I 0 and held respondents I to 4 guilty. In the appeal preferred by them,
    the learned Judge of the High Court reversed the conviction and sentence
G   solely on the ground that the investigating officer and constable who
    recorded the Fl stateinent were not examined as prosecution witnesses. As
    regards the evidence adduced by eye witnesses, no adverse comments were
    passed by the learned Single Judge.

H         The counsel for the State submitted that the acquittal of the accused
                      STATE v. B.K. KOTHARKAR                          637

is not sustainable in law as the accused had not suffered any prejudice A
because of the non examination of the investigating officer and the
constable who recorded the FI statement.

      In the instant case, the Sessions Judge issued summons to these two
witnesses but these police officers did not tum up for giving evidence and B
Sessions Judge closed the prosecution case as one of the accused had been
in prison as an under trial for fairly long period. The counsel for the
respondents 1 to 4 though contended that they were seriously prejudiced
by the non-examination of the investigating officer, this plea could not be
substantiated by cogent facts and circumstances. It is true that as a part of C
fair trial the investigating officer should be examined in the trial cases .
especially when a serious sessions trial was being held against the accused.
If any of the prosecution witnesses give any evidence contrary to their
previous statement recorded under Section 161 Cr. P.C. or ifthere is any
omission of certain material particulars, the previous statement of these D
witnesses could be proved only by examining the investigating officer who
must have recorded the statement of these witnesses under Section 161
 Cr. P.C. In the present case, no such serious contradiction is pointed out
in respect of the evidence of the important eye witnesses PW-I, PW-2 and
PW- I 0. So also the non-examination of head constable who recorded FI
statement is not of serious consequence as PW- I was examined to prove
                                                                              E
the fact that she had given the statement before the police. The learned
Single Judge was not justified in reversing the order of the Session Court
by holding that the non-examination of investigating officer and the
constable who recorded the FI staiement caused prejudice to the accused.
                                                                             F
      The learned Single Judge did not consider the evidence of two eye
witnesses and that of PW-JO in detail. The appeal was disposed of on
technical grounds. PW-I is none other than the wife of the deceas'ed. PW-
2 is a neighbour who happened to be at the place of incident for purchasing
some grocery items. PW- I deposed that respondents I to 4 and others came G
to her house at about 7/7.30 p.m. on 20.9.1993. First accused Bhaskar
Kushali Kotharker and the 5th accused Dattaran Kushali Kotherkar
dragged her husband and thereafter all the accused caused various injuries
on his body. She identified these respondents and we do QOt find any
infirmity in her evidence.                                                  H
    638                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A       The counsel for the respondents pointed out that there was long delay
  in giving the FI statement to the police. PW-I stated that she was afraid
  to go to the police station and she went only on the next day. It is submitted
  by the counsel for the respondents that the parents-in-law of PW-I and
  several other relatives were staying in the nearby houses and she could have
B sought assistance of one of them and as she had not done so, her evidence
  is suspicious and cannot be relied on. We do not think that the evidence
  of this witness can be rejected on this ground especially when her evidence
  is corroborated by the evidence of PW-2. PW-2 also deposed that all these
  respondents and others came to the place of incident and attacked the
C deceased Prakash, herself and PW-I. It is important to note that PW-2
  sustained more than seven injuries and these injuries might have been
  caused at the time of the incident at th.: hands of the assailants. PW-I
  sustained injuries on the right thigh and on the right side of the foot.

          PW-IO is another important witness who sustained injuries by the
D respondents and other accused when they were going back from the place
    of incident. PW-10 is the mother of deceased Prakash. She had gone to
    attend the Ganesh festival and at about 8 p.m. when she was returning to
    her house, all the seven accused came and accused number seven attacked
    her with a cycle chain. She had sustained grievous ·injuries and lost two
E of her teeth.

          There is very strong and convincing evidence to prove that these
    respondents along with others had attacked deceased Prakash, PW-I and
    PW-2. The Sessions Judge had given valid reasons for finding these
F   respondents guilty. The Single Judge was not justified in reversing the
    conviction and sentence solely on the ground that investigating officer was
    not examined by the prosecution. As the respondents were not prejudiced
    by the non-examination of the investigating officer and also the constable
    who recorded the FI statement. The finding of the learned Single Judge
    is erroneous, therefore, we set aside the same.
G
          In Behari prasad and Ors. v. State of Bihar, (1996] 2 SCC 317, this
    Court held that non examination of the investigatir.g officer is not fatal to
    the prosecution case especially when no prejudice was likely to be suffered
    by the accused. In Bahadur Naik v. State of Bihar, [2000] 9 SCC 153, this
H   Court held that when no material contradictions have been brought out,.
                      STATE v. B.K. KOTHARKAR                           639

then non-examination of the investigating officer as a witness for prosecution A
was of no consequence and under such circumstance no prejudice had been
caused to the accused by such non examination.

      In the result, we allow the appeal preferred by the State and restore
the finding of conviction awarded by the Sessions Judge. The respondents B
were acquitted by the High Court Judgment in the year 1996 and the
incident took place in 1993. Having regard to these facts and circumstances
of the case, the sentence ofimprisonment-0fseven years is reduced to five
years. The respondents 1 to 4 are directed to surrender to their bail bonds
to serve out the remaining period of sentence.
                                                                              c
R.P.                                                       Appeal allowed.