The Patna High Court, while allowing an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 by appellants/convicts against the judgment of conviction passed by learned Additional District & Sessions Judge by which the appellants have been convicted under Section 364A read with 34 of the Indian Penal Code, held that by non-examination of the Investigating Officer, the defense has lost the opportunity to cross-examine the said witness, i.e., the Investigating Officer and thereby there is a lacuna in the case of the prosecution.
Brief Facts:
Informant Mantu Singh gave a written complaint to the SHO of Saraiya Police Station stating therein that on 17.06.2014, his son, aged about 7 years, was kidnapped when he was sleeping with his grandmother. When the mother of the informant woke up at 01:00 in the night, she did not find her grandson. She informed the informant and they started searching for the boy. The informant along with villagers also started to make the search for the boy and informed the police. The police came and they also tried to search the victim boy.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that in the FIR lodged by the father of the victim, he has not given the names of the present appellants. It was submitted that with a view to prove the relevant and important aspect, it was the duty of the prosecution to examine the Investigating Officer and the victim boy. However, in the present case, the prosecution did not examine both the aforesaid important witnesses, as a result of which the appellants/accused have lost the opportunity to cross-examine the aforesaid important witnesses.
Contentions of the Respondents:
The Learned Counsel for the Respondents submitted that the victim himself has stated before the Magistrate while giving his statement under Section 164 of the Code that the accused Suresh Sahni and 4-5 other persons kidnapped him during night hours when he was sleeping with his grandmother. There was no reason to disbelieve the version given by the victim himself. Thus, the prosecution has proved the ingredients of the offense punishable under Section 364A of the Indian Penal Code and, therefore, the Trial Court has not committed any error while passing the impugned order.
Observations of the Court:
The Court noted that though the prosecution has produced the witnesses, like, the informant who is the father of the victim, grandmother of the victim, cousin of the informant, and wife of the cousin of the informant, none of the said witnesses have given the name of the present appellants/convicts. By non-examination of the Investigating Officer, the defense has lost the opportunity to cross-examine the said witness, i.e., the Investigating Officer and thereby there is a lacuna in the case of the prosecution.
The Court observed that non-examination of the Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. However, in a given circumstance where the examination of the Investigating Officer becomes vital, it is the duty of the prosecution to examine the Investigating Officer and in such cases, his non-examination creates a lacuna in the case of the prosecution.
The decision of the Court:
The Patna High Court, allowing the appeal, held that the impugned judgment of conviction and order of sentence dated 20.05.2016 passed by the learned Additional District & Sessions Judge is quashed and set aside.
Case Title: Tarkeshwar Ram v. The State of Bihar
Coram: Hon’ble Justice Vipul M. Pancholi and Hon’ble Justice Rudra Prakash Mishra
Case no.: CRIMINAL APPEAL (DB) No.589 of 2016
Advocate for the Appellant: Mr. Radha Mohan Singh
Advocate for the Respondents: Mr. Sujit Kumar Singh
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