Author Name:   YSRAO JUDGE

The only duty cast on the investigation is to maintain a diary of his investigation, which is known as ``Case Diary'' under s. 172 of the Code. The entries in the case diary are not evidence nor can they be used by the accused or the court unless the case comes under s. 172(3) of the Code. The court is entitled for perusal to enable it to find out if the investigation has been conducted on the right lines so that appropriate directions, if need be given and may also provide materials showing the necessity to summon witnesses not mentioned in the list supplied by the prosecution or to bring on record other relevant material which in the opinion of the court will help it to arrive at a proper decision in terms of s. 172(3) of the Code. The primary duty of the police, thus is to collect and sift the evidence of the commission of the offence to find whether the accused committed the offence or has reason to believe to have committed the offence and the evidence available is sufficient to prove the offence and to submit his report to the competent Magistrate to take cognizance of the offence.

Non-Examination of Investigation Officer: Its Consequences

During the recent times, we usually aware of that trial courts have to face tremendous difficulties in procuring the attendance of the investigation officers for the reasons that they are transferred frequently and the trial at Magistrate Courts,and the Sessions trial are taken up after some delay from the time when the investigation had been completed in the case. The problem has to be faced in case the investigating officer is dead or he retires from service and in the case of latter in spite of prolonged adjournments the evidence is not proceeded. Therefore, now it is important to see what are the consequences if Investigation Officer is not examined in a criminal case.

The only duty cast on the investigation is to maintain a diary of his investigation, which is known as ``Case Diary'' under s. 172 of the Code. The entries in the case diary are not evidence nor can they be used by the accused or the court unless the case comes under s. 172(3) of the Code. The court is entitled for perusal to enable it to find out if the investigation has been conducted on the right lines so that appropriate directions, if need be given and may also provide materials showing the necessity to summon witnesses not mentioned in the list supplied by the prosecution or to bring on record other relevant material which in the opinion of the court will help it to arrive at a proper decision in terms of s. 172(3) of the Code. The primary duty of the police, thus is to collect and sift the evidence of the commission of the offence to find whether the accused committed the offence or has reason to believe to have committed the offence and the evidence available is sufficient to prove the offence and to submit his report to the competent Magistrate to take cognizance of the offence. ( See the ruling: State Of Bihar Etc. Etc vs P.P. Sharma, Ias And Anr ; citations: 1991 AIR 1260, 1991 SCR (2) 1)

How does Investigation start?
Sec. 154 in Chapter XII of the Code, contemplates laying of information of cognizable offences either orally or in writing to an offencer of a police station who is enjoined to reduce it into writing, if made orally or under his direction and the substance thereof entered in the book kept in the Police Station in the manner prescribed by the State Government. The Officer incharge of the police station is prohibited to investigate only into non-cognizable cases without an order of the Magistrate concerned under s. 155(2). But if the facts disclose both cognizable and non-cognizable offence, by operation of sub- s. 4 of s. 155 the case shall be deemed to be congnizable case and the police officer shall be entitled to investigate, without any order of the Magistrate, into non- cognizable offence as well. Section 156 gives statutory power to a competent police officer or a subordinate under his direction to investigate into cognizable offences. In cases of cognizable offences receipt or recording of a first information report is not a condition precedent to set in motion of criminal investigation. Section 157 provides the procedure for investigation. If the police officer incharge of the Police Station, on receipt of information or otherwise, has reason to suspect the commission of a cognizable offence and is empowered to investigate into, he shall proceed in person or shall depute one of his subordinate officers not below the rank of the prescribed officer to the spot to investigate the facts and circumstances and if necessary to take measures for the discovery and arrest of the offender. The provisos(a) and (b) thereof give power, in cases of minor offences to depute some other subordinate officer or if the investigating officer is of the opinion that there is no sufficient ground for entering on investigation he shall not investigate the case.

What does Investigation consist?
Investigation consists of divers steps-(1) to proceed to the spot; (2) to ascertain the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons including the accused and the reduction of their statements into writing if the officer thinks fit (Sec. 161 Cr. P.C.); (b) the search of places and seizure of things necessary for the investigation to be proceeded with for the trial (Sec. 165 Cr. P.C. etc.) and (c) recovery of the material objects or such of the information from the accused to discover, in consequence thereof, so much of information relating to discovery of facts to be proved. (See 27 of the Indian Evidence Act). On completion of the investigation, if it appears to the investigator that there is sufficient evidence or reasonable ground to place the accused for trial, the investigating officer shall forward to the court a report in that regard alongwith the evidence and the accused, if he is in the custody to the Magistrate. If on the other hand he opines that there is no sufficient evidence or reasonable grounds connecting the accused with the commission of the offence he may forward the report to the Magistrate accordingly.

The Role Of Investigation Officer :
The investigating officer is a material witness because he investigates the matters, records the statement of the witnesses, goes to the spot for the objective findings, prepares the case diary, receives the papers during investigation and after collecting the relevant material in support of the prosecution or against the prosecution he submits his report for or against the prosecution. If he submits report in the form of charge-sheet or in the form of final form then it is for the Court to consider the same and pass orders as provided under law. But the role of the investigating officer is very relevant and material. He gets the first version of the witnesses from which later on the court is able to judge the veracity of the evidence, as to whether the witnesses are telling, the truth or not. Similarly, on the basis of the objective findings the court also judges the statements of the witnesses. In the absence of the examination of the investigating officer, prejudice may be caused to the accused as well as the prosecution.

The Investigating Officer has to place his case unvarnished before the Court as it is. Under the circumstances, a very heavy rather extremely heavy duty lies upon the Investigating Officer in selecting a panch. He can never be permitted to be casual and indiscreet in requisitioning the services of panchas. If he undertakes the said task casually, then he cannot be said to have discharged his duty efficiently because ultimately the investigation which is the foundation stone of criminal justice will suffer which in turn would make suffer the cause of justice. If he is casual, the ultimate effect will be on the society. If he is casual the Court will have no dependable material to reach just decision in the case. It is this specific and obvious reason that the Investigating Officer is supposed to be quite discreet and selective in selecting a panch and therefore, in our view selecting of a panch simpliciter cannot be said to be something sinful, unholy, illegal and therefore, impermissible and accordingly it cannot be accepted. In other words, it is only when the panch is selected in the conspiracy with the complainant or if the panch is selected ultimately with a view to wreck vengeance upon a particular person with oblique and mala fide motive then such evidence of a selected panch has to be discarded. When a police officer selects any person as a panch he ordinarily selects him with a view to see that he is not rendered vulnerable and amenable to the influences of accused and or his friends, associates and relatives who obviously in order to earn easy acquittal would not fail to administer threat, promise or inducement to back out from the case. (State Of Gujarat vs Mansurbhai Motibhai Damor ; citations: (1996) 3 GLR 620)

Duty of Investigation Officer:
In Jamuna Chaudhary v State of Bihar, [1974] 3 SCC 774, the Hon’ble Supreme Court held:``The Duty of the investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction, but to bring out the real unvarnished truth''.

The Hon’ble Supreme Court in Jamuna Chaudhari & Ors vs State Of Bihar; citations: 1974 AIR 1822, 1974 SCR (2) 609, HELD: ‘The duty of the Investigating Officer is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real, unvarnished truth. In the instant case, it is apparent that the prosecution witnesses had tried to omit altogether any. reference to at least the injuries of the first appellant because there was a cross case in which such an admission could have been used to support the prosecution in that case. As neither the prosecution nor the defence has come out with the whole and unvarnished truth, so as to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents lay or how one or more incidents took place in which so many persons were injured, courts can only try to guess or conjecture to decipher the truth, if possible. This may be done within limits to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case.’ It was further held that ‘S.N. Sharma v. Bipen Kumar Tiwari & Ors., [1970] 3 SCR 945; State of Bihar & Anr. v. J.A.C. Saldanha & Ors., [1980] 1 SCC 554; State of West Bengal v. Sampat Lal,[1985] 1 SCC 317; Municipal Corporation of Delhi v. Purshottam Dass Jhunjunwala & Ors., [1983] 1 SCC 9 and Abhinandan Jha & Ors. v. Dinesh Mishra, [1967] 3 SCR 668, referred to. (5) The function of the judiciary in the course of investigation by the police should be complementary and full freedom should be accorded to the investigator to collect the evidence connecting the chain of events leading to the discovery of the truth, viz., the proof of the commission of the crime.’

In Tarsem Singh v. State of Haryana 2007(4) RCR (Criminal) 605 and it will be necessary to reproduce para No. 16 of the judgment:

16. Before parting with the judgment, it is required to be delineated that the day in and the day out, enormous increase in the accident cases is visualised. The ruthless driving made by untrained, uneducated and unchecked drivers under the influence of intoxicants renders the thousands of people dead and handicapped every day. The Government Agencies probably for having been equipped with inefficient and untrained officers and also busy with multifarious duties fail to check such unscrupulous elements and allow them to pass over the roads. Not only this, when the cases of such accident, which are brought to the notice of the Investigating Agencies also result in acquittals due to inefficient and untrained Investigating Officers. They take the investigation in a very casual, careless and traditional manner. They do not try to probe while examining the place of occurrence, do not take the aid of Government expert or other officer like draftsmen or engineers to probe and who was to be put to dock, as to who was really at fault, negligent and rash. Some times, the people even driving carefully, heavy vehicles are condemned only for the reason and analogy that fault always lies on the heavy vehicle driver, therefore, it is expected from the Investigating Officers handling the investigation to take the following necessary steps:

1. To visit the spot promptly without wasting any time.

2. To carefully inspect the place of occurrence; note down the material points with exact measurements in the site plan.

3. To make measurements of the roads, kacha berms and to make mention of the turnings and bridges, if any, at the place of accident.

4. To have photographs of the dead body, situation of the vehicles, extent of the damage to the vehicles and part of the vehicle which has been damaged without any delay. He would not leave it to the mechanic who amy take note of the damage or defect of the machinery, which it may be carrying prior to or at the time of accident (at a later stage).

5. To note down the skid marks, if any, at the Criminal Revision No. 854 of 1996 10 spot, join the expert to have opinion about of the speed of the vehicles.

6. To make mention of the documents or other articles which were recovered from the spot or from the vehicles involved in the accident.

7. To get the place of occurrence examined by an expert, if he deems it appropriate.

In this regard, it is worthwhile to notice the judgment of the Apex Court reported in 2000 (9) SCC 153 (Bahadur Naik Vs. State of Bihar), wherein, though the Supreme Court held that the non-examination of the investigating officer as a witness, is of no consequence, but learned Government Advocate (Crl. Side) submitted that it has not been shown as to what prejudice has been caused to the revision petitioners/accused. But it has to be noted that P.Ws.2,3,5 and 6 turned hostile. Further, there is no evidence for the arrest of the revision petitioners/A1 and A2 and the recovery under Section 27 of the Indian Evidence Act. The competent witness in this case to speak about the arrest, recovery and confession, is only the investigating officer. Considering the facts and circumstances of the case, non-examination of the investigating officer has caused prejudice to the revision petitioners/accused and it is fatal to the case of the prosecution.

Non-examination of investigation officer: Consequences:
In Mohinder Singh vs State Of Haryana, decided on 7 January, 2010( THE HIGH COURT OF PUNJAB AND HARYANA) it was observed that ‘’ Learned counsel for the petitioner further submitted that the prosecution had not examined the Investigating Officer. His non- examination was fatal to the prosecution case. Therefore, the petitioner deserves to be acquitted of the charges against him. It is a fact that the prosecution did not examine the Investigating Officer in support of its case. However, his testimony was Crl Revision No. 634 of 1997 -5- not material on account of the fact that PW7 Jiwan Kumar, Photographer, had already placed on record various photographs of the place of occurrence, which showed that the truck was lying overturned. The petitioner had also admitted the overturning of the truck resulting in death of five persons and injuries to some other although he had come up with an explanation as to under what circumstances the truck had overturned. Therefore, the non-examination of the Investigating Officer cannot be considered to be fatal so as to exonerate the petitioner of the charges against him. ‘’

In the case of Bahadur Nayak v. State of Bihar 2000 JC RC 312, reliance on which has been placed by learned Trial Court also, the Hon'ble Apex Court has held that if there is no material contradiction in the testimony of the witnesses, then non-examination of the Investigating Officer will not be fatal to the prosecution.

In Natthu Son Of Nihal Singh, Veer Pal ... vs State Of U.P. Decided on 6 February, 2008 it was held that ‘’In instant case, in our view, non-examination of any person of Village Jagat Pipri, who arrived at the place of incident on hearing the sounds of fire is not fatal, as on the basis of the reliable and convincing testimony of the witnesses Rakesh Kumar and Suresh, it is fully established that murder of the deceased Mahendra Singh was committed by the appellants-accused and co-accused Rishi Pal, who also died as a result of fire arm injury, which he received in the firing.’’

In Jai Kumar Mahto And Ors. vs State Of Jharkhand on 20 July, 2005. ( 2005 (4) JCR 112 Jhr), it was held that ‘’ Non-examination of the Investigating Officer is not always fatal to the prosecution unless it is shown that serious prejudiced has been caused to the defence due to non-examination of the Investigating Officer but as it appears in the present case that nothing fatal has been shown so as to come to the conclusion that the defence was greatly or seriously prejudiced due to non-examination of the Investigating Officer and, therefore, the argument of the learned counsel for the appellants on this score is rejected. ‘’

In Bijay Singh And Ors. vs The State Of Bihar on 8 February, 2005; 2005 (1) BLJR 819; it was held that ‘’ It is a settled principle of law that non-examination of investigating officer or the doctor is not fatal for prosecution in each and every case. It depends upon the facts and circumstances of the case. In order to take advantage of non-examination, the defence has to show that it has caused serious prejudice to them. In support of the above principle learned A.P.P. appearing on behalf of the State has relied on the case of Raj Kumar Rajwar v. State of Bihar, reported in 1993(3) PLJR 831 and Om Prakash Sohar v. State of Bihar, reported in 1986 PLJR 827. 11. In Paragraph 14 of case reported in 1993(3) PLJR 831 it has been held; that non-examination of investigating officer is not fatal for the prosecution case, if no prejudice has been caused to the appellants on this score. If actually some prejudice is caused to the accused, because of non-examination of investigating officer, only then the benefit of this lacuna would help the accused. Similarly, in case reported in 1986 PLJR 827 at paragraph 4 it has been held that non-examination of the doctor is of no gain to the defence. It is because of the fact that if the statement that the appellant had inflicted dagger injury on the neck is accepted without going into the nature of injury, that is enough to find the appellant guilty for the offence under Section 307 of the Code. ‘’

In Shiv Shankar vs State Of U.P. on 22 February, 2002; 2002 CriLJ 2673; It was observed in para 39, as follows: ‘’ Lastly, it was held in the case of Ram Gulam Chaudhary v. State of Bihar, 2001 AIR, SCW, 3802 AIR 2001 SC 2842 as below:- In our view, in this case also non examination of Investigating Officer has caused no prejudice at all. All that Mr. Mishra could submit was 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. Their were 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. ‘’

In Ravula Ramesh vs The State Of A.P., Decided on 3 December, 2004 it was observed as follows; ‘It is no doubt true that the Investigating Officer i.e., C.I. of Police was not examined and in the light of the fact that benefit of doubt had been given in relation to charge under Section 302 IPC, Exs.P-4 and P-5 in relation to PW-9 and PW-10 may not assume much importance. In the decision referred (2) (STATE OF KARNATAKA Vs. BHASKAR KUSHALI KOTHARKAR) supra it was held that non-examination of Investigating Officer is not fatal when no serious contradictions had been pointed out in respect of the evidence of important eye witnesses. While dealing with this aspect the Apex Court observed : "It is true that as a part of 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 if there is any omission of certain material particulars, the previous statement of these 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. So also, the non- examination of Head Constable who recorded F.I. statement is not of serious consequence as PW-1 was examined to prove the fact that she had given the statement before the police."‘

It was observed in Gandipally Srinivas. vs The State Of A.P., Rep. By Public ... Decided on 11 September, 2009 as follows: ‘Coming to the next submission of the learned counsel for the accused that non- examination of the Investigating Officer is fatal to the case of the prosecution, it has to be seen that the learned Magistrate had assigned valid reasons for non-examination of the Investigating Officer. In a criminal case, the evidence of the Investigating Officer has its own importance, but non- examination of the Investigating Officer is not fatal in all the cases. It all depends on facts and circumstances of the case. If there are any omissions and contradictions in the evidence of prosecution witnesses, then for marking such contradictions or omissions, the examination of the Investigating Officer becomes necessary. As seen from the cross-examination of the witnesses examined in this case, no contradictions and omissions have been brought on record in their evidence. That means no suggestion was given to these witnesses that they are giving different version or contradictory version to the version already given by them before the police under Section 161(3) Cr.P.C.. Similarly, no suggestion was given to the witnesses that they did not state certain facts to the police as stated by them before the Court. In view of the same, I am of the view that non-examination of the Investigating Officer is not fatal to the case of the prosecution ‘

In 1.P.Meyyappan .. Appellant in Crl.A.259/2001-A4 2.Dr.Binay Babu .. Appellant in Crl.A.270/2001-A6 3.M.R.Meyyappan .. Appellant in Crl.A.271/2001-A7 4.S.Rajamohamed .. Appellant in Crl.A.276/2001-A1 5.D.Rathinasamy .. Appellant in Crl.A.291/2001-A3 6.R.Sivasamy .. Appellant in Crl.A.297/2001-A2 7.S.Paulraj .. Appellant in Crl.A.300/2001-A5 Vs State by Deputy Superintendent of Police Vigilance and Anti-Corruption Wing, Sivaganga. .. Respondent (in all Crl. Appeals); Decided on 25 February, 2010; it was observed as follows: ‘Certain broad features are common to all the accused/appellants and these appeals may be disposed of on consideration thereof. The investigating officer in the case, the then Deputy Superintendent of Police Subbiah, has not been examined as a witness and this, in the circumstances of the case, has caused grave prejudice to the accused. In connected case in C.C. No.140 of 1991, alleging irregularities in the purchase of cows and bullocks, PW-37 who was examined as PW-40 therein has admitted that the Investigating Officer Subbiah, who had retired was available. Towards showing that certain persons in whose names loans had been released were really non-existent persons, the certificate of Village Administrative Officer PW28 has been produced. Something more, than the mere certificate of the VAO ought to have been shown by the prosecution. In this regard, as to how the investigating officer had arrived at the satisfaction that the certificate issued by PW-28 reflected the correct position could only be explained by such investigating officer. PW-37 who has filed the charge sheet, has claimed knowledge of the IRDP Scheme and from his evidence it is clear that the Block Development Officer has played a pivotal role therein. It is admitted by him that such Block Development Officer was put up as an accused by the investigating officer. It is only the investigating officer who could have explained why he thought it fit to include the Block Development Officer as an accused. PW-37 in no uncertain terms admits to not having played any part in the investigation of the case. Given the above facts, the Officer who conducted the investigation viz. Subbiah, Deputy Superintendent of Police was a material witness whose non-examination is fatal to the prosecution case.

7. The Hon'ble Apex Court in Habeeb Mohammed v. State of Hyderabad AIR 1954 SC 51, has observed as follows: 'In this situation it seems to us that Biabani who was a top-ranking police officer present at the scene was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, he would not speak the truth; and in any case, the court would have been well advised to exercise its discretionary powers to examine the witness. The witness was at the time of the trial in charge of the Police Training School and was certainly available. In our opinion, not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to section 114 of the Indian Evidence Act, but the circumstance of his being withheld from the court casts a serious reflection on the fairness of the trial.' The observations would apply in the facts of the present case. 8. The observations of The Karnataka High Court in decision reported in 2004 Crl.LJ. 2255 also are most apt. Paragraph 3, of such decision reads as follows : '3. The serious infirmity that has been recorded by the trial court is that the Investigating Officer was not examined. Some other officer, who was to a limited extent dealing with this investigation, has been examined and certain reasons have been set out on behalf of the State as to why this had happened. Since the full facts are not before us, we do not desire to make any comments with regard to the non-examination of the Investigating Officer beyond pointing out that the trial court was right when it recorded a finding to the effect that the non examination of the Investigating Officer is fatal to the prosecution. One of the submissions canvassed on behalf of the State is that in this case the other officer was examined and therefore, if the proving of any omissions or contradictions was to be done that this was feasible through the officer who has been examined and secondly what is contended is that the examination of the Investigating Officer in the majority of instances is only a formality. We are unable to accept this last submission because the Investigating Officer is the principal architect and executor of the entire investigation. He is a crucial witness for purposes of establishing that there are omissions and contradictions but more importantly, it is always open to the defence to question the honesty and calibre of the entire process of investigation. It is well settled law that where an investigation is defective, insufficient or dishonest that these factors prove fatal to the prosecution. In the given instance, the accused was totally precluded from any opportunity of being able to establish the infirmities in the prosecution case and on this ground alone the order of acquittal will have to be confirmed.'‘

In Ashruba S/O Gyanba Muley vs The State Of Maharashtra; Decided on 16 October, 2009 it was held that ‘’ There is no doubt that prosecution failed to examine investigating officer Joshi and it is an infirmity in the prosecution case. However, non-examination of investigating officer Joshi cannot be construed as that fatal, since there are no material omissions and contradictions in the testimonies of PW7 Ravi and PW3 Narhari and non-examination of investigating officer Joshi will not sustain fatal blow to the case of prosecution. ‘’

In Kalirathinam vs The Sub Inspector Of Police; Decided on 19 April, 2007, The Hon’ble Madras High Court held as follows: ‘It is for the prosecution to bring the witness and examine them. The prosecution did not chose to examine the Investigation Officer and the Police Constable. It is a settled principle of law that the non-examination of the Investigation Officer is not fatal and it depends upon circumstances of each case. In this context, it is relevant to refer to the decision of the Supreme Court in RAJLOSJPRE KJA Vs. STATE OF BIHAR reported in 2004 SCC (Cri) 212. So, mere non-examination of the Investigation Officer is not fatal so far as this case is concerned.’

In Kharaiti Lal vs The State Of Haryana; Decided on 30 April, 2010 it was held that ‘As is well settled, the prosecution is to establish the broad outlines and substratum of the prosecution case. In the instant one, the same has been established. In Krishna Mochi and others Vs. State of Bihar etc. 2002(2) Recent Criminal Reporter(Criminal) 567, it has been held by the Apex Court that non-examination of Investigator is not fatal for the prosecution unless it is shown that the accused has been prejudiced. In the present one, the record is quite barren to show if any sort of prejudice has been occasioned to the petitioner due to non-examination of the Investigator. In State Vs. Ratnakaran and others 2001(1)Recent Criminal Reporter(Criminal) 612, the Division Bench of Hon'ble Kerala High Court by relying upon Bihari Parshad's case(supra) held that "non-examination of Investigator does not also vitiate the trial. It depends on facts of each case. In examination, if witnesses produced during trial admit the statement given before the Investigating Officer, non-examination of the Investigating Officer may not be fatal." In the case in hand, Balwant Kumar as well as Manoj Kumar Pws have clearly admitted the statements made by them before the Investigating Officer during the investigation.So, in view of afore-referred authorities, non-examination of the Investigator is not fatal to the prosecution case. As a sequel of the above discussion, the conviction is upheld. ‘

In Rameshwar Ram Vs. State Of Bihar; Decided on 25 March, 2010; it was held as follows: ‘From the evidences available on the record it appears that the Investigating Officer has not been examined but non-examination of the Investigating Officer is not always fatal. The court has taken steps for procuring the attendance the Investigating Officer but it failed and ultimately, the case has to be disposed of. Certainly, those irregularities which should have been avoided and the court should have taken steps for examination of the Investigating Officer but that fact in itself does not make the case doubtful because the consistent evidence is to the extent that the accused persons namely, the appellants Rameshwar Ram, Somaro Devi and Ravi Shankar Ravi were torturing Kiran Devi and have caused her death; otherwise in normal circumstances within seven years of marriage and soon before her death she was subjected to cruelty and she was being harassed by her relations. Taking into consideration all these, I am of the view that the prosecution has been ale to prove the entire charges that the appellants have caused death and prior to her death she was subjected to cruelty and all of them have done this illegal act in pursuance of their intention. Accordingly, the judgment of the trial court requires no interference by this Court and the conviction and sentence of the appellants are upheld.‘

In S. Narasimha Kumar vs State Of A.P., Rep. By Public prosecutor; citations: 2003 (1) ALD Cri 651, 2003 (2) ALT Cri 441; it was held as follows: ‘It is true that in the Judgment cited supra (1) (RAM GULAM CHAUDHARY AND OTHERS vs. STATE OF BIHAR,)the Hon'ble Supreme Court held that mere non-examination of the Investigating Officer should not be fatal. However, in cases of this type, it is only the Investigating Officer that would be in a position to explain the whole sequence of events. It is rather next to impossibility for any witness in this case to be in a position to vouch for the whole gamut of the case. The witnesses or group of them have only spoken to one aspect or the other. For example PWs.1 to 4 are the staff of the college where the examination was held.PWs.7 to 20 etc., are the employees of Commission. PW.26 is an operator of Xerox machine. One had hardly anything with the other, either in the course of their regular activity or otherwise. It is only an Investigating Officer that could have been in a position to supplement one event with the other. For the reasons best known to it, the prosecution did not choose to examine the Investigating Officer. In a way, it can be said that it had abdicated its duty to the Court. Having examined 50 witnesses and marked 100 documents, it left the Court to draw its own inference, without even providing the basis for connecting one with the other. ‘

In Shyam Charan Lohar vs State Of Bihar (Now Jharkhand); Decided on 22 July, 2003; citations: 2004 CriLJ 1928; it was held that ‘’ No doubt, the Investigating Officer has not been examined in this case but non-examination of the Investigating Officer cannot be fatal for the instant case when the involvement of the accused in committing the murder has fully been established by the evidence of eye-witness, which is in conformity with the case made out in the first information report and also the medical evidence. Thus the prosecution case should not fail in the case at hand for non-examination of the Investigating Officer. Nothing has been coming forward to indicate the prejudice being caused to the accused in absence of the Investigating Officer. That being so, the full-proved case from every angle cannot be thrown away. ‘’

In Hazari Choubey And Ors. vs State Of Bihar; citations: 1988 (36) BLJR 156; it was observed as follows” ‘6.

In the case of S. K. Rashid and Ors. v. The State of Bihar 1987 (35) B.L.J.R. 335 (H.C.) a Division Bench of this Court of which I was a member, has taken notice of recalcitrance and recessive tendency of the police personnel and observed that they are taking process of the courts most lazily and casually. Commenting upon the existing state of affairs, this court has said that non-examination of investigation officer is not necessarily fatal to the prosecution. A court has to see whether the evidence of the investigating officer is essential for the case of the prosecution to succeed or not. If it finds that no genuine complain of denial of fair play or prejudice to the defence can be made in a particular case, it may pronounce its judgment without insisting for the examination of the investigating officer In a case however, in which there are genuine reasons to think that the defence can legitimately complain of denial of opportunity but demonstrate that the prosecution has not correctly stated its case or it has otherwise been prejudiced it must insist for the examination of the Investigating Officer. Non-examination of the investigating officer in that situation may profit the defence that benefit of doubt as to the veracity of the prosecution case. The Court has expressed alarm, however, about ever increasing default on the part of the prosecution in examining the official witnesses more often the investigating officer and has said : What has alarmed us, however, is the recessive tendency of the police personnel. They are taking the processes of the Court lazily and casually as they can. as they have no priorities for the proceedings in the courts one before attending to the other works for which they have their reasons of preference. As in this case in many other cases Courts have to face a predicament which the prosecution alone can solve, seldom however comes with any solution, but to tell the Court that it has no witness to examine and to take summons only to inform the court that has heard nothing from the police about the service thereof. Several adjournments given by the Court at the instance of the prosecutor only for ensuring the attendance of the official witnesses including the investigating officer keep the trials pending for years and even after inordinate wait, the Courts are compelled to decide the cases without their evidence.

In S. K. Rashid's case (supra) the Court has taken notice of the amendment in the Code of Criminal Procedure by the State of Uttar Pradesh providing for imposition of punishment upon the defaulting official witnesses both judicially and administratively and has observed : It is high time that in the State of Bihar also some provisions are made and in case it is found that a certain officer of the State has ignored the summons or warrant of the Court, adequate action is taken against him. The administration of the State, even without any such amendment is fully empowered and competent to take notice of the defaults of its officers in responding to the summons and warrant of the Court and it can immediately start taking notice of the conduct of the investigating officers of the police by suitably punishing them by recording remarks in the shape of black marks in their service books. 7. The Courts have to depend upon the machinery provided by the State Government for service of notice and summons, particularly for execution of warrant of arrest the police has to act. The law for ensuring appearance of witnesses provides for courts issuing processes including warrants of arrest. When they issue warrant, compliance thereof has to be reported by the police. Lamentations and even reprimands have failed to awaken the police administration of the State. Until now the administration of the State has not shown any awareness much less concern to ever detonating investigation and ever increasing default of its officers in providing necessary evidence to the Court. 8. In the instant case, the prosecution may not have needed the evidence of the Investigating Officer and its evidence would have provided sufficient material for holding the appellants guilty but for the facts that witness to state that there were marks of violence at the place of the occurrence and the Investigating Officer had found such marks and materials which could show that the dacoits have indiscriminately fired from their respective fire arms and caused damage to the houses of the informant and Dwarika Rai (P. W. 1). The defence could use in the trial, any fact found by the investigating officer which was consistent with the prosecution evidence in the court relying upon it to say that the prosecution case should not be believed. The Investigating Officer would have provided the missing link in the evidence of P. W. 5 to prove the list which he, according to his deposition, had filed with the police. His acknowledgement that he had received the list would have completed the evidence and proved that the list of stolen articles was delivered to the police by the brother of the informant. His deposition, as a witness, particularly on the facts of this case would have removed doubt as to the veracity of the testimony of the witnesses or would have in the event of material contradictions destroyed their evidence altogether. His non-examination has resulted in denying to the defence opportunity to test the veracity of the prosecution case as well as the veracity of the deposition of the prosecution witnesses. 9. The learned Sessions Judge, as already noted, and has said that the Investigating Officer could not be examined inspite of all sincere efforts. Does it mean that all that a court of law is required to do is to issue process and if the prosecution is unable to secure attendance of essential witnesses, ignore it and proceed to deliver judgment. That, in our opinion shall be giving to the erring officer (investigating officer) encouragement to ignore processes of the Court and decide either to connive with the prosecution or with the defence. This case by way of illustration can be cited as an example of the Investigating Officer providing to the defence a weapon to defeat the process of law by just deciding not to depose as a witness. No reason can justify non-examination of an essential witness. The Administration of the Government of the State of Bihar has to take the blame and it alone has to suffer the consequences. 10. In our considered view since non-examination of the investigating officer has denied to the defence opportunity to test the veracity of the prosecution case and the veracity of the evidence of the witnesses their conviction for an offence under Section 395 of the Indian Penal Code by the learned Sessions Judge is not sustainable.

Conclusion:
In State of Orissa v. Sibcharan Singh 1962 (2) Cri LJ 200 : AIR 1962 Orissa 157 a learned single Judge said at page 201 (Cri LJ) para 6: "The courts are not therefore absolutely powerless when the parties fail to produce evidence relevant in the case. On the other hand the power of the court in this respect is very wide and the court may at any stage of the proceeding summon any witness in order to determine the truth or otherwise of the facts of a case under trial before him. In the present case when prosecution reported to the court that after all efforts made by it, the prosecution witnesses could not be traced out at Rourkela and wanted sometime on that score in order to make an attempt to trace the witnesses in their respective villages, and to summon them, the court should not have rejected that prayer. In fact, it was one of the duties of the court to enforce attendance of the witnesses even by coercive process. Merely because the prosecution could not produce the witnesses before the court, that by itself cannot be a ground to acquit the accused persons without making efforts to secure the presence of the material witnesses before the Court." In view of this ruling, it is clear that inasmuch as it is the duty of the court to enforce the attendance of the witnesses, there is no bar to take coercive steps to secure Investigation Officers and other witnesses. On thorough consideration of the entire rulings, it is known that the matter of examination of Investigation officer is differ to case to case as to set of facts of such case. That too, non-examination of Investigating Officer is not fatal when no serious contradictions and omissions had been pointed out in respect of the evidence of important witnesses. A fortiori, inasmuch as the investigating officer investigates the matters, records the statement of the witnesses, goes to the spot for the objective findings, prepares the case diary, receives the papers during investigation and after collecting the relevant material in support of the prosecution or against the prosecution he submits his report for or against the prosecution., he is material witness to the case of the prosecution.

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