Judgment:
A. Pasayat, J.
1. The appellant (hereinafter referred to as the 'accused') calls in question legality of his conviction for offence punishable under Section 307 of the Indian Penal Code, 1860 (in short 'IPC'), and sentence of rigorous imprisonment for eight years and of fine for Rs. 200/-, in default to undergo rigorous imprisonment for one month more, as made and directed by the learned Assistant Session Judge, Bhubaneswar.
2. A brief reference to the factual position as presented by the prosecution is necessary.
On 2-6-1988, the accused, and three other persons (acquitted by the learned trial Judge) surrounded Braja Naik (PW.6). The accused attacked the said Braja with a Knife on the right plank of his body resulting in serious injuries. He was removed to Capital Hospital for treatment. Sankar Naik, father of Braja Naik, who examined as P.W. 1, was also attacked by the accused by knife when he tried to protect Braja, and he sustained injury on his right side Chest. Both Braja and Sankar were removed to the hospital for treatment. Thereafter the Doctor reported the matter to the Police and one Duryodhan Naik (P.W.3) also reported the matter to the Police at Capital Police Station. Investigation was undertaken and charge-sheet was submitted.
3. All the four accused person pleaded innocence.
4. Prosecution examined eitght witnesses to prove its case. Out of the eight witnesses, P.Ws.1 and 6 were stated to be victims of assault by the accused. Gurai Dei (P.W.2) is the wife of P.W.I, and mother of P.W. 6. She also claimed to be an eyewitness to the incident. P.Ws. 3 and 4, who were pressed into service by the prosecution as eye-witnesses resiled from their statement during investigation and stated that they did not know anything about incident. They were cross-examined by the prosecution. P.Ws 5 and 6 were stated to be witnesses to the seizure of certain articles. They also resiled from their statements made during investigation, P.W. 7 is the doctor who examined P.Ws 1 and 6. Interestingly the Investigating Officer was not examined, P.W. 1, one of the injured persons, did not name the assailant. So his evidence was held to be of little help to the prosecution. But basing on the evidence of P.Ws 2 and 6, which accordingly to the learned trial Judge was unshaken, the accusation were held to have been established against the accused. Accordingly he convicted the accused, and sentenced him as aforesaid.
5. In support of the appeal, Mr. B. Panda, learned counsel for the accused, submitted that in view of the evidence of P.W. 1 participation of the accused can hardly be believed. P.W. 1, who is none else than the father of P.W. 6 and was claimed to be victim of the assault, categorically stated that he had quarrel with the accused persons, one or two hours thereafter, a person came covering his face by a napkin, and dealt a blow by knife on his right side chest. He fell down on the ground and lost his sense. It is stated that from the evidence of doctor (P.W.7) it is revealed that he had given a report to the Capital Police Station regarding the injuries sustained by both P.Ws 1 and 6. According to him, he examined the injured at about 8.25 p.m. on 2-6-1988. But P.W. 3, the informant has not breathed a word regarding lodging of FIR at the Police Station. In the said FIR it is stated that he proceeded to Capital Police Station at above 9.30 p.m. and the same was received by the Investigating Officer at about 10 p.m. It is urged that the original FIR was suppressed with ulterior motive, and therefore prosecution version becomes suspect. With regard to the evidence of P.W. 6 in cross- examination, it is' stated that he was involved in a murder case and was sentenced to undergo R.I. for life and was also involved in other criminal cases. It is therefore, pleaded that he might have been assaulted by somebody else. It is stated that P.Ws 2 and 6 are the only persons on whose evidence the learned trial Judge has placed reliance. interestingly, the informant (P.W.3) stated that he does not know the accused persons. Non-examination of the Investigating Officer is also highlighted to attach vulnerability to the judgment of conviction and sentence.
6. I do not think it necessary to delve into the aspect of acceptability of prosecution evidence. Admittedly, the Investigating Officer has not been examined. Two courses are open to the appellate authority, if the Investigating Officer is not examined. It may either remit the matter back to the trial court, or direct acquittal, non-examination of the Investigating Officer in all cases does not render the conviction vulnerable. It is only when prejudice is shown, non-examination assumes importance. The learned trial Judge has condemned the inadequacies in the investigation. But he has not considered the effect of non-examination of the Investigating Officer. In a case of this nature where the informant (P.W. 3), and one of the injured (P.W. 1) have resiled from their earlier version, non-examination of the Investigation Officer has certainly caused prejudice to the accused. I, therefore, remit the matter back to the trial court for issuing summons to the Investigating Officer to examine him and thereafter decide the matter afresh.
7. The appeal is allowed to the extent indicated above.