Full Judgment
J.B. Koshy, J.
1. After perusing the judgment in S.C. No. 55 of 1993 passed by the Court of Session, Kollam, this court has taken suo motu calendar revision invoking inherentpowers of the High Court under S. 482 of the Criminal Procedure Code. Meanwhile,the State also filed appeal against the same judgment. Hence both are heard together.The accused were charged sheeted by the Circle Inspector of Police, Punalur under Ss. 143, 147, 148, 324 and 302 r/w S. 149 of Indian Penal Code and Ss. 3(1)(x) and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The case of the prosecution as summarised by the Learned Sessions Judge is asfollows:
'2. The case of the prosecution is as follows:-
On 3.5.1992, Kunjupennu, the wife of CW11 died at 1 p.m. and the relatives of Kunjupennu and CW11 assembled in the house of CW11 for attending the burial ceremony. CW1 in this case is stated to be a member of Kurava community a scheduled caste. CW2 and her husband and their relatives who are also members of Kurava community went to the house of CW11 for attending the burial ceremony. The burial of Kunjupennu was delayed because CW 16 the daughter of CW11 did not reach the house in time. When they were waiting for CW16 to come, accused numbers 1 to 5 who are members of Ezhava community went to the house of CW11. It is stated that accused numbers 1 to 5 were having enmity towards Sankaran and the other members of Kurava community for the reason that they did not go for doing the work of the accused. Accused are stated to have formed themselves into an unlawful assembly with the common objecl of abusing the members of Kurava community by mentioning their caste and causing hurt to them and causing the death of Sankaran and armed with deadly weapons such as chopper and sticks went to the house of CW11 at 8.15 p.m. on 3.5.1992. It isalleged that thefifth accused on abusing the members of Kurava community as a whole by mentioning their caste entered the compound of the house, beat CW2 with a stick on her shoulder and back side of head, the fourth accused cut with a chopper on the head of CW3, first accused beat on the back of CW4 with a stick, the second accused beat with a stick on the left knee of CW5 and the fifth accused beat CW6 with a stick on his back. The third accused pushed Sankaran down and stabbed him on his chest as a result of which he sustained fracture on his ribs. The first accused immediately went to his house and came back to the place of occurrence with a chopper in his hand and on seeing that Sankaran ran towards west. The first accused chased Sankaran and at about 8.30 p.m. cut him with a chopper on the head of Sankaran in the channel on the western side of the house of CW11. Sankaran died at the place of occurrence as a result of the injuries suffered by him. By doing the above acts the accused are alleged to have committed the offences mentioned above.'
2. Witnesses including eye witnesses were examined by the prosecution. After considering the evidence of PW.8, the doctor who conducted post mortem examination of the dead body and prepared Ext. P6 post mortem certificate, Sessions Judge found as follows:
'There is sufficient evidence in this case to show that Sankaran died as a result of the injuries suffered by him on 3.5.1992. Hence I find that Sankaran died as a result of the injuries suffered by him at 8.30 p.m. on 3.5.1992'.
3. After finding so Sessions Judge noticed certain discrepancies and contradictions in the case of the prosecution and evidence adduced by various witnesses and observed as follows:
'18. This is a case in which the investigating officer did not appear before court for being examined. Inspite of the fact that summons was served on the investigating officer the Sub Inspector of Police, he did not appear before court on the date to which the case was posted for his examination.....In the present case also there were so many contradictions elicited duringthe cross examination of the prosecution witnesses which had to be put to the investigating officer.'
Finally all accused were acquitted for all charges levelled against them.
4. In the appeal it is submitted that the learned Sessions Judge misconstrued the evidence of witnesses. There were 8 occurrence witnesses. Minor discrepancies in the depositions are not fatal. It is also submitted that if Investigating Officer was not present when he was summoned to appear, it is for the learned Sessions Judge to issue arrest warrant or to take coercive proceedings for appearance of the investigating officer.
5. We have considered the matter in detail. It is true that investigating officer was not present in court in obedience to the summons. It is also true that examinationof the investigating officer is highly necessary otherwise it may cause prejudice to the accused, especially in a case where some contradictions were noticed by the Sessions Judge. But the question is regarding the steps taken by the Sessions Judge in this regard. It is true that prosecution did not produce him. Apart from the issuance of summons, no coercive proceedings were taken by the Sessions Judge in summoning him. No warrant was issued. Non examination of investigating officer docs not perse vitiate the trial as held by the Supreme Court in Behari Prasad v. State of Bihar (AIR 1996 SC 2905). All depends on facts of each case, For example, if witnesses produced during trial admit the statements given before the investigating officer, non-examination of the investigating officer may not be fatal. See the decision reported in Hakru v. State of Rajasthan (1994 Crl.L.J. 2141). In this case prosecution has not given up the name of the investigating officer from the witness list. In fact steps were taken to summon him. If the Investigating Officer did not obey the summons issued to him and he was not present as per summons, coercive proceedings should have been taken against him to make his presence in the Court, especially when the Sessions Judge was of the opinion that non-examination of the investigating officer was fatal in view of certain contradictions in the evidence.
6. Since there is serious procedural infirmity in not taking coercive steps to procure the attendance of the Investigating Officer, we have no option but to set aside the judgment and remand the matter for fresh disposal after examining the investigating officer. The lower court also should take coercive steps to procure the attendance of the Investigating Officer, if necessary. Since we are remanding the case, we do not propose to go into the merits of the other contentions raised by the Public Prosecutor.
7. In the result the impugned judgment is set aside and the case is remanded to the lower court for fresh disposal in the light of the observations made in this judgment.
8. Both the Crl.R.C. and Crl. Appeal are disposed of accordingly.