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CONSEQUENCE OF NON-EXAMINATION OF INVESTIGATING OFFICER – Bihar HC

BAHADUR NAIK VS STATE OF BIHAR, CRIMINAL APPEAL NO. 1079 OF 1998– IN THE HIGH COURT OF BIHAR ON THE 11TH MAY 2000, 9 SCC 153

The bench constituting of Honourable Justice S.R.Babu and Honourable Justice Y.K.Sabharwal convicted the appellant for the offence under Section 302 and Section 34 of the Indian penal  by Court of Sessions and sentenced him to undergo life imprisonment. The conviction and sentence has been confirmed by the High Court in appeal. The petitioner first approached the session’s court where the appellant was convicted. It was late brought up under appeal by the appellant who pleaded not guilty. The Judgement was delivered by the High Court of Bihar on the 11th of May, 2000.

The conviction is based mainly on the testimony of two eye witnesses PW-2 and PW-3. The incident took place at about 9.00 P.M. on 21st March, 1992. The appellant is said to have given approximately 5 to 6 dagger blows to deceased Triveni when Triveni was caught hold by Jaleshwar and Jogender. These two persons were absconding and, therefore, they could not be prosecuted. On learning that his son was being assaulted, PW 2, Dipu Gope, the informant went to place of occurrence and on his way, the deceased Triveni joined him. When they reached the place of occurrence, Triveni asked about the son of PW-2 whereupon Triveni was taken to nearby pipul tree and the aforesaid two persons caught hold of Triveni. The appellant gave Triveni fatal dagger blows as earlier stated. Triveni succumbed to the injuries and died on the spot. The other eye witness PW-3 was the person with whom son of PW-2 was consuming liquor with when he was assaulted for outraging the modesty of the wife of Jaleshwar. In addition to this, PW-3 has also stated to have witnessed the incident of stabbing by the appellant.

Once the facts have been established, the sections under which the appellant were convicted need to be seen. The appellant was convicted on the grounds of joint liability and murder.

Whether non examination of the Investigating Officer as a witness is of consequence?

The appellant was not able to shake the credibility of the eye witness. It was observed by the court that,

“No material contradiction in the case of the prosecution has been shown. Under these facts and circumstances, the non-examination of the Investigating Officer as a witness is of no consequence. It has not been shown what prejudice has been caused to the appellant by such non-examination.”

After laying out the facts and circumstances of the case the Honourable High Court gave its judgement as follows,

“From the evidence on record it stands proved that there was sufficient light at the place of occurrence to identify the appellant. We are also unable to accept the contention of learned counsel for the appellant that the conviction deserves to be converted to be one under Section 304 I.P.C either Part-I or Part-II thereof because there was no pre-meditation. The pre-meditation can develop on the spot as well. It all depends upon the facts and circumstances of the case. In the present case, the deceased was given 5/6 dagger blows. In view of the evidence on record the contention for converting the sentence as aforesaid cannot be accepted. We find no infirmity in the impugned judgment. The appeal is, therefore, dismissed.”

The appeal was dismissed and the High Court upheld the judgement delivered by the court of sessions convicting the appellant to life imprisonment under Section 34 and Section 302 of the Indian Penal Code.

– Tanvi Srivatsan

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