Non-examination of Investigating Officer is fatal where ocular testimony contradicts medical evidence and material lacunae exist.

The appellants challenged a 2019 conviction for murder (Section 302/34 IPC) and house-trespass (Section 452/34 IPC).

The prosecution alleged that on March 4, 1986, the appellants and two others entered the informant’s house through the roof and murdered the informant’s father (Kapil Deo Pandey) and brother (Mithilesh Pandey) in a front room (domuha).

The convictions were based on testimonies from family members (PW-1 to PW-5) who claimed to have seen the accused armed with knives, a gun, a Gadasa, and a Bhala.

The Trial Court attributed the motive to a long-standing land dispute and a pending title suit.

1. Whether the ocular evidence provided by related and interested witnesses is reliable enough to sustain a conviction in light of material contradictions.

2. Whether there is a fatal discrepancy between the ocular testimony regarding the weapons used and the medical evidence regarding the nature of injuries.

3. Whether the non-examination of the Investigating Officer (I.O.) and the failure to seize material evidence caused prejudice to the defense.

4. Whether the prosecution successfully established "common intention" under Section 34 of the IPC.

The court applied Section 302 (Murder) and Section 34 (Common Intention) of the IPC.

It followed the "rule of prudence" for appreciating the evidence of related/interested witnesses, requiring "discerning scrutiny" as established in Md. Jabbar Ali v. State of Assam and Raju @ Balachandran v. State of Tamil Nadu.

Regarding the non-examination of the I.O., the court relied on Munnalal v. State of Uttar Pradesh, which holds that such an omission is fatal if it creates material lacunae.

For Section 34, it cited Janak Singh v. State of U.P., requiring proof of a pre-arranged plan or meeting of minds.

The court found the testimonies of the family members inconsistent; PW-1 and PW-4 claimed to have hidden or remained distanced, making their observation of the actual killing doubtful.

Critically, while the appellants were allegedly armed with knives, the medical officer (PW-6) testified that the deep, sharp-cutting neck injuries were caused by heavy weapons like a Gadasa or Bhala, which were carried by other accused individuals, not the appellants.

The court noted the total failure of the investigation: the I.O. was not examined, no weapons or blood-stained clothes were seized, and no sketch map was prepared.

Furthermore, since a juvenile co-accused was acquitted and the common intention was not proven, the court held that the appellants could not be held vicariously liable under Section 34 for acts they did not physically commit.

Both appeals were allowed, the judgment of conviction dated 24.09.2019 was set aside, and the appellants were ordered to be released immediately.