Non-examination of the Investigating Officer is fatal where material contradictions and investigative lacunae prejudice the accused.

On 23 June 1994, a dispute arose between the informant’s family and the accused persons concerning the construction and demolition of a wall. The prosecution alleged that the accused formed an unlawful assembly, returned with various weapons, assaulted Ram Kripal Singh with a spear and lathi, and caused injuries to other members of his family. Ram Kripal Singh died at the spot, while Virendra Singh, Awadhesh Kumar Singh and others were injured.

Kudhni P.S. Case No. 89 of 1994 was registered under Sections 147, 148, 149, 341, 337, 307, 302 and 504 of the Indian Penal Code. After investigation, the case proceeded to Sessions Trial No. 388 of 1996. The Trial Court convicted the appellants under Sections 302/149, 307/149 and 148 IPC and imposed sentences including life imprisonment.

The defence asserted, inter alia, that Shyam Nandan Singh was not present at the occurrence, that the incident was a mutual fight, and that a counter-case had been instituted by the accused party. The prosecution did not examine the Investigating Officer, did not produce the alleged weapons or bricks and stones from the place of occurrence, and did not satisfactorily explain the injuries sustained by members of the accused party.

Whether the prosecution proved beyond reasonable doubt that the appellants were members of an unlawful assembly sharing the common object of committing murder and attempting to murder, thereby attracting Sections 302/149, 307/149 and 148 IPC?

Whether the non-examination of the Investigating Officer, in the circumstances of material contradictions, failure to seize relevant articles and the existence of a counter-case, caused prejudice to the appellants and rendered the prosecution case unreliable?

Whether the evidence against Shyam Nandan Singh was sufficient to establish his presence and participation in the occurrence, despite the defence evidence and the police report initially recommending against proceeding against him?

The Court applied Sections 302/149, 307/149 and 148 of the Indian Penal Code, concerning murder committed by members of an unlawful assembly, attempt to murder by members of such assembly, and rioting while armed with a deadly weapon.

It reiterated that non-examination of the Investigating Officer is not invariably fatal, but becomes material where it is necessary to prove contradictions, omissions, the place of occurrence, investigation steps or other matters causing prejudice to the accused.

The Court relied on Lahu Kamlakar Patil v. State of Maharashtra, as discussed in Saroj Thakur v. State of Bihar, and the principles stated in Behari Prasad v. State of Bihar and Bahadur Naik v. State of Bihar.

The Court also applied the principle that related or interested witnesses may be relied upon only when their evidence is consistent and credible, and that unexplained injuries on the accused and the existence of a counter-case are relevant circumstances in determining whether the prosecution has presented the true version of a mutual fight.

The Court found substantial inconsistencies in the testimony of the prosecution witnesses regarding the identity and participation of the accused, the weapons allegedly used and the specific assaults attributed to each appellant.

The prosecution alleged brick and stone pelting and demolition of the wall, yet the Investigating Officer seized neither the alleged weapons nor any bricks or stones from the place of occurrence. His non-examination therefore deprived the appellants of the opportunity to establish contradictions and challenge the investigation.

The Court further considered the counter-case and the injuries sustained by members of the accused party, which the prosecution failed to explain, supporting the defence version that the occurrence arose from a mutual fight.

As regards Shyam Nandan Singh, the Court held that his presence at the scene remained doubtful in view of the defence evidence that he was away on official duty to execute a warrant of attachment. Since the prosecution evidence did not reliably establish his participation, he was entitled to the benefit of doubt.

Considering the cumulative effect of the contradictions, investigative deficiencies, counter-case and unexplained injuries, the Court held that the foundational case of the prosecution had failed.

Shyam Nandan Singh and Krishna Nandan Singh were directed to be released forthwith if not required in any other case.

Nageshwar Singh @ Nagu Singh, Ram Kedar Singh, Nand Kishore Singh, Rajeev Singh and Sanjiv Singh were acquitted of all charges and, being on bail, were discharged from their bail bonds. Their sureties were also discharged, and the lower court records were directed to be returned to the concerned court.