Non-examination of the Investigating Officer is not fatal where reliable ocular and medical evidence proves the occurrence.

On 17 September 2000, a dispute arose near the bank of the Sone River when Dilip Chaudhary allegedly tied his boat on land claimed by Deepan Chaudhary. Deepan and his sons allegedly assaulted Dilip, his father Kailash, brother Uday, and mother Shanti with sticks and other weapons. Kailash sustained head injuries and subsequently died during treatment; Uday and Shanti also suffered injuries.

A First Information Report was registered for offences including rioting, murder, attempt to murder, voluntarily causing hurt and unlawful assembly. After investigation, the accused were committed to trial in S.T. Case No. 219 of 2004. The Trial Court convicted the appellants under Sections 147, 323, 307 and 304 Part-I read with Section 149 of the Indian Penal Code and imposed concurrent sentences, including seven years’ rigorous imprisonment and fine under Section 304 Part-I read with Section 149 IPC.

During the pendency of the appeal, appellant Deepan Chaudhary died and his appeal abated. The surviving appellants challenged the conviction, contending, inter alia, that the eyewitnesses were unreliable, the medical evidence did not support the alleged weapons or offence under Section 307 IPC, the Investigating Officer was not examined, and common object under Section 149 IPC was not established.

The Court applied Sections 147 and 149 IPC concerning rioting and liability of members of an unlawful assembly for acts committed in prosecution of its common object; Section 323 IPC concerning voluntarily causing hurt; Section 307 IPC concerning attempt to murder; and Section 304 Part-I IPC concerning culpable homicide not amounting to murder where the act is done with the intention of causing death or such bodily injury as is likely to cause death.

The Court also applied the evidentiary principle that credible testimony of injured witnesses carries significant weight when corroborated by medical evidence, and that non-examination of the Investigating Officer is not invariably fatal where the occurrence and participation of the accused are otherwise established through reliable ocular and medical evidence.

The Court found that the testimony of P.Ws. 1, 2, 3, 4, 12, 13 and 15 substantially established the assault on Kailash, Uday and Shanti and the participation of the accused.

The post-mortem evidence showed a lacerated forehead wound, injuries to the body, blood and clot beneath the scalp and dura mater, and death from shock and haemorrhage caused by hard and blunt substances such as a lathi or stone.

The medical evidence also corroborated the injuries to Uday, including a depressed parietal fracture, and to Shanti, thereby supporting their presence at the scene as injured witnesses.

The Court held that discrepancies concerning the particular weapon used did not create a break in the prosecution case because the medical evidence was consistent with assault by hard and blunt objects.

It further held that the absence of the Investigating Officer’s testimony was not fatal in the circumstances, as the material witnesses had been examined and the occurrence was otherwise proved by reliable ocular and medical evidence.

The Court consequently accepted the Trial Court’s appreciation of the evidence and found no legal basis to disturb the convictions under Sections 147, 323, 307 and 304 Part-I read with Section 149 IPC.

The appeal was dismissed, and the convictions and sentences imposed by the Trial Court were upheld and confirmed.

As the appellants were on bail, their bail bonds were cancelled and they were directed to surrender before the Trial Court within two months to serve the remaining sentence; failing surrender, coercive steps for their arrest and detention were directed.