P.V.B. Rao, J.
1. The appellant Raghunath Paramanik was convicted by the judgment of Shri B. Panda, Sessions Judge, Koraput Jeypore for an offence punishable under Section 302 I. P. C. for having, on 1-4-55 at the village Mundigumma, caused the death of one Khila Saturu aged about 25 years by shooting him with an M.L. Gun (M. O. I.) and was sentenced to imprisonment for life.
2. The appellant was a member of the District Police, Koraput and was attached as a constable to the Kendakamberu outpost under Markangiri Police station. The prosecution case is that on 29-3-55, he was deputed on duty by the Assistant Sub Inspector (P. W. 7) to the beat No. 2 under a command certificate (Ext. 3) and that on the date of occurrence (1-4-55) the appellant went to the village Bakuli and asked the village Naiko Khila Ghasi (P. W. 1) to supply him with 10 manos of Mircha (chillies) and one Putti of Mandia (ragi). P. W. 1 gave him 5 manos of Mandia and 5 manos of Mircha and being asked by the appellant the Naiko arranged for 3 labourers to carry his goods.
The appellant thereafter left for the village Mundigumma accompanied by a sweeper boy Duma Raghunath (D. W. 1) who went with him from Kondakambaru and carried his gun. It is stated that the deceased Khila Saturu also accompanied the appellant being asked by his father to go along with the constable up to the village Mundigumma. P. W. 2 Khila Ishra, the brother of the deceased and the second son of the Naiko of Bakuli went there earlier to his father-in-law's house as it was a festival day. It is the case for the prosecution that the appellant reached the village Mundigumma at about 3 P.M. accompanied by the sweeper boy who was walking in the front carrying his gun which was loaded at the time and followed by the deceased Khila Saturu. When he reached the village, P. W. 2 Khila Ishra was found sitting on a stone in front of his father-in-law's house. The appellant asked him who he was and to which village he belonged. As P.W. 2 did not get up, the appellant got annoyed and gave him a slap and when he moved aside, the appellant pulled him by his shirt (m. o. II) and slapped him once again, at which the deceased came near, tried to intervent and protested and asked the appellant why he was assaulting his brother for nothing. This, according to the prosecution case, enraged the appellant who told the deceased that they were so proud and so saying he took the gun from the hands of the sweeper boy and fired at the deceased hitting him on the right side of the abdomen. The deceased fell down injured and the appellant abruptly left the place carrying his gun accompained by the sweeper boy & went away to the village Raba. P.W. 2 hastened home and informed his father that the appellant had shot the deceased. On getting this information, his father (P. W. 1) ran to the place of occurrence and found his son the deceased lying injured from the gun-shot wound. The deceased was then conscious, and told his father on arrival that he was shot by the appellant and a little while later he died. From the village Raba the appellant sent ior P. W. 1 who along with his son Ishra (P. W. 2) went to Raba the next morning and the appellant expressed his regrets before P. W. 1 saying that he had shot a boy and committed a mistake and fell prostrate before P. W. 1 and touched his feet for being excused. P. W. 1 went to the outpost the next morning. In the meantime, it is the prosecution case, that the appellant returned to the outpost at about 5 P. M. on 2-4-55 and produced his note book (Ext. 4) which contained an entry regarding the incident of firing (Ext. 4/1) wherein it was stated that the gun exploded by accident as at the village Mundigumma P. W. 2 and the deceased demanded some money from the appellant as Mamul and while the appellant was bringing out some money from his pocket, the two boys began to pull the gun at either end and the trigger went off accidentally. This was entered in the station diary (Ex. 5) immediately, a copy of which was sent together with a copy of the entry (Ex. 4/1) to the Malkangiri Police Station. On 3-4-55 at 8 A. M., P. W. 1 appeared at the outpost and gave a report to the effect that the appellant had shot his son Khila Saturu in the village Mundigumma on 1-4-55, as a result of which the injured died on the spot. An entry was made in the station diary (Ex. 7) and a copy of it was sent to the Malkangiri police station for registering a case. The Assistant Sub-Inspector seized the gun during his preliminary investigation from the ap, pellant and effected necessary seizure at the spot and made over charge of the investigation to the Divisional Inspector on 5-4-55.
3. The appellant pleaded not guilty andtook up the same defence as was noted in hisnote book and stated that he was carrying himself his gun on his shoulder and not the sweeperboy.
4. The medical officer (P. W. 5) who held the post-mortem examination of the dead body of the deceased found two injuries on the person of the deceased one a slit like incised wound with inverted edges on the right side of the abdomen with the surrounding area scorched to an extent of 3' to 4' and another circular shaped wound on the left side of the abdomen with lacerated & everted edges 2 1/2' in diameter. Blood stained coils of the intestine were found protruding from the wound. P. W. 5 opined that the injuries were probably caused by means of a gun-shot and both the injuries were the result of a single shot, the injury on the right side being the result of the shot while the injury on the left side was due to the exit of the balls. Four balls found embedded between the oblique externus abdominus ana the deep fascia were extracted. According to the Medical Officer, the deceased was fired from a distance of 4 to 5 feet and the death was the result of shock and internal haemorrhage resulting from the injuries to the intestines.
5. P. W. 2 is an eye-witness to the occurrence. In addition to his testimony there is the evidence of P. Ws. 3 and 4 which corroborates the evidence of P. W. 2. According to these two witnesses, they were sitting on their respective Pindas when the incident took Place and they definitely stated that the appellant intentionally fired at the deceased by taking the gun from the hands of the sweeper boy when the deceased intervened and protested when the appellant assaulted the deceased's brother Ishra, after which he shot the deceased.
6. Mr. Pasayat, the learned counsel appearing for the appellant strenuously contended that the learned Sessions Judge erred in convicting the appellant on the evidence of P. Ws 2 to 4 as all of them are interested witnesses. Admittedly P. W. 2 is the brother of the deceased. P, W. 4 also admitted that one Geteri Gahnila is the father-in-law of P. W. 2 Khila Ishra and that P. W. 3 is the father-in-law of Galari Gahnila. It is also admitted that P. W. 4 is the brother of the father-in-law of P. W. 2. It is therefore clear that all these three eye-witnesses are related to the deceased. But as held by the learned Sessions Judge, the relationship by itself is not sufficient to discard the evidence as unworthy of credit in the absence of other circumstances to detract from the evidentiary value of their testimony. In the evidence, as deposed to by P. Ws 2 to 4, there are no inherent improbabilities. There is absolutely no motive for these three village-aboriginals to implicate the appellant unnecessarily. It is clear that the appellant considering himself an important person at the Kondh village being a member of the Koraput District Police and a constable felt insulted and his dignity wounded as Ishra did not get up when he passed by his side and being slightly under the influence of alcohol, according to the evidence of his own witness, D. W. 1, took the gun from the sweeper boy and shot at the deceased.
7. Apart from the evidence of P. Ws. 2 to 4, the direct eye-witnesses, there are other circumstances which corroborate their evidence. The appellant, after the deceased received the gun-shot wound, did not care to attend to him and immediately left the village accompanied by the sweeper boy to the next village and from there sent for the father of the deceased. If the gun exploded accidentally, humanity requires that the appellant should have attended to the victim who fell down immediately after receiving the wound. After the arrival of P, W. 1 at Raba the appellant stated that he committed a fault and begged for being excused even touching the feet of P. W. 1. This fact is admitted even by the witness for the appellant. He stated that when P. W. 1 came to Raba the next morning, the appellant told him that he was at fault as his gun exploded and touched the feet of P. W. 1, though he denied the fact that the appellant himself fired the gun. The version given by the appellant as to how the gun exploded is not spoken to by his witness who gives altogether a different version.
8. The learned counsel then contended that according to the medical evidence and the nature of the injuries as recorded, the shot must have been fired from a very close range even touching the body of the deceased. To the suggestion made by the defence if there was possibility of the gun accidentally going off in case the assailant was standing with the loaded gun on his, shoulder and if one man tried to snatch and pull the gun while the victim was standing on the side of the assailant, P. W. 5 opined that in such a case the injuries in question might be possible, but also stated that in order that the injuries in question might be possible, the shot must be fired from some distance, at least from a distance of 4 to 5 feet and not touching the body of the victim or quite close to it. Mr. Pasayat relied upon some extracts from Taylor's Medical Jurisprudence and Modi's Medical Jurisprudence in support of his contention that the nature of the injuries was such that the gun could not have been fired at the deceased as stated by the prosecution witnesses. By the time the Post-mortem examination was held, the body was decomposed. There was no skin on the face, upper extremities, abdomen and chest and upto the knees on the lower extremities. Charcoal dust was put direct on the body. The first injury was a slit like incised wound with inverted edges on the right side of the abdomen, 6' away and to the right of the naval in a straight line and 5 1/2' above and medial to the top of the iliac crest on the right side. The surrounding area is found scorched to an extent of 3 to 4 inches on all sides of the wound. The wound is oblique in direction from above downwards and backwards. The second wound was a circular shaped wound on the left side of the abdomen 7 1/2' carving and above the naval 7' upwards and inwards from the top of the left iliac crest with lacerated and everted edges, the diameter being 2 1/2'. Coils of blood stained intestines were found protruding out. On the strength of this description of the injuries in the post-mortem report, Mr. Pasayat relied on a passage at page 430 in Taylor's Medical Jurisprudence, Volume I, 10th Edition.
'The surrounding skin may be scorched or not, and there may be a zone of blackening or peppering with grains of powder, according to the distance from which the weapon was fired. We must distinguish between near wounds & far wounds. Usually when a weapon is discharged in contact with, or within an inch or so, of the body, the gases which pass out with the bullet enter the tissues and thereafter expand, causing tearing of the skin or clothes, very often in the form of a cross or a split. Most of the powder is found inside the tissues, but there may be traces of blackening, burning and tattooing around the entrance hole ...... If the weapon is discharged at a short distance from the skin, the effect of the gases is lost and the entrance wound looks like a hole which might be caused by pressing a lead pencil into the tissues; it is rounded, with inverted edges, and surrounded by a zone of singeing, blackening from the smoke, and tattooing from the impaction of small particles of powder in the skin ..... As the range increases, dispersal occurs, the marks of burning are soon lost, and the tattooing from the powder becomes more discrete until no trace of powder marks can be found.'
There is no record in the post-mortem examination or in the evidence of the Medical Officer that any marks of gun powder were found. In Modi's Medical Jurisprudence 12th Edition, at page 218 it is stated.
'If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder....... No blackening or scorching is found, if the firearm is discharged from a distance of more than four feet.'
On the strength of these authorities and the description of the injuries, Mr. Pasayat contended that the gun could not have been fired at from a distance of more than four feet and on this ground the evidence of the eye-witnesses could not be accepted. But after a discussion of the subject Modi notes at page 220 as follows:
'In conclusion it must be noted that it is not easy to give a definite opinion about the distance from which a firearm was discharged. According to Taylor no general rule can be laid down. Experiments must be done with the weapon and cartridges (or loading) similar to those which are alleged to have been used.'
None of these things was done. I am, therefore, of opinion that the authorities cited by Mr. Pasayat do not support his contention. In my view, therefore, the learned Sessions Judge was right in accepting the evidence of P. Ws. 2 to 4, and holding that the homicide was by result of the appellant firing the gun at the deceased.
9. Mr. Pasayat next contended that the trial is vitiated as the appellant was prejudiced to a great extent by the Investigating Officer (the Divisional Inspector) not being examined in this case. The learned Sessions Judge in his judgment observed,
'There was some comment on behalf of the defence as the Divisional Inspector who investigated into the case was not called to the box and admittedly the Assistant Sub Inspector (P. W. 7) was not authorised to investigate into the offence. Evidently the Circle Inspector has betrayed an utter lack of responsibility in absenting himself from Court in spite of receipt of summons. In any event, his absence cannot be deemed to have materially prejudiced the defence as rightly or wrongly all the material witnesses were examined by the Assistant Sub-Inspector and he was present with the case diarv and it was up to the defence to elicit anything by way of contradiction if it chose to do so. In the absence of any prejudice, the non-examination of the Circle Inspector cannot be regarded as material.'
It is regrettable that the learned Sessions Judge of a District simply passed over the non-examination of the Divisional Inspector who was the competent Investigating Officer in the case with simply an observation that he betrayed an utter lack of responsibility in absenting himself from the Court in spite of receipt of summons. The ordersheet shows that the Divisional Inspector was summoned to give evidence on 6-3-56 and that the evidence also was closed on the same day. The order-sheet dated 6-3-56 shows that the trial was resumed and P. Ws 5 and 7 were examined. Then the order-sheet is to this effect.
'Prosecution evidence is closed. The Circle Inspector of Police who was summoned in this case was duly served with the summons to attend this Court on 6-3-1956 did not attend the Court nor did he send any intimation. He deliberately remained absent in spite of the service of summons which has been acknowledged by him on 11-10-1955. Start a Misc. Case against the Circle Inspector Shri S.C. Moharana and issue notice to show cause as to why he should not be dealt with under contempt of Court.'
As the witness the Divisional Inspector was summoned to attend on the same day on which the evidence for the prosecution was closed and he did not attend in spite of the receipt of summons, the learned Sessions Judge in the interest of justice, ought to have adjourned the sessions case and issued coercive processes for the attendance of the Divisional Inspector. It is not known if any proceedings were started against the Divisional Inspector. But that does not in any way, even if the proceedings were started, cure the defect, and it is the duty of a Sessions Judge trying a man for his life to see that all material witnesses summoned to give evidence are examined and if any such witnesses are absent, to adjourn the case and to take coercive step for their attendance. The trial cannot be said to be a fair trial if the attendance and examination of the witnesses is not insisted upon and the trial of the case closed simply with a remark that the conduct of the absenting witness shows a lack of responsibility or that the Sessions Judge was pleased to direct proceedings for contempt against the witnesses. This should follow the compelling of the attendance of the witness and not be a substitution for his absence.
10. On the non-examination of the Investigating Officer, the learned counsel Mr. Pasa-yat takes the objection that the trial is vitiated and the appellant is prejudiced as he had no opportunity of eliciting from the Investigating Officer who examined the witnesses the contradiction of the statements made to him by the prosecution witnesses during the course of investigation. P. W. 2 in his cross-examination stated, 'It is not true that I did not state to the Police that Galari Sandha and Khila Domba witnessed the occurrence.' Galari Sandha and Khila Domba are prosecution witnesses Nos. 3 and 4. On the strength of this answer in cross-examination. Mr. Pasayat contended that as the conviction was mainly based on the evidence of these three witnesses, it was essential that the appellant should have had the opportunity of cross-examining the Investigating Officer as to whether P. W. 2 did not state to the police that P. Ws 3 and 4 witnessed the occurrence. In his cross-examination, P. W. 2 also stated that it was not a fact that he stated to the police that he was drunk at the time. The appellant had no opportunity of putting this statement also to the Investigating Officer as to whether it was true or not. The learned counsel also contended that on account of this non-examination of the Investigating Officer who was the only competent Investigating Officer in the case, the appellant was prejudiced and the trial consequently is vitiated. He relied upon a Division Bench decision of this Court in the case of Dibakar Sadangi v. State 21 Cut LT 451 (A) in which late Mr. Justice Misra with whom I was sitting observed in the judgment which he delivered as follows;
'The trial of this case had disclosed a very serious defect which should be noted by the learned Additional Sessions Judge. In a criminal trial, and particularly in the trial of a murder case, it is of the utmost importance that the prosecution would examine the Investigating Officer. The absence of the Investigating Officer from the witness-box, places the accused sometimes at a great disadvantage for he may not. bring out many facts on record which might go in support of his defence. There are cases, for example, the case of Niru Bhagat v. Emperor (AIR 1922 Pat 582) (B) in which the High Court has set aside the conviction mainly on the ground that the Investigating Officer was not examined, and the non-examination resulted in great prejudice to the accused..... The mere fact that the Investigating Officer was ill, is not in our opinion, sufficient ground for his non-examination. If necessary, the hearing of the case could have been adjourned, for such time as would have enabled the Investigating Officer to come and give his evidence. Had he been examined, the Court would have been in a position to know whether he had recorded the statements of the boatmen, and if the prosecution had withheld the boatmen under those circumstances, a strong inference would be drawn against the prosecution and in favour of the accused. Courts trying such important cases should always insist on the examination of the Investigating Officer, for, as I have already said, his evidence is of great assistance to the Court and also to the accused.'
With this judgment of the learned Judge I agreed. Next Mr. Pasayat relies upon the case of AIR 1922 Pat 582 (B) referred to in the judgment cited above in which a Division Bench of the Patna High Court consisting of Coutts and Adami JJ. observed:
'With the exception of the writer Head Constable no Investigating Officer has been examined though apparently there were other two such officers. We, therefore, do not know when the witnesses Nos. 5 and 6 who deposed to the quarrel and the eating together of the supper, were examined by the police. It was important to know this and the non-production of Such material witnesses as the Investigating Officer, is a serious omission which cannot but throw suspicion on the whole prosecution case.'
In the result, the learned Judges set aside the conviction and sentence. In the case of Habeeb Mohammad v. State of Hyderabad AIR 1954 SC 51 (C) the Supreme Court held :
'It is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to Section 114 of the Evidence Act. but the circumstances of his being withheld from the court casts a serious reflection on the fairne'ss of the trial.'
Mr. Pasayat also cited to us a decision in the case of Dinanath Sahay v. Emperor AIR 1939 Pat 174 (D) in which it was held that the non-compliance with the provisions of Section 162 Cr. P. C. vitiates the trial and that there is a presumption that the accused is prejudiced. The learned Standing Counsel on the other hand submitted that the preliminary investigation was made by the Assistant Sub-Inspector (P. W. 7) and that the investigation made by him cannot be called in question though he was not competent to investigate, and consequently the appellant had an opportunity of cross-examining him and eliciting from him whether P. W. 2 stated the names of P. Ws. 3 and 4 when he was examined by the Investigating Officer. No doubt, under Clause (2) of Section 156 Cr. P. C., no proceeding of a police-officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. But in this case it is in evidence that after the Divisional Inspector took over charge of the Investigation, he re-examined the witnesses and recorded their statements. If that was so, he is the only competent officer who has to be examined as the Investigating Officer. The examination of P. W. 7 who was not competent to investigate does not in any way mitigate the contentions raised by the learned counsel for the appellant.
11. After a careful consideration of the points taken by Mr. Pasayat, I am of opinion that in this particular case the non-examination of the Divisional Inspector has not materially prejudiced the appellant. In the First Information Report it was stated that P. Ws. 3 and 4 were named as eye-witnesses. It was not a contradiction that has to be elicited but only an omission that has to be elicited from the Investigating Officer. The evidence of three eye-witnesses in this case is such that I feel that no useful purpose would be served even if I hold that the trial is vitiated and order a further trial. The evidence against the appellant that he shot the gun at the deceased in consequence of which the latter died is convincing and beyond all possibility of reasonable doubt.
12. In conclusion, therefore, I would confirm the conviction and sentence passed on the appellant and dismiss the appeal.
13. Before closing the judgment, I must again reiterate the necessity of the Sessions Judges observing the rule that, in case the Investigating Officer does not appear to be examin-| ed as a witness on the day on which he is summoned to appear, it is the bounden duty of the Sessions Judge concerned to resummon the witness taking coercive process, if necessary, and not to dispense with his examination making only an observation that the absence of the Investigating Officer not to attend, even though he received summons, is only an act of irresponsibility. They should pay more importance to the prejudice to be caused to the accused by non-examination of such a witness rather than making an observation of irresponsibility of a police officer not to attend. They should insist upon his attendance and examination and only afterwards can take any action against the absenting witness as provided by law.
S.P. Mohapatra, J.
14. I agree.