Prosecution Can't Omit To Examine Investigating Officer Where Circumstances Warrant: Karnataka High Court

A single judge bench of Dr. Justice HB Prabhakara Sastry said,

"Though it cannot be held that, in all cases, necessarily the Investigating Officer must be examined, however, in those cases where in order to prove the alleged guilt of the accused beyond all reasonable doubts, the circumstances warrants that the Investigating Officer should necessarily be examined, in such cases he has to be necessarily examined."

The bench made the observations while allowing a petition filed by Parveez Pasha and setting aside the conviction handed down to him under section 380 of the Indian Penal Code.

Case Details:

The Petitioner had approached the court challenging the judgement of conviction passed by the trial court dated March 4, 2008 which was confirmed by the sessions court in 2011.

As per the prosecution, the complainant los his gold chain in June 2006 and thereafter, kept quiet for some time without proceeding further in the matter. After some time, through Newspaper, he came to know that the Police had recovered some quantity of stolen articles including a gold chain, as such, he went to the Police Station ad upon identifying his chain, he lodged a complaint in August 2006.

According to the complainant, after registering the complaint, the Police visited the spot and drew a scene of offence panchanama. After completing the investigation, the Police filed a charge sheet against the accused for the offence punishable under Section 380 of the IPC.

Amicus Curiae appointed by the court to represent the petitioner argued that there is an inordinate delay in lodging the complaint which has not been satisfactorily explained by the complainant. Further, the Investigating Officer who is said to have conducted the investigation in this matter has not been examined by the prosecution which is fatal to the case of the prosecution. Due to the non-examination of the Investigating Officer, the recovery of the alleged stolen articles at the alleged instance of the accused also has not been proved.

Prosecution opposed the plea saying the delay in lodging the complaint has been satisfactorily explained by the complainant in his complaint itself. It was also submitted that since the recovery at the instance of the accused has been proved by the other material witnesses examined by the prosecution, the non-examination of the Investigating Officer would not, in any manner, weaken the case of the prosecution.

Findings:

The bench noted that alleged recovery of the gold chain was made before the complainant could lodge his complaint. Therefore, the court said it could not be the case of the prosecution that they apprehended the accused and recovered the stolen golden chain at his instance after the complaint.

Further the bench on going through the evidence of the panch witnesses held that the alleged production of the articles from the house of the accused which were said to have been seized has not stood proved.

Following which it said, "It is in the above circumstance, it was very much necessary for the prosecution to examine the Investigating Officer who is said to have recorded the voluntary statement of the accused and is said to have seized, if any, of golden chains, more particularly, MO-1, at the instance or from the possession of the accused...Since the evidence of other prosecution witnesses including the alleged pancha to the seizure panchanama could not able to establish the alleged seizure of the article or the alleged recovery at the instance of the accused, it was very much necessary for the prosecution to examine the Investigating Officer."

It also noted that the evidence of the pancha witness is full of major contradictions within itself and the evidence of PW-4 and PW-5 also gives a different picture than what the prosecution's case is, whereas both the Trial Court as well the Sessions Judge's Court, without appreciating the evidence placed before them in their proper perspective, have merely embraced the statement of panch witness that at the instance of the accused, a seizure panchanama was made and after seeing that complainant has identified the chain, have hastily jumped to a conclusion that, the prosecution has proved the alleged guilt against the accused beyond all reasonable doubts.

Accordingly it allowed the revision petition and acquitted the accused.

Case Title: Parveez Pasha v. The State by Tilak Park Police Tumkur.

Case No: CRIMINAL REVISION PETITION No.155 OF 2012

Citation: 2022 LiveLaw (Kar) 267

Date of Order: 6TH DAY OF JULY, 2022

Appearance: Amicus Curiae Prabhugoud B. Tumbigi for petitioner; HCGP K. Nageshwarappa for Respondent

Click Here To Read/Download Order