Failure To Secure Presence Of Crucial Witnesses Not Ground To Acquit Accused If Evidence Otherwise Establishes Prosecution Case: Kerala HC

The Kerala High Court on Wednesday held that the non-examination of crucial witnesses or the investigating officer by itself is not a sufficient reason to disbelieve the prosecution case in toto and to acquit the accused, if the evidence adduced otherwise emphatically established the prosecution case.

Justice A. Badharudeen added that although the prosecution is duty bound to examine all material witnesses to prove its case, if their presence could not be secured due to valid reasons, their non-examination may be exempted.

"It is true that the prosecution is duty bound to examine all material witnesses, particularly, the investigating officer to prove the prosecution case. But such examination is possible in relation to witnesses whose presence could be secured by the means known to law. If a crucial witness or the investigating officer dies or their presence could not be secured for valid reasons, non-examination of crucial witnesses or the investigating officer by itself is not a ground to disbelieve the prosecution case in toto, if the evidence adduced otherwise emphatically established the prosecution case."

The prosecution case was that the appellant herein stabbed a man with a knife with the intention to kill him and thereby caused him grievous injury and consequential removal of his kidney.

Accordingly, he was booked and thereafter convicted by an Additional Sessions Court under Section 307 of IPC (attempt to murder).  

Challenging this conviction and sentence, the appellant moved the High Court. 

The appellant pointed out that the prosecution witness No.17 (CW17), who conducted a part of the investigation, was not examined by the prosecution and the same is fatal to the prosecution. 

To address this argument, the Judge analysed the testimony of PW12, the investigating officer in the case who recorded FIS and registered the FIR. It was thereby found that a vital part of the investigation was conducted by PW12, and CW17 had only prepared the scene mahazar and recorded the statements of a few witnesses. 

Moreover, the evidence revealed that no serious challenge has been raised by the appellant against the scene mahazar prepared by CW17 and no material contradictions were brought about during cross-examination in the witness statements recorded by CW17. 

The Court further found that CW17 could not be examined by the prosecution since he was abroad and his presence could not be secured. 

As such, Justice Badharudeen observed that non-examination of CW17 was not a reason to disbelieve the prosecution case in toto and to acquit the accused for the said reason alone. 

"It appears that the major part of the investigation in this case is that of PW12 and in such a case, non-examination of CW17, the investigating officer, cannot be the sole ground for acquittal of the accused. Therefore, this argument cannot be appreciated."

The Court also found that the prosecution had successfully established all ingredients of Section 307 of IPC. 

For this among other reasons, the High Court confirmed the appellant's conviction under Section 307 IPC. However, the sentence imposed on him by the Sessions Court was modified from 8 years of rigorous imprisonment to 5 years. 

Advocate M. Ramesh Chander appeared for the appellant while the respondents were represented by Public Prosecutor Nima Jacob. 

Case Title: Saju v. State of Kerala 

Citation: 2022 LiveLaw (Ker) 410

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