In a case reported in AIR 1958 Bom 225, Sayyed Husan v. State, their Lordships held that the correct way and the proper way of proving a contradiction or omission is to ask the S. I. about it in his evidence as to whether a certain statement was made before him by a witness. If such a procedure is not adopted, it cannot be said that there was proof that in fact the statement concerned was not made by the witness. As stated before, in this case the previous statements alleged to have been made by the witnesses have not been proved by the I. O. and therefore, Ext. C cannot be said to have any evidentiary value. In fact, the defence laid much stress on the alleged contradiction made by the prosecution witnesses at the stage of investigation of the case. The learned Magistrate though found a prima facie case to have been made cut against the accused persons, did net examine the evidence in detail as a trial court is required to do. He was mainly influenced by the fact that as the case ended in the final report, that itself was sufficient to destroy the truth of the prosecution story. To quote his own words he has said :
"The evidence of the I. O. in this case who has given evidence in support of the defence is alone sufficient to determine if there was any offence." At another place he said:
"The investigation has been supervised by high responsible officials who after through investigation have found no case against the accused persons."
The approach of the learned Magistrate is wholly erroneous. A Court has to come to a finding about the guilt or innocence of the accused on the materials placed before it, uninfluenced by any extraneous considerations. Here the learned Magistrate was influenced by the results of the investigation made by the Police Officers which ended in the submission of a final report. In fact, the filing of a complaint after submission of the final report by the police was itself a challenge to the final report.1
Orissa High Court
Daitari Das vs Kulamani Panda And Ors. on 23 March, 1964
Equivalent citations: AIR 1965 Ori 21, 1965 CriLJ 191