JUDGMENT : ( 1. ) APPELLANT Ramsingh has been convicted under Section 307, indian Penal Code and sentenced to undergo five years rigorous imprisonment, with a fine of Rs. 500/- or six months rigorous imprisonment in default of payment of fine. He has also been convicted under Section 324, Indian Penal Code for causing injury to Devendrakumar, son of Ushadevi (P. W. 1) and sentenced to suffer rigorous imprisonment for one year on this count - the sentences, however, are directed to run concurrently, by the Addl. Sessions Judge, Ratlam, in Sessions trial No. 78 of 1983, vide judgment dated 23-8-1984. ( 2. ) PROSECUTION case was that on 13-4-1983, complainant Narendrakumar lodged an oral report at Police Out-post Sailana in district Ratlam, stating that a scuffle took place between the appellant and Dhulchand Rathod, both of whom are employees in the Primary Health Centre, as Ward-Boy, Dresser respectively, while complainant Narendrakumar was posted as a Doctor, who reported to the Civil surgeon of the District, requesting him to transfer both the Ward-Boy as well as the dresser. Narendrakumar was transferred from Ratlam and for want of accommodation was temporarily occupying a Ward for his residence. While he was relaxing on a cot in his room and his wife feeding her baby on another cot, the accused intruded with a muzzle-loading gun. It was around 8. 30 in the night. The accused fired a shot injuring Narendras wife Ushadevi (P. W. I), on her left breast and Devendrakumar, the child also suffered injury on his left eye. By the time he got up, the accused made good his escape from the front door. He helped his wife and raised a hue and cry. Rajkumari, his mother, Shanti, his sister, came there. ( 3. ) ON the basis of this report a case under section 307, Indian Penal Code was registered against the accused, who on completion of investigation was charge-sheeted and tried for the said offence. He pleaded alibi and false implication in the case. Trial Court rejecting his plea, convicted and sentenced him, as already stated above. Hence this appeal. ( 4. ) SHRI Gokhale, learned counsel for the appellant submitted that the prosecution evidence is extremely shaky and suspicious in nature. The conviction recorded by the trial Court is bad in law. He pleaded alibi and false implication in the case. Trial Court rejecting his plea, convicted and sentenced him, as already stated above. Hence this appeal. ( 4. ) SHRI Gokhale, learned counsel for the appellant submitted that the prosecution evidence is extremely shaky and suspicious in nature. The conviction recorded by the trial Court is bad in law. The learned Panel Lawyer for the State on the other hand maintained that there is overwhelming evidence on record to sustain the appellants conviction. ( 5. ) PROSECUTION evidence can conveniently be divided in three parts : (i) Eye-witnesses account, consisting of Usha (P. W. 1) and Narendrakumar (P. W. 2), (ii) Evidence of seizure, recovery and other investigation : (iii) Medical evidence. It is the prosecution case that while Ushadevi (P. W. 1) and Narendrakumar (P. W. 2)were in their room, the accused came with a gun (muzzle-loading-gun) through back-door, fired at Ushadevi and by the time her husband could do anything left by the front-door. Narendrakumars mother Rajkumaribai and sister Shanti rushed in, on hearing hue and cry raised by Narendrakumar. Though, mother and sister, they have not been examined by the prosecution. Trial Courts order-sheet dated 11-7-1984 goes to show that both these witnesses were present before the Court along with Dhulachand, Premlata, Dhapubai, Nathu, Rupabai and Manglibai, but they were all given up and discharged as the prosecutor declared that he did not want to produce and examine them as witnesses. Thus, the total evidence regarding the actual occurrence is that of the couple. 5-A. It was Ushadevi (P. W. 1) who was injured by a firearm. What is the most striking feature of the prosecution evidence is that, even Ushadevi was pinned down to a statement recorded under Section 164, Criminal Procedure Code. It goes to show that there was time during investigation when the investigating agency felt and apprehended that the witness might not support the prosecution case at the trial. What could be the compelling reason for the apprehension about her ? She was injured. She is the wife of a doctor, who immediately attended on her. Her injuries, whatever the nature, is a matter of medical record, which in this case, is rather too over-burdening, which could not have been suspected by the investigating agency. What could be the compelling reason for the apprehension about her ? She was injured. She is the wife of a doctor, who immediately attended on her. Her injuries, whatever the nature, is a matter of medical record, which in this case, is rather too over-burdening, which could not have been suspected by the investigating agency. The suspicion or apprehension could only be with regard to the person causing the injury and that is the only plausible explanation in the circumstances of the case. It is not to suggest that her evidence is to be ignored, but it calls for a close scrutiny. Her statement was recorded by the Magistrate under Section 164, Criminal procedure Code on 10-5-1983. It is Ex. D-1. ( 6. ) NETASINGH (P. W. 8), the Police head constable, who had reached the spot within minutes of the incident, has deposed that Ushadevi (P. W. I) was quite fit to speak, yet did not record her statement, nor did he bother to record the statement of her husband Narendrakumar. The question is, what for had he been there ? He did not do anything that the law expects of him and for that matter of any investigating officer. Reading the evidence of this witness, Netasingh (P. W. 8), there is absolutely nothing to indicate that he contacted any one living in the adjoining rooms, the staff quarters or at least the mother and sister of Narendrakumar, who according to the prosecution case had rushed to the spot. The witness Netasingh (P. W. 8) who, a head constable, going to her place of occurrence just to draw a blank. The earliest version of the injured and her relations about the incident, which could have been and ought to have been made available, is thus withheld or suppressed, either wilfully or due to callous disregard to duty or reckless negligence of the police officer. ( 7. ) ACCORDING to Ushadevi, her statement was recorded eight days after the incident, while she was hospitalised at Indore in Dr. Pahadiyas Nursing Home. It is not the prosecution case that Ushadevi was not in a position to speak. Leave aside the police, not even her husband says that she could not speaker was not in a fit condition to make a statement. Pahadiyas Nursing Home. It is not the prosecution case that Ushadevi was not in a position to speak. Leave aside the police, not even her husband says that she could not speaker was not in a fit condition to make a statement. Belated examination of the victim of the offences, without assigning any reason or explanation, throws a cloud of doubt on the veracity of the prosecution case. The value of earliest version given by a victim, howsoever serious, its importance and the anxiety with which it is recorded is too well known to the police and the doctors as well, who have been in cases where necessary, have been recording statements of victims of crime in most critical condition, in the name and shape of dying-declarations. How conveniently it had been deferred in case of Ushadevi, who was committed to her prior statement made before a Magistrate. Trial Court has not gone beyond contradictions, as found in the evidence of Ushadevi (P. W. I) and her statement recorded under section 164, criminal Procedure Code. These contradictions are on the point, whether she was sitting or sleeping or relaxing when the gun was fired. What is of importance is the fact that she was doubted as a witness by investigating agency. It was this doubt about her, which impelled the police to get her statement recorded under Section 164, Criminal Procedure Code. She was herself the victim of the crime. It does not stand to reason that she would have turned hostile to her own cause. The only explanation in the circumstances of the case that could be given was that she would not forcibly name the person as the perpetrator of the crime who was being put forth by the investigating agency. ( 8. ) THE other witness deserving attention, so far as the appellant is concerned, is Narendrakumar (P. W. 2 ). He was present in the room, when the incident took place. It was he who lodged the Dehati Nalish, Ex. P. /2. According to him the accused came from the back door. He asked him as to why he had come ? Without replying, the accused fired the gun injuring his wife Ushadevi and the son devendra. He was out at Ratlam and returned in the evening around six on the date of the incident. P. /2. According to him the accused came from the back door. He asked him as to why he had come ? Without replying, the accused fired the gun injuring his wife Ushadevi and the son devendra. He was out at Ratlam and returned in the evening around six on the date of the incident. As stated by him, he had been to Ratlam to complain to the D. H. O. about the alleged incident of a quarrel between the appellant and Dhulchand, the dresser, on the preceding night. As the D. H. O. was not available, he submitted a report, Ex. P/1 to the Civil Surgeon and showed him the axe, which he had seized. As advised by the Civil Surgeon, he was to report the matter to the police, which he did the same day and also produced the axe. This aspect of evidence is dealt with later. ( 9. ) ACCORDING to the witness, his mother and sister rushed in on hearing his cries, while his wife stated that they were present there in the room. She does not corroborate her husband on the point that he cried. It is also not her statement that her mother-in-law Rajkumari and sister-in-law rushed in on a cry being raised by her husband. The prosecution should have examined them. The trial Court has omitted their importance by saying that they would have merely multiplied the evidence. Apart from being eye-witnesses, their examination would have thrown light on the relations between the two. Witness Narendrakumar has stated that he gave first-aid to his wife and removed the pellets, which was but natural for a doctor husband and the trial Court also appears to be impressed by this conduct of rendering first-aid to the injured wife, but his previous statement recorded under Section 161, Criminal procedure Code as also of his wife recorded under Section 164, Criminal Procedure code is silent about it. His explanation in this behalf is that since it was all done in presence of the Head Constable Netasingh (P. W. 8), when he had brought from the police outpost, it was not necessary for him to state all these things. The Head constable Netasingh (P. W. 8) does not say that first-aid was given by narendrakumar and that he removed pellets from the breast of his wife. The Head constable Netasingh (P. W. 8) does not say that first-aid was given by narendrakumar and that he removed pellets from the breast of his wife. On the other hand, this witness Netasingh (P. W. 8) further testified that Narendrakumar did state to him that he had removed the pellets and had rendered first-aid to his wife. This improvement has been made solely with a view to show that his conduct after the incident was husband like. The finding that he was attending on his wife, is unsupportable on evidence. ( 10. ) ORDINARILY, such omissions in a statement would have been of no consequence, but in the present case it does assume importance in view of the fact that the matrimonial relations between the two (Narendra and Usha), were strained and clouded in suspicion. There is omission in statement as well as conduct soon after his wife was injured, which has not been taken into account by the trial Court. ( 11. ) SHALINIBAI, a Nurse, was said to be the cause of rift between them. Although Usha (P. W. 1), as a dutiful wife has denied the suggestion that she was subjected to physical torture by her husband Narendrakumar, while he was attached at the District Hospital, Ratlam, she has admitted the scar on her hand to have been caused by a blade injury. Narendrakumar has also admitted that while he was at Ratlam, his wife suffered a blade injury. She was treated by Dr. Jain for about a week and this injury was recorded in the Medico Legal Register. Now, as a husband, it would be expected of him to know as to how the injury was caused and as a doctor in Govt. hospital he must be imputed with the knowledge of the connotation of entries made in the Medico Legal Register. Trial Court was palpably wrong in disallowing the question put to the witness so as to explain meaning of the term pre-M. L. G; to Dr. Narendra. There is an application on record made by the defence to this effect that question was disallowed by the Court. He tried to suggest that it was a self-inflicted injury by saying that even such cases are entered in the m. L. C. register. In either case, it reflects on their relations. At the moment, the defence evidence is purposefully not considered. He tried to suggest that it was a self-inflicted injury by saying that even such cases are entered in the m. L. C. register. In either case, it reflects on their relations. At the moment, the defence evidence is purposefully not considered. Narendrakumar (P. W. 2) stated in his evidence that pellets were removed from the injured part in presence of the head Constable Netasingh (P. W. 8 ). The pellets alleged to have been taken out by narendrakumar (P. W. 2) were not seized on the same day by Netasingh (P. W. 8 ). They were removed on 27-4-1983, vide seizure- memo, Ex. P/4. The question is as to why they were not seized till 27-4-1983, and why this delay. There is no answer. ( 12. ) SHRI Gokhale pointed out that although Narendrakumar (P. W. 2) has denied the suggestion that he had any relations with the Nurse Shalinibai, who was the bone of contention between the spouses, but he admitted that he was maintaining a boy, named Manoj aged about eight years, who was living with his mother. This boy is the son of his younger brother, who married before him. It has been further deposed that as his brothers wife Savitri died, Manoj was, therefore, required to live with his mother Rajkumaribai. His regard for truth is revealed, when he admitted that he had no personal knowledge about the death of his brothers wife. It was his brother, who had told him about five-six years back that his wife had died. This sort of evasive reply merely reveals his mind and further exposes what is sought to be concealed. This explains non-examination of his mother rajkumaribai and his sister Shanti as witnesses. The trial Court has again failed to see the object behind non-examination of these witnesses. True it is, as observed by the trial Court that it is the choice of the prosecutor, but this choice is neither arbitrary nor capricious. All those witnesses, who are necessary for unfolding the prosecution story, should be examined. A Public Prosecutor is not a mouthpiece of the police. He must be fair to the accused as well, even while seeking his conviction. ( 13. ) IT was argued by Shri Gokhale that a deliberate attempt was made to shield the real culprit in this case. A Public Prosecutor is not a mouthpiece of the police. He must be fair to the accused as well, even while seeking his conviction. ( 13. ) IT was argued by Shri Gokhale that a deliberate attempt was made to shield the real culprit in this case. No investigation worth its name was done till 27-4-1983, for almost fourteen days after the offence, although the police had reached the spot within minutes of the incident. The spot-map Ex. P/7, itself was prepared on 27-4-1983. This purposeful delay in investigation casts a serious doubt about the veracity of the prosecution case. For what earthly reason was the investigating agency sitting idle for a for thing? It was a serious crime, where fire-arm was used. No explanation is given for delay in investigation. Such investigation fails to inspire any confidence, more so when there is no explanation for the delay. ( 14. ) PROSECUTION has come out with a case that the accused was annoyed because of a complaint made by Narendrakumar (P. W. 2), recommending accuseds transfer from Sarwan Hospital. Appellants counsel submitted that a mere glance at this complaint, Ex. P/1, would show that it is a concocted piece of evidence. There is an apparent overwriting in the date and month below the signature of the authority, who endorsed "action must be taken C 24 hours". This endorsement is on the left hand corner at the top of the document, Ex. P/1. Learned counsel also pointed out further overwriting and interpolation in date and month, as mentioned below the signatures of the Medical Officer. The interpolation is apparent to naked eye. Exhibit P/1 bears an endorsement in the margin that it was forwarded to and received at the Sarwan Police outpost by some head Constable on 13-4-1983, yet none of the two police witnesses Netasingh (P. W. 8) and Arjunsingh (P. W. 9) has stated a word about it in their evidence. ( 15. ) NARENDRAKUMAR stated that he had talked to Dhapubai and sister Arora about the incident of quarrel between the appellant and Dhulchand, but none of them have been examined by the prosecution. Shri Gokhale pointed out that according to Narendrakumar, he had handed over the axe seized from Dhulchand on 13-4-1983, while submitting the report, Ex. ( 15. ) NARENDRAKUMAR stated that he had talked to Dhapubai and sister Arora about the incident of quarrel between the appellant and Dhulchand, but none of them have been examined by the prosecution. Shri Gokhale pointed out that according to Narendrakumar, he had handed over the axe seized from Dhulchand on 13-4-1983, while submitting the report, Ex. P/1, to the Civil Surgeon, but it is surprising to find that it was seized on 27-4-1983, vide seizure memo, Ex. P/4, from narendrakumar. How is that having handed over the axe to the Civil Surgeon, he could again produce it on 27th questioned counsel for the appellant. ( 16. ) ALL these factors point to the. calculated design in screening the real culprit. The investigation has been not only slip-shod, but partisan. It has to be deprecated and discarded. ( 17. ) READING the report, Ex. P/1, there is hardly anything against the accused-appellant. On the other hand, what one finds in it is that it was Dhulchand, the dresser, who was requested to be transferred from Sarwan Hospital. The accused in his statement has categorically denied any such quarrel having taken place between him and Dhulchand. If the prosecution wanted it to be relied upon, some better reliable evidence should have been produced about it. Exhibit P/1 is a suspicious document. If, at all, there was some one aggrieved by the complaint, it was Dhulchand and not the appellant. The suggested motive for committing crime is not only flimsy but also appears to be fabricated. The Investigating Officer, who indulges in fabricating such evidence, deserves to be condemned in no uncertain terms. ( 18. ) THE prompt lodging of the first-information report appears to have impressed the trial Court, but it must also be remembered that mere prompt lodging of a report by itself would not necessarily lead to the inference that it is true. Other attending circumstances must also be taken into account. In the instant case, it is a DEHATINALISH, which as has been held by the Supreme Court in Baiju vs. State, AIR 1978 SC 522 , cannot be read in evidence as a report under Section 154, criminal Procedure Code. ( 19. ) THE trial Court has further overlooked that the most probable act in the circumstances of the case was to raise a cry for help or chasing the accused soon after the firing. ( 19. ) THE trial Court has further overlooked that the most probable act in the circumstances of the case was to raise a cry for help or chasing the accused soon after the firing. The doctor knew it well that there were other staff members in the hospital, who would have responded to his call, but what is his conduct ? He neither raised a cry nor chased the accused, even in the hospital campus. His mother and sister, who it is said rushed in on hearing Narendrakumars cry, have not been examined. His wife did not say that her husband shouted for help. His own previous statement recorded under Section 161, Criminal Procedure Code does not contain any such reference. The trial Court was carried away by mere prompt lodging of the first information report, Ex. P/2 a DEHATI NALISH which cannot be read in evidence, for reasons noted above. Here again, the trial Court failed to notice that there was no investigation whatsoever for full fifteen days since the lodging of the first information report. It was on 27-4-1983, that spot-map was prepared. What sort of promptness it was and what for ? When there was no investigation to be carried pursuant to the lodging of the F. I. R. , Ex. P/2. As held by the Supreme Court in ram Jag vs. State of U. P. , 1974 Unreported Supreme Court Judgments, Note No. 53 at page 40, even a long delay in filing report of an occurrence can be condoned, if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution. The investigating Officer is silent about this delay in starting the investigation. In the circumstances, mere promptness in lodging the F. I. R. does not go to prove the truthfulness of the prosecution story. On the other hand, circumstances fully justify the inference that the DEHATI NALISH Ex. P/2, is not an act of fore-stallation, in league with local police. No importance can be attached to such F. I. R. , except for the purpose of taking those to task, who brought it into being. ( 20. On the other hand, circumstances fully justify the inference that the DEHATI NALISH Ex. P/2, is not an act of fore-stallation, in league with local police. No importance can be attached to such F. I. R. , except for the purpose of taking those to task, who brought it into being. ( 20. ) GOING through the impugned judgment it is clear that the trial Court without dealing with the prosecution evidence took up the defence version denouncing the defence witness as an utter liar. Held the defence plea unbelievable. This approach on the part of the learned Judge is palpably wrong. The trial Court should have first discussed the prosecution evidence in full and thereafter touched the defence version. If, any authority is needed for the proposition reference may be made to Gajendrasingh vs. State of U. P. , AIR 1975 SC 1703 . ( 21. ) IT was urged by Shri Swami that the appellant having taken the plea of alibi, which has not been established, the prosecution case should be held to have been proved. ( 22. ) IT may be noted that the trial Court has misunderstood the nature of the plea taken by the accused. In paragraph 15 of its judgment it has observed that it is not clear as to what is precise plea the accused has taken. However, the trial Court has proceeded on the assumption based on the statement of the accused. He had taken the plea of alibi and has devoted a major part of its judgment in consideration of this plea of alibi and ultimately rejected the same. The burden of proving the alibi undoubtedly lies on the accused, but even so the burden of proving the case against the accused is on the prosecution irrespective of the fact whether or not the accused has made out a plausible defence. ( 23. ) IN the instant case, where it is alleged that the appellant ran away with the gun soon after the occurrence, it is a material consideration and can properly be taken into account by the Court in appreciating the evidence against him as regards his plea of alibi. ( 23. ) IN the instant case, where it is alleged that the appellant ran away with the gun soon after the occurrence, it is a material consideration and can properly be taken into account by the Court in appreciating the evidence against him as regards his plea of alibi. In this case and generally in most cases the prosecution evidence and the evidence of alibi is not to be considered in compartments and this is what the trial Court has in fact done while appreciating the evidence, ignoring that the evidence on one part will have an impact on the other and the Court should consider the entire material on record as constituting one complete picture. ( 24. ) BEFORE coming to the defence evidence, the way in which it has been handled by the trial Court, it needs to be observed that the defence witnesses are entitled to equal treatment with those of the prosecution and courts ought to overcome through traditional instinctive disbelief in defence witnesses. Quite often they tell lies, but so do the prosecution witnesses. See Dudhnath Pandey vs. State of U. P. . ( 25. ) THE reasoning assigned by the trial Court for disbelieving the defence witness Rajendrasingh Yadav are : (i) That he did not tell the police that he had seen the accused going from Sarwan for Annakheda by 9. Quite often they tell lies, but so do the prosecution witnesses. See Dudhnath Pandey vs. State of U. P. . ( 25. ) THE reasoning assigned by the trial Court for disbelieving the defence witness Rajendrasingh Yadav are : (i) That he did not tell the police that he had seen the accused going from Sarwan for Annakheda by 9. 30 bus in the morning; (ii)No suggestions were thrown to the witnesses, Netasingh (P. W. 8) and Arjunsingh (P. W. 9) about information given to them by the defence witness, Rajendrasingh; (iii) Usha (P. W. 1) and Narendrakumar (P. W. 2) have not been questioned about his presence on the spot; (iv) The accused in his statement recorded under Section 313, Criminal Procedure Code did not state that he left Sarwan in presence of witness Rajendrasingh; (v) He also did not say in his statement recorded under section 313, Crimial Procedure Code that he was informed by Rajendrasingh that the gun was fired by the doctor; (vi) During the course of investigation rajendrasingh should have been offered as a witness by the accused for being interrogated by the police, and (vii) As stated by the Public Prosecutor during the course of argument that statement of this witness, as recorded by Netasingh (P. W. 8) is quite different than what was given by him to the said witness Netasingh (P. W. 8 ). On this reasoning the trial Court concluded at the end of para 12 of its judgment that he was absolutely unreliable witness. None of these grounds afford a valid justification for rejecting the witness as unreliable. ( 26. ) BEFORE examining these reasons it is worthwhile to note that he is an enlisted witness, shown at Serial No. 13 of the charge-sheet. The trial Court appears to have overlooked this fact. What statements were made by the witness to the police during the course of investigation being hit under Section 162, Criminal procedure Code could not have been asked at all. The object of recording statements under Section 161, Criminal Procedure Code is too well-known to be elaborated here. It was for the prosecution to have examined him as a witness, but having abandoned, the prosecution cannot take advantage of his statement recorded under Section 161, Criminal Procedure Code. The object of recording statements under Section 161, Criminal Procedure Code is too well-known to be elaborated here. It was for the prosecution to have examined him as a witness, but having abandoned, the prosecution cannot take advantage of his statement recorded under Section 161, Criminal Procedure Code. A queer reasoning is given by the trial Court when it says that the accused in his statement recorded under section 313, Criminal Procedure Code failed to state that he left Sarwan for village annakheda in presence of witness Rajendrasingh. He also did not state that he (the accused) was informed by Rajendrasingh that it was the doctor who had fired the gun. Firstly, no adverse inference can be drawn against the accused for not making any statement or withholding any statement and secondly, it is a matter of common knowledge that an accused is supposed to answer the questions framed by the trial court on the basis of the incriminating material appearing in the prosecution evidence. So far as the plea is concerned, the appellant is very specific. He stated that he was on leave and he was not at the place of incident. He had gone to annakheda in tahsil Jaora to see his sister. The plea is as complete as it ought to be. The trial Court possibly expected him that he should come out with the whole evidence in support of his plea. He has declared his intent that he meant to adduce defence evidence as can be gathered from the trial Courts record which he accordingly adduced. What is the trial Courts expectation that he should have stated everything that could have been brought in evidence. The trial Court has expected rather too much of an accused to produce a witness during investigation in support of the stand taken by him. It is contrary to the basic concept of criminal jurisprudence. The presumption of innocence is attached to an accused unless found guilty of the offence charged in a competent Court of law; against this basic presumption, the trial Court expected the appellant that he should have offered to produce Rajendrasingh before the police officer even when the case was being investigated. ( 27. ) WHAT statement was made by the witness to the Police during investigation, cannot be asked as there is a statutory bar against it. ( 27. ) WHAT statement was made by the witness to the Police during investigation, cannot be asked as there is a statutory bar against it. Still the Court expected that the two policemen Netasingh (P. W. 8) and the Station Officer, arjunsingh (P. W. 9) should have been asked as to what statement or information was given to them by witness Rajendrasingh, who was in fact a listed prosecution witness about the fact that the witness had seen the appellant going in the morning by 9. 30 bus. As noted earlier, the appellant in his statement has very clearly stated that he had gone to Annakheda to see his sister and this he has proved by evidence of Rajendrasingh (DW. 1 ). It is further corroborated by the prosecution evidence, the seizure-memo, Ex. P. /5 effecting seizure of the leave application, Ex. P/6, and the register. It was Narendrakumar (PW. 2), who had sanctioned his leave. That prima facie goes to show that the accused was not in the village. ( 28. ) THE trial Court, however, on the basis of evidence of Arjunsingh (P. W. 9)has come to the conclusion that the accused was in the village on the date of the incident. The trial Court while appreciating the evidence of the Investigating officer, overlooked a very important and material piece of evidence. On his own showing this witness was not at the police station from 13-4-1983 to 15-4-1983. How could he say that the accused was in the village on 13-4-1983 and if that was so, what prevented the Police from arresting him immediately after the incident, particularly when Netasingh (P. W. 8), the Head Constable, had reached the spot within minutes of the incident. The other reason assigned by the trial Court for rejecting the testimony of Rajendrasingh (D. W. 1) is that being a public servant and having come to know that the appellant Ramsingh was being proceeded against, why did he not complain to the higher authorities against Narendrakumar, for false implication of the accused. It is a fanciful ground of rejecting the testimony of a witness. It is not common that persons, who are witnesses to an occurrence go about complaining to the higher authorities if the occurrence is impugned or challenged. It all depends upon persons nature, whether he should or should not write to the higher authorities. It is a fanciful ground of rejecting the testimony of a witness. It is not common that persons, who are witnesses to an occurrence go about complaining to the higher authorities if the occurrence is impugned or challenged. It all depends upon persons nature, whether he should or should not write to the higher authorities. See Desharaj vs. State of Punjab, 1971 SCC (Cri) 433. 28-A. The trial Court has possibly not read his evidence in its proper perspective. He has deposed to the effect that on 13-4-1983 he left the hospital for his home and after taking meals when he came out for a stroll, he found a large crowd gathered in front of the hospital, and people were talking that golikand ho GAYA (firing had taken place.) The room was bolted from inside. He went to the back side and found the back door to be also bolted. After knocking for quite pretty long time, the door was opened and he found the wife of the doctor lying. On being asked as to what had happened, the doctor was quite perplexed and retorted, do not ask me. After much persuasion he agreed that bai SAHIB be taken to the ratlam hospital. The witness found him in intoxication. He was told by the doctor that the gun was accidentally fired when being loaded. He asked him to manage for a truck and as he went out to search for one, he happened to meet Netasingh (P. W. 8), the Head Constable, on the way, to whom he narrated the whole incident and shortly returned with the truck of one Changan. ( 29. ) NOW, these facts, as deposed by the witness and the information given by him to the Head Constable Netasingh (P. W. 8) have been completely overlooked by the trial Court simply because the police Head Constable did not say that on his arrival he found the doctor drunk. There is absolutely noting in the cross-examination of this witness to suggest that he was shattered in his testimony even by an inch. The prosecutor, who cross-examined him, did not put a single question on this point except the one as to what information he gave to the police Head constable and the witness replied the same thing what he had stated in his examination-in-chief. ( 30. The prosecutor, who cross-examined him, did not put a single question on this point except the one as to what information he gave to the police Head constable and the witness replied the same thing what he had stated in his examination-in-chief. ( 30. ) IT is regrettable that the trial Court should have taken note of a statement made by the Prosecutor during the course of arguments regarding contents of the statement of defence-witness, Rajendrasingh, as recorded by Head Constable, netasingh (P. W. 8 ). It is a salutary rule that such statements cannot be used by the prosecution for purpose of corroboration and the rule cannot be allowed to be circumvented by acting upon statements made by a Public Prosecutor about contents of such statements. In this case, it is noted by the trial Court (see para 12)that the Public Prosecutor stated that the statement made by the defence witness before the Court was quite different from what was recorded by the Police and the trial Court concluded in the next sentence that the witness is totally unreliable. It does not stand to reason how could such a statement made by the Public prosecutor be made of for corroborating the prosecution case. ( 31. ) SHRI Swami, learned counsel for the State referred to the recovery of a gun at the instance of the accused and submitted that it connects him with the crime alleged. The submission is unacceptable. The trial Court has not referred to it. Even otherwise, there is no evidence except that of the Investigating Officer, who has simply referred to the recovery-memo, Ex. P/15 and the information recorded under Section 27 of the Evidence Act, Ex. P/14. A mere reference by itself would not prove the statement allegedly made by the accused. The Panch witness, shankarlal, examined as P. W. 7, does not support the prosecution case. Veshya (P. W. 3) from whose house the gun, is said to have been recovered, has also not supported the prosecution ease. Here again the basic error the trial Court appears to have committed is, admitting the document, Ex. P/14, as a whole, without even bothering to exclude the confessional part of the statement. Going through the evidence of Usha (P. W. 1) she had already come to know through Nakuda, son of veshya that the gun used was that of his father. P/14, as a whole, without even bothering to exclude the confessional part of the statement. Going through the evidence of Usha (P. W. 1) she had already come to know through Nakuda, son of veshya that the gun used was that of his father. Nakuda was regularly supplying milk to Narendrakumar (P. W. 2 ). The trial Court has very conveniently overlooked the word of caution sounded by the Supreme Court in Himachal Pradesh administration vs. Omprakash, AIR 1972 SC 975 , which is to be exercised in admitting evidence under Section 27 of the Evidence Act. Thus, the recovery, sought to be relied upon by the learned counsel for the State hardly lends any assurance to the prosecution case. It cannot at all be relied upon for sustaining the conviction, even as a corroborative piece of evidence. ( 32. ) FOR the foregoing reasons, this appeal deserves to be allowed and is accordingly allowed. The conviction and sentence as recorded by the trial Court against the appellant cannot be allowed to stand. It is liable to be set aside and is accordingly set aside. The accused-appellant is acquitted of the charge framed against him. He is discharged of his bail-bonds. Before parting with this appeal, a word about investigation : investigation in this case is not inspiring of confidence. The delay is not accounted for and whatever little investigation was done, was done in a very slipshod manner by both, the Head Constable Netasingh (P. W. 8) and the Station officer, Arjunsingh (P. W. 9 ). There is sufficient evidence on record to show that examination of the victim, Usha (P. W. 1) was deferred for no justifiable reason, although Netasingh (P. W. 8), the Head Constable had been to the spot immediately after the incident on lodging of the first information-report neither the spot-map was prepared nor the incriminating article seized immediately. Seizure of the pellets allegedly removed by Narendrakumar (P. W. 2),. presence of Head Constable netasingh (P. W. 8) was made on 27-4-1983, vide seizure-memo, Ex. P/4, and no reason is assigned for this delay in seizure of these pellets. No attention whatsoever was paid to the alleged strained relations of Narendrakumar (P. W. 2) and Usha (P. W. 1 ). The whole investigation is tainted with bias. presence of Head Constable netasingh (P. W. 8) was made on 27-4-1983, vide seizure-memo, Ex. P/4, and no reason is assigned for this delay in seizure of these pellets. No attention whatsoever was paid to the alleged strained relations of Narendrakumar (P. W. 2) and Usha (P. W. 1 ). The whole investigation is tainted with bias. The duty of the Investigating officer, as pointed out by the Supreme Court in Jamuna Chaudhary vs. State of bihar, AIR 1974 SC 1822 is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real untarnished truth. Appeal allowed.