JUDGMENT : K.C. Jagadeb Roy, J. - The Petitioner Babaji alia's Braja Kishore Mohanty was tried u/s 325, I.P.C. on the allegation that on 17-7-1982 at about 7.30 p.m. he assaulted one Hemalata Bewa by means of a stick used for closing the door and caused grievous hurt to her. As many as seven witnesses have been examined by the prosecution, of whom P.W. 1 is the informant, P.W. 2 is a witness who, turned hostile, P.Ws. 3, 4 and 5 are the alleged eye-witnesses, P.W. 6 is the doctor and P.W. 7 is the investigating Officer who conducted a part of the investigation and submitted the charge sheet on the basis of which G.R. Case No. 137 of 1982 instituted against the Petitioner. The defence had examined only one witness who denied any such occurrence. He was not cross-examined by the prosecution. The Petitioner was found guilty by the trial Court u/s 325, I.P.C. and was convicted and sentenced to undergo R.I. for one year. On appeal preferred by the Petitioner before the Sessions Judge, Cuttack numbered as Criminal Appeal No. 69 of 1985, the sentence was reduced to one of four months R.I. with fine of Rs. 500/-, in default to undergo R.I. for two months with a direction that on realisations of the fine amount, the said be paid to the informant as compensation. The sentence, however, was modified by the appellate Court. 2. The prosecution case, briefly stated, is that on the day of occurrence i.e. 17-9-1982 at about 7.30 p.m. in village Tandara there was a quarrel between the informant Hemalata and the wife of the present Petitioner relating to damage of crop which Hemalata had alleged against the wife of the Petitioner. When this quarrel was going on between the two; being excited, the accused-Petitioner came out with a stick used for closing the door and assaulted Hemalata who sustained bleeding injury on the head and swelling injury on her left thumb. On the information having been lodged by Hemalata, at the Korei P.S., she was sent for medical examination by the police and after the doctor who examined her opined that the injuries were of grievous nature, a formal F.I.R. was drawn up by the police and further investigation was conducted before the charge sheet was submitted to initiate the proceeding in the G.R. case. 3. 3. In this revision, the Petitioner raised two important points: that the station diary entry dated 17-9-1982 by the informant was in law the F.I.R. to the police on the basis of which the injured was sent for medical examination, that it was not produced before the Court and was suppressed and that the subsequent recording of the incident by the police after the report of the doctor, was wrongly treated by the Court as F.I.R. and that on that basis the case of the Petitioner was considered by the trial Court as well as the appellate Court instead of drawing adverse inference against the prosecution for non-production of the station diary No. 353 dated 17-9-1982 which in the eye of law is the F.I.R., Secondly, the Investigating Officer was not examined in the case which caused great prejudice to the Petitioner and this non-examination of the I.O. by itself is a ground of acquittal of the accused. 4. In a case reported in 1986 (1) Crimes 299 (Ratha Jena v. The State of Orissa), this Court has held thus: Apart from proof of contradictions, many material facts could be ascertained for defence of a criminal charge if the Investigating Officer was examined as a prosecution witness. In this particular case the Investigating Officer seized the bullock by seizure list, Certain facts have been stated in the seizure list, The Investigating Officer had also received the F.I.R. and conducted investigation into the case. Had he been examined as a witness, the Petitioner would; have got opportunity of asking many questions to him, relating to, seizure' of the bullock, circumstances of seizure thereof, place of seizure and many other material and relevant particulars relating to the case. As the Investigating Officer was not examined as a witness, he was precluded from elucidating material facts which could have helped him in support of his defence. From the aforesaid analysis it is irresistible for me to conclude that non-examination of the Investigating Officer was a Vital defect in the prosecution case and caused serious prejudice to the Petitioner for his own defence of a criminal charge. 5. The Officer-in-charge of the Korei P.S. who entered the statement of the injured in the station diary entry was examined as P.W. 7. In his deposition, he has stated that he had directed the Asst. Sub-Inspector Sri C.S. Das to conduct the investigation. 5. The Officer-in-charge of the Korei P.S. who entered the statement of the injured in the station diary entry was examined as P.W. 7. In his deposition, he has stated that he had directed the Asst. Sub-Inspector Sri C.S. Das to conduct the investigation. It is not disputed that the LO. Sri C.S. Das had examined some witnesses u/s 161 of the Code of Criminal Procedure though later on P.W. 7 again took over charge of investigation from said C.S. Das and after perusal of the case diary and connected papers found prima facie evidence against: the accused and submitted charge sheet against him. The Investigating Officer C.S. Das was not examined in this case by the prosecution. The contradictions, if any, in the evidence of P.Ws. could not be put to the said I.O. for confrontations nor the defence had the opportunity to question the I.O. about the location of the spot where blood-stained apparels were seized. To that extent the defence certainly has been prejudiced. It is by itself a ground for interfering with the conviction passed by the Courts below. 6. That apart, in the present case the station diary entry, has not been brought to the records and not exhibited by the prosecution in the Court. The station diary entry made by the informant in the police station is to be treated as F.I.R. in the case as on the basis of this information, the investigation was started and the injured was sent to the doctor for medical examination. The subsequent drawing up of the F.I.R. by the Officer-in-charge (P.W. 2) after receiving the injury report from the doctor could not be the F.I.R. and should not have been used as F.I.R. in the case. As such the statement made by the Officer-in-charge falls within the mischief of Section 162, Code of Criminal Procedure. The Courts below should have accordingly drawn adverse inference against the prosecution for withholding the station diary entry No. 353 dated 17-9-1982 which constitutes the F.I.R. within the purview of Section 154, Code of Criminal Procedure. 7. In the above circumstances, the High Court should have remanded the case to the trial Court to summon the concerned I.O. and examine him in the Court while giving an opportunity to the Petitioner to cross-examine him. 7. In the above circumstances, the High Court should have remanded the case to the trial Court to summon the concerned I.O. and examine him in the Court while giving an opportunity to the Petitioner to cross-examine him. But since the offence was committed on 17-9-1982, almost seven and half years has lapsed in the meanwhile and the Petitioner has been subjected to trial, appeal and revision at three stages, it would cause hardship to him if the case is remanded to the trial Court at this stage for examination of the Investigating Officer. Accordingly, I am of the view that in peculiar facts and circumstances of the case, the Petitioner should be acquitted. 8. The revision petition is accordingly allowed and the conviction and sentence passed by the Courts below are set aside. The Petitioner is acquitted. The bail-bond be cancelled. Revision allowed. Final Result : Allowed