JUDGMENT S.H.S. ABIDI, J. 1. All the appellants have come to this Court against the order of conviction and sentences passed by the trial court. Appellant, Sattan Mandal has been convicted for the offence under section 302 of the Indian Penal Code (for short IPC) and sentenced to undergo rigorous imprisonment for life and the appellants, Sattan Mandal, Garbhua Mandal, Dashrath Mandal and Laddu Mandal have been convicted under section 302/149 IPC and sentenced to undergo rigorous imprisonment for life. The sentences awarded to appellant Sattan Mandal have been ordered to run concurrently. Three other accused Amrit Mandal, Sree Mandal and Arjun Mandal have died during the course of trial. 2. The case of the prosecution in brief, is that on 16.12.1975 the informant Dukhan Yadav had gone to Nathnagar Bazar and his brother Sarmi Yadav and his (Sarmi's) friend Kameshwar Singh had gone to Civil Court, Bhagalpur. In the evening at about 5 P.M. they were returning from Nathnagar along with villagers Darbi Yadav, Gaini Yadav, Satya Narain Yadav and Chamru Yadav. They boarded on a boat to cross the river Jamunia and at the same time, Amrit Mandal, Sattan Mandal, Laddu Mandal and Dashrath Mandal, Sree Mandal and Arjun Mandal came from the Deorhi of Mahesh Ghosh and boarded on the same boat on which, some persons of the village were already present. The informant and his men set out for the village. After proceeding 8 to 10 rassis from the Ghat, Sarmi Yadav and his friend Kameshwar Singh were going ahead and Amrit Mandal was behind them and the informant was going behind Amrit Mandal. Then the informant saw that Amrit Mandal took out a pistol and fired at Sarmi Yadav and Kameshwar Singh which hit them, due to which Sarmi Yadav ran away but accused Amrit Mandal (since dead), Sattan Mandal, Laddu Mandal, Arjun Mandal (since dead) and Sree Mandal (since dead) caught bold of him and accused Sattan Mandal cut the neck of Sarmi Mandal. On alarm raised by Dukhan Yadav (informant), accused Sree Mandal ordered to kill him also. But the informant fled away out of fear though the accused persons fired 6-7 rounds at him. In the light of moon, he identified the accused persons but he could not identify the other 10-12 persons who were also there. On alarm raised by Dukhan Yadav (informant), accused Sree Mandal ordered to kill him also. But the informant fled away out of fear though the accused persons fired 6-7 rounds at him. In the light of moon, he identified the accused persons but he could not identify the other 10-12 persons who were also there. He had seen Amrit Mandal, Laddu Mandal, Arjun Mandal, Dashrath Mandal and Sree Mandal being armed with pistols, while Sattan Mandal had knife. Sarmi Yadav and Kameshwar Singh fell down due to injuries. He has also said that earlier also, Sattan Mandal had injured Sarmi Yadav about a year back but he survived. He has also said that on the day of the occurrence at about 10-11 A.M. when he was going to Nathnagar Bazar via the Deorhi of Mahesh Ghosh he had seen the accused persons sitting there and Mahesh Ghosh was telling them to finish Sarmi Yadav. The witnesses to the occurrence were Nand Kishore, Darbi, Gaini, Satya Narain, Chamru Yadav and others. The informant along with injured Kameshwar Singh went to the Nathnagar police station at about 8.30 P.M. and he got his Fard beyan (Ext. 4) recorded. 3. The investigation of the case was taken up by Ram Nagina Singh, ASI (not examined). Post mortem examination of deceased Sarmi Yadav was done by Dr. M.K. Sinha, on 17.12.1975 at about 11 A.M. who submitted his report (Ext. 2). Kameshwar Singh was injured and was admitted in the hospital on 17.12.1975 and his post mortem examination was done on 18.12.1975 at 12-10 noon by Dr. C.S. Lal who also submitted his report (Ext. 2/1). The investigating officer, after completing the investigation, submitted charge sheet against the appellants. 4. The accused persons, in their defence, denied the story of the prosecution and alleged that they have been falsely implicated in this case due to enmity. However, one defence witness, Lakhi Yadav (D.W. 1) has been examined who has said that on the day and time of the occurrence, he had gone to village Baria for the second marriage of his daughter and witnesses Gaini Yadav, Nand Kishore Yadav and Darbi Yadav were sitting along with him in the village and that he returned after the second marriage of his daughter. 5. 5. The prosecution, in support of its case, produced eight witnesses, out of whom, Nand Kishore Yadav P.W. 2, Satya Narain Yadav P.W. 5 and Chamru Yadav P.W. 7 have turned hostile. P.W. 1 Darbi Yadav, P.W. 3 Dukhan Yadav, P.W. 4 Gaini Yadav have deposed as the eye witnesses. Boochkoon Sah P.W. 6 is the eye witness of the inquest. P.W. 8 Md. Shakoor an advocate's clerk has proved the first information report inquest report and seizure list and has said that Deonath Singh the Officer-in-charge, who had recorded the first information report, has retired. The Investigating Officer, Ram Nagina Singh and the two doctors who had conducted the post-mortem examinations of both the deceased have not been examined by the prosecution though the post-mortem reports have been brought on record as it is apparent from the order sheet dated 11.2.1986. 6. The learned trial court, after considering the entire material on the record, has convicted and sentenced the accused appellants as said above. 7. The learned counsel for the appellants has argued that the order of conviction of the appellants is bad and is not made out from the evidence on record. The witnesses examined by the prosecution are the own brothers of the informant. Further, three other witnesses i.e. P.Ws. 2, 5 and 7, who are said to be the eye witnesses, have turned hostile which falsifies the case of the prosecution. The doctor and the Investigating Officer have not been examined in this case which has caused prejudice to the appellants. It has also been argued that the medical report does not support the evidence of the witnesses and also that the accused persons had got no enmity to commit such an offence. To appreciate these contentions of the learned counsel for the appellants the evidence on record will have to be scrutinised with care and caution. 8. P.W. 3 is the informant in this case. He has said that on 16.12.1975 he had gone to Nathnagar Bazar and was returning after purchasing the things. Along with him, were Sarmi Yadav, Satya Narain Yadav, Nand Kishore Yadav and Darbi Yadav. At that time, he was living in Bairiya. He and his articles were kept on the boat on which 6-7 other persons were also from before, out of whom he identified Garbhu Mandal, Sattan, Laddu, Dashrath, Amrit and Sree Mandal. Along with him, were Sarmi Yadav, Satya Narain Yadav, Nand Kishore Yadav and Darbi Yadav. At that time, he was living in Bairiya. He and his articles were kept on the boat on which 6-7 other persons were also from before, out of whom he identified Garbhu Mandal, Sattan, Laddu, Dashrath, Amrit and Sree Mandal. All the people crossed the river Jamunia and got down at the Ghat. Sarmi and his son proceeded ahead and he followed them and on going ahead, by the side of the banks of the river, Amrit Singh fired at Kameshwar Singh, on which Sarmi ran and within 45 hands, Amrit Mandal again fired at him. 6-7 persons i.e. Amrit, Dashrath, Laddu and others caught hold of him and Sattan Mandal cut his neck. Amrit Mandal, Sree Mandal and Arjun Mandal have died during the trial. The witness (informant) went to the house where the said occurrence took place and thereafter, he went to the police station. His brother had died on account of firing. Kameshwar Singh was taken to the hospital by him and Chamru Yadav, where he gave his statement. In cross-examination, he has said that he had gone to Nathnagar alone to purchase articles like salt, vegetables and eatable oil. In the Bazar, he met his brother and others who were returning together. After keeping the articles at his house, he went to the police station along with Chamru Yadav, Darbi Yadav, Sattan and Nand Kishore. When he went to give information, Kameshwar Singh was lying where he was injured and was taking some breath. When he raised alarm in the village, the villagers, dafadar and choukidar went to the place of the occurrence. He met them in the village and said to the dafadar and choukidar about the occurrence. After the information, Jamadar and Sub-Inspector of Police went to the place of occurrence and Kameshwar Singh was lying there unconscious and unable to speak. The place of the occurrence was near his house. Kameshwar was taken by the police on a truck. First he was lifted by hands to police station and then at 8-9 P.M. sent to the hospital on truck. He had not gone to the hospital. When he was giving the statement, Kameshwar was not there. He was later brought by lifting. Kameshwar was taken by the police on a truck. First he was lifted by hands to police station and then at 8-9 P.M. sent to the hospital on truck. He had not gone to the hospital. When he was giving the statement, Kameshwar was not there. He was later brought by lifting. He had not given the statement that he had come along with the injured Kameshwar or that he was restless on account of injuries and he was not speaking. He was accused in several criminal cases. The dispute was about the land. He had given out in the Fard beyan that Kameshwar was fired at by accused Amrit Mandal and he was lying by the river side. Sarmi Yadav had also received gun shot at his back upon which he ran. He had not said in his statement that first Sarmi and then Kameshwar had filed away. The persons towards north of the body were covering their bodies on account of cold. There were about 80-85 persons near the bodies, out of whom some were putting on turbans and were going along with the informant and then they went ahead. Those who had fired had gone to the side of the river and towards Sarmi. The Investigating Officer did not ask him to bring witness nor he told that from where he will bring witnesses in the night. He denied the suggestions that he was not there at the time of occurrence and had come on hearing the sound of firing from the village and implicated the appellants falsely due to enmity. 9. The other eye witness is P.W.1, Darbi Yadav who has said that earlier he used to live in Nathnagar. On 16.6.1975, at about 5 P.M. he had gone to Nathnagar Bazar along with Dukhan Yadav (informant), Nand Kishore Yadav, Gaini Yadav and Satya Narain Yadav who were waiting for the boat by the side of the river. Satya Narain was brother of Dukhan Yadav. After getting down from the boat from the northern side, he and others were going towards the village. Satya Narain was brother of Dukhan Yadav. After getting down from the boat from the northern side, he and others were going towards the village. In the way, there was some sound and on turning he found that Sarmi Yadav was hit by gun fire and ran about 20-25 yards and he was being chased by Amrit Mandal, Arjun Mandal, Sree Mandal, Garbhu Mandal and Satya Narain Mandal (who is also called Sattan Mandal), After chasing, they fell hill down. Sattan Mandal cut his neck by chhura. Kameshwar had also received gun shots and had fallen down there. He and others met Sarmi and Kameshwar in Nathnagar Chowk as they were also coming along with him. Sree Mandal, Arjun Mandal and Amrit Mandal have died. Other accused persons were present in the court. Besides Sattan Mandal, other accused persons had got country made pistols. Night was bright and the accused were known people and so they were identified. After the assault, the accused ran and they also ran. In cross examination, he has said that the injured were taken direct to the hospital after the going away of the accused. Only Kameshwar was taken to the hospital on a cot. 7-8 persons had taken him to the hospital. He had not gone to the hospital. His village was 15-20 rassis from the place of occurrence. When Kameshwar was brought there, he was not there as he had gone to the hospital. He along with Gaini alias Ganesh and Nand Kishore had gone to the police station where Dukhan alone had given his statement to the police. Kameshwar was first taken to the hospital on cot then to the police station but he did not see him in the hospital. Dukhan had given statement to the police and there was no outsider. The police station was about 3/4 miles from the river Jamunia. After taking statement, the police went to the place of the occurrence at about 6.30 and 7 P.M. He and others had gone with the police. Choukidar Anuplal came there and the Investigating Officer made enquiries there from him and the dead boy was sent to the police station approximately about 8-9 P.M. He returned home after performing the last rites at about 8 P.M. next day. He had signed the inquest report and he did not remember if Chamru Yadav had gone to the police station. He had signed the inquest report and he did not remember if Chamru Yadav had gone to the police station. Sarmi Yadav had fallen in the way and on account of fear people began to run hither and thither. He had not seen firing at Kameshwar Singh but seen him injured. Kameshwar had fallen at about 20-25 yards away from Sarmi. He has said that we had no talk amongst us before giving the statement to the police. He was an accused in 5-6 cases. 10. P.W. 4, Gaini Yadav is the other eye witness. He has said that he was returning from Nathnagar after selling milk when he met Sarmi Yadav, Dukhan Yadav, Nand Kishore and Darbi in the way and all of them got on the boat for crossing the river Jamunia. Amrit Mandal and Arjun Mandal, Sree Mandal, Sattan Mandal, Garbhu Mandal and Laddu Mandal had also got on the boat. After crossing the river, they started for their villages, He and others had gone about 5-6 rassis then he heard the sound of gun fire and saw that Kameshwar Singh, who was also crossing the river on the same boat, had fallen and Sarmi was running away. Amrit Mandal, Sattan Mandal, Sree Mandal, Arjun Mandal and Garbhu Mandal had caught held of him (Sarmi) and Sattan cut his neck by knife by which Sarmi died on the spot. On the court's question, he said that he had heard 4-5 gun shots. Sarmi died on account of the cutting of the neck. Kameshwar was lying. He went away after the occurrence. In cross-examination he admitted that he and Darbi (Dabo) were residents of the same Angan and so, Sarmi used to live. But he said that Sarmi who had been killed did not reside in the said Angan. He had gone to the village and told the villagers about the occurrence. After the arrival of the police, the dead body of Sarmi was taken to the police station on a cot Kameshwar was also removed from the place of occurrence. Nand Kishore and Betan remained at the place of occurrence and Dukhan went to the police station. 11. Besides these eye witnesses, there are three more witnesses, namely, Nand Kishore Yadav, Satya Narain Yadav, Chamru Yadav, P.Ws 2, 5 and 7 who have been declared hostile. Nand Kishore and Betan remained at the place of occurrence and Dukhan went to the police station. 11. Besides these eye witnesses, there are three more witnesses, namely, Nand Kishore Yadav, Satya Narain Yadav, Chamru Yadav, P.Ws 2, 5 and 7 who have been declared hostile. P.W. 2 Nand Kishore has admitted that they were all going after crossing the River Jamunia and Sarmi got gun shot injury but he could not say as to who had fired. After that, there was alarm and they went to the police station. He had also seen Sarmi's neck being cut but who cut the neck he could not say. In cross-examination, he denied to have made any statement to the police. He has also admitted that the accused are residents of his village. P.W. 5 Satya Narain Yadav has said that Sarmi was his brother and at the time of the occurrence, they were running. When he had gone a bit further, he heard the sound of gun shots. He saw Kameshwar fallen and saw, Sarmi dead but he did not see as to who had fired at them. He was declared hostile and he denied to have given any statement to the police. P.W. 7 Chamru Yadav also says that after crossing the river, Sarmi and Kameshwar moved ahead. He and others went for easing when he heard the sound of gun fire but he did not say as to who was killed. He has said that he did not remember that his statement was recorded. He has admitted that the accused are of his village and so, he identified them. Sarmi Yadav was his brother and he did not know the names of the persons who killed Sarmi. He came to know after about an hour that Sarmi had been killed. 12. P.W. 8, Md. Shakoor is an advocate's clerk and has proved the inquest report and seizure list in the writing of the Investigating Officer. He has said that the then Investigating Officer, Deonath Singh has retired. He identified the FIR in the writing of Deonath Singh. In cross-examination, he has said that the papers had not been written in his presence. 13. The defence has also examined one witness, Namely Lakhi Yadav (D.W. 1) who has said that his younger daughter had been married in village Bairiya and the name of his son was Rajendra Yadav. He identified the FIR in the writing of Deonath Singh. In cross-examination, he has said that the papers had not been written in his presence. 13. The defence has also examined one witness, Namely Lakhi Yadav (D.W. 1) who has said that his younger daughter had been married in village Bairiya and the name of his son was Rajendra Yadav. He knew Sarmi Yadav who is not relation of his son-in-law. When Sarmi had been killed on that date, he had gone for Bidai of his daughter. When Bidai was performed Nand Kishore, Gaini, Darbi and several others were along with him sitting in the dalan of Sarmi Yadav. At that time, one man came and said that Sarmi had been killed. Then, Gaini, Nand Kishore, Darbi and others went to Jamunia River. One more person was killed. Then he went away and he could not know as to who had killed. In cross-examination, he has said that he has never been examined and had been brought for evidence. He did not know the name of the person and did not know about the killing of Sarmi. They were not sitting from 3 P.M. Hulla was raised at 6 P.M. He has said that it is not correct that he had gone to Bairiya and given written statement or that he had not gone for the Bidai of his daughter. 14. On appreciation of the evidence brought on record by the prosecution and the defence, it appears that the prosecution has been able to establish that on 16.12.1975 at about 6 P.M., when deceased Sarmi Mandal along with Kameshwar and others were returning after crossing the river Jamunia, Sarmi Yadav was fired at and Kameshwar was injured. When Sarmi Yadav was running for saving his life, he was caught hold of by Dashrath Mandal, Sattan Mandal, Garbhu Mandal and Laddu Mandal and out of them Sattan Mandal cut his neck by chhura. The accused persons were known from before. There was moon light and so, the accused were fully recognised and identified by the witnesses. P.Ws. 1, 3 and 4 Darbi Yadav, Dukhan Yadav and Gaini Yadav respectively have been subjected to searching cross-examination and there is nothing in their statements to show that they have got animus to falsely implicate them or these witnesses were not on the spot or they had no opportunity to see the occurrence. P.Ws. 1, 3 and 4 Darbi Yadav, Dukhan Yadav and Gaini Yadav respectively have been subjected to searching cross-examination and there is nothing in their statements to show that they have got animus to falsely implicate them or these witnesses were not on the spot or they had no opportunity to see the occurrence. The accused persons were already known to them. Their testimony does not suffer from any infirmity, contradiction or improbability. It finds support from the medical evidence and the prompt FIR which was registered at the police station at 8.30 P.M. in the same night. 15. Learned counsel for the appellants has said that in the FIR, it has been said that Kameshwar was taken to the police station but Kameshwar has not been found to be taken to the police station. Even if this fact is ignored, it is found that Kameshwar was taken from the spot to the hospital where he died on 17.12.1975 and his dead body was sent for post mortem which was done on 18.12.1975 and the post mortem report (Ext. 2/1) was submitted. Dr. N.K. Sinha conducted the post mortem examination of Sarmi Yadav on 17.12.1975 at about 11 A.M. and submitted his report (Ext. 2). Even the hostile witnesses admit that both the victims were killed in the same transaction and it is something different that they had not seen the persons who had killed. It is something strange that the accused were known to the hostile witnesses and there was light and so there was nothing to prevent the witnesses from seeing the assailants yet they say that they did not see persons killing two persons. The participation of the accused in this crime is well made out by the statements of P.Ws. 1, 3 and 4. 16. It has been argued that in this case, neither the Investigating Officer has been examined nor the doctor and so, prejudice has been caused to the accused. No doubt, the Investigating Officer is an important witness but at times when he is not examined that cannot be a ground for disbelieving the eye witness account if no prejudice is caused to the accused on account of his non-appearance. The prejudice should not be a supposed and presumptive but it should be actual and demonstrable. No doubt, the Investigating Officer is an important witness but at times when he is not examined that cannot be a ground for disbelieving the eye witness account if no prejudice is caused to the accused on account of his non-appearance. The prejudice should not be a supposed and presumptive but it should be actual and demonstrable. If minor details could not come on account of the non-examination of the Investigating Officer, although material facts have been brought out by the cogent and reliable evidence of the other prosecution witnesses, then the cogent and reliable evidence cannot be brushed aside or set at naught on account of non-examination of the Investigating Officer or even the doctor. The evidence of an Investigating Officer and also a doctor has only corroborative value. The main evidence is the oral testimony or the circumstance and so every case has to be judged in its own perspective. When the place of occurrence, means of identification or such other objective findings are not in the dispute or when there are no material contradictions to be brought by referring to in the evidence of the witness is not to be brought out by the reference to the evidence of the Investigating Officer, then the non-examination of the Investigating Officer cannot be said to cause any material prejudice, fatal to the case of the prosecution. Similarly, when the evidence of the doctor is dear and the death is established, then the non-examination of the doctor has got no effect unless it is shown that by the non examination of the doctor the nature of the injuries or the use of the weapon cannot be established. Material witness is the eye witness and if it can be relied on and the doctor and the Investigating Officers evidence is only adding weight and not contradicting, then evidence of the Investigation Officer or the doctor does not have any importance. But when the evidence of the doctor or the I.O. is such as to set at naught the evidence of the eye witnesses or the circumstances, then, the evidence of the I.O. or the doctor is material and the non-examination will cause prejudice to the defence and so fatal to the prosecution case. So every case is to be seen and judged in its own situations and circumstances and not with a jacket formula. So every case is to be seen and judged in its own situations and circumstances and not with a jacket formula. In case no demonstrable prejudice is shown to have been caused and the case of the prosecution is not demolished on account of their non-examination then the non-examination of the Investigating Officer or doctor has no effect. 17. In the new Criminal Procedure Code, Section 294 has been introduced to shorten the proceeding so that each party may admit or deny the correctness of any document. If the prosecution or the accused files any document before the court and particulars of the document are included in a list and then the prosecution or the accused, as the case may be, shall be called upon to admit or deny the genuineness of the document and if the genuineness of the document is not disputed, then such document shall be read in evidence in enquiry or trial or other proceedings before it without the proof of the signature of the person who is purported to have signed it, unless the court in its discretion requires such signature to be proved. Such a document brought on record shall be read as substantive evidence to prove a fact and it shall not be the evidence meant to contradict or corroborate the statement in court. A Full Bench of the Allahabad High Court in the case of Saddiq and others vs. State of Bihar (1981 Cri. LJ 379) has observed about this aspect of the matter at pages 380-81 (Paras 8 & 9) as follows:– "8. In our opinion, if the prosecution or the accused does not dispute the genuineness of a document filed by the opposite party under sub-section (1) of Section 294, Cr. P.C. it amounts to an admission that the entire document is true or correct. It means that the document has been signed by the person by whom it purports to be signed and its contents are correct. It does not only amount to the admission of it being signed by the person by whom it purports to be signed but also implies the admission of the correctness of its contents. Such a document may be read in evidence under sub-section (3) of Section 294 Cr. It does not only amount to the admission of it being signed by the person by whom it purports to be signed but also implies the admission of the correctness of its contents. Such a document may be read in evidence under sub-section (3) of Section 294 Cr. P.C. Neither the signature nor the correctness of its contents need be proved by the prosecution or the accused by examining its signatory, as it is admitted to be true or correct. The phrase 'read in evidence' means read as substantive evidence which is the evidence adduced to prove fact in issue as opposed to the evidence used to dicredit a witness or to corroborate his testimony. It may be mentioned that the phrase 'used in evidence' has been used in sub-section (1) of Section 283 Cr. P.C. with respect to the reports of the Government Scientific Experts mentioned in sub-section (4) of Section 293 Cr. P.C. and the phrase 'read in evidence' has been used in sub-section (1) of Section 296 Cr. P.C. with respect to the affidavit of persons whose evidence is of a formal character. The phrase 'used in evidence' and read in evidence, in our opinion, have the same meaning, namely read as substantive evidence. "9. It is as to the prosecution or the accused to dispute the genuineness of a document filed by the opposite party under sub-section (1) of Section 294 Cr. P.C. In such a case the signatory of the document must be examined by the party filing the document to prove his signature and also the correctness of its contents and the evidence of the signatory will be the substantive and the document may be used to corroborate or discredit his testimony. But where the genuineness of a document filed by the prosecution or the accused under sub-section (1) of Section 294, Cr. P.C. is not disputed by the opposite party, sub-section (3) of Section 294, Cr. P.C. is applicable and such a document may be read as substantive evidence. Section 294 Cr. P.C. is a new section as it had no equivalent in the Code of Criminal Procedure, 1898. It is based on the rule of evidence that facts admitted need not be proved contained in Section 58, Evidence Act. P.C. is applicable and such a document may be read as substantive evidence. Section 294 Cr. P.C. is a new section as it had no equivalent in the Code of Criminal Procedure, 1898. It is based on the rule of evidence that facts admitted need not be proved contained in Section 58, Evidence Act. The object of enacting this section appears to be to avoid the time of the Court being wasted by examining the signatory of the document filed by the prosecution or the accused under sub-section (1) of Section 294 Cr. P.C. to prove his signature and the correctness of its contents if its genuineness is not disputed by the opposite party. If the signature and the correctness of the contents of a document filed by the prosecution or the accused, under sub-section (1) of Section 294 Cr. P.C. whose genuineness is not disputed by the opposite party are still required to be proved by examining the signatory of the document, the very object of enacting Section 294 Cr. P.C. will be defeated. We are, therefore, of the opinion that all documents filed by the prosecution or the accused under sub-section (1) of Section 294 Cr. P.C. whose genuineness is not disputed by the opposite party may be read as substantive evidence under sub-section (8) of Section 294, Cr. P.C." Yet in another Full Bench of Bombay High Court, in Shaikh Farid Hussain Sab vs. State of Maharashtra, 1983 Cri. L.J. 487, it has been said at page 488-89 (para 7 & 8) as follows:– "Section 294 of the Code is introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The accused is now enable to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the documents sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of no dispute as to the genuineness, proof of documents is reduced to a sheer empty formality. On his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of no dispute as to the genuineness, proof of documents is reduced to a sheer empty formality. The section is obviously aimed at undoing the judicial view by legislative process." "8. The preceding Section 293 of the Code also dispenses with the proof of certain documents. It corresponds with Section 510 of the repealed Code of Criminal Procedure. It enumerates the category of documents, proof of which is not necessary unless the Court itself thinks it necessary. Section 294 makes dispensation of formal proof dependent on the accused or the prosecution not disputing the genuineness of the documents sought to be used against them. Such contemplated dispensation is not restricted to any class or category of documents as under Section 293, in which ordinarily authenticity is dependent more on the mechanical process involved than on the knowledge, observation of the sill of the author, rendering oral evidence just formal. Nor it is made dependent on the relative importance of the document or probative value thereof. The document being primary or secondary or substantive or corroborative is not relevant for attracting section 294 of the Code. Not disputing its genuineness is the only solitary test therefore." In the case of Thakur Mahto vs. State of Bihar, 1991 B.L.J. 245: 1992 (1) PLJR 329 , (P.W. 7) brought on record the fard beyan Ext. 4 and F.I.R. (3), which he recognised to be in the writing of one Ram Dayal Singh for whom he could not say as to whether he was in service or not and further he did not have personal knowledge of the contents of these two exhibits nor any one had written before him. He also said on recall about the inquest report (Ext. 4) to have been prepared by Ram Dayal Singh. He further said about paragraph no. 17 of the case diary in the pen of Assistant Sub-Inspector of Police Bachan Prasad Singh. These documents were brought on record by this P.W. 7 under Section 294 (3) of the Code, though not on the basis of any application yet the genesis of these documents was not disputed and so the documents were read in evidence under the provisions of Section 294 of the Code. These documents were brought on record by this P.W. 7 under Section 294 (3) of the Code, though not on the basis of any application yet the genesis of these documents was not disputed and so the documents were read in evidence under the provisions of Section 294 of the Code. In the case of P.C. Purushottama Reddiar vs. S. Perumal, 1972 SC 603, a case arising out of election petition the Supreme Court has observed at page 613 (para-19) as follows:– "Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constable who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence, it is not open to the respondent now to object to their admissibility. See Bhagat Ram vs. Khatu Ram and another, AIR 1929 PC 110." 18. In case the Investigating Officer can not be examined, at least the case diary should be brought on record so that the court may look into the admissible part to analyse and appreciate the oral testimony of the witnesses. In the case of Basant Singh vs. State of Bihar, 1984 Cri. LJ 1406, a Division Bench has observed at page 1411 (para 26-d): "If the Investigating Officer is not examined, prejudice to the accused as claimed by the defence has to be considered and looked into and even after the perusal of the case diary, so permitted, the element of prejudice persists, benefit should be given to the accused of course depending upon the facts and circumstances of each case." Again, in the case of Barahmdeo Hazra vs. State of Bihar, 1987 BBCJ 340 , a Division Bench of this Court has said at page 344 (para)." Not only that the Investigating Officer was not examined, even the police diary was not put in evidence or proved to enable the court to consider the admissible part of the record to analyse and appreciate and to test the credibility of the oral testimony of the witnesses." Similarly, in Rajawa Kewals Rajendra Mandal vs. State of Bihar, 1988 BLJ 60 : 1988 PLJR (NOC) 29, it was said in para 5 at page 62:– "Non-examination of the Investigating Officer is a serious lacunae. We do not find any adequate explanation for non-production of this witness in court. Even the case diary has not been proved on the record and in the circumstance it has been nightly urged that serious prejudice has been caused to the appellants." In the case of Laxmi Narain Singh & others vs. State of Bihar (1988) BLJ 235: 1987 PLJR 804, in para 5 at page 327 observed. "It is only for the prosecution to produce and examine the I.O. We get from the judgment of the court below that the I.O. of this case was dead and in that circumstance the prosecution. 19. In spite of the fact that merit of the case is not affected in this case yet the absence of the Investigating Officer cannot be ignored and it deserves serious consideration. The order sheet of the court from 9.6.1986 is a glaring example and proof, of the fact that the case was being dragged on from time to time on account of the failure of the prosecution to examine the Investigating Officer and other witnesses. On 9.6.1986, the A.P.P. applied for summons to the police officer. On 31.7.1986, the A.P.P. said that he could not produce the witness and so prayed for sending a letter to the Director General of Prosecution, Bihar and the court sent the letter but it is found that no reply was received. The Court giving as a last chance adjourned the case on 11.2.1987, 20.3.1987, 6.4.1987, 21.4.1987, 6.5.1987, 5.6.1987 23.6.1987, 3.7.1987 and 20.7.1987, but neither the Investigating Officer was examined nor any other prosecution witness was examined and the court gave dates after dates for the examination of the prosecution witnesses with a warning that in case of non-examination of the witnesses, the prosecution case will be closed. It was on 24.7.1987 that warrants were ordered to be issued against P.W. 5, Satya Narain Yadav, Ganut Yadav (not examined), Rajendra Yadav (not examined) and Sachin Kumar Yadav. No witness was present on 30.10.1987 and on 7.11.1987. It was only on 28.11.1987 that P.Ws. 5 and 6 appeared. But no witness appeared on 5.12.1987 and 3.1.1988. It was on 15.1.1988 that P.W. 7 was present. Again on 30.1.1988 and 23.2.1988 and 20.3.1988, no prosecution witness was present. On 21.3.1988 accused were absent and their bail bonds were cancelled but no prosecution witness was present for examination. It was only on 28.11.1987 that P.Ws. 5 and 6 appeared. But no witness appeared on 5.12.1987 and 3.1.1988. It was on 15.1.1988 that P.W. 7 was present. Again on 30.1.1988 and 23.2.1988 and 20.3.1988, no prosecution witness was present. On 21.3.1988 accused were absent and their bail bonds were cancelled but no prosecution witness was present for examination. On 12.4.1988 accused appeared and bail was granted to them but on this date also, no prosecution witness appeared. Same was the position on 14.4.1988. It was on 26.4.1988 that P.W. 8 was examined and the prosecution case was closed. This is the sorry state of affairs about the examination of the witnesses by the prosecution and the court given dates after dates to the State to produce the witnesses. In the case of Basant Singh vs. State of Bihar, 1984 Cri. LJ (406) (supra), it has been said at page 1410 (para 2). "Of course, it is true, the Investigating Officer is an important witness, but cannot be substituted for an inevitable witness. If on account of certain compelling circumstance his attendance could not be procured, the extent of impact upon the prosecution case on account of absence of the Investigating Officer shall depend upon the facts and circumstances of each case." In the case of Barahmdeo Hazra vs. State of Bihar, 1987 BBCJ 340 (supra) a Division Bench of this Court has observed at page 344 in para 11. "Non-examination of the Investigating Officer is a serious lapse on the part of the prosecuting agency which we find in this case. The obscurity appearing in the case remained unexplained. We could not get what were the objective findings noted by the police officer which would have been helpful in appreciating the correctness or otherwise of the prosecution version." In another Division Bench decision in S.K. Rashid and another vs. State of Bihar, 1987 BBCJ 151 ; 1987 PLJR (NOC) 28, it has been observed in para 6. "True non-examination of Investigating Officer is not necessarily fatal to the prosecution. "True non-examination of Investigating Officer is not necessarily fatal to the prosecution. The court has to see whether the evidence of the Investigating Officer is essential for the case of the prosecution to succeed or not, the Court has to see at the same time that the accused is not unnecessarily harassed and unless it sees that for inevitable reasons the prosecution fails to produce the investigating officer, it may pronounce the judgment without the evidence of the Investigating Officer." In the case of Laxmi Narain Singh and others vs. State of Bihar, 1987 PLJR 804, a Division Bench of this Court has observed in para 5 at para 806. "It is only for the prosecution to produce and examine the I.O. We get from the judgment of the Court below that the I.O. of this case was dead and in that circumstance the prosecution should have fairly got the relevant part of the Diaries proved in evidence to avoid prejudice." In the case of Awadheshwar Singh & others vs. State of Bihar, 1989 BLJR 259 , a Division Bench of this Court has observed in para 16 and 17 as follows:– "There cannot be any doubt about it that in a case of this nature examination of the I.O. is essential and the non-examination of the I.O. is also fatal to the prosecution. But when the I.O. like any other witness cannot be easily available for his examination, the prosecution cannot be condemned. In this situation, I would like to observe that it is unfortunate that the police administration in this State has proved to be stumbling block in the disposal of criminal cases. The police of this State is probably interested in the case till the submission of the charge sheet only. The trial is delayed for want of examination of the investigating officer whose attendance sometimes is difficult during the trial. It shows non-cooperation on the part of the police administration of the State. The police of this State is probably interested in the case till the submission of the charge sheet only. The trial is delayed for want of examination of the investigating officer whose attendance sometimes is difficult during the trial. It shows non-cooperation on the part of the police administration of the State. Justice suffers on this account, but in special circumstances absolute result could not be allowed to depend on the attitude of the police if truth cannot emerge from the evidence on the record." A Division Bench of this Court again in the case of Kashinath Singh & others vs. State of Bihar, 1991 (2) PLJR 463 bas observed at page 468 (para 19): "Now coming to this aspect of the examination of the I.O., the learned counsel for the appellant has not shown any reference to any particular aspect as to how non-examination of the I.O. has resulted in any prejudice to the defence. The argument that non-examination of the I.O. is invariably resulted in causing prejudice to the accused and is fatal as an absolute proposition is fallacious. Law is that non-examination of the I.O. can result in follow of the prosecution case only in such cases where the defence wants to prove some material contradictions in the deposition of the witnesses by reference to their statements made during the investigation. Law is that non-examination of the I.O. can result in follow of the prosecution case only in such cases where the defence wants to prove some material contradictions in the deposition of the witnesses by reference to their statements made during the investigation. No doubt, their credibility or in the like manner when some material evidence cannot be brought on the record except examining the I.O. In the present case, nothing of this nature has been brought to our notice which can be said to have resulted in any prejudice to the appellants on account of non-examination of the I.O. A Division Bench of this Court in the case of Nagina Sharma vs. State of Bihar, 1991 (1) PLJR 238 of which also I was a member, had considered this aspect and after referring above mentioned decisions (except last one), has been held at page 265 (para 26) as follows:– "Thus from all this it is clear that the investigating officer is a material witness as he investigates the case, maintains the case diary goes to the place of occurrence, sends the dead body, after preparing inquest report for post mortem examination and also sends the injured for medical examination and then gets the post mortem report and the injury report as the case may be; he collects the materials is and evidence for the prosecution so that on the basis thereof the prosecution may stand on its own legs. It is he who has to explain each and every action at every stage of the investigation. His objective findings become relevant for the prosecution as well as the defence. He collects blood from the spot. He examines witnesses under section 161 Cr. P.C. and then appears in court himself in support of what he has done during investigation. Thus the investigating officer is a material witness whose non-examination cannot be ignored and the court cannot collect material for conviction of an accused from the investigation report or case diary unless he has been examined as a witness. In case. P.C. and then appears in court himself in support of what he has done during investigation. Thus the investigating officer is a material witness whose non-examination cannot be ignored and the court cannot collect material for conviction of an accused from the investigation report or case diary unless he has been examined as a witness. In case. Investigating officer does not appear for valid and legal reasons as being dead or not being available easily, then investigation done by him has to be proved otherwise in accordance with law and it has to be put in evidence to enable the court to consider the admissible part of the record to analyse and appreciate and test the credibility of oral evidence. If the examination of the investigating officer is very essential, and he is not appearing, then the court under law has power to adopt coercive measure as for the appearance of the investigating officer as and when needed. But every non-production and non-appearance of the investigating officer is not fatal to the production of prosecution. When the statements of the eye witnesses and the evidence produced by the prosecution are trustworthy and reliable, then this lacunae cannot have any fatal, effect. The non-examination of the investigating officer will not make place of occurrence vague and doubtful if the evidence of the witnesses is such which fixes the place of occurrence. Similarly, if no contradiction is pointed out in the statement of the witnesses in the light of the statement given to the I.O. then non-examination of the I.O. has no effect. If some matters are deposed before the court which have not been earlier said under Section 161 Cr. P.C. then it becomes improvement or embellishment and the Court can ignore the same. The non-examination of the I.O. becomes relevant matter when the place of occurrence, site plan and other materials and other objective findings are concerned. On account of non-examination of the I.O. if prejudice is caused to the accused in respect of such matters, then the court will give benefit of the same to the accused. Otherwise every non-examination is not fatal." 20. Non-appearance of the Investigating Officer is not a choice. The Court under section 352 (2) Cr. P.C. of 1898 could issue summon for witnesses in cases, started otherwise of police report at the request of the prosecution. Otherwise every non-examination is not fatal." 20. Non-appearance of the Investigating Officer is not a choice. The Court under section 352 (2) Cr. P.C. of 1898 could issue summon for witnesses in cases, started otherwise of police report at the request of the prosecution. There was no provision for a case on police report. Section 252A was brought in by amending Act XXVI of 1955. Inspite of that provision courts have been holding divergent views. In the cases of State of Bihar vs. Ramlal, 1961 (2) Cr. L.J. 921, State of Gujarat vs. Bhadeja, 1964 (2) Cri. L.J. 536, State of Bihar vs. Kaliram Nandlal, 1968 Cri. L.J. 369 and Smt. Juotermaree Bose vs. Birendra Nath Pradhan, AIR 1968 Calcutta 963 it has been held that it was not the duty of the Magistrate to compel the attendance of any of the witnesses applied for. But some courts have been holding otherwise. In the case of State of Orissa vs. Sheocharan Singh, 1962 Cri. L.J. 209, it was said that the court was not powerless when the parties fail to produce evidence and the duty of the court is to enforce the attendance of the witnesses as provided under the Code of Criminal Procedure, and that it is not proper to acquit an accused without making effort to ensure the production of the material witness and the prosecution alone could not be held responsible for producing of witnesses." In the case of State of Bihar vs. Palo Mistry, AIR 1964 Patna 351, this Court held that when the prosecution through its agency fails to procure the witnesses, that court could take coercive measures under law to compel the attendance of the witnesses as provided under Section 54 of the Code." In the case of Public Prosecutor vs. Dr. Sabargi Mudaller, AIR 1965 Madras 31, it was said that inspite of the laches of the prosecution to produce witnesses the court could exercise its power under section 540 of the Code of Criminal Procedure to summon the material witnesses." In the case of Nand Kishore vs. State of Bihar, 1967 Cri. Sabargi Mudaller, AIR 1965 Madras 31, it was said that inspite of the laches of the prosecution to produce witnesses the court could exercise its power under section 540 of the Code of Criminal Procedure to summon the material witnesses." In the case of Nand Kishore vs. State of Bihar, 1967 Cri. L.J. 1369, it was held that under section 251A (7) the court is empowered to issue summons when required and the court could under sub-section (11) issue necessary process and could also exercise powers under section 540 of the Code in the ends of justice." In the case of State of Mysore vs. K.C. Narsimha Gowda 1969 Cri. L.J. 8, it was held that the court should take necessary steps for the service of the summons where it is found that there was no laches on the part of the prosecution. In the case of Mysore vs. Kalilulla Ahmed Sharif and another, 1971 Cri. L.J. 226, a Division Bench has held at page 228: "In a case like this where the prosecution has not undertaken to produce the witnesses and where they have made a specific prayer in the charge sheet to issue summons to the witnesses mentioned therein, it is the duty of the court to issue summons to those witnesses and insist on their attendance. If the witnesses do not come to court in spite of the summons, it is open to the Court to issue a warrant and see that the witnesses appear before the court." In the case of State of Mysore vs. B. Rama 1975 Cri. L.J. 1257, it was said that when the witness does not come, the court should issue warrant and it was not the entire responsibility of the prosecution and so the court could issue coercive process." In the case of The Public Prosecutor vs. Gunda Rao, 1976 Cri. L.J. 1835 it has been observed at page 1836 (para 8): "The duty is cast on the Magistrate to take coercive steps to compel the attendance of the witnesses merely because the prosecution is lethargic and neglectful in producing its witnesses, it does not follow that the Magistrate has no power to compel the attendance of the witnesses." This very judgment refere to other decisions namely, The Public Prosecutor, A.P. vs. Panchiyappa, AIR 1965 Andhra Pradesh: 1965 Cr. L.J. 542 that: "In a warrant case, once the Magistrate takes cognizance of a case, it becomes his bounden duty to go to root of it and do justice in the matter. The Criminal Procedure Code has given very wide powers to the Magistrate only with a view to clear any possible obstacle in the way of the Magistrate to do justice in a case. Taking a cognizance of case means that the offence has been committed and in such a situation, it is necessary for the Magistrate to find out who the culprit is and in this process he must adopt every method available to him under law for coming to the decision. If the prosecution is slack and neglectful in its duties it does not follow that the Magistrate also should fall in line with it. Where the accused in a warrant case pleads not guilty and claims to be tried, but the Police Inspector fails to produce the witnesses on the date of hearing it is for the Magistrate to compel their attendance to dispose of the case according to law. The Magistrate has to exhaust all his powers before he makes his mind to dismiss the case. "In this very judgment of The Public Prosecutor vs. Gunda Rao (supra), the learned Judge has referred to a decision of Madras High Court in the case of Rangaswami Naickar vs. Muruga Naickar, AIR 1954 Mad 169 : 1954 Cr. L.J. 123 in which it has also been held that "A Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them and that duty is to investigate the truth." A Division Bench of this Court, in the case of State of Bihar vs. Mangli Lal Ram and another, 1973 PLJR 455: 1974 Cr. L.J. 221 at page 224, has observed at page 459 (para 5 and 6) as follows:– "Para 7. In warrant case instituted on police report the primary duty, is of the prosecution to produce witnesses; but since the prosecution which is the State or the Public Prosecutor has no power or machinery to compel attendance of the witnesses it is fully justified in seeking help of the Court for their production. In warrant case instituted on police report the primary duty, is of the prosecution to produce witnesses; but since the prosecution which is the State or the Public Prosecutor has no power or machinery to compel attendance of the witnesses it is fully justified in seeking help of the Court for their production. Help of the Court may be asked for by praying to the Court to issue summons to the prosecution witnesses. If after service of summons a witness does not appear, the prosecution may ask the Court to issue warrant of arrest. But unless such a prayer is made, it is not the duty of the Court either to issue any summons to the prosecution witnesses or to issue warrant of arrest if a prosecution witness does not appear even after service of summons. I must hasten to add that there is a difference between power of a Court and duty of a Court. Even if the prosecution does not make a prayer for issue of summons or for issue of warrant of arrest in a given case, the power is there. The power is there, as some of the cases have said, under the general powers of the Court, meaning thereby the inherent power of the Court. Or, such power is to issue summonses may be spelt out under Section 540 of the Code and the power to issue warrant of arrest is surely there under Section 90 of the Code it may be exercised suo motu or may be exercised on being asked to do so. But then to say that even if the prosecution is negligent or does not make a prayer to issue summonses or to issue warrants of arrest, it is imperative for the Court to follow suo motu the prosecution witnesses like a prosecutor, to say the least, is not justified. It is also not correct to say that it is not the duty of the Court to issue summons or warrant of arrest when the prosecution asks the Court to do so. But ordinarily and generally, unless there are special reasons to refuse the prayer, it is the duty of the Court, meaning thereby, it is imperative for the Court to allow the prayer of the prosecution to issue summons or to issue warrant of arrest, as the case may be. But ordinarily and generally, unless there are special reasons to refuse the prayer, it is the duty of the Court, meaning thereby, it is imperative for the Court to allow the prayer of the prosecution to issue summons or to issue warrant of arrest, as the case may be. The Court may refuse to do so, if it finds that the prosecution is guilty of remissness or laches. But then the Court cannot refuse this prayer merely because sub-section (7) of Section 251A does not provide of this." "Para 6. If on the facts and circumstances of a case the Court finds that the prosecution has not been able to produce its witnesses even if the helping hands of the Court were extended to it then it is justified, rather it will be its duty in a hard case where the accused has been harassed to attend the Court on many dates to close the prosecution case and proceed to conclude the trial in accordance with law as provided in various sub-sections of Section 251A after Sub section (7)." 21. The new Code of Criminal Procedure, 1973 has introduced Sections 242 and 352. Section 242 (2) provides for the issue of summons to any of the prosecution witnesses to attend and produce documents. Section 352 provides that if the witness so summoned does not appear then the Court can take cognizance of the offence and punish the person so summoned and also give him a sentence or fine not exceeding Rs. 100/-. A Full Bench of Madras High Court, in the case of the State vs. Veerappan and others, AIR 1980 Madras 260, has observed at page 267 (para 22) and 269 (para 24) as follows:– "Para 22. No doubt, there is no specific provision in either the relevant sections of Chapter XIX which deal with the trial of warrant cases instituted on the police reports by Magistrates or Chapter XX relating to the trial of summons cases instituted on police report, for acquitting the accused on the ground that the prosecution had not produced its evidence. Nevertheless provisions have been made in the present Code, for summons to be issued to the witnesses on the application of the prosecution and a duty is also cast on the prosecution to produce all its evidence. Nevertheless provisions have been made in the present Code, for summons to be issued to the witnesses on the application of the prosecution and a duty is also cast on the prosecution to produce all its evidence. Thus there is a duty cast on the court on an application by the prosecution to issue summons to the witnesses and secure the presence of witnesses by exercising all the powers conferred on it by the Code for that purpose and duty is also cast on the prosecution to produce all its evidence and to seek the assistance of the court for so doing by applying to the court for the issue of summons to the witnesses. Therefore, in our view, an acquittal of the accused merely on the ground that the prosecution had not produced the witnesses would not be proper if the court had not on an application by the prosecution discharged its duty of summoning and enforcing the attendance of witnesses. We also notice that almost all the decisions which have held such an acquittal as improper dealt with cases in which the Magistrate had not discharged the aforesaid duty. "Para 24. After carefully considering all the aforesaid decisions and the views expressed therein, we are of the view that if the prosecution had made an application for the issue of summons to its witnesses either under Section 242 (2) or 254 (2) of the Criminal Procedure Code it is the duty of the court to issue summons to the prosecution witnesses and to secure the witnesses by exercising all the powers given to it under the Criminal Procedure Code, as already indicated by us and if still the presence of the witnesses could not be secured and the prosecution also either on account of pronounced negligence or recalcitrance does not produce the witnesses after the Court had given it sufficient time and opportunities to do so, then the Court being left with no other alternative would be justified in acquitting the accused for want of evidence to prove the prosecution case, under Section 248 Cr. P.C., in the case of warrant case instituted on a police report and under Section 155 (1) Cr. P.C. in summons cases." 22. P.C., in the case of warrant case instituted on a police report and under Section 155 (1) Cr. P.C. in summons cases." 22. In spite of these provisions in the Code, it has been found that the prosecution witness do not come and the prosecution as well as the defence both suffer on account of prolonged adjournments and also on account of material not coming on the record for and against the prosecution and the defence. This process has assumed the shape of melady which has been noticed in various pronouncements from time to time. In the case of Basant Singh and others vs. State of Bihar, 1985 Cri. L.J. 1406, a Division Bench of this Court, at page 1409 (para 23 & 24), has observed as follows:– "Para 23. During the recent times, it has been noticed that the trial court has to face tremendous difficulties in procuring the attendance of the Investigating Officer for the reasons that they are transferred frequently and the sessions trial is taken up after some delay from the time when the Investigation had been (completed)? in the case. The problem has also to be faced in case the Investigating Officer is dead or he retires from service and in the case of the latter in spite of prolonged adjournments the attendance is not procured." "Para 24. Under the circumstances, in such exigencies the writings of the Investigating Officer is proved by a competent witness in the diary. Therefore, a question arises that how far a Court is entitled to make use of that portion of the diary during the trial. Also it has to be considered that non-examination of the Investigating Officer as to what extent has prejudiced the case of the accused and whether that can be a ground for acquittal." A Division Bench of this High Court, in the case of S.K. Rashid and another vs. The State of Bihar, 1987 BBCJ 151 : 1987 PLJR (NOC) 28 has observed at page 155 (para 6) as follows:– "Difficulty, however, which the Courts in Bihar face, is that even for executing the process of the Courts help of the police hierarchy is necessary. Without them and without they desiring to implement the summons and warrants of the Courts, all efforts of the Courts for securing the attendance of the witnesses fail. Without them and without they desiring to implement the summons and warrants of the Courts, all efforts of the Courts for securing the attendance of the witnesses fail. What has alarmed us, however, is the recessive tendency of the police personnel they are taking the processes of the Courts as lazily and as casually as they can as they have no priorities for the proceedings in the courts one before attending the other works for which they have their reasons of preference. As in this case in many of cases Courts have to face a predicaments which the prosecution alone can solve, where it does, however, but to tell the Court that it has no other witnesses to examine and to take summons only to inform the Court that it has heard nothing from the police about the service thereof. Several adjournments given by the Court at the instance of the prosecutor only for ensuring the attendance of the official witnesses including the Investigating officer keep the trials pending for years and even after inordinate wait, the Courts are compelled to decide the cases without their evidence. A certain amendment has been made in the Code of Criminal Procedure by the State of Uttar Pradesh and for such defaulting witnesses adequate provisions have been made to punish both judicially and administratively. It is high time that in the State of Bihar also some provisions are made and in the case it is found that a certain officer of the State has ignored the summons or warrant of the Court, adequate action is taken against him. The administration of the State, even without any such amendment is fully empowered and competent to take notice of the defaults of its officers in responding to the summons and warrant of the Court and it can immediately start taking notice of the conduct of the investigating officer of the police by suitably punishing them by awarding 'Black marks' at least two for default in each case. He cannot satisfy our concern by merely making these observations and we feel that in the ends of justice a direction to this effect to the State of Bihar is necessary. He cannot satisfy our concern by merely making these observations and we feel that in the ends of justice a direction to this effect to the State of Bihar is necessary. We, accordingly, direct the State of Bihar to take administrative notice of the default of its officers in not responding to the summons and warrants of the Courts for their appearance as witnesses and after giving them opportunity to show cause 'to award suitable punishment' as their defaults cause injury to justice. Such defaults undoubtedly are acts of indiscipline and inefficiency. To begin with the Sessions Judges in each Sessions Division of the State shall be well advised to furnish to the District Magistrate and the Superintendent of Police of each administrative district of the State a list of pending cases in which official witnesses have not responded to the summon and the warrants and also the list of the cases which for the default in serving summons and warrants await disposal and the District Magistrate and the District. Superintendent of Police shall be well advised to take administrative action to ensure attendance of such official witnesses in the Courts and execution of the processes. This Court should issue a circular forthwith to Sessions Judges to comply with this procedure and the State of Bihar should issue circulars to the District Magistrates and the District Superintendents of Police to comply with the demands of the Courts for examination of the witnesses in the trials." In the case of Awadheshwar Singh and others vs. The State of Bihar, 1989 BLJR 259 , a Division Bench of this Court noticed the non-examination of the Investigating Officer in spite of best efforts made by the trial court from the level of the Superintendent of Police to the Inspector General-Cum-Director General of Prosecution, Bihar. The Division Bench has quoted the following observations of the trial court as such: "The I.O. was transferred and his whereabouts could not be located for a pretty long period. Efforts were made to procure his attendance but when the efforts proved futile the same was given up and the prosecution case was closed without evidence of the I.O. There cannot be any doubt about it that in a case of this nature examination of the 1.O. is essential and the non-examination of the I.O. is also fatal to the prosecution. But when the I.O. like any other witness cannot be easily available for his examination, the prosecution cannot be condemned. In this situation, I would like to observe that it is unfortunate that the police administration in this State has proved to be a stumbling block in the disposal of criminal cases. The police of this State is probably interested in the case till the submission of the charge sheet only. The trial is delayed for want of examination of the Investigating Officer whose attendance sometimes is difficult during the trial. It shows non-cooperation on the part of the police administration of the State. Justice suffers on this account but in special circumstances absolute result could not be allowed to depend on the attitude of the police if truth cannot emerge from the evidence on the records." The same very Bench has observed in para 17 as follows:– "Sri Srivastava was in service until his superannuation on 27.12.1984 and was given extension of two years and thus until effective retirement being with effect from 27.12.1986. It cannot lie in the mouth of the State that Sri Srivastava could not be examined as a witness in the trial Court because he had no information. Information, if any, including through the processes of the Court were required to be given to him by one or the other agency of the State of Bihar. That there is no effective machinery at work is a fault which the State must immediately correct. If it does not do it miscarriage of justice shall be entirely due to the fault of the State of Bihar." These observations show the scandalous, deliberate and rather apathetic attitude on the part of the police administration to put hindrance in the administration of the justice. The judicial records of this Court as well as the Court below will bear out that it is due to the non-examination of the, I.O. that the disposal of this case was delayed. It will be in the fitness of things now that the courts below should adopt the attitude of coercive measures after giving due and reasonable allowance for non-appearance of the I.O. Service of notice should be effected through the S. Ps., I. Gs, or the D. I. Gs of the range. It will be in the fitness of things now that the courts below should adopt the attitude of coercive measures after giving due and reasonable allowance for non-appearance of the I.O. Service of notice should be effected through the S. Ps., I. Gs, or the D. I. Gs of the range. The courts below must understand that the police witnesses are just like ordinary witnesses and they do not deserve any extra importance at the cost of justice. It is a case the judgment of which must be sent to the Chief Secretary, Bihar, Director General of Police, Bihar and the Inspector General of Prosecution, Bihar, for a serious consideration and to know as to which stage the incompetency, lethargy, slackness, inefficiency and to some extent collusion with the other side for the reasons best known to the officers concerned have gone and on account of this attitude of the police administration how far justice is suffering. Back log of cases are increasing and the people of the State are losing faith in the institution of the courts and are thinking that it is a State in which there is no respect of law." A Division Bench of this Court, in the case of Hazari Choudhary and others vs. The State of Bihar, 1987 PLJR 1166 after referring to the observations made in the case of S.K. Rashid and another vs. State of Bihar (supra), has observed at page 1170 (para 7) and 1171 (para 12 & 13) as follows:– "7. Lamentations and even reprimand have failed to awaken the police administration of the State. Until now the administration of the State has not shown any awareness much less concern to ever deteriorating investigation and ever increasing default of its officers in providing necessary evidence to the Court." "Para 12 We cannot, however, refrain from taking notice of the failure of the State Government in exercising the control upon its police force and not punishing defaulting officers for such serious dereliction as one in the instant case. Only way to deal with the matter is to award a cost of rupees twenty thousand against the State Government to compensate the informant for the loss that has been occasioned only on account of the default of the investigating officer in not discharging his duty in accordance with law. Only way to deal with the matter is to award a cost of rupees twenty thousand against the State Government to compensate the informant for the loss that has been occasioned only on account of the default of the investigating officer in not discharging his duty in accordance with law. It shall be open to the State Government to proceed against the erring officer (Investigating officer) and realised from him the cost awarded against it and compensate itself accordingly." "Para 13 We are making this order keeping in view the submission as of the learned Advocate General was has agreed that it is high time for administration of the Government of the State to read the writing on the wall and shake its lethargy off. He has, however, suggested that a modest beginning be made and so we keep the cost limited to a sum of Rs. 20,000/- (twenty thousand) only although according to the evidence on the record, the informant had sustained a loss of about two lakh rupees in the dacoity." 23. Just as the Investigating Officer does not appear so is the case with the other official witnesses including a very important and essential witness that is the doctor whose non-appearance also is not less important than the Investigating Officer. He is also transferred from one place to another and retires and in some cases he loaves this world. The case also continues from day to day on account of non-appearance of the doctor. The doctor's examination is essential about the injury he has noted or the injuries on the deceased. His non-examination is also in some cases, prejudice to the accused as well as the prosecution which is also a serious matter. Court's records make out that on account of absence of the doctor, cases have been adjourned from day to day and from time to time and inspite of the efforts by the prosecution agency, they do not turn up. Their case also has assumed the same magnitude as that of the Investigating Officer. In spite of the request made to the Chief Medical Officer-cum-Civil Surgeon and the Director of Health Services, the doctors are not available for their evidence in the Court. In the criminal cases, the Investigating Officer and the doctor are two important witnesses for the ends of justice. To obviate this difficulty, the provisions have been made in the Cr. In spite of the request made to the Chief Medical Officer-cum-Civil Surgeon and the Director of Health Services, the doctors are not available for their evidence in the Court. In the criminal cases, the Investigating Officer and the doctor are two important witnesses for the ends of justice. To obviate this difficulty, the provisions have been made in the Cr. P.C. by inserting Section 294 of the Code yet prejudice may be caused and if the prejudice is caused, the benefit of the same is to be given to the accused by acquitting him which also causes prejudice to the interest of the justice and the person who suffers the injustice at the hands of the accused and so the confidence in judiciary and sanctity of the court is shaken. Therefore, the courts should adopt the procedures laid down in Section 242 (2), 244 (2) and 254 (2) besides the provisions contained in Section 350 of the Code of Criminal Procedure. The coercive measures should be adopted in suitable cases. Even if it is found that the doctors and the Investigating Officers do not appear in spite of service of summons and are avoiding the appearance for some reasons, is not justified under the law or there is slackness on the part of the prosecution agency in spite of repeated opportunities. 24. The courts have to do justice and the Court's power under section 311 of the Code is also there which can be exercised in the case of doctors al well as the Investigating Officers. The Supreme Court, in a recent decision, in the case of Mohanlal Shamji Soni vs. Union of India and another, AIR 1991 SC 1346 , has been pleased to observe at page 1349 (para 10) as follows:– "It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice. It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not susmmoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." 25. The instant case, after considering and scrutinising the evidence brought on record by the prosecution and on finding the same to be reliable and trustworthy, the prosecution case is well made out. Appellants, Dashrath Mandal, Sattan Mandal and Laddu Mandal had caught hold of the deceased and Sattan Mandal cut the neck of Sarmi Yadav. The instant case, after considering and scrutinising the evidence brought on record by the prosecution and on finding the same to be reliable and trustworthy, the prosecution case is well made out. Appellants, Dashrath Mandal, Sattan Mandal and Laddu Mandal had caught hold of the deceased and Sattan Mandal cut the neck of Sarmi Yadav. Dashrath Mandal, Laddu Mandal were armed with country made pistol Amrit Mandal had fired at Kameshwar Mandal who has died during the trial. 26. As regards the appellant Garbhu Mandal who is not named in the FIR, yet do not find out on the spot and which fact has been established by the evidence on the record. The fact that the name of appellant no. 3 is not in the FIR, will not have any effect as his participation has been well made out but specific role has not been assigned to him. P.W. 3, the informant has said that he had identified Garbhu Mandal who had crossed the river. He also says that Amrit Mandal, Dashrath Mandal. Laddu Mandal and others had caught hold of him and Sattan Mandal had cut the neck of Sarmi P.W. 1 Dabo Yadav has said that Garbhu Mandal was amongst the chasers of Sarmi Yadav. Sarmi Yadav fell down his neck was cut by Sattan Mandal. P.W. 4 Gaini Yadav has also said about Garbhu Mandal amongst the persons crossing the river and Garbhu Mandal also catching bold of Sarmi. Thus, the presence of Garbhu Mandal has been admitted by two eye witnesses amongst the persons who had chased and caught hold of Sarmi. The presence of all the appellants on the spot and their participation in chasing and cutting the neck of Sarmi Yadav is well made out. Three other accused persons have already died during the trial. The appellant's sharing of the common object of the unlawful assembly is also well made out. The two deceased were fired at by Amrit Mandal (accused since deceased). Sarmi Yadav on getting the injuries began to run and he was caught hold of and then his neck was cut. All these go to show that it was not a simple catching hold. The main object may be inferred from the circumstances of the case. It may also develop at the share of the moment. Sarmi Yadav on getting the injuries began to run and he was caught hold of and then his neck was cut. All these go to show that it was not a simple catching hold. The main object may be inferred from the circumstances of the case. It may also develop at the share of the moment. When the victim Sarmi on getting gun shot from Amrit Mandal ran, he was chased, so the intention was that he should be killed, that is why three appellants caught hold of him and appellant Sattan Mandal cut his neck. The nature of the evidence is such which shows that they got their intention. The participation of the appellants in the chasing after the victim had been shot at and after catching hold of him, the action of Sattan Mandal in cutting his neck, shows that they had intention to kill. The trial court has rightly convicted the appellants under Section 302/34/149 IPC and sentenced as said above. 27. In the result, the conviction and sentences of all the appellants awarded by the trial court are upheld and accordingly, this appeal is dismissed. Appellants, Dashrath Mandal, Garbhu Mandal and Laddu Mandal are on bail and as such, their bail bonds are hereby cancelled and they are directed to be taken into custody to serve out their remaining period of sentences. Appellant Sattan Mandal is already in jail and so, he will serve out the remaining period of his sentence.