Judgment 1. There are four appellants in Cr. Appeal No. 176/86 whereas there is one appellant in Cr. Appeal No. 202/86. These appellants were charged and tried before the 4th Additional Sessions Judge, Gaya, for the offence punishable under Section 302 I.P.C. for the alleged murder of Balmiki Sharma on 31st of May, 1980 at Aliganj Middle School which is 12 K.M. South-West of Ghosi Police Station. 2. General Election for Bihar Assembly Was held in the year, 1980. Ghosi was one of the Assembly Constituencies. There was a polling booth at Aliganj Middle School. The voters had formed que for casting their votes. Sagar Singh (informant) of village Chopha which falls within the Ghosi P.S. along with his Covillagers, Madhvendra Sharma, Ragho Singh, Siri Niwas Sharma, Madan Sharma and Balmiki Sharma arrived at the polling booth at about 8.40 a.m. and stood in que for casting their votes. In the meantime some slogan was heard from an orchard at about 20 bamboos from the polling booth. The informant also heard some sounds of gun fire and immediately, thereafter, a mob of about 100 persons raided the polling booth with guns and rifles in their hands. The informant identified appellants, Lala Yadav and Rajendra Yadav in the mob. Lala Yadav was holding rifle and Rajendra Yadav had a double barrel gun. As soon as they came to the booth, Rajendra Yadav gave order to kill the persons who had come to cast their votes thereupon Lala Yadav aimed his rifle at Balmiki Sharma, and opened fire. Balmiki Sharma was hit by the shot and he fell down on the floor. Informant and the other persons standing near the booth started running away helter and skelter. Lala and Rajendra picked up the body of Balmiki Sharma and started dragging him. Some persons of the mob took away the ballot papers and ballot boxes. Sagar Singh reached Ghosi Police Station at about 4.15 p.m. and submitted a written report of the occurrence on the basis of which case under Sections 302, 201, 147, 148, 149 and 302, I.P.C. and Section 27 of the Arms Act was registered against Lala Yadav and Rajendra Yadav and 100 unidentified persons. The dead body of Bharat Sharma could not be traced out and, accordingly, the Investigating Officer heard that the dead body of the deceased was cut into pieces and disposed of at some unknown place. The dead body of Bharat Sharma could not be traced out and, accordingly, the Investigating Officer heard that the dead body of the deceased was cut into pieces and disposed of at some unknown place. He did not make any effort to trace out the dead body. 3. It is significant to note that although the murder is alleged to have been committed, at a polling booth No. 128 official report of the occurrence was given at the Police Station. During investigation it transpired that three other appellants who do not figure in the written report of the informant were also involved in the occurrence and so charge- sheet was submitted against the named accused, namely, Lala Yadav and Rajendra Yadav and, remaining three of the appellants, namely, Nand Kumar Yadav, Raghu Yadav and Khayali Yadav 4. During trial 8 witnesses hav been examined on behalf of the prosecu tion to support the charges frame against the appellants. Learned Add tional Sessions Judge accepted, the testimony of the informant and othr. eye-witnesses who were present at the booth at the time of the occurrence and these witnesses are Ragho Singh. P.W. 1, Madan Mohan Sharma P.W. 2, Ram Bhaju Sharma P.W. 4, Madhvendra Sharma P.W. 6, Sagar Singh P.W. 7. 5. The learned Additional Sessions Judge on appreciation of the evidence of these witnesses held that the occurrence took place as narrated by the eye-witnesses. The learned Judge rejected the plea of alibi of appellant, Lala Yadav that at the material point of time he was admitted for his treatment in Hilsa Sub-Divisional Hospital where he was admitted two days prior to the occurrence. The case of alibi set up by Lala Yadav was investigated by the Deputy S.P. on the direction of the Chief Judicial Magistrate. The Doctor who treated this appellant Was also examined. 6. The pertinent question is whether the trial Judge was justified in convicting these appellants despite several serious infirmities in the evidence highlighted by the learned Counsel forme appellant. 7. Before entering into facts it would be appropriate to comment that the occurrence had taken place in presence of Polling Officer and Presiding Officer of the booth. Indeed, if an incident of murder and booth looting had taken place at the time of polling then the Presiding Officer, must have suspended the polling. 7. Before entering into facts it would be appropriate to comment that the occurrence had taken place in presence of Polling Officer and Presiding Officer of the booth. Indeed, if an incident of murder and booth looting had taken place at the time of polling then the Presiding Officer, must have suspended the polling. But when the Investigating Officer visited the polling booth he saw the polling going on peacefully. The examination of the case diary shows that although a cognizance offence was made out on a report of Sagar Singh, no case was registered, only a sanha entry was made. It appears that the officer-in-charge deputed an A.S.I. to investigate the report. A.S.I. was first Officer to investigate the case who visited the polling booth and took the statement of some of the witnesses. He also took the statement of returning officer and polling officer but surprisingly enough they have not been made witnesses. It has been asserted by the defence that no occurrence as alleged by the prosecution happened at the polling booth. There is allegation in the written report that mob looted ballot box and ballot papers. But no case was registered for electoral offence. According to the defence Returning Officer only sent a report of some disturbance at the polling booth. The most serious unpardonable infirmity is the non-examination of the Returning Officer and other officials present at the booth who were independent witness and their evidence was essential for unfolding of the prosecution case. This infirmity cannot be brushed aside. It is well settled by the decision of the Hon ble Supreme Court that the witnesses particularly independent witness essential for unfolding of the prosecution case must be examined irrespective of the fact that the evidence goes in favour or against the prosecution case. 8. In Habeeb Mohammad v. State of Hyderabad, reported in AIR 1954 SC 51 , the Hon ble Supreme Court observed that "a top-ranking Police Officer who was present at the scene of the occurrence was a material witness. He was not examined during trial on the ground that if produced, he would not speak the truth". 8. In Habeeb Mohammad v. State of Hyderabad, reported in AIR 1954 SC 51 , the Hon ble Supreme Court observed that "a top-ranking Police Officer who was present at the scene of the occurrence was a material witness. He was not examined during trial on the ground that if produced, he would not speak the truth". The Hon ble Supreme Court observed that "not only does an adverse inference arise against the prosecution case from his non-examination of that Police Officer as a witness, but circumstance of his being withheld from the Court cast a serious reflection on the fairness of the trial." The Lordship observed, in our opinion, the true rule applicable in this country on the question whether it is the duty of the prosecution to produce material witnesses has been laid down by the Privy Council in the case of Stephen Senivaratne v. The King, AIR 1936 PC 289 (B), and it is in these terms : "It is said that the state of things above described arose because of a supposed obligation on the prosecution to all every available witness on the principle laid down in such a case as Ram Ranjan Roy v. Emperor, AR1915 Cal 545 (C) to the effect the all available eye witnesses should be called by the prosecution even though as in the case cited, their names, were on the list of defence witnesses their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case." "Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence if it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution, is based must, of course be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution." "In a long series of decisions the view taken in India was, as was expressed by Jenkins, C.J. in AIR 1915 Cal 545 (C), that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent not the police but the Crown, and this duty should be discharged fairly and fearlessly with a full sense of the responsibility attaching to his position and that he should in a capital case place before the Court the testimony of all the available eye-witnesses, though brought to the Court by the defence and though they give different accounts, and that the rule is not a technical one, but founded on common sense and humanity." 9. Learned counsel for the appellants has argued that the informant has named only those witnesses who had to come with him and he also identified only two persons, namely, Rajendra Yadav and Lala Yadav in the mob who were on inimical term with informant and witnesses due to political and caste rivalry. It has been submitted that there was no motive for Rajendra Yadav to kill Bharat Sharma. It has been submitted that the evidence is not consistent as to the place from where firing was resorted to. It is not necessary to consider these testimonies. 10. It is extremely significant that no report was sent to the returning officer/ the Election Commission asprovided in the Presiding Officers Hand Book. The learned trial Judge has also noticed this infirmity in paragraph No. 8 of its Judgment where learned Judge has observed that : "Therefore, it was submitted by the learned defence lawyer that the fact must have been reported by the Presiding Officers to the Superior authorities and the polling also must have been suspended for some time due to this disturbance. As a matter of rule in such a situation the polls are suspended and a detailed report is submitted to the Returning Officer by the Presiding Officer concerned and the facts are also noted in the Presiding Officers Diary. Therefore, it has been rightly submitted by the learned defence lawyer that the evidence of the Presiding Officers of the two polling booths as well as of the polling officers was necessary But the prosecution failed to examine either of the two Presiding Officers or any of the Polling Officer of the two parties. The records in this connection were also not called for bv the prosecution for which no reason has been assigned. However, the I.O. has stated in his evidence that he has recorded the statements of the two Presiding Officers of the polling booths Nos. 128 and 129. But neither the l.O. cited these two Presiding Officers as witnesses in this case nor the prosecution examined them in this case. It is true that they were the most important and competent witnesses to support the prosecution story and the prosecution suffers from this weakness. 11. For the reasons discussed above, we constrained to set aside the conviction of the appellants without examining the question whether the evidence of the eye-witnesses examined in the case was credible. The conviction of the appellants must be set aside because the trial was not fair since independent witnesses like the Presiding Officer, Polling Officers and- police force stationed at the booth, were not produced. The charge, therefore, must fail. Both the appeals are accordingly allowed. The conviction of the appellants is set aside and they are acquitted and they are discharged from the liability of their bail bonds.