JUDGMENT A.K. Mishra, J. 1. The appellant has been convicted for committing an offence under Section 307 of the IPC. He has been sentenced to undergo R.I. for a period of four years. The appellant has been found guilty of causing injury, by service gun 303, on injured Munnisingh. 2. As per prosecution case the appellant was serving as constable in 8th Battalion of S.A.F., Gwalior (M.P.). On the night of 23-7-82 at about 11:45 p.m. he called his neighbour Hawaldar Munnisingh out of his portion of house and fired from his service gun 303 bore which hit Munnisingh on his left ribs and bullet went out from back. Munnisingh was taken to Medical College Hospital. One injury was found on the person of Munnisingh. Sub-Inspector B.S. Bhadoriya was on duty. He met Munnisingh in the hospital. Incident was narrated to him, on which an offence was registered under Section 307, IPC, at Police Station, Kotwali and first information report was lodged vide Ex. P-2. One empty cartridge was recovered. After committing the offence the accused absconded according to Panchnama Ex. P-6, he was arrested on 25-7-82. 3. Accused abjured the guilt and contended that he was falsely implicated in the case. 4. Learned counsel for the appellant has submitted that in the instant case investigating officer has not been examined which was caused serious prejudice to the case of the accused. Certain explanations were required to be obtained from. B.S. Bhadoriya who was not cited as a witness he had done the initial investigation. It is further submitted by Shri S.C. Datt, Senior Advocate that the report of ballistic expert has not been produced with respect to empty cartridge, hence, adverse inference should be drawn against the prosecution. His further submission is that the evidence on record does not make an offence beyond periphery of doubt against the accused appellant. 5. Learned counsel for the State has submitted that there is overwhelming evidence on record to prove the guilt and since the appellant was a police man, it appears that right from the beginning the investigating agency was siding with him and the observation made against the investigating agency by the Court goes to show that he was sided being kin'man, the accused was in the service of police special armed force S.A.F. Thus, no adverse inference need be drawn. The occular evidence and circumstantial evidence is enough to convict the appellant. 6. Munnisingh (P.W. 3) is an injured person. He has deposed that he was sleeping in his house along with his wife Kamlesh Kumari, son Shivkumar Singh aged about 10-12years, daughter Rajkumari aged 4years and one infant son Rajkumar. From the side of house of Rajdhar Pandey voice came that he was bitten by scorpion. The portion of house of accused Rajdhar Pandey is adjoining to the portion of house of injured and is in same compound. It was the dark night. A gun shot was fired which went through his left rib. Another shot was fired which he escaped, he saw a gun in the hand of Rajdhar Pandey. He asked Rajdhar as to firing, he did not reply and went away; Witness was declared hostile. He has mentioned that in the first information report he had mentioned the name of Rajdhar on the basis of suspicion as he had seen Rajdhar on the spot, with gun. Since it was dark, he was not in a position to see that the accused had fired on him. It appears that this witness has been won over by the accused and has spoken only a part and has tried to suppress the details which are divulged by his wife. 7. Kamlesh Kumari (P.W. 10) stated that her husband was in military service. He had come to Gwalior from Himachal Pradesh prior to 12 days of the incident. Her house is adjacent to the house of Poshakilal. There is no partition between the two houses. Accused Rajdhar Pandey resided in one of the room of house of Poshakilal as a tenant. Wife of Rajdhar Pandey used to reside with him. On the date of incident at about 11-11:30 in the night when she was sleeping along with her five years old daughter on cot and on the nearby cot her husband was sleeping. Rajdhar Pandey came and pushed the doors. The doors were closed. Rajdhar Pandey came in the court-yard and went in his room and went inside his room after opening the lock, his wife was also inside the room. Rajdhar Pandey while standing on the door of room called her husband and stated that he was bitten by scorpion, on hearing the call of Rajdhar she woke up her husband. Rajdhar Pandey came in the court-yard and went in his room and went inside his room after opening the lock, his wife was also inside the room. Rajdhar Pandey while standing on the door of room called her husband and stated that he was bitten by scorpion, on hearing the call of Rajdhar she woke up her husband. Munnisingh went towards the room of Rajdhar Pandey, Rajdhar Pandey fired at him which hit on his stomach. Thereafter Rajdhar Pandey ran away. Another shot was also fired which did not hit her husband Munnisingh. Thereafter Rajdhar Pandey raised hue and cry that some miscreants fired at her husband. She stated to Rajdhar Pandey that she had seen that he had fired, and now he was taking the name of miscreants. Thereafter Rajdhar Pandey ran away. Her husband himself ran to police line and police men had taken him to hospital, she also went along with her husband to Hospital. Her husband was admitted in the Hospital at Gwalior for about 15 days and thereafter in the Military Hospital, Gwalior for 2 months and thereafter was taken for treatment to Military Hospital at Lucknow. In the cross-examination of this witness certain omissions were suggested in the police statement, her statement was recorded after 15 days of the incident. It was not mentioned in the police statement D-1 that Rajdhar pushed the door and came inside, it was also suggested that in A to A portion of police statement it was wrongly written that Rajdhar Pandey called that Thakur Saheb, he was bitten by scorpion, she was already awake from earlier point of time and on hearing the voice of Rajdhar Pandey she had awaken her husband. This omission is not material and is of no significance as Rajdhar could not have entered the house without opening the door of court-yard as there is no partition wall in between the house of Munnisingh and Rajdhar Pandey, there is one common entrance. The delay of 15 days in recording the statement also is not of much significance as the presence of this witness in the house is natural and has not been disputed. No suggestion has been made in the cross-examination that she was not present in the house. Her sleeping with the husband is also a circumstance which cannot be doubted. The delay of 15 days in recording the statement also is not of much significance as the presence of this witness in the house is natural and has not been disputed. No suggestion has been made in the cross-examination that she was not present in the house. Her sleeping with the husband is also a circumstance which cannot be doubted. She has clearly stated that Rajdhar had fired standing on the door of his room. Second shot was also fired from that place. Rajdhar was drunk- It was suggested in her cross- examination that when Rajdhar was falling down her husband tried to catch hold of him, and then the service gun kept on the shoulder of Rajdhar fell down on the ground and accidental fire took place. This suggestion has been denied by the witness. Thus there is no important contradiction or omission even if the suggested contradiction or omission are taken to be proved, still no doubt is cast on the version of Kamlesh Kumar (P.W. 10). 8. Lilabai (P.W. 11), landlord of accused's has stated that she was sleeping in the night. She heard firing of a gun shot. Munnisingh got injured and after firing, accused ran away. It appears that by the lime she reached the spot accused had ran away. 9. Shivkumar (P.W. 4) aged 16 years son of Munnisingh has also deposed that after hearing firing the gun shot he woke up. Several persons had assembled and it was disclosed to him that Rajdhar had fired on his father. Her mother had informed about firing by Rajdhar to this witness. Other witnesses have also stated the same facts. 10. Dr. Vijay Kumar Diwan (P.W. 8) has proved the injury on the person of injured Munnisingh. There was entry gun shot wound on the left side of intercostal region; 1/2 cm x 1/2 cm in size and there was blood clots in 4 cm x 4 cm portion and there was bleeding from the wound. There was exit wound on the left side of back, near rib, 6 cm away from back-bone, 1 cm x 1 cm in size and there was bleeding from the injury. Injury was caused by fire arm and was dangerous to life as per the report Ex. P-8. 11. There is also circumstantial evidence that accused took away his service gun and was missing from duty after taking gun. Injury was caused by fire arm and was dangerous to life as per the report Ex. P-8. 11. There is also circumstantial evidence that accused took away his service gun and was missing from duty after taking gun. Evidence is afforded by Ramsinghasan Singh (P.W. 9). He was Company Commander of S. A.F. 8th Battalion who has stated that Rajdhar accused's duty was in the Quarter Guard where the arms and ammunition are kept. His duty hours were 10 p.m. to 12 p.m. At about 12 p.m. constable had gone to change the duty, at that time accused was not found on duty. The constable has to be on duty in uniform and he is given one rifle and 50 rounds and rifle is of 303 bore. This witness instructed constable Bhairon Singh and Dalla Singh to go and check whether Rajdhar accused is sleeping. Rajdhar accused was supposed to be on duty from 10 to 12 p.m., but, was not found on duty. He was a person supposed to be in uniform with one rifle of 303 bore and 50 rounds. He asked to search Rajdhar whether he had gone to sleep, later on it was reported that Rajdhar was not found sleeping anywhere. Thereafter a search was made of Rajdhar, but, he was not found. After about one hour he went to Superintendent of Police, Gwalior and lodged oral report regarding the missing of Rajdhar from duty he was absconding along with service rifle and rounds. Superintendent of Police told that the entry should be made in the general diary and asked the Inspector to make a search of Rajdhar. Thereafter witness came back to D.R.P. Line and made an entry in the general diary of missing of Rajdhar and also lodged a report. General Diary entry Ex. P-9 was made and written report was sent to Police Station, Gwalior vide Ex. P-7. Thereafter witness came back to D.R.P. Line and made an entry in the general diary of missing of Rajdhar and also lodged a report. General Diary entry Ex. P-9 was made and written report was sent to Police Station, Gwalior vide Ex. P-7. Deposition of this witness clearly goes to show that it was Rajdhar only who had absconded with service rifle and rounds and had fired as is deposed to by wife of accused; Kamlesh Kumari, son Shivkumar, landlord woman Lilabai and also it can be culled out from deposition of Munnisingh though he had not taken the name in so many words that it was Rajdhar only who had fired at Munnisingh, none else is shown to be present and it was compound where the gun shot could be fired from within the court-yard. 11-A. Prahlad, constable of S.A.F. has also been examined to show that Rajdhar was missing from his duty. Constable Rameshwar Dayal (P.W. 2) had recorded the information received from the control room that one military Hawaldar was fired at, who had fired was not informed which was recorded, in general diary Ex. P-1. Suggestion was made to this witness that accused had informed him after arrest that Munnisingh injured had tried tq commit forcible sexual intercourse with his wife so as to justify the cause of firing. Thus it is apparent that this witness is clearly interested in the accused and has accepted the suggestion put by the defence as to cause of firing. The plea put by defence in the mouth of this witness that injured had entered the room to commit rape on accused's wife has not been substantiated at subsequent stages and was abandoned. 12. Bhagat Singh (P.W. 5) Sub-Inspector has been examined to prove the signature and handwriting of B.S. Bhadoriya. Learned counsel has submitted that B.S. Bhadoiiya has not been examined in the case who had recorded the first information report and also the police statement. This witness; Bhagat Singh has also stated that he had recovered one cartridge from the spot vide seizure memo Ex. P-4 and from Rajdhar one revolver 303 bore and 47 rounds of live cartridges were recovered vide seizure memo Ex. P-5. Thus, it appears that the accused had fired out of 50 service cartridges, two shots and one other was missing. P-4 and from Rajdhar one revolver 303 bore and 47 rounds of live cartridges were recovered vide seizure memo Ex. P-5. Thus, it appears that the accused had fired out of 50 service cartridges, two shots and one other was missing. Accused was in uniform when he was arrested alongwith service rifle and cartridges, accused was absconding with them which also goes to show that it was accused only who was involved in the offence and was not found on duty at the relevant time when he had fired on Munnisingh. 13. Munnisingh's statement was not recorded separately by the investigating officer B.S. Bhadoriya or by Bhagat Singh, Sub- Inspector. Further on what basis first information report Ex. P-2 was reduced in writing whether Dehati Nalish was obtained has not been stated by the prosecution. 14. The Trial Court has taken strong exception as to conduct of the investigation officer in the instant case and has rightly observed that the investigating agency right from the beginning had made an attempt to save the accused and it is surprising that B.S. Kushwaha did not record the statement of Munnisingh at all in the case. No care was taken to record the statement of wife of injured Kamlesh Kumari for about 15 days and on what basis, as Dehati Nalish is not said to be recorded it appears that out rightly B.S. Bhadoriya had recorded the first information report Ex. P-2 on the basis of his oral investigation made from the injured in the hospital. B.S. Bhadoriya is supposed to know that Dehati Nalish is required to be recorded in such a case and statements are also required to be recorded, but, since their kinman was involved namely; Rajdhar who was constable in the S.A.F. they were clearly siding him, thus, it is expected from the department that in view of the observation made by the Trial Court which appears to be justified in the instant case action should be initiated against erring officials. 15. 15. Learned counsel has submitted that for want of examination of B.S. Bhadoriya who has made the initial investigation, prejudice has been caused to the accused, rather in the instant case it appears that no prejudice has been caused to the accused even if it is taken that the first information report was not properly recorded and police statement was belatedly recorded, the circumstance clearly indicates that B.S. Bhadoriya was merely siding the accused right from the beginning. B.S. Bhadoriya did not obtain the signature of the injured on first information report and did not record his police statement. He was not kept in the list of witnesses. If the accused required, he could have summoned him and could have pointed out before the Court-below that B.S. Bhadoriya be examined in Court as witness, thus, the point which has been taken in the appeal before this Court was not taken before the Court-below as B.S. Bhadoriya could have been summoned by the Court. Since the conduct of the investigation agency was clearly in favour of accused, at the same time no serious prejudice has been caused by non-examination of the Investigation Officer, even if omission and contradictions are held to be proved no dent is caused to prosecution case. 16. Learned counsel has relied on the decision of the Supreme Court in case of Bhagirath Singh Vs. State of Bihar ( AIR 1976 SC 985 ). In the said case conclusion was based only on testimony of police officer and duty was pointed out to collect relevant document under a memo. The counsel has further relied on a decision of Apex Court in case of Subhash Vs. State of V.P. ( AIR 1976 SC 1924 ) to submit that benefit of every loophole in investigation has to go to accused. There is no dispute with proposition canvassed, in said case act was negligent it was not deliberated. Still evidence is satisfactory to prove guilt of accused. The learned counsel has also relied on AIR 1956 Mysore 51 (Devaiyya Vs. State) to contend that an adverse inference should be drawn for non-examination of I.O. but, question of adverse inference is rule of prudence not automatic in the facts of present case guilt of appellant is not shaken by non-examination of a non cited witness B.S. Bhadoriya. The learned counsel has also relied on AIR 1956 Mysore 51 (Devaiyya Vs. State) to contend that an adverse inference should be drawn for non-examination of I.O. but, question of adverse inference is rule of prudence not automatic in the facts of present case guilt of appellant is not shaken by non-examination of a non cited witness B.S. Bhadoriya. In the instant case the lapses which are there were deliberate and it was not a case of negligence. The cases cited at bar turn on facts of their own and are distinguishable. 17. In the circumstances of the case, though the ballistic expert report has not been produced, but, no adverse inference need be drawn as there is overwhelming evidence that the appellant was missing from his duty. Company Commander and other witnesses deposed that service cartridges were found less in number and he was not found on duty at the relevant time and there is eye-witness account of firing. Ex. P-7 report was lodged forthwith after missing of the accused with service rifle and cartridges. Cartridge of rifle of 303 bore was recovered. Thus, merely by non-production of the report, no adverse inference need be drawn in the instant case against the prosecution. Hence, there is no merit in the instant appeal. 18. In the result the appeal is dismissed. The conviction and sentence imposed upon the appellant is affirmed. 19. Criminal Appeal dismissed.