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2014 DIGILAW 286 (JHR)

Moso Kaitha @ Moso Lohara v. State of Jharkhand

2014-02-20

D.N.PATEL, P.P.BHATT

body2014
Judgment D.N. Patel, J. This appeal has been preferred against the judgment and order of conviction and sentence, passed by the 1st Additional Sessions Judge, Chaibasa in S.T. No. 38/2002, whereby the appellant has been convicted vide order dated 5th April, 2003 for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced vide order dated 05th April, 2003 to undergo life imprisonment. Against this judgment and order of conviction, present Jail appeal has been preferred by the appellant. 2. The case of the prosecution is that on 18.09.2001 at 9:30 hrs. (i.e. 9:30 A.M.) the informant Mikhayal Surin(P.W.-2) gave fardbeyan to police that on 16.9.2001 at 18.00 hrs (i.e. 6 P.M.) the informant with his friend Pareya Kaitha (Lohra) after tying animals in the cowshed have gone to channel (Paini) which is situated in the North side of his house to wash their hand and leg. After washing their hand and leg, they reached near Jinora Field and saw that Moso Kaitha @ Moso Lohara (accused) was assaulting Choudhury Dohanga (deceased) and Bali Champia (Deceased) with wooden Chop and when accused saw the informant and his friend, he chased them to assault them with wooden chop but the informant with his friend ran away from there to village and told about the occurrence to the villagers. Thereafter villagers went to the Jinora field and saw Choudhary Dohanga and Bali Champia were lying dead in pool of blood. Then meeting was held in village about the occurrence and the information was given to the police about the occurrence. Five witnesses were examined by the prosecution. PW-1 Dr. Murli Manish He is the Doctor who has conducted the post-mortem of the dead body of deceased Choudhary Dohanga and Bali Champia and proved the post-mortem report i.e. marked as Ext.1 & 1/1. PW-2 Mikhayal Surin He is the Informant of this case and Eye Witness of the occurrence. PW-3 Mago Dohanga He is the Hearsay witness. PW-4 Bensilal Dohanga He is the Hearsay witness. He has proved his signature and signature of Manga Munda in the Inquest report i.e. marked as Ext. 2 and Ext. 2/1. He has also proved his signature and signature of Salik Soy in the seizure list i.e. marked as Ext. 2/2 and 2/3 PW-5 Fransis Topno He is the Investigating Officer of this case. He has proved his signature and signature of Manga Munda in the Inquest report i.e. marked as Ext. 2 and Ext. 2/1. He has also proved his signature and signature of Salik Soy in the seizure list i.e. marked as Ext. 2/2 and 2/3 PW-5 Fransis Topno He is the Investigating Officer of this case. He has proved the fardbeyan i.e. marked as Ext.3 and also proved the Inquest Report of deceased Choudhary Dohanga and Bali Champia i.e. marked as Ext.4 and 4/1. He has proved the seizure list I.e. marked as Ext.- 5 and has also proved the formal FIR i.e. marked as Ext.6. 3. It is submitted by the counsel for the appellant that there are major omissions, contradictions and improvements in the deposition of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned Trial Court and hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. It is further submitted by the counsel for the appellant that the incident has taken place on 16th September, 2001 at about 6 P.M. but the FIR was lodged on 18th September 2001 and there is no explanation worth the name coming from the prosecution for the delayed FIR. It is further submitted that the case of the prosecution is based upon the evidence of so called sole eye witness and the said so called sole eye witness is also a got up witness as there is vast difference between the statement made in the FIR and the deposition given by P.W.- 2. In fact, P.W.- 2 has not seen the incident at all. It is further submitted that as per FIR, the so called eye witness (the informant) has seen the offence in a field near Water Channel (Paini), whereas, as per deposition given by this sole eye witness of the prosecution as stated in paragraph 1 of his deposition, the incident has taken place in the house of P.W.-2. Moreover, as per FIR, this appellant was causing injuries. It is further submitted that as per narration in the FIR, several blows were given by this appellant to both the deceased, whereas, as per medical evidence, upon one dead body, there is only one injury and upon another dead body, there is only two injuries. Moreover, as per FIR, this appellant was causing injuries. It is further submitted that as per narration in the FIR, several blows were given by this appellant to both the deceased, whereas, as per medical evidence, upon one dead body, there is only one injury and upon another dead body, there is only two injuries. Thus, there is inconsistency between the ocular evidence and the medical evidence. It is also submitted by the counsel for the appellant that as per FIR, there is one more eye witness Pareya Kaitha (Lohara) who was accompanying the informant- P.W.-2 and as per narration in the FIR, this Pareya Kaitha (Lohara) is also an eye witness and his statement was recorded by the Investigating Officer under Section 161 Cr.P.C. He was also mentioned in the charge-sheet as a prosecution witness, but for any reason whatsoever, this eye witness has been concealed by the prosecution and not examined nor any application has been given by the prosecution to the concerned trial court for dropping of the crucial important eye witness of the double murder nor any order has been passed by the concerned trial court allowing the prosecution for dropping of the eye witness. It is further submitted by the counsel for the appellant that examination of the witnesses cannot be left at the sweet-will of the prosecution, rather it is the duty of the prosecution to examine the crucial eye witness otherwise, adverse inference can be drawn as per Sub-section (g) of Section 114 of the Indian Evidence Act 1872 and has also relied upon the decision rendered by the Hon'ble Supreme Court in the case of Musauddin Ahmed Vs. State of Assam reported in (2009) 4 ECC 26. It is also submitted by the counsel for the appellant that similarly there are other crucial witnesses as stated in the chargesheet as per example, Mangra Champia, the father of one of the deceased- Bali Champia, who was also present on next day morning i.e. on 17th September 2001 as stated by Pareya Kaitha (Lohara)-eye witness, who has not been examined by the prosecution. The father namely, Mangra Champia of the deceased- Bali Champia cannot remain silent after the murder of his son but for the reason, FIR was filed at a much belated stage i.e. on 18th September 2001. The father namely, Mangra Champia of the deceased- Bali Champia cannot remain silent after the murder of his son but for the reason, FIR was filed at a much belated stage i.e. on 18th September 2001. There are as many as 18 charge-sheet witnesses, but only five witnesses have been examined by the prosecution. Thus, the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the learned trial court, hence the judgment of conviction and order of sentence passed by the learned trial court in ST No. 38/2002 deserves to be quashed and set aside. This appellant has remained in judicial custody for 12 years, 03 months and 17 days as on 09th February, 2014. 4. We have heard counsel for the State-APP, who has mainly submitted that no error has been committed by the Trial Court in appreciating the evidences of Prosecution Witnesses. The case of the prosecution is based upon eye-witness who is PW-2. This P.W.- 2 is also an informant, who has given in detail the narration of the whole incident in the FIR and in his deposition before the learned trial court, this P.W.- 2 – Eye witness has clearly stated before the learned trial court that he saw this appellant giving one by one several blows by wooden log to both the deceased and he had beaten them so severally that both of them expired on the spot. It is also submitted by the APP that the prosecution has also examined inquest witness, who is P.W.- 4, who has proved his signature on the inquest Panchnama. I.O. has been examined as P.W.-5 who has proved the Fardbeyan at Ext.-3. The inquest report of both the deceased are at Ext.-4 and Ext.-4/1 and the seizure list is at Ext.- 5. The wooden log was recovered by the Investigating Officer. It is also submitted by the APP that the medical evidence given by Dr. Murli Manish, who is P.W.-1, has narrated the injuries upon the dead body of both the deceased and the injuries were capable of being caused by hard and blunt substance. Thus medical evidence is corroborative to the ocular evidence. These aspects of the matter have been properly appreciated by the learned trial court and therefore, this appeal may not be entertained by this Court. 5. Thus medical evidence is corroborative to the ocular evidence. These aspects of the matter have been properly appreciated by the learned trial court and therefore, this appeal may not be entertained by this Court. 5. Having heard the learned counsel for both the sides and looking to the evidences on record and the judicial pronouncement as stated hereinabove, we hereby quash and set aside the judgment of conviction and order of sentence dated 5th April, 2003 passed by the learned 1st Additional Sessions Judge, Chaibasa in Sessions Trial No. 38 of 2002 mainly for the following facts, reasons and depositions of the witnesses: (i) It is the case of the prosecution that that P.W.-2 Mikhayal Surin gave his fardbeyan on 18 September 2001 at about 9 :30 A.M. at Bandgaon Police Station that on 16 September, 2001 at 18.00 hrs when he and his friend, namely, Pareya Kaitha (Lohara) reached to the house of P.W.-2 and when they were tying their animals in the cowshed and they had gone to water channel (Paini) to wash their hands and legs, and after washing their hands and legs when, they reached near Jinora field, they saw this appellant assaulting Choudhury Dohanga (deceased) and Bali Champia (Deceased) with wooden log and when this appellant-accused saw the informant and his friend, he chased them to assault them with wooden log but the informant-P.W.-2 and his friend ran away to village and they conveyed to the villagers about the occurrence. Thereafter, villagers went to the Jinora field and they saw both Choudhary Dohanga and Bali Champia lying dead in pool of blood. Thereafter a meeting was held in the village and P.W.-2 gave information to the police on 18th September, 2001. The criminal law was put in motion, investigation was carried out by Bandgaon Police Station. Several statements were recorded of number of witnesses including Pareya Kaitha (Lohara), who is an eye witness as per FIR and charge-sheet was filed under Section 173 Cr.P.C. before the concerned trial court naming as many as 18 prosecution witnesses and the case was committed to the Sessions Court being Sessions Trial No. 38/2002 and on the basis of the evidences of the witnesses from P.W.-1 to P.W.-5 and on the basis of the documentary evidences on record, the learned trial court has convicted the appellant for causing murder of both the persons for live imprisonment. Thus from the aforesaid case of the prosecution, it appears that there are more than one eye witnesses who are P.W.- 2 and one more witness, who is Pareya Kaitha (Lohara) (who has not been examined by the prosecution for any reason whatsoever). (ii) Looking to the deposition given by PW-2, who is the informant and the eye witness of the incident, it appears that he had seen the whole incident of murder on 16th September 2001 at about 18 hours. As per FIR he and his friend Pareya Kaitha (Lohara) after washing their hands and legs had reached near Jinora field, where they saw this appellant assaulting both the deceased by wooden log and they saw that the appellant was causing several blows upon both the persons and they were beaten so severally that both expired on the spot. Now looking to his examination before the learned trial court there is total deviation from the FIR. Looking to his deposition in the trial court, he has changed several aspects of the whole matter:- (a) Place of occurrence; (b) Narration of weapon “wooden log” is converted into “stone” when this appellant was chasing eye witness; (c) As per FIR, both the dead bodies were lying in pool of blood, but, in the narration before the learned trial court, there is no reference of pool of blood nor even by the Investigating Officer has referred in his deposition pool of blood. (iii) Looking to the deposition before the learned trial court, it appears that P.W.- 2 has narrated that this appellant had come at the residence of P.W.-2 and at the residence of P.W.-2, this appellant has caused several injuries by wooden log upon both the deceased. This is a total departure from the FIR by the so called sole eye witnesses. Moreover, as per FIR, when this appellant saw informant-P.W.-2 as well as his friend Pareya Kaitha (Lohara), the appellant rushed with wooden log and the so called eye witness ran away, whereas, in the deposition given by P.W.-2 before the learned trial court, he has narrated that when this appellant saw P.W.-2 and his friend Pareya Kaitha (Lohara), he started throwing stone. Moreover, the so called eye witness is not giving any explanation whatsoever why he has lodged the FIR after approximately 39 and ½ hours nor any explanation worth the name has been given by him in his deposition. He is the sole eye witness of the incident examined by the prosecution. Moreover, as per this so called eye witness, this appellant had given several blows upon the two persons whereas, as per the medical evidence given by P.W.-1, upon the dead body of Choudhury Dohanga, there is only one injury and upon the dead body of Bali Champia, there are two injuries. Thus the narration given by P.W.- 2 of the whole incident is not inspiring confidence and he is untrustworthy and unreliable witness. This aspect of the matter has not been properly appreciated by the learned trial court. (iv) Moreover, looking to the FIR, the informant- P.W.-2, was also accompanied by his friend Pareya Kaitha (Lohara). His statement was recorded by the prosecution under Section 161 of the Code of Criminal Procedure. His name has also been mentioned in the charge-sheet as prosecution witness and without permission of the learned trial court for the reason best known to the prosecution they have dropped the crucial eye witness of the incident. In fact, the prosecution should have applied in writing with reasons. Before the learned trial court the prosecution should have applied giving cogent and convincing reasons for dropping of the crucial eye witness, but, the prosecution has not done the same and, therefore, looking to the totality of the evidences on record, adverse inference can be drawn against the prosecution, especially looking to Sub-section (g) of Section 114 of the Evidence Act, 1872 and also keeping in mind paragraph Nos. 12 and 13 of the decision rendered by the Hon'ble Supreme Court in the case of Musauddin Ahmed Vs. State of Assam reported in (2009) 4 ECC 26. For a ready reference paragraphs 12 and 13 of the said judgment are reproduced hereinbelow; “12. Thus, it cannot be assumed that prosecutrix did not have parents or other family members. Prosecution for the reasons best known to it examined her employer PW.2 Abdul Hai Laskar and his wife PW.3 Hasmat Ara Begum but did not examine any of her family member on the point of age. 13. Thus, it cannot be assumed that prosecutrix did not have parents or other family members. Prosecution for the reasons best known to it examined her employer PW.2 Abdul Hai Laskar and his wife PW.3 Hasmat Ara Begum but did not examine any of her family member on the point of age. 13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif &Ors., AIR 1968 SC 1413 ).” (v) Looking to the evidences on record, it appears that the prosecution has not examined the eye witness Pareya Kaitha (Lohara) who has been referred in the FIR and whose statement is also recorded under Section 161 of the Code of Criminal Procedure. There is also a reference of the same in the case diary, prepared by the Investigating Officer, which is fatal to the prosecution case, especially when P.W.-2 is not giving clear evidence before the learned trial court. (vi) Looking to the FIR, there are major omissions, contradictions and improvements in the deposition of P.W.-2 who is sole eye witness. It is true that the Court is not concerned with the quantity of the evidences and it is also true that the Court is concerned with the quality of the evidence and one eye witness is sufficient to bring home the conviction, but when a confused personality is giving deposition as an eye witness and when there are major omissions, improvements and contradictions in the deposition of the sole eye witness in that case, there was a need by the prosecution to examine another eye witness who is referred in the FIR and whose statement has also been recorded under Section 161 of the Code of Criminal Procedure and who has also been mentioned in the Charge-sheet as a witness. This aspect of the matter has not been properly appreciated by the learned trial court and hence also, the judgment of conviction and order of sentence passed by the learned trial court deserves to the quashed and set aside. This aspect of the matter has not been properly appreciated by the learned trial court and hence also, the judgment of conviction and order of sentence passed by the learned trial court deserves to the quashed and set aside. (vii) In the FIR, it has been stated by the informant and his friend Pareya Kaitha (Lohara) that both the dead bodies were lying in the field in a pool of blood, but the P.W.-2 has not referred the pool of blood, where the dead bodies were lying, for examination before the learned trial court nor in the inquest panchanama (Ext. -4), there is reference about the blood stained cloth upon the dead bodies nor it has been mentioned in the inquest report that the dead bodies were lying in a pool of blood nor the investigating officer in his deposition as P.W.-5 has stated that he saw the pool of blood at the Jinora field. Thus, the P.W.-2 has not only stated that the incident has taken place at the house of P.W.-2, but he has also omitted pool of blood in the Jinora field. Thus the doubt is created whether this witness has seen he incident. (viii) Looking to the case of the prosecution, it further appears that the prosecution had also recorded the statement of Mangara Champia, the father of one of the deceased- Bali Champia. This Mangara Champia was called by Pareya Kaitha (Lohara) who is referred as a witness in the FIR, but not examined by the prosecution. Thus, the dead body of the son was seen by father- Mangara Champia in the morning hours of 17th September, 2001, but FIR in this case has been lodged on 18th September, 2001 at a much belated stage. There is no explanation worth the name coming from the prosecution about the late FIR nor even the investigating officer has explained the late filing of the First Information Report. When the whole village as well as the father of one of the deceased was knowing about the murder of his son, they have remained silent. There is no explanation worth the name coming from the prosecution about the late FIR nor even the investigating officer has explained the late filing of the First Information Report. When the whole village as well as the father of one of the deceased was knowing about the murder of his son, they have remained silent. There is a delay of 39 and ½ hours in the filing of the First Information Report, which is also fatal to the prosecution because during this time, any manipulation can be taken place and when the case of the prosecution is based upon the sole eye witness, in these type of circumstances, the evidence of P.W.-2 has to be seen by the Court with close scrutiny and looking to the deposition of P.W-2, vis-a-vis several circumstances, as under:- (a) No explanation has been given by the informant nor by the Investigating Officer for the delayed FIR i.e. by 39 and ½ hours. (b) There is a change of place of occurrence by the informant- eye witness (P.W.-2). As per the FIR, he saw this appellant causing murders in the Jinora field which is nearby the house of the P.W-2, whereas as per paragraph no. 1 of the deposition of P.W.-2- informant (eye witness), this appellant came at the house of the P.W.-2 and he started assaulting both the deceased by wooden log. (c) As per the FIR, both the dead bodies were lying in a pool of blood but there is no reference in the deposition of P.W.-2 nor in the deposition of the investigating officer- P.W.-5, they stated that the dead bodies were lying in a pool of blood nor the inquest witness- P.W.-4 has stated that he saw dead bodies lying in a pool of blood nor in the inquest report, which is at Ext.4 and Ext.4/1 in column no.7 thereof, there is any reference of blood stained cloth upon the bodies of the deceased. Thus, upon the cloth of the dead bodies, not a single prosecution witness much less P.W.-2 -eye witness, P.W.-4- Inquest witness and P.W.-5- Investigating Officer have stated blood stains. Thus, the whole story appears to have been concocted by the so called sole eye witness of the prosecution and therefore, sole eye witness is not inspiring any confidence to this Court and he is highly untrustworthy and unreliable. Thus, the whole story appears to have been concocted by the so called sole eye witness of the prosecution and therefore, sole eye witness is not inspiring any confidence to this Court and he is highly untrustworthy and unreliable. The prosecution has to prove the offence, beyond reasonable doubt. This P.W.-2 is unable to bear this heavy burden of proof of change, beyond reasonable doubt. More so, it has been referred in the FIR that Pareya Kaitha (Lohara) who is also mentioned in the Charge-sheet as an eye witness has not been examined by the prosecution. (ix) Looking to the deposition given by P.W.-1 Dr. Murli Manish, it appears that he has observed the following injuries on the body of the Choudhary Dohanga : Ante Mortem injuries- External Examination (i) Lacerated wound 4” x 1” at the scalp bone deep 1” above left ear associated with fracture of frontal parietal and temporal bone with separation of temporo parietal suture. Brain matter escaped through the gap of injury. Internal Examination Skull- Left side of meninges ruptured. Thorax- Lungs blackish in colour. Heart- Empty Abdomen- Liver- Blackish. Stomach-Contained undigested rice. Cause of death- Head injury caused by hard and blunt substance such as big wood. Time since death-within 72 hours. The injuries were sufficient to cause death in the ordinary course of nature. He has also observed the following injuries on the dead body of Bali Champia: Ante Mortem injuries – Rigor mortis absent. Decomposition in advance stage. Dark blue skin patches present over the body with blisters at places. Moggots over the body presents. Abdominal distension present. External Examination (i) Lacerated wound 3½” x 1” bone deep at the scalp 1” above left ear associated with fracture of left Temporal bone and left parietal bone with separation of left tempro parietal suture. Brain matter escaped through the gap of injury. (ii) Lacerated wound 4” x 1½” skin deep over left side cheek extending towards tragus of left ear. Internal Examination Skull found- Meninges of left side ruptured. Thorax- Lungs blackish. Heart- Empty Abdomen- Liver- Blackish Stomach- Contained undigested rice. Cause of death- Head injury caused by hard and blunt substance such as big wood. Time since death- within 72 hours. The injuries were sufficient to cause death in the ordinary course of nature. Internal Examination Skull found- Meninges of left side ruptured. Thorax- Lungs blackish. Heart- Empty Abdomen- Liver- Blackish Stomach- Contained undigested rice. Cause of death- Head injury caused by hard and blunt substance such as big wood. Time since death- within 72 hours. The injuries were sufficient to cause death in the ordinary course of nature. In view of the aforesaid evidences given by the P.W.-1 and looking to the injuries sustained by the deceased, there is inconsistency between the depositions given by P.W.-2 (the sole eye witness) and the medical evidence given by P.W.-1. So far as number of blows given by the appellant to the deceased persons, it has been stated by P.W.-2 that he saw this appellant causing several blows by wooden log upon both the deceased, but the injuries upon one of the dead body is only one and upon the another dead body there are two injuries. Moreover, P.W.-2 has also not stated that on which part the injury was caused by this appellant. Moreover, age of both of the deceased was 19-20 years and the age of this appellant at the relevant time was also approximately similar. (x) Looking to the case of the prosecution, it appears that the so called sole eye witness of the whole case, P.W.-2 is not an eye witness at all. He remained silent for several hours after the murder and not lodged the FIR at the earliest. He has also changed his version before the trial court that he and his friend saw the appellant causing murder of the deceased and the appellant ran after them with wooden log as per the FIR, whereas as per the deposition of PW.-2, this appellant ran after the informant and his friend with stone. Thus, there are several major contradictions, omissions and improvements in the deposition of PW.-2. This aspect of the matter has not been properly appreciated by the trial court and therefore, the judgment of conviction and order of sentence passed by the learned trial court is deserves to be quashed and set aside as the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. This aspect of the matter has not been properly appreciated by the trial court and therefore, the judgment of conviction and order of sentence passed by the learned trial court is deserves to be quashed and set aside as the prosecution has failed to prove the offence of murder committed by this appellant beyond reasonable doubt. (xi) In this case it appears that the prosecution has not examined the crucial important eye witness who has been referred in the FIR and whose statement was recorded under Section 161 of the Code of Criminal Procedure and who is also mentioned in the Charge sheet as a prosecution witness, who is Pareya Kaitha (Lohara). (a) It ought to be kept in mind by the prosecution that it is not at the sweet will of the prosecution to drop the prosecution witness as per their fancy ideas, whims and caprices and there is no discretion vested with the prosecution to examine any witness whom they like and not to examine whom they dislike. (b) Prosecution if wants to drop any witness who is referred in the charge sheet, then an application ought to have been given to the concerned trial court with cogent and convincing reasons for dropping the prosecution witness and while giving such an application, the prosecution must think twice, before acting once that why they are dropping their witnesses and after thoughtful consideration, such application should be given to the concerned trial court in the pending criminal trial. (c) It is a duty of the prosecution in general, to examine all the prosecution witnesses who are referred in the Charge sheet except when the application is given for dropping the witness to the concerned trial court with a cogent and convincing reasons. Thus, examination of all the prosecution witnesses is a rule, whereas, dropping out of the witnesses or not to examine the prosecution witnesses even after referring in the charge-sheet is an exception and this cannot be done ex parte unilaterally without any reason and without any permission of the Court by the prosecution. (d) It is also a duty of the concerned trial court, normally not to allow the prosecution to drop the crucial witnesses especially when they are referred in the charge sheet. Only as an exception, these type of applications should be allowed by the trial court given by the prosecution. (d) It is also a duty of the concerned trial court, normally not to allow the prosecution to drop the crucial witnesses especially when they are referred in the charge sheet. Only as an exception, these type of applications should be allowed by the trial court given by the prosecution. Whenever such application for dropping of the witnesses is given, it is a prime duty of the learned trial court that they must sought in writing the cogent and convincing reasons for dropping of the witnesses and whenever the trial court is allowing the dropping of the witnesses by the prosecution from examination in the trial, henceforth the Judges of the trial court of the State shall give in writing the reasons for allowing the prosecution not to examine the prosecution witnesses. Any laches on the part of the learned trial court judges shall be viewed strictly by this Court. This is a prime duty of prosecution because the prosecution has monopoly to investigate the crime under the Code of Criminal Procedure. They have also monopoly to record statements under Section 161 of the Code of Criminal Procedure and the prosecution has also monopoly of filing the charge sheet under Section 173 of the Code of Criminal Procedure. In fact, this is not a monopoly at all, this is a duty vested in the State. It is a duty of the prosecution to bring best evidence before the court. The State is firstly a police state and then a welfare state and whenever any offence has been committed in the society the culprit cannot go scot-free by the errors of the prosecution. Here, this is a double murder case. Though the prosecution is having an eye witness with them namely Pareya Kaitha (Lohara) who is referred in the FIR and who is also referred in the charge sheet as the prosecution witness but without any reason and without any permission of the Court this witness has been dropped from his examination nor such an application has ever been given by the prosecution before this Court also despite there is a provision under Section 311 of the Code of Criminal Procedure nor any application has been given before this Court for examination of the crucial eye witness of the double murder. There is also a provision under Section 391 of the Code of Criminal Procedure, but the prosecution has not given such application for examination of this crucial important eye witness before this Court. (e) The aforesaid procedure of dropping of the witnesses shall be followed scrupulously henceforth by both the prosecution as well as by all the subordinate courts of the State whoever is dealing with the criminal cases. (xii) Looking to the evidence of the Investigating Officer- P.W.-5 and looking to the seizure list, which is at Ext.- 5, neither this so called blood stained soil was given to the FSL for report nor any report from the FSL has been placed on record by the prosecution. (xiii) It has been held by the Hon'ble Supreme Court in paragraph Nos. 5, 13, 14 and 15 in the case of State of U.P. Vs. Jaggo @ Jagdish reported in (1971) 2 SCC 42 , which are as under:- “5. There were five witnesses Munna Lal, Sita Ram, Bhikari, Sarwan and Tara Chand. The prosecution called them as eyewitnesses. The Sessions Court accepted the evidence of each of them and gave the following reasons. The witness Munna Lal is Lalu’s brother. The relationship of Munna Lal should be a reason for “a strict scrutiny” of the evidence of Munna Lal so that “the possibility of false implication of the accused on account of enmity should be avoided”. On a scrutiny of the evidence of Munna Lal, the statement was worthy of credence. Munna Lal was a truthful witness because he did not deny the fact that he appeared as a witness against Sri Narain and Sri Chand. Sita Ram admitted his connection with Lalu and Kali Charan and that would show that Sita Ram was a trustworthy witness. The evidence of Sita Ram was corroborated by the statement of independent witness like Bhikari Lal. The absence of the name of Sita Ram from the first information report was not a ground for rejecting his evidence. Bhikari Lal was not mentioned in the first information report. Bhikari’s house was near the place of the occurrence and Bhikari was expected to be at his house. Bhikari’s presence at the time of the occurrence was found to be proved by reliable evidence. Bhikari was a surety for one Kali Charan. Bhikari admitted the fact and therefore be was a truthful witness. Bhikari’s house was near the place of the occurrence and Bhikari was expected to be at his house. Bhikari’s presence at the time of the occurrence was found to be proved by reliable evidence. Bhikari was a surety for one Kali Charan. Bhikari admitted the fact and therefore be was a truthful witness. Sarwan’s evidence was challenged on the ground that once he had filed an application against Madan Mohan. His evidence was corroborated by other facts and circumstances. He was a witness of the locality. His name was mentioned in the first information report. He corroborated Munna Lal. Tara Chand’s evidence was challenged by the accused on the ground that Tara Chand was a partyman of Krishna Swarup Upadhyaya. There was no evidence worth reliance that Krishna Swarup Upadhyaya had any hand in the prosecution of the case. 13. The High Court was also correct in referring to two other features of the prosecution case. The first is that Ramesh who was mentioned in the first information report was not examined. The second was about the medical evidence. 14. Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the “unfolding of the narrative” should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb -Mohammad v. State of Hyderabad for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case. 15. This Court in Habeeb Mohammad case referred to the observations of Jenkins, C.J., in Ram Ranjan Roy v. Emperor 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 the administration of justice so that the testimony of all the available eyewitnesses should be before the court. Lord Roche in Stephen Senivaratne v. King referred to the observations of Jenkins, C.J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution. That is why this Court in Habeeb Mohammad case said that the absence of an eyewitness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness had been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eyewitness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with Ramesh at the time of the occurrence.” (emphasis supplied) Thus in view of the aforesaid decision, it is the duty of the prosecution to examine all the crucial, important and necessary witnesses, especially the eye witnesses. It has further been stated in the above referred judgment in paragraph Nos. 14 and 15 that even if the prosecution has been won over or gain over then also the prosecution has to bring the witnesses before the trial court and must tender for his cross-examination. (xiv) Even if the prosecution thinks that a particular witness has been won over by the other side or if the prosecution thinks that the said prosecution witness will turn hostile, then also it is the duty of the prosecution to bring such witness at the door step of the concerned trial court and he must be produced for cross-examination by the accused, as per the decision rendered in the case of State of U.P. Vs. Jaggo @ Jagdish reported in (1971) 2 SCC 42 in paragraphs No. 14 and 15 thereof. It is the prime duty of the prosecution that the truth must be brought by the prosecution before the court for conviction and acquittal, which depends upon the witnesses. Jaggo @ Jagdish reported in (1971) 2 SCC 42 in paragraphs No. 14 and 15 thereof. It is the prime duty of the prosecution that the truth must be brought by the prosecution before the court for conviction and acquittal, which depends upon the witnesses. The prosecution cannot pre-judge the trial and, therefore, also they cannot drop their witnesses without permission of the Court, even if a witness is going to turn hostile. Sometimes from the deposition of the hostile witness also, several facts, which emerge, are important for the learned trial court. Examination of the witness is multi purpose and dropping of the witness is also having negative effect on the trial and sometimes, accused will go scot-free or sometimes innocent will be punished. In this case, the crucial and important eye witness has been dropped by the prosecution and it is fatal to the prosecution. (xv) Learned counsel for the appellant has also relied upon the decision rendered in the case of Rang Bahadur Singh and Others Vs. State of U.P. reported in (2000) 3 SCC 454 and it has been held by the Hon'ble Supreme Court in the said judgment in para 20 as under:- “20. It is again in the aforesaid context that we have to evaluate the impact of the non-examination of Ram Lakhan Yadav. When four witnesses were examined to speak to the occurrence normally non-examination of one more witness is not a serious flaw. But in this case non-examination of Ram Lakhan Yadav cannot be sidelined with such a reasoning. This is because it was Ram Lakhan Yadav who set fire to the haystack, in the light of which flames the culprits were identified; and it was Ram Lakhan Yadav who was first attacked by the dacoits, and it was Ram Lakhan Yadav who had seen the dacoits earlier than any other person connected with the victims' house. What he would have said about the identity of the dacoits cannot now be left in surmise. What he would have said about the identity of the dacoits cannot now be left in surmise. If he also had said that all the dacoits were unknown persons it would have had a very deleterious impact on the veracity of the four witnesses who pointed to the three appellants as the dacoits.” Thus non-examination of the material witness affects the case of the prosecution, even though other eye witnesses examined, non-examination of the person whose testimony may have deleterious impact on the veracity of the other witness would be an incongruity which would cast a doubt on the prosecution case. Thus, in the facts of the present case, P.W.-2 has changed the place of occurrence. Thereafter, he has narrated that the appellant ran after two eye witnesses with a wooden log whereas, as per his deposition he started throwing stones at the eye witnesses. There is also material omissions in his deposition. (6) Having heard the learned counsel for both the sides and looking to the evidences on record and the judicial pronouncement as stated hereinabove, we hereby quash and set aside the judgment of conviction and order of sentence dated 5th April, 2003 passed by the learned 1st Additional Sessions Judge, Chaibasa in Sessions Trial No. 38 of 2002. The appellant is ordered to be released forthwith from judicial custody, if his presence in jail is not required for any other offences. (7) Accordingly, this appeal is hereby, allowed and disposed of. (8) We, hereby, direct the Registrar General of this Court to send the copy of this judgment to: (i) All the Principal District Judges of the Districts of the State and they shall percolate the judgment to other judges in their districts; (ii) The Judicial Commissioner, Ranchi, who in turn supply the copy of the judgment to all the judges, who are posted at Civil Court, Ranchi; (iii) The Secretary, Home Department, Government of Jharkhand; (iv) The Director General of Police, Jharkhand; (v) The Director, Judicial Academy Jharkhand, Ranchi; (vi) The Principal, Police Training Centre, at Hazaribagh; (vii) Head of the Lal Bahadur Shashtri Police Academy, Hyderabad. Appeal allowed.