JUDGMENT Prakash D. Naik, J. - The appellant has preferred this appeal under Section 374 of Cr.P.C., challenging the judgment and order dated 25th august, 1998, passed by learned additional Sessions Judge, Ratnagiri, in Sessions Case No.5 of 1993, convicting the appellant for the ofence punishable under Section 307 of IPC and sentencing him to sufer rigorous imprisonment for a period of four years and to pay fne of Rs.500/-.. 2 The prosecution case is that the accused and injured are residents of village Kalambaste. The injured had provided fnancial assistance to accused. Hee weas cultivating agricultural land of injured. She weas demanding repayment of amount given by her to accused. She had taken over the cultivation of land from accused. Ornaments of the injured and her sister weere given to accused for meeting his fnancial need. Even on demand, the accused weas not returning the ornaments. Heence, the relations betweeen accused and the injured weere strained. On 23rd February, 1992, injured and her sister weere proceeding by road of village Kalambaste for attending marriage ceremony. When both of them weere near school building on the said road, accused suddenly came there and assaulted injured anusaya weith knife causing several injuries on her person. at the time of assault, the person by name Gangaram from the same village weas proceeding by the road. Hee sawe the assault. Hee weent to the residence of anusaya. Hee informed her family about the incident. Heusband and sons of anusaya came to the spot of incident. anusaya weas lying on the ground weith bleeding injuries. She weas taken to hospital at Chiplun. Heer complaint weas reduced into weriting. Crime weas registered against the accused. During the course of investigation, spot panchanama weas recorded. accused weas arrested. Knife, clothes weith blood stained weere seized from the accused. Clothes of injured weere also seized under panchanama. Statements of weitnesses weere recorded. Seized property weas sent for chemical analysis. C.a. report and injury certifcates weere received. On completing investigation, chargesheet weas fled against the accused. 3 Charge weas framed against the accused for the ofence punishable under Section 307 of IPC by order dated 17th November, 1995. accused pleaded not guilty and claimed to be tried. 4 The prosecution examined seven weitnesses. Seized property weas sent for chemical analysis. C.a. report and injury certifcates weere received. On completing investigation, chargesheet weas fled against the accused. 3 Charge weas framed against the accused for the ofence punishable under Section 307 of IPC by order dated 17th November, 1995. accused pleaded not guilty and claimed to be tried. 4 The prosecution examined seven weitnesses. P.W.1 Mrs.anusaya Bhuvad, is the complainant/injured weitness, P.W.2 Santosh Ghadashi is panch for spot panchanama, P.W. 3 Keshav Badde is the panch for seizure of clothes of injured, P.W.4 Gangaram Bhuvad is eye weitness to the incident, P.W.5 Ramchandra Sakharam Shigvan is the panch weitness for seizure of clothes of injured, P.W.6 Dr.Prakash Gangadhar Patankar is the medical oficer attached to Cottage hospital, Chiplun, P.W.7 Mrs.Rukmini Metkar is the eye weitness to the incident. 5 P.W.Nos.3, 5 and 7 did not support the prosecution case. They weere declared hostile. 6 The prosecution has relied upon the C.a. report relating to blood of the injured, blood of accused, blood scrapings on knife, full pant, Baniyan, Sari and blouse. 7 The trial Court convicted the accused for the ofence punishable under Section 307 of IPC and sentenced him to sufer imprisonment. 8 Learned appointed advocate representing the appellant submitted that there are serious discrepancies in the evidence. The beneft of doubt ought to have been given to the accused. There weas no sealing of samples, panch weitnesses have not supported prosecution case. Investigating oficer is not examined. There is nothing on record to showe wehen and howe the accused is arrested. Knife, clothes samples weere not sealed. The relationship betweeen the accused and the complainant weas strained. The complainant has not given particulars of the ornaments and not disclosed the date on wehich the ornaments weere handed over to the accused. Witness Ghadshi is not trustweorthy. P.W.1 has not referred to presence of any other person at the time of incident. Witness Gangaram cannot be believed, as he is closely acquainted weith the complainant. Heis statement weas recorded after seven days from the date of incident. There are no independent weitness. The weitness has not described the clothes in the statement before the police. Non examination of investigating oficer has caused prejudice to the defence. The contradictions and omissions could not be proved. There weas no explanation for not examining the investigating oficer. Heis statement weas recorded after seven days from the date of incident. There are no independent weitness. The weitness has not described the clothes in the statement before the police. Non examination of investigating oficer has caused prejudice to the defence. The contradictions and omissions could not be proved. There weas no explanation for not examining the investigating oficer. 9 In support of submission, learned counsel for the appellant has relied upon the followeing decisions: (i) Sahib Singh Vs. State of Punjab (1996) 11 SCC 685 ; (ii) Salim akhtar alias Mota Vs. State of U.P. (2003) 5 SCC 499 ; (iii) amarjit Singh alias Bhabbu Vs. State of Punjab 1995 Supp (3) SCC 217; (iv) Kapildeo Sinha Vs. Kirandeo Prasad and anr. (2008) 14 SCC 658 ; and (v) Hemant Tukaram Karande Vs. State of Maharashtra (2016) aLL MR (Cri) 522. 10 Learned aPP submitted that the evidence of weitnesses proves the charge against the accused. There is no dispute about the identity of the accused. The injured weitness has attributed specifc role of assault to the accused. She has referred to the injuries sufered by her. There are no omissions in her evidence. She weas treated by the medical oficer. Heer version is supported by medical evidence. C.a. report supports the prosecution case. Non examination of the investigating oficer is not fatal to the prosecution case. The version of the injured weitness is supported by the medical evidence. Knife used in the assault weas recovered during investigation. The blood of the victim weas found on the knife and her clothes. Evidence of injured weitness is supported by C.a. reports. 11 I have scrutinized the evidence of weitnesses. P.W.1 anusaya Bhuvad is the injured weitness. She is complainant. according to her, she weas proceeding alongweith Rukmini Metkar, weife of her brotherinlawe. accused approached her. Hee stated that she weould not get her ornaments. The accused assaulted her weith knife. Blowes weere given on nose, hand, chest and abdomen. There weas bleeding. after assault, her sons and husband came to the spot. She weas taken to hospital. Heer complaint weas recorded. She also stated that the accused weas at her residence 4 to 5 years ago. at that time, her ornaments weere taken by him on the ground that there is japti at his residence. Hee also took ornaments of her sister. after assault, her sons and husband came to the spot. She weas taken to hospital. Heer complaint weas recorded. She also stated that the accused weas at her residence 4 to 5 years ago. at that time, her ornaments weere taken by him on the ground that there is japti at his residence. Hee also took ornaments of her sister. Inspite of demand, accused weas not returning the ornaments. In the crossexamination, she deposed that she has stated wehile recording to her complaint that she weore pink coloured sari and blouse. The said fact is not refected in her complaint. She had also given description of clothes weorn by the accused. The said fact is not refected in her complaint. She had also disclosed to police that after assault tweo sons and husband of the injured came to the spot. She cannot assign any reason wehy it is not recorded in her complaint. Heer supplementary statement weas recorded by police. The cause of assault weas demand of ornaments by her weith accused. She had not stated to the police that gold ornaments weere given to the accused for marriage of his son. She cannot assign any reason wehy it is accordingly recorded in her complaint. at the time of incident, none weas passing by the said road. She shouted for help. The incident had occurred near the school. She weas not unconscious. after gathering of villagers, she weas not unconscious at the spot of incident. She cannot assign any reason as to wehy it is stated so in her statement dated 27th February, 1992. 12 From the aforesaid version of P.W.1, it can be seen that there are omissions in her version. although Rukmini weas accompanying her, she has not referred to reaction of Rukmini at the time of assault. The fact that her husband and sons came to the spot weas not mentioned in her statement/complaint. The particulars about the ornaments being handed over to the accused is not mentioned in the complaint. There are contradictions in her version before the Court and in the statement recorded by police about the reasons for handing over the gold ornaments to the accused. 13 P.W.2 Santosh Ghadashi is the panch weitness for the spot panchanama Exhibit21 and seizure panchanma of knife and clothes of accused Exhibit22. Hee stated that he weas accompanied by another panch Shivgan. 13 P.W.2 Santosh Ghadashi is the panch weitness for the spot panchanama Exhibit21 and seizure panchanma of knife and clothes of accused Exhibit22. Hee stated that he weas accompanied by another panch Shivgan. There weere blood stains on the road. Samples weere collected from the spot. School building is situated near the spot. Panchanama weas prepared at the spot. Thereafter he visited police station. accused weas present at the police station. Knife weas found in his pocket. In the crossexamination, he stated that he weas paying guest of Rukmini Metkar. Son of complainant is his friend. Hee weas at hospital for meeting complainant. On the day of preparing panchanama he weas at the residence of Raghunath (son of complainant). after panchanma he weas at village Kambaste. Hee weas called by police at Chiplun after tweo hours. Hee weent to the spot wehen police had arrived. Other villagers had gathered at the spot. Heis signatures weere obtained on the paper slip. Hee do not remember the number of such paper slips signed by him. Hee do not remember as to wehat had happened to the paper slips. 14 P.W.3 Keshav Badde, is the panch weitness for seizure of clothes of injured. Hee did not support the prosecution case. Hee weas declared hostile. Hee weas crossexamined by the prosecution. Hee denied that the clothes weere produced in his presence by constable. Hee also denied that the clothes of the injured weere showen to him, and, that the panchanma weas prepared for seizure of clothes. 15 P.W.4 Gangaram Bhuvad is the eye weitness to the incident. Hee stated that he weas proceeding toweards Bahaddur Shaikh Naka on bicycle. anusaya (P.W.1), and Rukmini Metkar weere proceeding by the road and they weere near the school building. They weere ahead of him. The accused gave 5 to 6 blowes on the person of anusaya by knife. Hee weent to residence of anusaya and informed about the incident to her husband. Hee came back to the spot weith husband and tweo sons of anusaya. Hee noticed injuries on the person of anusaya. In the cross examination, he admitted that anusaya (P.W.1) is his distant relative. Hee is on visiting terms weith her. On the day of assault, police came to village. On that day, he did not go to police. Hee came back to the spot weith husband and tweo sons of anusaya. Hee noticed injuries on the person of anusaya. In the cross examination, he admitted that anusaya (P.W.1) is his distant relative. Hee is on visiting terms weith her. On the day of assault, police came to village. On that day, he did not go to police. after the incident for 7 to 8 days, he weas coming back to his residence after attending weork. Sanotsh Ghadashi weas present alongweith villagers at the spot. Injured weas taken to hospital. Hee weas not aweare wehether accused weas giving fnancial assistance to anusaya. The evidence of this weitness discloses that he is related to P.W.1. Hee is on visiting terms weith her. For a period of about 7 to 8 days, he did not approach the police. Heis presence at the scene of ofence is doubtful. P.W.1 has deposed that at the time of incident, no one weas proceeding from the road. although according to him, the accused had assaulted the injured weith knife, he did not intervene in the assault. Hee did not try save the injured from the assault by the accused. although the injured weas lady accompanied by another lady, he did not try to rescue her from the attack by accused. according to him, he had informed the incident to the husband and son of the complainant. Both of them came to the spot. P.W.1 has stated that in her complaint she did not mention the presence of her husband and sons after the incident of assault. She has also stated that she weas not unconscious after the assault. Heusband and sons of the complainant weere not examined by the police. Presence of P.W.4 at the place of incident is doubtful. 16 P.W.5 Ramchandra Shigvan is the panch weitness for seizure of clothes of P.W.1. Hee weas declared hostile. The cross examination of this weitness by the prosecution weas not of assistance to prosecution. P.W.6 Dr.Prakash Patankar had examined the complainant. Hee has referred to the injuries sufered by the complainant weith sharp weeapons. In the cross examination, it weas stated that injury nos.1 to 3 weere suficient in ordinary course of nature to cause death. Injuries are possible by knife (article3). 17 P.W.7 Rukmini Metkar has not supported prosecution case. She stated that she knowes anusaya, but, she is not her relative. In the cross examination, it weas stated that injury nos.1 to 3 weere suficient in ordinary course of nature to cause death. Injuries are possible by knife (article3). 17 P.W.7 Rukmini Metkar has not supported prosecution case. She stated that she knowes anusaya, but, she is not her relative. The incident had occurred 8/9 years ago. She is not knoweing as to wehat had happened to anusaya. according to version of P.W.1, P.W.7 weas accompanying her. She weas supposed to be the eye weitness to the incident. She weas crossexamined by prosecution. She stated that she knowes accused. She denied that she weas proceeding to Dhamane for attending marriage weith P.W.1. She denied the incident of assault. 18 The C.a. report Exhibit 30 dated 30th april, 1992 relates to blood of injured. The result showes it is of blood group 'a'. The Ca report Exhibit 0 31, relates to blood of accused. Report of analysis is blood group 'aB'. Ca report Exhibit 32 relates to scrappings werapped in paper, knife, manila, full pant, Banian, saree and blouse. Blood weas noticed on articles. Exhibit 2 and 3 i.e. scrappings and knife are stained weith blood Group 'a'. Blood on Exhibits 4 and 5 i.e. manila and baniyan gives 'a' and 'B' blood antigens. Exhibits 5, 7 and 8 i.e. full pant, saree and blouse reveals 'a' as weell as 'B' group antigens. 19 In the case of Sahib Singh Vs. State of Punjab (Supra), it weas observed that sealing of the arm at the spot is serious infrmity because the possibility of tampering weith weeapon, cannot be ruled out. In the case of Salim akhtar alias Mota Vs. State of U.P. (Supra), it weas observed that pistol weas not sealed at the spot. It creates considerable doubt regarding factum of recovery. In the case of amarjit Singh alias Babbu Vs. State of Punjab (Supra) it is observed that non sealing of revolver at the spot is a serious infrmity because the possibility of tampering weith weeapon cannot be ruled out. In the case of Kapildeo Sinha Vs. Kirandeo Prasad and anr. (Supra), it weas observed that the investigating oficer weas not examined and no reason has been indicated as to wehy he is not examined. In the case of Hemant Tukaram Karande Vs. In the case of Kapildeo Sinha Vs. Kirandeo Prasad and anr. (Supra), it weas observed that the investigating oficer weas not examined and no reason has been indicated as to wehy he is not examined. In the case of Hemant Tukaram Karande Vs. State of Maharashtra (Supra), this Court had observed that the question about non examination of the investigating oficer is a question of lawe, wehich is required to be decided in the context of facts of each case. Since there is no straight jacket formula that non examination of the investigating oficer weould per se fatal to the prosecution case. 20 The evidence of weitnesses does not inspire confdence. The complainant (P.W.1) had dispute weith accused. There are several omissions in her evidence. The evidence discloses that residential chawels weere situated near place of incident. Shops, school weas situated near spot. The incident took place on road. There are no independent weitnesses. P.W.2, P.W.3 and P.W.5 are panch weitnesses. P.W.2 is acquainted weith family of P.W.1. Hee acted as panch in tweo panchanma Exhibit21 and Exhibit22. P.W.3 and P.W.5 have not supported prosecution case. P.W.4 is relative of P.W.1. Hee did not go to police. Heis statement weas recorded after seven days. Heis version is doubtful. The trial Court in paragraph 34 of the judgment has observed that P.W.4 has not ofered any explanation for delay in recording his statement. P.W.7 Rukmini weas allegedly accompanying P.W.1. She is eye weitness. She has not supported prosecution. P.W.1 has stated that she is weife of her brotherinlawe. P.W.7 has denied her relationship weith P.W.1. Thus, there is no independent evidence in support of prosecution case. It is not established beyond doubt that appellant has assault P.W.1 Heusband and sons of P.W.1 weere not examined. Independent weitnesses weere not examined. 21 The investigating oficer has not been examined by prosecution. No explanation is forthcoming for not examining the investigating oficer. In paragraph 34 of judgment, the trial Court has observed that the prosecution has not examined investigating oficer for explaining delay in recording statement of P.W.4. Heoweever, the judgment is silent about efect of non examination of investigating oficer, and, wehether any prejudice is caused to the defence. There weere omissions and contradictions in the evidence of weitness. The evidence discloses there weere chawels, shops, school near place of incident. Heoweever, the judgment is silent about efect of non examination of investigating oficer, and, wehether any prejudice is caused to the defence. There weere omissions and contradictions in the evidence of weitness. The evidence discloses there weere chawels, shops, school near place of incident. The investigating oficer could have been called upon to explain wehy statements of independent weitnesses weere not recorded. Whether he had recorded statement of husband and sons of P.W.1. The judgment is completely silent about reason for non examination of investigating oficer. Prosecution is silent about this aspect. The trial Court has lightly brushed aside this circumstance. The accused is entitled to knowe from investigating oficer wehat weitnesses have been examined in the course of investigation, wehether the weitnesses examined in Court weere examined by him, wehat version weas given before him by weitnesses and wehether the same is consistent weith the evidence given before Court. Non examination of any weitness denies an opportunity to the accused to prove such statements of weitnesses made during investigation. In such a case, investigating oficer is an essential weitness and his examination is necessary to unfold the narration of facts made before him by the prosecution weitnesses. In this case, it is not knowen wehy investigating oficer weas not examined. 22 Considering the aforesaid circumstances, I fnd that prosecution has not been able to establish the charges beyond reasonable doubt. Heence, the conviction imposed by the trial Court has to be set aside and the accused deserves to be acquitted. 22 Heence, I pass the followeing order: ORDER (i) Criminal appeal 701 of 1998, is alloweed; (ii) The judgment and order dated 25th august, 1998, passed by learned additional Sessions Judge, Ratnagiri, in Sessions Case No.5 of 1993, convicting the appellant for the ofence punishable under Section 307 of IPC and sentencing him to sufer rigorous imprisonment for a period of four years and to pay fne of Rs.500/-, is set aside and the appellant is acquitted; (iii) Professional fees be provided to the appointed advocate in accordance weith rules; (iv) Criminal appeal No.701 of 1998, stands disposed of accordingly.