IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPLICATION NO. 708 OF 2009 IN APPEAL NO. 653 OF 2009 JIVYADHARMA CHOTHE & ANR... .. .. APPLICANTS Vs. THE STATE OF MAHARASHTRA .. .. RESPONDENT Mrs. V. R. Raje i/b Prakash Naik for the applicant Ms. P. H. Kantharia, APP CORAM : SMT. RANJANA DESAI, & SMT. V. K. TAHILRAMANI,JJ. DATE : 15th April, 2010. P.C. The applicants are original accused 1 and 2. They were tried in Sessions Case No. 923 of 1996 by the IIIrd Ad Hoc Additional Sessions Judge, Palghar for offences punishable under Section 302, 324, 323 read with Section 34 of the IPC and sentenced to life imprisonment. The said order is impugned in the instant appeal, which is admitted. 2. We have heard learned counsel for the applicants at some length in support of the application for bail. Learned counsel submitted that the prosecution has adduced the evidence of brothers of the deceased, who are interested witnesses. Counsel submitted that learned Judge ought not to have relied on their evidence to convict the applicants. Counsel further submitted that Dharma, brother of the deceased has turned hostile. The basic case of the prosecution is that Dharma was on enemical terms with Navshya. If Dharma has turned hostile, the substratum of the prosecution story has given way. Learned Judge has glossed over this fact. Counsel submitted that the prosecution has failed to prove motive. Counsel further submitted that the incident in question took place at about 6 O’clock in the evening. Though deceased Mahadu was alive he was not taken to the hospital till morning. This casts a shadow of doubt on the prosecution case. Counsel further submitted that it is risky to rely on evidence of PW 4 Tulsi because Tulsi had land dispute with accused 1. Learned Judge, therefore, erred in placing reliance on PW 4 Tulsi. 3. Counsel also took us to the medical evidence and submitted that according to the doctor the deceased had their last lunch 3/4 hours prior to the death. She submitted that PW 1 has stated that they had lunch at about 12 O’clock in the afternoon. The incident is stated to have taken place at about 6 O’clock in the evening. Thus there is inconsistency in the evidence. Counsel further pointed out that PW 10 Dr. Kalangada, who did postmortem on the deceased has stated that injuries suffered by the deceased are simple and that except first injury there were no corresponding internal injuries to the injuries mentioned in column No. 17. The prosecution story that the deceased succumbed to death because of the injuries allegedly caused by the accused cannot, therefore, be accepted. Rest of the injuries as stated in the postmortem notes are not sufficient to cause death. 4. We are unable to appreciate the submissions made by learned counsel. There are three eye-witnesses to the incident in question in which two persons lost their lives. PW 1, 3 and 5 are brothers. The eye-witnesses have given graphic description of the incident in question. Prima facie there are no glaring inconsistencies in their evidence. Eye-witness account cannot be thrown overboard because they are interested witnesses. They have no reason to falsely implicate anybody as the assailants of their brother. In our prima facie opinion, the eye-witness account inspires confidence and, therefore, learned Judge has rightly placed reliance on it. It is well settled that when there is consistent eye-witness account, failure to prove motive does not have any adverse impact on the prosecution story. Therefore, assuming that the prosecution has not proved motive, that will not in any way affect the prosecution case. 5. So far as the submission that medical evidence does not tally with the eye-witness account is concerned, it does not impress us at all. It is well settled that credible eye-witness account overrides the medical evidence. In any case there is no major inconsistency between the two. The finer arguments on medical evidence can be appreciated at the final hearing of this appeal. For the present, we are of the view that there is a prima facie case against the applicants and hence bail cannot be granted to them. Bail application is, therefore, rejected. 6. Before parting, we must note a very disturbing feature of this matter. This is a case of double murder, however, the investigating officer has chosen not to remain present in the court during trial. This is not the first time, we have come across such a case. We have come across two more cases in which Investigating Officer has not remained present in the court during trial. This appears to have become a trend now. In Sessions Case No. 173/07 tried by the court of Additional Sessions Judge, Palghar, the Investigating Officer did not remain present in the court. In yet another case being Sessions Case No. 1/06 tried by the Sessions Judge, Satara, the Investigating officer did not remain present in the court during trial. This is a serious lapse on the part of the Investigating Officers and sooner the Director General of Police, State of Maharashtra takes action better it will be for the criminal justice administration. 7. In murder trials it is the prime duty of the investigating officer to remain present in the court. In Shailendra Kumar v. State of Bihar (2002) 1 SCC 65, the Supreme Court was distressed to note that the court and the APP try to dispose of murder trials without informing the police station officer-in-charge. The Supreme Court voiced its concern in following manner: “In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded with by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that the accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Additional Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on the part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/non-bailable warrants, as the case may be. It should be well understood that the prosecution cannot be frustrated by such methods and victims of the crime cannot be left in a lurch”. 8. In Zahira v. State of Gujarat, AIR 2004 SC 3114, the Supreme Court expressed its extreme displeasure about the fact that the investigating officer had not remained present during trial. The Supreme Court relied upon the above paragraph from its judgment in Shailendra Kumar and observed as under: “Time and again this court stressed upon the need of the investigating officer being present during trial unless compelling reasons exist for a departure. In the instant case, this does not appear to have been done and there is no explanation whatsoever why it was not done. Even Public Prosecutor does not appear to have taken note of this desirability”. 9. We would like the Director General of Police, State of Maharashtra to file an affidavit stating why the police officers did not remain present in the above cases. We make it clear that, we have not prejudged the issue and found the officers guilty. It is necessary to find out why they did not remain present. If the police officers are at fault, the Director General of Police must deal with them in accordance with law. If it appears that the fault lies elsewhere, we shall pass appropriate order on the adjourned date. 10. Adjourned for three weeks, i.e. to 6/5/2010. (Smt. Ranjana Desai, J.) (Smt. V. K. Tahilramani, J.)