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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: HET RAM & ORS.

DATE OF JUDGMENT03/02/1976

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. SARKARIA, RANJIT SINGH

CITATION:  1976 AIR 2124            1976 SCR  (3) 319  1976 SCC  (3) 672

ACT:      Local inspection-"Any  place in  which  an  offence  is alleged lo  have been  committed or any other place which it is in  his opinion  necessary to  view for  the  purpose  of properly appreciating the evidence", means only the venue of offence and  no other place- Code of Criminal Procedure (Act 5), 1898-Section 539 B, object of.

HEADNOTE:      The respondents  were convicted  by the  Sessions Judge for the  offence under  s. 302/34, I.P.C. for committing the murder  of   one  Rati   Ram  and   sentenced  to   rigorous imprisonment for  life. They  were also  convicted under  s. 307/34 I.P.C. for causing grievous injury to Raja Ram (PW 2) with intent  to commit  his murder and sentenced to rigorous imprisonment for  10 years.  They were,  however, given  the benefit of  doubt and  acquitted of the murder of Nainsuk is other-in-law of  Rati Ram. The convictions were based in the dying declaration  as the  seven- incise  wounds on Rati Ram and 26  incised wounds  on Raja Ram and also on the evidence of Raja  Ram (PW  2) and  Dwarika (PW  3) who identified the respondents as the assailants. The offence took place in the early hours  of 24th  December 1971 (About 3.30 A.M.) and it was the admitted case that it was a dark night.      During the  pendency of  the appeal by the respondents, the learned  Judges of the High Court acting- under s. 539B, Cr.P.C.,  went   with  the   Government  advocate   and  the respondents’ counsel on 11-1-1974 to a place where there was no artificial  light at  about 7.30  p.m. for the purpose of appreciating the veracity of the evidence of Raja Ram (PW 2) and Dwarika  (PW 3) tendered at the trial in identifying the respondents   in    darkness.   Finding   that   under   the circumstances noticed by them, it was difficult to recognise a person, the High Court disbelieved the evidence of PW2 and PW3 and acquitted the respondents.      Allowing the appeal by special leave, and remitting the case for rehearing, the Court, ^      HELD  :(1)   Section  539B  of  the  Code  of  Criminal Procedure, 1898,  contemplates the  local inspection  of the topography of  the place in which the offence was alleged to have been.  committed or  its local  peculiarities  for  the

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purpose of  appreciating the  evidence which  was already on the record. [322F]      (2) In  the instant  case, the procedure adopted by the Judges in  visiting  quit  a  different  place,  on  a  time unconnected with  tho time  of the alleged incident, for the purposes of  deciding whether  the witnesses  could identify the assailants  in the darkness was quite illegal and it was not permissible  for them  to dispose  of the  case OD  the. basis of  their own  findings without regard to the evidence which was already on record. [324A-B]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTlON: Criminal Appeal No. 79      of 1975.      (Appeal by  Special Leave  from the  Judgment and order      dated 15-1-1974 of the Allahabad High Court in Criminal      Appeal No. 2545/72) .      O. P. Rana, for the appellant.      Yogeshwar  Prasad   and  Miss   Rani  Arora,   for  the      respondent. 320      The Judgment of the Court was delivered by      SHINGHAL, J.-The Sessions Judge of Farukhabad convicted respondents Het  Ram, Sobran and Ram Pal of an offence under section 302/34  I.P. for  committing the murder of Rati Ram, and sentenced  them to  rigorous imprisonment  for life.  He also convicted  them of  an  offence  under  section  30?/34 I.P.C. for causing grievous injury to Raja Ram (P.W. 2) with intent to  commit his murder, and sentenced them to rigorous imprisonment for  ten  years.  The  respondents  were  given benefit of  doubt in  regard to the murder of one Nain Sukh, brother-in-law of  Rati Ram,  and were  acquitted. While  no appeal was preferred against the acquittal, the accused went up in  appeal to  the High Court of Judicature at Allahabad, which took  the view  that the  prosecution  had  failed  to establish the  guilt beyond reasonable doubt. The High Court allowed the  appeal by  its judgment dated January 15, 1974, and set  aside the  conviction  and  the  sentences  of  the accused. The  State of Uttar Pradesh has therefore filed the present appeal by special leave.      The controversy  in this  Court centres  round a  short point but,  in order  to appreciate it, it will be necessary to make a brief mention of some of the facts.      It was  alleged by  the prosecution  that there  was  a dispute between  Rati Ram  and respondent  Het  Ram  over  a potato field.  Rati Ram  initiated proceedings under section 144 Cr.P.C.  and secured an order of attachment. A panchayat was held  thereafter, and  it decided  that while the potato crop may  be given  to respondent  Het Ram, the field may be given to  Rati Ram.  It was  alleged that  the terms  of the decision of  the panchayat  were reduced to writing and that document was  handed over  to Nain Sukh, brother law of Rati Ram. It  was alleged further that on December 24, 1971, Rati Ram and  his son  Raja Ram  (P.W. 2)- left for Farukhabad at about 2.45  a.m. in  a bullock cart loaded with potatoes for selling them  there. Rati  Rarm’s nephew  Dwarika  (P.W.  3) accompanied  them   in  another  bullock  cart  loaded  with potatoes for  the same purpose. At about 3.30 a.m. when they were travelling  between Jhaua  and Rampura  villages,  they Were surrounded  by respondents  Het Ram, Sobran and Ram Lal who were  armed with  "Karolis". It  is alleged that Het Ram was also  armed with  a pistol, and Sobran with a Iathi. All the three  respondents caused  injuries to Rati Ram and Raja

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Ram, who  raised an  alarm. Dwarika, who was trailing behind in his  cart, also  raised an  alarm and  ran towards  Jhaua village, but  the respondents  ran  away  towards  the  west before the  villagers could  arrive saying they would go and kill Nain  Sukh. It is said that Nain Sukh was murdered soon after while  he was  sleeping in  Rati  Ram’s  "chaupar’.  A report  of   the  incident  was  lodged  at  police  station Shamshabad shortly after wards, at about 9.5O a.m.      The injuries  of Raja Ram and Rati Ram were examined by the Medical  officer, District Hospital, Fatehgarh, the same day. Raja  Ram had  26’ incised wounds. The injuries of Rati Ram were  also He  examined the  same day  He had  7 incised wounds. His  dying declaration  was  recorded  by  the  Sub- Divisional Magistrate  on December  24 1971 and he succumbed to his injuries on December 30, 1971. 321 Nain Sukh  succumbed to his injuries soon after the incident but we  A are  not concerned  with his case as it is not the subject matter of the appeal before us.      The High  Court took note of the fact that Raja Ram (P. W. 2)  and Dwarika  (P. W’. 3) were the two eye witnesses of the prosecution  in regard  to the  incident relating to the injuries inflicted  on Rata  Ram and  Raja Ram. It held that the presence  of  Raja  Ram  had  been  established  by  the injuries which were received by him, and it also reached the conclusion that  Dwarika (P.W.  3) was  also present  at the time of  the incident.  After recording  that  finding,  the Judges raised  the question  whether those  witnesses  could identify the assailants in the dark night and answered it in the following manner,-           "As we  were not  certain whether persons could be      identified in  a dark  night even from a short distance      we went  to a place where there was no artificial light      on 11-1-74,  which was the third day of dark fortnight,      at about  7.30 p.m.  before  moonrise  along  with  the      learned  Government   Advocate  and  Sri  Kundan  Singh      counsel  for  the  appellants.  We  fund  that  it  was      extremely difficult  to recognise faces even of persons      standing within a foot. Although the general outline of      the face  was visible  the features  could not  be seen      clearly. Beyond  a distance  of two  or three feet even      the outline of the face was not clear. It is noteworthy      that according to the evidence on record the assailants      did not  speak at  all at  the time  of the occurrence.      There was  there fore  no question  of  recognition  by      voice. We  are therefore  of the opinion that even Raja      Ram and  Rati Ram  who had  received  injuries  in  the      incident were  not  in  a  position  to  recognise  the      assailants  clearly   beyond  the  possibility  of  any      mistake. According  to the  evidence on record, Dwarika      is alleged  to have  recognised the  assailants from  a      distance of about five or six paces. From that distance      it was  not at  all  possible  to  do  so.  The  result      therefore is  that we are not prepared to accept either      the dying  declaration of Rati Ram or the statements of      Raja Ram  and Dwarika  regarding the  complicity of the      appellants  in   the  crime.  The  implication  of  the      appellants on  the basis  of suspicion  cannot be ruled      out as  admittedly there was a dispute between Rati Ram      and Het  Ram in  respect of a field which, according to      the prosecution, constituted the motive for the crime."      .      The legality  and the  propriety of  the visit  of  the Judges ’to  a place where there was no artificial light", at 7.30 p.m.  On January 11, 1974 and the inferences drawn from

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that visit,  is the  only point which has been urged for our consideration, for, as has been stated in the judgment under appeal, that  was the basis of the order of acquittal. While Mr. Rana  has challenged  that action,  Mr. Yogeshwar Prasad has argued  that the  visit was by way of a local inspection within the  meaning of  section 539B of the Code of Criminal Procedure and  was quite  in order.  It is  admitted that  a memorandum or the facts observed by 322 the Judges  was not  recorded, and  Mr. Yogeshwar Prasad has invited our attention to several decisions of High Courts in which it  has been  held that  such an  omission was  a mere irregularity so  long as  it could  be shown that it had not caused failure of justice or prejudiced the defence.      It  is   not  in  controversy  before  us  that  it  is permissible  for   an  appellate   court  to  make  a  local inspection of  the nature contemplated by section 539B. Sub- section  (1)   of  that   section,  which  bears  on  the  . controversy before us, reads as follows.           "539B (1) Any Judge or Magistrate may at any stage      of the  inquiry, trial  or other  proceeding, after due      notice to  the parties,  visit and inspect any place in      which an  offence is alleged to have been committed, or      any other place which it is in his opinion necessary to      view for  the  purpose  of  properly  appreciating  the      evidence given  at such  inquiry or  a trial. and shall      without unnecessary  delay record  a memo random of any      relevant facts observed at such inspection. What is  therefore permissible  is that  a Judge may inspect any "place"  in which  an offence  is alleged  to have  been committed,’’ or "any other place" which it is in his opinion necessary to  view for the purpose of "properly appreciating the  evidence"   given  at   an  inquiry,   trial  or  other proceeding. The  Judges of  the High Court did not, however, inspect any  such place  in which  an offence was alleged to have been  committed and,  as is  obvious, it cannot be said that they  inspected any  other place which could be said to be  necessary   to  view  for  the  pure  pose  of  properly appreciating the evidence in the case. The learned Judges in fact did not go to visit any particular "place" as such, for they went  to a  place "at a short distance" where there was no artificial  light merely  for the purpose of ascertaining whether "persons  could be  identified in  a dark night even from a  short distance."  Theirs was  therefore not  a local inspection within  the meaning of section 539B Cr. P. C. for what that  section contemplates  is the  local inspection of the topography of the place in which the offence was alleged to have  been committed  or its  local peculiarities for the purpose of  properly appreciating  the  evidence  which  was already on the record.      It will  be recalled that the incident in this case was alleged to  have taken  place at about 3.30 a.m. On December 24, 1971.  The Judges  however chose to go and visit a place unconnected with  the incident on January 11, 1974 at about. 7.30 p.m.  for the  purpose of  ascertaining whether persons could be identified at that hour from a short distance. They thus chose  the time  and the place of their visit according to their whim and fancy, quite unconnected with the time and place of  the incident.  Mr. Yogeshwar  Prasad has  not been able to  refer us to any provision of law under which such a course could  be said to be permissible. It will be recalled that the  Judges did not record a memorandum of any relevant fact observed  by them  at the time of their inspection. But even if  it is  assumed, for  the sake of arguments that the omission  did   not  prejudice   any  one  and  was  a  mere

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irregularity, the  fact  remains  that,  as  we  shall  show presently, they did not 323 correlate the  result of their inspection to the evidence on record and  there is  justification for  the argument of Mr. Rana that  the local  inspection cannot be said to have been undertaken for  the purpose  of  properly  appreciating  the evidence on record.      We have extracted that portion of the impugned judgment of the  High Court which bears on the controversy before us. There is  nothing in  the judgment to show the nature of the place which  was selected  by the  Judges for their visit on January 11,  1974 at  about c 7.30 p.m. It is thus not known whether it  was an  open place, or it was some such place as the one  where the  alleged incident took place. The time af the visit  had also nothing to do with the alleged incident. It has been stated by the Judges that they found that it was "extremely difficult  to recognise  faces  even  of  persons standing within a foot," but they have not stated whether it was impossible  to recognise the faces of even those persons who were relations and were well known to the witnesses over a long period of time. The statement of Raja Ram (P.W. 2) in the trial  court was  read out to us. He has stated that the accused gave  the beating  while clinging  to the victims at close quarters.  There is however nothing in the judgment of the High  Court to  show whether  the darkness  found by the Judges was  so in  tense that  even those  clinging  to  the victims could  not be  identified by  them in  the  darkness which the  Judges found at the time of their inspection. The statement that it was extremely difficult to recognise faces of persons standing within a foot, was thus quite immaterial because the  evidence to  the present  case was not that the accused were  standing at  that distance  but that they were clinging to  the victims.  It has further been stated in the impugned judgment  that "although the general outline of the face was visible the features could not be seen clearly". It has not  however been  stated whether  the features  of well familiar faces  could  also  not  be  recognised.  The  same criticism applies  to the observation that beyond a distance of two  or three  feet, even the outline of the face was not clear. It  would thus  appear that  it is  not  possible  to contend that  the local  inspection  on  which  considerable reliance was  placed by  the learned Judges was , undertaken for the  purpose of  "properly appreciating the evidence" or the record.  If we  may  say  so.  the  inspection  was  not utilised  for  any  such  purpose.  It  had  the  effect  of substituting the personal observations of the Judges for the evidence on  the record. It is a matter of regret that these views should  have formed  the basis  for  rejecting  r  the prosecution evidence altogether It has to be remembered that Raja Ram  (P.W. 2)  received as  many as  26 incised wounds, some of  which were  on the  front part  of his body. He has stated at the trial that the accused were clinging to him so that, according  to him,  he was  facing them  at very close quarters, Rati  Ram received  7 injuries  including those on the chest.  He also  thus had the opportunity of identifying them at  very close  quarters. The statement of Raja Ram and the dying declaration of Rati Ram should therefore have been examined by the High Court, as the Court of first appeal, on their -  merits and  not on  the fanciful  ground  that  the Judges who  went for  local inspection  found, on  their own examination, that  it was  extremely difficult  to recognise the faces of the assailants. 324      For the  reasons mentioned above, we have no doubt that

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the procedure  adopted by  the Judges  in visiting  quite  a different place,  on a  date and  time unconnected  with the time of  the alleged  incident, for  the purpose of deciding whether the  witnesses could  identify the assailants in the darkness, was  quite illegal  and it was not permissible for them to  dispose of  the case  on the  basis  of  their  own findings without regard to the evidence which was already on the record.  We are  therefore constrained  to set aside the impugned judgment  dated January is, 1974 and to direct that the High  Court shall rehear the appeal according to the law and dispose of it within a period of three weeks. The record of the  case may  be sent  to the  High Court  by a  special messenger to avoid any delay in transit. S.R.                                          Case remanded. 325