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3 19

STATE OF UTTAR PRADESH

HET RAM & ORS.

February 3, 1976

[R. S. SARKARIA AND P. N. SHINGHAL, JJ.J

Local irupection-"Anv place in which an offe11ce fa {/llcged to ha\'e been conunittcd or any other Place which it is in his opinion necessary to view for !he purpose of properly appreciating the evidence", n1eans only the renue of ofie11ce and no other p!ace..__code of Crbninal Procedure (Act 5), 1898- Section 539 B, object of.

The respondents we_re convicted by the Sessions Judge for the offence under s. 302/34, J.P.C. for committing the murder of one Rati Ram and sentenced C to rigorous imprisonment for life. They were also convicted under s. 307134 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 brother-in-Jaw of Rati Ram. The convictions were based on the dying declaration and 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 330 A.J\t) and it D 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., 1, ve11t \\'ith the Government Advocate and the respondents' counsel on 11-1-1974 to a place where there \Vas no artificial light at about 7.30 p.m. for the purpose of appreciating the veracity of the evidence of Ra_ia Ram (PW 2) and Dwarika (PW 3) tendered at the trial in identifying the respondents in darkness. Finding that under the E 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.

AJJowing 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 lo:; al inspection of the topography of the place in which the offence was alleged to have been committed or its local peculiarities for the purpose F of appreciating the evidence which was already on the record.

[322FJ

(2) Jn the instant case, the procedure adopted by the Judges in visiting quite a different place, on a time unconnected with the time of the allep-Pt 1

incient, f?r the purposes of decdin.g whether the witnesses could identify the assailants 1n the darkness was quite illegal and it was not permissible for them to dispose of the case on the basis of their own findinp:s vdthout regard to the evidence \Vhich \Vas already on record. f324A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No, 79 of l 975.

(Appeal by Special Leave from the Judgment and 1 5-1-1974 of the Allahabad High Court in Criminal 2545/72).

0. P. Rana, for the appellant.

Order dated Appeal No.

YogeJhwar Prasad and Miss Rani Arora, for the respondent.

A 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 l.P.C. for committing the murder of Rati Ram, and sentenced them to rigorous imprisonment for life.

He also convicted them of an offence under section 307 /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 Coc1rt 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-in-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 Ram'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 "Karalis''. It is alleged that Het Ram was also armed with a pistol, and Sobran with a lathi.

All the three respondents caused injuries to Rati Ram and Raja 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 "cbaupal". A report of the incident was lodged at police station Shamshabad shortly afterwords. at about 9.50 a.m.

The injuries of Raia Ram and Rati Ram were examined by the Medical Officer, District Hospital. Fatehgarh, the same day.

Raja Ram had 26 incised wounds.

The iniuries of Rati Ram were also

xamined the snrne dav. Ile haO 7 inCiscd \Vounds.

His dying declaration was recorded bv the Sub-Divisio:d Maistrate on December

24. 1971. and he succumbed to his iniurics on December 30, 1971.

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 infiicted on Rati 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 tinie 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 11-1-7 4, 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 found 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 therefore 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 nossible 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 Raia Ram and Dwarika regarding the complicity of the appeliants 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 crin1e."

The legality and the propriety of the visit of the Judges "to a: place where there was no ai; tificial light", at 7.30 p.m. on January 11, 1974 and the inferences drawn from 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 of the facts observed by

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 coulo 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 offenre 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 the evidence given at such inquiry or trial. and shall without unnecessary delay record a memorandum 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 purpose 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. Y ogeshwar 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 argument, that the omission did not prejudice any one and was a mere irregularity, the fact remains that, as we shall show presently, they did not

correlate the result of their inspection to the evidence on record and there is justification for the argument of Mr. Rana that the local ins .. pection 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 na•ure of tlie p'o:e which "'as

selected by the Judges for their visit on January 11, 1974 at about

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 of the visit had also nothillg 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 intense 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 insoection on which considerable reliance was placed by the learned judges was undertaken for the purpose of "properly appreciating the evidence"

on 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 rhat these views should have formed the basis for rejecting the prosecution evidence altogether.

It has to be remembered that Raia Ram (PW. 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.

For the reasons mentioned above, we have no doubt that 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 15, 197 4 and to direct that the High Court shall rehear the appeal according to the Jaw 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.