Full Judgment Text
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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