State of Uttar Pradesh Vs. Het Ram
& Ors [1976] INSC 17 (3 February 1976)
SHINGAL, P.N.
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 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 the
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]
CRIMINAL APPELLATE Jurisdiction: 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 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 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 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 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 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 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.
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