STATE OF UTTAR PRADESH v. HET RAM & Ors.

"As we were not certain whether persons could be identi fied 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 Advo cate 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. 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, Dwa rika is alleged to have recognised the assailants from a dis tance 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 of suspicion implication of the appellants on the basis cannot be ruled out as. admittedly there was a dispute bet ween 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 judg ment 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 mean ing 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 B c D E F G H A B c D E F G H 322 SUPREME COURT REPORTS [1976] 3 S.C.R. 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 pro perly appreciating the the evidence given at such inquiry or trial. and shall without unnecessary delay record a memo randum 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 pur 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 have been committed or its local peculiarities for the purpose of pro perly appreciating the evidence which was already on the record. the offence was alleged 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 ascertain ing whether persons could be identified at that hour from a short dis tance. 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 It will be recalled that the Judges did not record a permissible. time of memorandum of any relevant fact observed by them at the 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 irregula rity, the fact remains that, as we shall show presently, they did not y STATE OF UTTAR PRADESH v. HET RAM (Shinghal, !.) 32 3 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 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 It is thus not known whether it was an open place, or it 7.30 p.m. 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 "extreme ly difficult to recognise faces even of persons standing within a foot," to recognise the but they have not stated whether it was impossible 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 recog nise 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 It has further been stated in the impugned judgment that victims. "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" If we may say so. the inspection was not utilised for on the record. It had the effect of substituting the personal ob any such purpose. It is a matter servations of the Judges for the evidence on· the record. of regret rhat these views should have formed the basis for rejecting the prosecution evidence altogether. 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 therefore have been and the dying declaration of Rati Ram should 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 extreme ly difficult to recognise the faces of the assailants. It has to be remembered A B c D E G H 324 SUPREME COURT REPORTS [1976] 3 S.C.R. A B For the reasons mentioned above, we have no doubt that the pro cedure 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 assai lants 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 judgment dated therefore constrained to set aside January 15, 197 4 and to direct that the High Court shall rehear 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. the impugned S.R. Case remanded. )r '