P. Narayana Pillai, J.
1. This is an appeal from acquittal. There were six accused persons in the case. The charge against them at their trial at the Sessions, Trichur, was that they were members of an unlawful assembly and that in furtherance of the common object of that assembly one Bava was murdered by the first and fourth accused beating him with sticks and the remaining accused persons fisting him with hands.
2. The occurrence took place at or about 2-30 P.M. on May 2, last year at a place on the beach within the jurisdiction of Mathilakam Police Station. Accused 1 to 5 are related to each other. The sixth accused is their friend. The relationship between Bava's sons on the one hand and the accused on the other was not cordial for some time past. There were criminal cases between them.
3. Before the occurrence Bava was repairing a fishing net at the scene of occurrence. After coming in a body to that place the first and fourth accused beat Bava with a stick, the first accused on the head and the fourth accused on the left leg. The remaining accused fisted him. Hearing cries from the scene of occurrence several persons including P.W. 1 came there. Accused 1 and 4 then threw the sticks into the sea and ran away along with the remaining accused.
4. Bava was removed from the place by P.W. 1 and others first to the Cranganore Government Hospital and thereafter for better treatment to the Trichur District Hospital. He died at 10 P.M. On getting information about the removal of Bava with injuries on his body to hospital a Head Constable of the Mathilakom Police Station went to the Trichur District Hospital and recorded there at 11 P.M. the first information statement, Ext. P-1, given by P.W. 1. On the basis of it a case was registered against the accused. They were arrested on June 12, 1972.
5. Both in the committal and trial Courts the accused denied having had anything to do with the occurrence. They did not examine any witness on their behalf.
6. It is not disputed that Bava died as a result of the injuries sustained by him at the time of the occurrence. Exts. P-10 and P-11 are respectively the post-mortem certificate and the inquest report. Only two injuries, both lacerated, are noted in Ext. P-10, one on the frontal area of the scalp and the other on the left leg below the knee. The injury on the head fractured the left frontal bone and anterior and middle cranial fossa. It was necessarily fatal.
7. The important question to be considered is whether it was accused 1 and 4 who caused the injuries found on Bava and whether it was in the circumstances stated by the prosecution that the occurrence took place. The occurrence witnesses are P.Ws. 1 to 4. The trial Judge refused to act upon their evidence.
8. Admittedly Bava's sons were on bitterly inimical terms with the accused. P.Ws. 1 and 2 are nephews and P.W. 4 is brother of Bava. They had gone out to the sea to catch fish. After coming back to the shore they sold the fish caught that day for Rs. 12/- and handed over the money to Bava. Thereafter they went to take tea in a shop about two furlongs away. After taking tea from the shop, on their way to the beach they are said to have heard Bava's cries from the scene of occurrence and then on looking from a place near one Bhargavi's tea shop, about 35 metres away, seen the accused committing the crime. After the day's work instead of going to their houses, three furlongs away, they are said to have come back to the beach after taking tea. The explanation given for coming back to the beach was to repair nets. That was not mentioned during investigation. It was not mentioned in Ext. P-1 also, P.W. 3 is Bhargavi's brother-in-law. His house is some distance away from Bhargavi's tea shop. After the death of Bhargavi's husband he used to look after Bhargavi's property. There used to be stealing of coconuts from Bhargavi's property and it was to check that that P.W. 3 is said to have come on the date of occurrence to the property where Bhargavi's tea shop is situated. It is difficult to believe that to check stealing of coconuts which usually takes place only in the night, he would have come to the property in the noon to guard against theft. Accused 2, 3, 5 and 6 are said to have fisted Bava indiscriminately with hands. There was no corresponding contusion on his body. There were abrasions on several parts of the body. There is no explanation as to how they were caused. According to the prosecution from start to finish Bava was lying on his back and it was when he was lying in that position that all the injuries found on him were inflicted. There were abrasions on his back. The prosecution has no case that he ever lay there with face down. The evidence of the occurrence witnesses before court was that the second accused beat Bava on the left leg with a stick. The overt act attributed to the fourth accused by the witnesses during investigation was that he fisted Bava. As regards the injury on the head attributed to the first accused the prosecution case is that by lifting both his hands the first accused who was standing near Bava's head gave a blow on his forehead with a stick. The medical evidence was that if Bava was lying on his back and the first accused gave him a blow in the manner stated by the prosecution the chances for the injury being in the manner described in the post-mortem certificate were less. There are shops and residential houses near the scene of occurrence. None of the persons there has seen the occurrence. According to the prosecution Bava was repairing a net when he was attacked by the accused. That net has not been recovered. P.W. I spoke to him and the persons with him having paid Rs. 12/- to Bava as the price of fish sold that day before they left Bava and went to the tea shop to take tea. Only 25 np. was recovered from the dead body at the time of the inquest. In such circumstances the Judge below was right in refusing to act upon the prosecution evidence and acquitting the accused.
9. In this case the trial Judge made a local inspection on an application filed by the accused after the prosecution had completed adducing evidence and he has freely made use of what he saw there then in deciding the case. After going to the place the Public Prosecutor and the Advocate for the accused showed him the places from where P.Ws. 1 to 4 are said to have witnessed the occurrence. He stood at those places and looked at the scene of occurrence. What he then saw and to what extent it was useful is thus mentioned in his judgment:
It was found at the local inspection, held in the presence of both sides and after due notice to them that the scene of occurrence was about 21 1/2' lower in level than the ground near the tea-shop and in between there are two coconut plants and one coconut tree. While it is true that persons standing at the scene could be seen from near the tea-shop, if a person stands so that the trees and the plants do not obstruct the vision, it is equally true that any person lying at the scene would not at all be visible in view of the difference in level. It is in this background that the evidence of these witnesses has to be appreciated.
While it may not be possible for a person of the height of the Judge to see from the places where he stood a person lying at the scene of occurrence that person may be quite visible to persona taller than the Judge. There is nothing on record to show the height of the occurrence witnesses. After all the difference in level between the scene of occurrence and the places from where the Judge looked at it was only less than two feet. There is also nothing to indicate the comparative power of vision of the Judge and trip witnesses. It may as well be that what the Judge could not see if his sight was defective the witnesses could see with their sight, if it was not defective.
10. It is worthwhile mentioning in this connection the scope of the power of a Judge trying a criminal case of making local inspection. Section 539-B of the Criminal Procedure Code which empowers a Judge to make local inspection reads:
539-B, Local inspection.- (1) Any Judge or Magistrate may at any stage of any inquiry, trial or other proceeding, alter 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 trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case. If the Public Prosecutor, complainant or accused so desires, a copy of the memorandum shall be furnished to him free of cost;Provided that, in the case of a trial by jury, or with the aid of assessors the Judge shall not act under this section unless such jury or assessors are also allowed a view under Section 293.
Local inspection can be made on the application of parties or even suo motu. But it can only be for properly appreciating the evidence in the case. The Civil Procedure Code provides for issue of commission to any person the court thinks fit for making local investigation and the report of the Commissioner being evidence in the case even without his examination. There are no corresponding provisions in the Criminal Procedure Code. But that Code provides for the Judge making a local inspection himself. That inspection can be used by him for properly appreciating the evidence in the case and for no other purpose. It cannot be used for preparation of the background for appreciating the evidence of the witnesses because preparation of the background has to be made by the parties themselves by letting in evidence for that purpose and the Judge is not expected to supply that lacuna in evidence. Preparation of the background to appreciate the evidence of witnesses is not the same as 'properly appreciating the evidence' contemplated by the section. They are clearly distinct matters. If local inspection is used to prepare the background it takes the place of obtaining additional information or evidence and that is not permitted. As the Judge has to avoid putting himself in the position of a witness in the case he should not allow his views or observations on controversial facts on local inspection to take the place of evidence. If the impressions gained by the Judge on controversial matters are allowed to get in without being tested by cross-examination there is the likelihood of miscarriage of justice resulting from it. It is only appropriate to strike here a note of caution that as 'local inspections are fraught with dangerous pitfalls they should be made only sparingly.
11. Anyway so far as the present case is concerned even apart from the impressions gained by the Judge on local inspection as the facts brought out in the evidence of the occurrence witnesses themselves are sufficient for not acting upon their evidence the decision of the Judge requires no setting aside.
In the result this appeal is dismissed.
E.K. Moidu, J.
12. The acquittal of accused persons in this case has to be based upon a reappraisal of the evidence of P.Ws. 1 to 4. Of these witnesses, it has come out in evidence that P.Ws. 1, 2 and 4 were closely related to deceased Bava. The suggestion was that P.W. 3 was also related to him. Their conduct after the incident threw much doubt as to the veracity of their evidence. P.W. 1, who accompanied the injured Bava from the place of occurrence to the Cranganore Government Hospital and therefrom to the District Hospital, Trichur, gave the first information statement, Ext. P-1, only after 11 P.M. There is no explanation why he delayed to furnish information. As a matter of fact both the hospital and the police station are lodged in adjacent buildings in Cranganore. Any one of these witnesses could have given first information to the Cranganore Police Station soon after the incident. The evidence was that P.W. 1 had been to his village after Bava was admitted to the hospital, There was every chance for P.W. 1 to concoct a story against the accused persons after the incident. The delay in lodging Ext. P-l in the circumstances of the case could not be properly explained. There was also no evidence as to what had transpired before the alleged beating of deceased Bava by accused 1 and 4. They came to the scene after hearing a cry. The evidence of the witnesses after they came to the scene was conflicting and was not uniform. It was alleged that Bava was beaten while he was engaged in repairing the net. The net could not be seized during the investigation. There was no explanation as to what had happened to the net. There was also evidence that P.Ws. 1, 2 and 4 were engaged in fishing in the morning and that they returned at 2 P.M. after putting their boats on the sea shore. It could be expected that they would have gone back home after the day's work. Their evidence in the circumstance of the case could not therefore be accepted to bring home the guilt of the accused beyond reasonable doubt.
13. There was also another circumstance which had vitiated the trial. This is mentioned not to order retrial of the case but only to point out that it is not in all cases that the Subordinate Courts should make a local inspection. The power under Section 539-B for a local inspection should only very sparingly be used. In this case the learned Sessions Judge made his own observation of the place of occurrence and came to the conclusion that from the place at which the witnesses could have stood and witnessed the occurrence a person lying at the scene of occurrence was not visible. This part of his observation is one over which neither party had any occasion to give contrary evidence. Where the Judge made the local inspection not in order to appreciate the evidence but in fact to create evidence and introduce it into his judgment the purpose of his local inspection would go beyond the jurisdiction. Local inspection under Section 593-B, Cr. P. C. should be made only very sparingly. It should not be the occasion either for collecting more evidence or for the Court to make its own observations in substitution of evidence on controversial matters. It is necessary to point out in this connection that as far as possible Judges and Magistrates shall avoid local inspection unless it is essential to appreciate the evidence in the case. It is for the trial Judge's satisfaction of the evidence in the case as to the guilt of the accused or otherwise that local inspection is made and not to introduce evidence in the case. Any way, the prosecution having failed to establish its case fully against the accused persons, I agree that the acquittal was correct and that the appeal be dismissed.