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Dudekula Babakka of Kurlapalle Vs. D. Pedda Varadappa of Kurlapalle - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1948Mad119; (1947)2MLJ306
AppellantDudekula Babakka of Kurlapalle
RespondentD. Pedda Varadappa of Kurlapalle
Excerpt:
- - i am not convinced that on account of this irregularity there has been a failure of justice. 3. the magistrate takes into account several circumstances for coming to the conclusion that the prosecution evidence is highly interested and thoroughly unreliable. nothing like this can be found in the present case......the decision in the case did not turn upon the fact whether there was a high fence or a low fence to the garden of the accused. the point was that it was most improbable that the accused should, instead of getting into his adjoining garden unnoticed, have run in another direction from which p.ws. 2 and 3 were coming. there was ample evidence in the case that the garden of the accused adjoined the alleged scene of offence. it is only the magistrate that mentions about the fence, but the existence of a fence was not even elicited on behalf of the complainant, as properly pointed out by the learned public prosecutor. the point made by the magistrate that it was inexplicable why the accused should go the way in which he is alleged to have gone instead of going into his garden is based.....
Judgment:
ORDER

Rajamannar, J.

1. This is an application to revise the order of the Taluk Magistrate, Dharmavaram acquitting the accused in C.C. No. 1 of 1946 on his file for an offence under Section 354 of the Indian Penal Code with which he was charged.

2. The only point raised in this case on behalf of the complainant is that after the entire evidence was recorded the Magistrate inspected the alleged scene of offence and imported the impressions which he received from such inspection in the consideration and appreciation of the evidence and that his conclusion is vitiated by this irregularity. No doubt under Section 539-B of the Code of Criminal Procedure the Magistrate should have recorded a memorandum of the relevant facts, if any, observed by him. at such inspection and such a memorandum should form part of the record of the case and a copy of it should be furnished to the Public Prosecutor, complainant or the accused on application. It has not been shown that the Magistrate in this case made notes of inspection and that a copy of the notes was supplied to the complainant. But I do not agree that merely because there was this irregularity the order of the Magistrate should be revised. I am not convinced that on account of this irregularity there has been a failure of justice.

3. The Magistrate takes into account several circumstances for coming to the conclusion that the prosecution evidence is highly interested and thoroughly unreliable. Almost all the circumstances relied on by him are based on the evidence in the case. The facts which may be said to have been gathered by the Magistrate from the personal inspection and referred to by him are that the place looked a busy locality and that the fencing put up near Nallagundlu to the garden land of the accused was low and could be easily scaled over ; but, in my opinion, the decision in the case did not turn upon the fact whether there was a high fence or a low fence to the garden of the accused. The point was that it was most improbable that the accused should, instead of getting into his adjoining garden unnoticed, have run in another direction from which P.Ws. 2 and 3 were coming. There was ample evidence in the case that the garden of the accused adjoined the alleged scene of offence. It is only the Magistrate that mentions about the fence, but the existence of a fence was not even elicited on behalf of the complainant, as properly pointed out by the learned Public Prosecutor. The point made by the Magistrate that it was inexplicable why the accused should go the way in which he is alleged to have gone instead of going into his garden is based on the evidence in the case, and there is no necessity to resort to any impression gathered at the personal inspection.

4. The learned advocate for the complainant relied upon the decision of Devadoss, J., reported in Kadar Batcha Sahib In re (1927) 54 M.L.J. 442. In that case the whole question turned upon there being an entrance or not, and the impression that the Magistrate received at the inspection was that the entrance was an old one, and the learned Judge thought that this view of the impression received by the Magistrate influenced him in accepting the evidence for the prosecution as true. Nothing like this can be found in the present case. I am convinced that the complainant has not been prejudiced in any way by the irregularity committed by the Magistrate.

5. The revision petition fails and is dismissed.


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