State vs Dhanpat Mahato

Mitter, J.—The Appellants and one Rambharasa Bhagat were tried upon a charge of murder u/s 302 read with Section 34 of the Indian Penal Code by a learned Additional Sessions Judge sitting with a jury. The jury returned a unanimous verdict of not guilty against the said Rambharasa Bhagat but returned a unanimous verdict of guilty u/s 302 read with Section 34 of the Indian Penal Code against the Appellants. The learned Judge accepted the said verdicts, acquitted Rambharasa Bhagat and convicted the Appellants of the relative offence and passed sentence of death on each of the Appellants.

In view of the order we propose to make, it is not necessary to deal with the facts of this case in any detail. The prosecution case was that at about 9-30 p.m. on October 24, 1958, an unknown person was murdered by the Appellants in furtherance of the common intention of all. The defence of each of the Appellants was that he was in no way concerned with the crime.

After some 19 witnesses for the prosecution had been examined and cross-examined and then discharged, the learned court on November 13, 1959, made an order for a local inspection by the jury, presumably u/s 293 of the Code of Criminal Procedure. The order was in these terms:

...P.P. and the defence lawyers to note that I shall proceed together with the Jurors to the alleged place of occurrence on 14-11-59 at about 2 or 2-30 p.m. for local inspection.

On the 14th such a view of the locale took place. On his return from the inspection the learned Judge recorded the following order:

The court accompanied by the members of the Jury left for local inspection at 2-10 p.m. and came back to court at 5-30 p.m. The prosecution lawyer, the defence lawyers with the exception for that of Rambrich Hajam and the two Investigating Officers also went. Memo, of Inspection is drafted. Jurors to attend on 16-11-59 at 10-30 a.m.

The memo, of the local inspection was placed upon the record on the November 16. 1959.

Mr. Ajit Kumar Dutt appearing on behalf of the first two Appellants contends that the local inspection concerned was held in breach of the provisions of Section 293, Code of Criminal Procedure and that the Appellants'' trial was vitiated by such breach. In order to appreciate the point it is necessary to set out the following portion of the memorandum which was placed on the record on November 16, 1959:

We noticed the location of the house where P.W. Amulya Chandra Modak is alleged to study and stay at night (being shown by P.W. Amulya himself), the well near the place (shown by the same P.W. Amulya), the location of the house where P.W. Dalip Singh is alleged to live (as shown by P.W. Dalip Singh), the location of the alleged quarters of the Head Mistri, the Durgapur Railway Station and the Overbridge, the East Cabin, the Railway level crossing to one east of the East Cabin (as shown by one of the defence lawyers), the location of the house where P.W. Satyendra Nath Chatterji is alleged to live (as shown by one of the defence lawyers in presence of the P.W. Satyendra), the alleged tailoring shop of P.W. Dalip Singh in front of P.W. Satyendra''s house (as shown by one of the defence lawyers), the alleged quarters of the Station Master and the Assistant Station Master (as shown by one of the defence lawyers). We saw also the locations of the goods godown and of the Netaji Hindu Hotel.

Although Section 293 provides that the jury shall be conducted in a body under the care of an officer of the court and that the place to be viewed is to be shown to the jury by a person appointed by the court, the memorandum does not show that any particular officer of the court was entrusted to conduct the jury in a body or that any particular person was appointed by the court to show them the place where the alleged occurrence had taken place. It is true that the order of the learned Judge, recorded on his return, mentioned that the court accompanied by the members of the jury had left for local inspection at 2-30 p.m. and returned to court at 5-30 p.m., but it does not appear whether the members of the jury travelled with the Judge or with the Investigating Officers as suggested by the defence. Certain it is that no person was appointed by the Court to point out to the jury the place or places concerned. The omission in this respect does not appear to us to affect the question of the validity of the trial. What was fatal was the fact that several persons including some witnesses were allowed by the learned Judge to make statements and/or to point out several places earlier mentioned in the evidence in Court. P.W. Amulya Chandra Modak who had earlier deposed in Court was allowed to make a statement indicating the location of his house where he was alleged to have studied and stayed at night. The same witness was again allowed to point out a well near his place. It is to be observed that the witness concerned had already been discharged and such statements as he made in pointing out the alleged places were not upon oath and that there was no cross-examination of him on the point. Similarly, P.W. Dalip Singh was allowed to make a statement as well as to locate his house. Dalip Singh too had already been discharged as witness. Besides, the defence lawyers were allowed to locate the alleged quarters of the Head Mistry. the Durgapur Railway Station and the Overbridge as well as the East Cabin and the Railway level crossing to the east of the East Cabin which had been earlier referred to in evidence in court. In the same way, the defence lawyers also were permitted to point out the house of a prosecution witness named Satyendra Nath Chaterji, the alleged tailoring shop of P.W. Dalip Singh said to have been in front of P.W. Satyendra Nath''s house, the alleged quarters of the Station Master as well as the Assistant Station Master. The procedure adopted by the learned Judge let in inadmissible evidence, statements not on oath and not tested by cross-examination. As we say, the procedure adopted at the locale was a violent departure from the provisions of Section 293, Code of Criminal Procedure All this happened in the presence of the jury. There can be no doubt that this departure from the procedure laid down in Section 293, Code of Criminal Procedure, must have affected the jury''s consideration of the facts of this case. The procedure provided in Section 293, Code of Criminal Procedure, should be strictly followed. There is no discretion left for the Judge to exercise and any departure is calculated to divert the due administration of justice.

Mr. Dutt has also complained that after the local inspection had taken place, the jurors, the prosecution witnesses as well as the investigating officers were Allowed to travel together in a police van. It is of course difficult for us to know how the witnesses concerned happened to be at the site at the time of the local inspection. The learned Deputy Legal Remembrancer has pointed out that they were inhabitants of the locality. We have no reason to doubt this. The presence of the witnesses at the site might have been fortuitous. What is objected to is the use that was made of them at the time of the local inspection. As to the grave allegation that the jurors, the prosecution witnesses as well as the investigating officers were thrown together in a police van upon a fairly long journey, we cannot determine its truth or falsity without an appropriate enquiry. We think, however, that in view of the departure from the procedure laid down in Section 293 the subsequent trial of the Appellants cannot be said to have been held in accordance with the procedure laid down for such a trial. We would, therefore, set aside the verdicts of the jury and the consequent convictions and sentences of the Appellants and order that these four Appellants be retried upon the same charge by the learned Sessions Judge with the aid of a fresh special jury. The Appellants will remain in custody until the conclusion of the trial.

Let the records be sent down at once.

The appeal as well as the reference are disposed of as above.

Sen, J.

I agree.