In fact, there is no provision in the Code of Criminal Procedure for
appointing an advocate-commissioner to note down the physical features of venue
of offence to prepare an observation report and rough sketch and to submit the
same to the court. Under Section 284 of Cr.P.C. a commission can be issued
sparingly for the examination of the witnesses. Therefore, the petition filed
by the petitioners before the learned trial Court itself is not maintainable.
HON'BLE SRI JUSTICE R.KANTHA RAO
Criminal Revision Case No.1688 of 2013
21-01-2014
Boya Kothi Lakshmanna (A-13) and another
The State of A.P. rep. byP.P. High Court of A.P.,Hyderabad and another
HON'BLE SRI JUSTICE R. KANTHA RAO
Citation; 2014 CRLJ(NOC) 423 AP
This criminal revision case is filed under Sections 397 and 401 of Cr.P.C.
to set aside the order passed by the II Additional Sessions Judge, Kurnool at
Adoni in Crl.M.P.No.55 of 2013 in S.C.No.63 of 2009, dated 25.07.2013 and to
direct the Presiding Officer to visit the scene of offence for the purpose of
better appreciation of evidence in this case.
2. I have heard the learned counsel appearing for the petitioners and the
learned Additional Public Prosecutor representing the State.
3. The petitioners are the accused Nos.13 and 16 in S.C.No.63 of 2009. In
the course of trial for the offences under Sections 147, 148, 324, 326, 307, 302
r/w 149 of IPC, Sections 3, 4, and 6 of Explosive Substances Act and Section
25(1-B)(b) and 27 of Arms Act. They filed a petition before the II Additional
Sessions Judge, Kurnool at Adoni who is trying the said case to appoint an
advocate-commissioner to visit the scene of offence with the help of police and
to locate the scene of offence and to prepare fresh report of scene of offence
and to submit the same to the Court as early as possible.
4. The petition was filed on the ground that PW-40, the police officer was
the person who prepared the observation report of scene of offence and rough
sketch. According to the petitioners, PW-40 stated in the
cross-examination that soon-after reaching the place of occurrence, he was
immediately sent by the investigating officer to Kodumur village to maintain law
and order. Therefore, the version of the petitioners is that, in fact, PW-40
did not prepare the observation report or the rough sketch of the scene of
offence. It is stated by him in the petition that there are some discrepancies
in the scene of offence panchanama and the actual scene of offence, and thus, it
is just and necessary to appoint an advocate-commissioner to prepare a rough
sketch and also a fresh observation report of scene of offence after noting down
the topography of the scene of offence.
5. The petition was strongly opposed by the prosecution.
6. The learned Additional Sessions Judge on hearing both sides, dismissed the
petition filed by the petitioners. While dismissing the petition, the learned
Additional Sessions Judge pointed out that the offence took place on 17.05.2008
and the application for appointment of commissioner is filed in the year 2013
i.e. after lapse of five years, several developments took place on the road
which is the venue of the offence in a span of five years and it is absolutely
unnecessary to appoint an advocate-commissioner to note down the physical
features existing as on date.
7. In fact, there is no provision in the Code of Criminal Procedure for
appointing an advocate-commissioner to note down the physical features of venue
of offence to prepare an observation report and rough sketch and to submit the
same to the court. Under Section 284 of Cr.P.C. a commission can be issued
sparingly for the examination of the witnesses. Therefore, the petition filed
by the petitioners before the learned trial Court itself is not maintainable.
8. In this revision, a new plea is taken to issue a direction to the
presiding officer to make a local inspection of the venue of the offence.
Section 310 of Cr.P.C. enables a judge or magistrate at any stage of enquiry or
trial or other proceeding to 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 enquiry or trial.
9. If the judge or magistrate makes a local inspection, it is obligatory on
his part to record a memorandum of the relevant facts observed by him in such
local inspection. The object of local inspection is to understand the evidence
and to test the veracity of the witnesses deposing before the court in relation
to the physical features of venue of offence. The material in the memorandum
prepared by the judge or magistrate cannot be treated as evidence. In any case,
the judge or magistrate has to use his discretion in the course of enquiry or
trial or other proceeding and has to opt for making a local inspection only if
it is warranted by circumstances. A party cannot compel the trial judge to
visit the venue of the offence by making the application before him. Even if
any such application is made, it is for the judge to make a decision by
exercising proper judicial discretion whether to make any local inspection or
not. The topography of the venue of the offence has been spoken to by several
witnesses in the course of the trial and the said witnesses were subjected to
lengthy cross-examination. Merely because some discrepancies are found in the
evidence of the witnesses in relation to the topography of the venue of the
offence, it cannot be a ground to urge the trial judge to make a local
inspection. The learned Additional Sessions Judge in his order stated
specifically that sufficient evidence was brought on record giving the
topographical features of the venue of the offence. Moreover, as rightly
observed by the learned Additional Sessions Judge, the venue of offence which is
a road might have been subjected to several changes with the passage of five
years period. If the trial judge makes a local inspection in the year 2013, he
cannot be in a position to properly appreciate the features of the venue of the
offence which existed in 2008. Therefore, I am in agreement with the learned
Additional Sessions Judge that any such local inspection may not be of any help
for proper appreciation of evidence and moreover, it will lead to confusion
while appreciating the evidence available on record.
10. The petitioners/accused have no vested right to insist upon the trial
Judge to make a local inspection of venue of offence. The trial Judge can
however make a local inspection if it is necessary in his opinion for proper
appreciation of evidence. In exercise of revisional powers the High Court is
not supposed to interfere with the judicial discretion of the trial Judge and
issue a positive direction to make local inspection.
11. In the aforesaid circumstances, the learned trial Judge rightly refused to
make a local inspection and it would not be proper on the part of this Court to
issue a direction to the trial judge in exercise of powers of revision under
Section 401 Cr.P.C. to make a local inspection. The revision petition is
misconceived and accordingly it is dismissed. Miscellaneous petitions, if any,
filed in this revision shall stand closed.
________________
R.KANTHA RAO,J
Date:21.01.2014
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