JUDGMENT : Das, J. - Appellant Sk. Mohammad Yasin has been convicted u/s 436, Indian Penal Code, and sentenced to R.I. for one year and six months. He has also been convicted along with the six other Appellants under Sections 143 and 426, Indian Penal Code, and sentenced to pay a fine Rs. 100/- in default of payment to simple imprisonment for a fortnight on each count, by an order dated 2-3-1963 of the Sessions Judge, Cuttack-Phenkanal, in Sessions Trial No. 37-C/62. 2. P.W. 1 Mina Dei along with her husband Jai Mallik (p.w. 4) was living in a house standing on the land of Sk. Mohammad Yasin, accused No. 1. The prosecution case is that on 9-2-1962, accused No. 1 wanted P.W. 1 and her husband to leave the house and deliver vacant possession of the same to him. But as they failed to do so, the other accused persons under the orders of accused No. 1 cut away the fence standing in front and rear side of the house causing damage to the extent of Rs. 200/-. Accused No. 1 and Gopi Mallik, accused No. 2 also set fire to the house of P.W. 1 with the help of a match stick. But no sooner the fire spread for about one or two cubits, the people gathered at the spot and extinguished the same. At the time of occurrence, P.W. 4 was not there and P.W. 1 having sent her daughter to inform her husband about the incident, herself proceeded to the police station where she lodged the F.I.R. (ext. I). P.W. 5 the officer-in-charge of Dharmasala police station registered a case under Sections 436, 143 and 426, Indian Penal Code, went to the spot, made seizure of some ashes, burnt bamboos and cut-fences as per seizure list ext. 2. He, however, did not submit any charge-sheet u/s 436, but confined, the case only to Sections 143 and 426, Indian Penal Code. At the trial of the case under these two sections, the evidence revealed that an offence u/s 436, Indian Penal Code had also been committed hi course of the same occurrence. Accordingly, the trying Magistrate submitted the case to the Sub-divisional Magistrate who after perusing the records, took cognizance of an offence u/s 436, Indian, Penal Code, and directed a committal enquiry to be made. Accordingly, the trying Magistrate submitted the case to the Sub-divisional Magistrate who after perusing the records, took cognizance of an offence u/s 436, Indian, Penal Code, and directed a committal enquiry to be made. After such an enquiry, the accused persons were committed to the Court of Sessions to stand their trial. 3. Originally there were eight accused persons, but one Sk. Nasar was acquitted as no case was made out against him. Accused Gopi Mallik who was charged u/s 436 was also acquitted of that charge by the learned Sessions Judge for want of sufficient evidence. The learned Sessions Judge however convicted and sentenced the accused-Appellants as aforesaid. It is against this order of conviction and sentence, the Appellants have come up with this appeal. 4. The plea of the accused persons was one of a denial. It is the case of accused No. 1 that the land and the house in which p.ws. land 4 were residing were his property. On account of heavy floods in the year 1955, he gave shelter to P.W. 4 in that house and used to keep his bullocks, and has his garden also there. According to him there was no fence, but only a wild growth of trees around his land. His further case was that Isan Mia, Elias Mia, Nisakar Mohanty, Dusa Mallik and others have foisted this false case against him. The case of Gopi Mallik was that Uma Bewa, mother of P.W. 1 had, filed a false case against him in 1959 in which he was acquitted and in that case Nisakar and Gangadhar were witnesses against him and on account of that enmity he has been involved in the present case. Accused Ranka Mallik pleaded that he was working merely as a labourer of accused No. 1 and he went away after his work was over. He along with the other accused persons denied to have formed any unlawful assembly or to have caused any mischief to the informant, P.W. 1. 5. In order to prove its case, the prosecution relied upon the evidence of the eye-witnesses, p.ws. 1, 2 and 3. One Nisakar Mohanty, another alleged eye-witness who was examined in the committing court and was subjected to lengthy cross-examination, was unable to depose at the stage of trial on account of paralysis. 5. In order to prove its case, the prosecution relied upon the evidence of the eye-witnesses, p.ws. 1, 2 and 3. One Nisakar Mohanty, another alleged eye-witness who was examined in the committing court and was subjected to lengthy cross-examination, was unable to depose at the stage of trial on account of paralysis. Accordingly the prosecution made an application to admit his evidence u/s 33 of the Evidence Act. It also appears that the learned Sessions Judge made a local inspection of the spot to have a surprise visit on the witness Nisakar and also to appreciate the convicting versions of the prosecution witnesses. It appears that he visited the spot-with the public prosecutor and the defence lawyer and prepared a memorandum of his spot visit on 16-2-1963 and after perusal of the evidence and what he himself saw at the spot, he came to the conclusion that the Appellant Md. Yasin had set fire to the house of P.W. 4, and that he along with the others did form an unlawful assembly and cut the fence of P.W. 1 and thus committed an offence under Sections 143 ana 426 Indian Penal Code. 6. Mr. Kanungo, learned Counsel for the Appellants, vehemently contended that the learned Sessions Judge has improperly exercised his jurisdiction by making a local inspection in order to find out whether Nisakar Mohanty who was examined in the committing court was in fact ill or not and that there was no necessity for such an inspection, even for appreciation of evidence, as the oral evidence recorded in this case is sufficient to give a decision one was or the other. His further contention was that the learned Sessions Judge should have supplied a copy of the memorandum of his inspection to the accused and in any case he should not have utilised in his judgment the very material which he saw at the site of the local inspection. No doubt, there is some force in his contention. I shall, however, deal with the questions in seriatim. 7. It is undisputed that one Nisakar Mohanty was examined as P.W. 3 in the committing court and as already stated, he was also subjected to lengthy cross-examination. But as appears from the evidence of P.W. 2 by the time of the trial of the case in the Court of Sessions, he was suffering from paralysis and was unable to move. It is undisputed that one Nisakar Mohanty was examined as P.W. 3 in the committing court and as already stated, he was also subjected to lengthy cross-examination. But as appears from the evidence of P.W. 2 by the time of the trial of the case in the Court of Sessions, he was suffering from paralysis and was unable to move. Thus, the provisions of Section 33 of the Evidence Act clearly applies to such cases as the witness was incapable of giving evidence. The learned Sessions Judge was thus justified in admitting his evidence u/s 33. In any event, this has not caused any prejudice to the accused persons. When the learned Sessions Judge had been to the spot, he probably thought it wise to verify the illness of Nisakar just to find out if he was really incapable of giving evidence. It is not correct to say that he made the local inspection only to find out if Nisakar was really ill. 8. It appears from the records that a copy of the memorandum of local inspection was shown to the advocate for the Appellants only on 18-3-1963, that is long after the delivery of the judgment and as such the accused could not make any use of the said document. It is however not disputed that the, local inspection was made in the presence of both parties though the accused persons were not supplied with a copy of the memorandum for their use at the trial. u/s 539-B of the Code of Criminal Procedure the accused is not entitled to a copy unless desired by him. It appears that the learned Judge used his own observation in the local inspection in his judgment, This, however, is not permissible. Nothing was brought to the notice of the accused persons for explanation in their examination u/s 342, Code of Criminal Procedure regarding the finding of the learned Sessions Judge with reference to the local inspection. It was rightly contended that the judgment of the learned Sessions Judge was to some extent influenced by some of his observations made at the time of the local inspection. No doubt, Section 539-B authorises a Court to make a local inspection for proper appreciation of the evidence. It was rightly contended that the judgment of the learned Sessions Judge was to some extent influenced by some of his observations made at the time of the local inspection. No doubt, Section 539-B authorises a Court to make a local inspection for proper appreciation of the evidence. But it is well-settled that a court is not entitled to allow his view or observations to take place of evidence as such views or observations cannot possibly be tested by cross-examination and the accused persons would not be in a position to furnish any explanation with regard to the same. In the absence of such tests and in the absence of any explanations on any point by the accused persons, u/s 342, Code of Criminal Procedure it is not open to the Judge to incorporate his observations in his judgment and base his conclusions on the same vide Pritam Singh and Another Vs. The State of Punjab. In view of this position, I would not take into consideration the local inspection memorandum made by the learned Sessions Judge. Thus, it is necessary to examine if the convictions of the accused persons can be sustained on the evidence placed before the Court. x x x x His Lordship discusses the evidence 9. In, view of the precarious evidence, they are entitled to the benefit of doubt and must be acquitted. 10. Though the conviction of the accused persons u/s 436, Indian Penal Code, cannot be sustained on account of insufficiency of evidence, I agree with the learned Sessions Judge that the I.O. after having recorded an F.I.R. u/s 436 and after having made relevant seizures, should not have failed to submit a charge-sheet under the said section. Whether in a particular case the evidence is sufficient or not to sustain a conviction, it is not for the I.O. to decide. It is a matter entirely for the Court to say whether a case has been wen made out of evidence or not. Neither the I.O. nor even the Court which commits the accused has any right to exercise the functions of the Sessions Court. The conviction and sentence passed upon accused Mr. Yasin u/s 436, Indian Penal Code is set aside and he is acquitted of that charge also. 11. Neither the I.O. nor even the Court which commits the accused has any right to exercise the functions of the Sessions Court. The conviction and sentence passed upon accused Mr. Yasin u/s 436, Indian Penal Code is set aside and he is acquitted of that charge also. 11. In the result, the conviction and sentence passed upon all the Appellants are set aside and they are acquitted and are directed to be set at liberty forthwith. 12. The appeal is accordingly allowed. Final Result : Allowed