A. P. RAVANI, J. ( 1 ) XXX xxx xxx ( 2 ) XXX xxx xxx ( 3 ) XXX xxx xxx ( 4 ) XXX xxx xxx ( 5 ) XXX xxx xxx ( 6 ) XXX xxx xxx ( 7 ) THE learned Additional Sessions Judge has not believed the eye-witness examined by the prosecution. As found and held by the learned Additional Sessions Judge the incident took place at about 9. 30 p. m. In the street in Vania Vadi area where the incident is alleged to have taken place there are no electric poles of Municipality. Therefore there was no possibility to identify the assailant. The name of the assailant has not been disclosed in the initial stage when entries were made in the station diary at 9. 55 p. m. that there was time to concert story and involve the accused falsely. The learned Additional Sessions Judge has relied upon the photographs of scene of offence in street No. 4 Varnia Vardi area Exhs. 15 16 18 19 and 20 for coming to the conclusion that there was no electric light in this street. The witness who deposed about sufficient light being there at the place of incident were not telling the truth because the photographs did not show any such electric pole at the place of incident. This is the main reason why the evidence of the eye witnesses has been discarded. Therefore it is necessary to consider the evidence with regard to the scene of offence. ( 8 ) THE evidence with regard to the scene of offence consists of panch-witness Kishor Pranlal (Exh. 38) panchnama of the scene of offence (Exh. 39 which has been drawn within hour of the incident i. e. between 11. 30 p. m. and 12. 00 midnight of 8/10/1981 The panchnama has been prepared as shown by witness Vajubhai Dahyabhai (Exh. 40 ). Evidence of the investi- gating officer P. S. I. Dalpatsinh H. Rathod is also relevant on this point As far as map (Exh. 14 prepared by Rasiklal Circle Inspector (Exh. 13 is concerned it is required to be borne in mind that the same has been prepared by him on 9/04/1982 while the incident has occurred on 2/10/1981 Panch witness Kishor Pranlal (Exh. 38) states that he is residing in Vania Vadi Street No. 6. 14 prepared by Rasiklal Circle Inspector (Exh. 13 is concerned it is required to be borne in mind that the same has been prepared by him on 9/04/1982 while the incident has occurred on 2/10/1981 Panch witness Kishor Pranlal (Exh. 38) states that he is residing in Vania Vadi Street No. 6. He has stated that Vania Vadi Street No. 4 opposite Hari Krupa building was the place shown by witness Vajubhai as the place where the incident took place. In his deposition he has stated that there was light outside the building. In his cross examination he has stated that the pole was at a distance of five to six feet from Hari Krupa building. He has also stated that at the cross-section of Street No. 5 and 4 there is chawk and there was light. As deposed to by him panchnama was drawn in the light emitted from the tube light. Panchnama Exh. 39 also refers to the fact that the panchnama has been drawn in the light which was projected outside Hari Krupa building. Witness Vajubhai (Exh. 40) who has been examined as Court witness) has also stated that when they were proceeding from crosssection of street No. 5 and 4 on the road of street No. 4 the accused had come from the opposite direction and had infected knife blow on the de- ceased. He has in terms stated that there was sufficient light and the light outside Hari Krupa building was on. In cross-examination he has also stated that it was Navratri festival and on account of this festival at each house there were small oil lamps and sufficient moonlight was also there and there was street light too. It is true that this witness has admitted in cross-examination on seeing photographs Exhs. 15 and 16 that no electric pole is visible. But he has reiterated in para 26 of the cross-examination that there was sufficient light so that one could recognise the female who was with the assailant. However he stated that he had not recognised the said woman because he had not seen towards her. ( 9 ) AS against the aforesaid direct evidence there is evidence in the shape of photographs Exhs. 15 16 18 19 and 20. It is on the basis of these photographs and questions put in relation thereto in cross-examination of witness Rasiklal Vallabhdas (Exh. ( 9 ) AS against the aforesaid direct evidence there is evidence in the shape of photographs Exhs. 15 16 18 19 and 20. It is on the basis of these photographs and questions put in relation thereto in cross-examination of witness Rasiklal Vallabhdas (Exh. 13) and witness Nautambhai Jerambhai (Exh. 17) that the learned Judge has come to the conclusion that there was no light. The controversy with regard to the scene of offence assumes much importance on account of the doubts created about the existence of sufficient light at the time of incident. Therefore it is necessary to fix the scene of offence on the basis of the evidence available on record. ( 10 ) AT the initial stage at about 10. 30 p. m. when the first message reached the police station it is recorded at station diary entry No. 20 (Exh. 58) there is reference to the scene of offence and it is stated to be Vania Vadi at the corner of street No. 3. Similarly in dying declaration Mark-C before the P. S. I. Rathod there is reference to the scene of offence with the same description as at the corner of Vania Vadi Street No. 6/3. Immediately thereafter within xx hours i. e. at 11. 3 investigating officer reached the place of incident. As shown by witness Vajubhai the pan- chnama is drawn. Witness Vajubhai has pointed out at the scone of offence with exact details. It is street No. 4 opposite Harikrupa building. ( 11 ) FROM the aforesaid evidence the following facts emerge: (I) There is no inconsistency whatsoever as regards the area in which the incident has taken place. The area is Vania Vadi and the specific site is roughly described as Street No. 6/3 or 4 or 5/4. This uncertainty prevailed at the initial stage when witnesses had given account while they were away from the scene of offence. (II) When the witnesses were at the place of incident and particularly witness Vajubhai was at the place of incident he gave the specific details with regard to the place of incident. It is opposite Hari Krupa building in street No. 4 of Vania Vadi area. (III) About the specific details given by the witnesses there is consistent evidence of panch Kishore (Exh. 38) and the evidence of P. S. I. Rathod (Exh. 62 ). It is opposite Hari Krupa building in street No. 4 of Vania Vadi area. (III) About the specific details given by the witnesses there is consistent evidence of panch Kishore (Exh. 38) and the evidence of P. S. I. Rathod (Exh. 62 ). This consistency is seen even in the evidence of witnesses Nautambhai Jerambhai (Exh. 17); Ramesh Naranbhai (Exh. 21); Vajubhai Dahyabhai (Exh. 40); Rajeshi Kamabhai (Exh. 24); and Dalpatsinh Himatsinh Rathod (Exh. 62 ). ( 12 ) DESPITE the aforesaid position of evidence the learned additional Sessions Judge has held that the scene of offence was not opposite Hari Krupa building in street No. 4 of Vania Vadi area of Rajkot. One of the reasons assigned is that at the place shown by the witnesses there were no blood marks. This is not inconsistent with the prosecution story. The victim Dinesh had re- ceived only one blow. He has been removed from the place of incident immediately within minutes of the happaning of the incident. Even if there may be some sprinkling of blood at the place of incident it might not have remained there for two to three hours. Panchnama of the scene of of- fence has been drawn between 11. 30 to 12. 00 i. e. after about two hours. It was festival day i. e. Dashera - Vijya-Dashmi. People were moving even during night time. It has come in the evi- dence of Vajubhai (Exh. 40) and other witnesses that just at a small distance from the place of incident garbi was being played. So on account of movement of the people at the place even if there may be some sprinkling of blood the same might have been erased. Therefore absence of blood mark at this place would not indicate that this was not the scene of offence. ( 13 ) THE learned additional Sessions Judge has given too much importance to photographs of place of incident Exhs. 15 16 18 19 and 20. These photographs do not show any electric pole in the street. It surpasses ones imagination as to how these photographs could have been pro- duced in the cross-examination of prosecution witnesses. In cross-examination of witness Ra- siklal Circle Inspector two phtographs have been produced. Other three photographs have been produced in Cross examination of Nautambhai (Exh. 17 ). The witnesses have not taken the photographs. It surpasses ones imagination as to how these photographs could have been pro- duced in the cross-examination of prosecution witnesses. In cross-examination of witness Ra- siklal Circle Inspector two phtographs have been produced. Other three photographs have been produced in Cross examination of Nautambhai (Exh. 17 ). The witnesses have not taken the photographs. No one knows when the photographs have been taken. It is also not dis- closed as to from in which angle and from which place the photographs have been taken. Nega- tives of the photographs are not produced on record. As far as the place of incident or for that matter any place of which demarcations and delineations are required to be noted photo- graphs even if duly proved would not be good piece of evidence. In the case of United States Shipping Board v. The Ship St. Albans A. I. R. 1931 Privy Council 189 it is inter alia observed that it is necessary to limit carefully the uses for which upon more production of them photo- graphs can be accepted as means of proof of matters of fact. A photographic picture cannot be relied upon as proof in itself of the dimensions of the depicted object or objects and cannot be made properly available to establish the relative proportions of such objects except by evidence of personal knowledge or scientific experience to demonstrate accurately the facts sought to be es- tablished. In this view of the matter reliance placed by the learned Additional Sessions Judge on photographs Exhs. 15 16 18 19 and 20 and particularly Exhs. 15 and 16 for holding that Street No. 4 in Vania Vadi cannot be the scene of offence is not sustainable. On the contrary these. photographs ought not to have been admitted in evidence without examining the person who took the photographs and the negatives of the same being produced on record. Even when rightly admitted in evidence their evidentiary value is almost nil. This evidence of photographs ordi- narily cannot be used to contradict the eyewitness account and the evidence of panch as well as investigating officer. ( 14 ) XXX xxx xxx ( 15 ) XXX xxx xxx ( 16 ) XXX xxx xxx ( 17 ) XXX xxx xxx ( 18 ) XXX xxx xxx ( 19 ) XXX xxx xxx ( 20 ) XXX xxx xxx . ( 14 ) XXX xxx xxx ( 15 ) XXX xxx xxx ( 16 ) XXX xxx xxx ( 17 ) XXX xxx xxx ( 18 ) XXX xxx xxx ( 19 ) XXX xxx xxx ( 20 ) XXX xxx xxx . 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