ISMAIL FAKIR MAYAT Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
ISMAIL FAKIR MAYAT
Click here to view full judgement.
B.J.DIVAN, J.B.MEHTA, JJ. -
(1.) IN this case the map of the scene of offence has been prepared by Circle INspector Ghelabhai Khandubhai Nayak P.W. 1 Ex. 7. We wish to point out that there are a number of irregularities regarding this plan It is true that the Circle INspector Ghelabhai had drawn the plan him self after visiting the scene of offence on September 28 1961 The INvestigating Police Officer has not given any instructions to the plan-maker; one Police Constable Nathubhai showed the scene of offence to the Plan-maker Ghelabhai and on the strength of what the police constable told him he has prepared the plan Ex. 8. This Police Constable who instructed the Circle INspector has not been examined as a witness. Moreover no one with personal knowledge of the incident that took place on August 211961 appears to have given instructions to the Circle INspector. The learned trial Judge has exhibited the entire map together with the explanatory notes written out by the plan-maker. 18 IN the case of Tori Singh v. State of U. P. A. I. R. 1962 S. C. 399 the Supreme Court was concerned with a rough sketch map prepared by the INvestigating Police Officer on the basis of statements made to him by witnesses during the course of the investigation showing the place where the deceased was hit and also the place where the witnesses were at the time of the incident and it was held by the Supreme Court that such a Sketch would not be admissible in evidence in view of the provisions of sec. 162 Cr. P. C. for it was in effect nothing more than the statement of the Sub-INspector that the eye-witnesses told him that the deceased was at such and such a place at the time when he was hit the sketch map was admissible so far as it indicated all that the Sub-INspector saw himself at the spot but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-INspector would be inadmissible in view of the clear provisions of sec. 162 Cr. P. C. as it would be no more than a statement made to the police during investigation and therefore such marks cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured if he was standing at the spot marked on the sketch map. The Supreme Court considered the earlier decision of the Supreme Court in the case of Satna Singh v. State of Punjab A. I. R. 1956 S. C. 526; in that earlier case the Supreme Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of offence the draftsman put down the places in the map and it was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by sec. 162 of the Code of Criminal Procedure. IN Santa Singhs case there was also a sketch prepared by the Sub-INspector which was ruled out as inadmissible under sec. 162 Cr. P. C. We have come across recently many cases in which this question of the proof of plans arises and we wish to make the legal position on this aspect quite clear and we shall therefore set out the principles relating to the proof of such plans of scenes of offence in the light of these two decisions:-- (1) If the plan is prepared by a Sub-INspector or a Police Officer or an INvestigating Officer on the basis of statements made to him by witnesses in the course of the investigation the sketch or the plan would be hit by the provisions of sec. 162 Cr. P. C and would clearly be inadmissible. (2) If the plan is prepared by a regular draftsman and is drawn according to scale the draftsman can prove the plan only as regards what he himself has seen at the spot and the distances that he has measured at the spot. (3) Various points and spots marked on the plan relating to the state of affairs as it existed at the time of the incident in question cannot be proved by the plan-maker. Even if a particular witness who subsequently is examined at the time of the trial made a certain statement to the plan-maker then the exact situation of that particular spot or that particular indication shown on the plan has to be proved through the mouth of that witness from the witness-box in the Court and not by means of an explanatory note attached by the plan-maker to the plan. (4) The explanatory note made by the plan-maker in so far as such note refers to anything other than what the plan-maker has himself seen at the time of visiting the scene of offence is clearly inadmissible in evidence as hit by the rule against hearsay evidence. (5) If the prosecution or anyone wants to rely on any particular indication given on the plan as indicating the state of affairs at the time of the incident in question the plan must be shown to the witnesses who have personal knowledge about those facts and through them the information regarding those markings on the plan must be brought on record. (6) The person who gave instructions to the plan-maker for preparing the plan must be called as a witness so as to ascertain the source of his knowledge at the time when he gave instructions and the source of information which he passed on to the plan-maker. 19 We have made these observations in this judgment so that in future all plans relating to the scene of offence are proved in this manner and in no other. We wish to emphasize that the subordinate Courts should bear in mind the provisions of sec. 162 Cr. P. C. and the rule against hearsay evidence when admitting plans of scenes of offence on record. ..... ..... ..... ..... .....;
Copyright © Regent Computronics Pvt.Ltd.