Ravani, J.:— The learned Additional Sessions Judge has not believed the eye-witnesses 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 9-50 p.m that there was time to concoct story and involve the accused falsely. The learned Additional Sessions Judge has relied upon the photographs of scene of offence i.e street No. 4 of Vania Vadi area, Exhs. 15, 16, 18, 19 and 20, for coming to the conclusion that there was no electric light in this street. The witnesses 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.
2. The evidence with regard to the sciene of offence consists of panch witness Kishor Pranlal (Exh. 38), panchnama of the scene of offence (Exh. 39) which has been drawn within hours of the incident, i.e between 11-30 p.m and 12.00 midnight of October, 8, 1981. The panchnama has been prepared as shown by witness Vajubhai Dahyabhai (Exh. 40). Evidence of the investigating 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 April 9, 1982, while the incident has occurred on October 8, 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.
3. 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 Dhyabhai (Exh. 40) who has been examined as Court witness) has also stated that when they were proceeding from cross-section of street No. 5 and 4 on the road of street No. 4, the accused had come from the opposite direction and had inflicted knife blow on the deceased. 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 moon light 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 reiferated 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.
4. 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.
5. At the initial stage at about 10-30 p.m when the first message reached the police station, if 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 Wadi Street No. 6/3. Immediately thereafter within hours i.e at 11-30, investigating officer reached the place of incident. As shown by witness Vajubhai, the panchnama is drawn. Witness Vajubhai has pointed out at the scene of offence with exact details. It is street No. 4 opposite Harikrupa building.
6. 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 witness 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). This consistency is seen even in the evidence of witnesses, Nautambhai Jerambhai (Exh. 17); Ramesh Naranbhai (Exh. 21); Vajubhai Dahyabhai (Exh. 40); Rajshi Kamabhai (Exh. 24); and Dalpatsinh Himatsinh Rathod (Exh. 62).
7. 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 received only one blow. He has been removed from the place of incident immediately within minutes of the happening 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. Panchanama of the scene of offence 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 evidence 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 erazed. Therefore, absence of blood mark at this place would not indicate that this was not the scene of offence.
8. 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 one's imagination as to how these photographs could have been produced in the cross-examination of prosecution witnesses. In cross-examination of witness Rasiklal, Circle Inspector, two photographs have been produced. Other three photographs have been produced in cross-examination of Nautam Bhai (Exh. 17). The witnesses have not taken the photographs. No one knows when the photographs have been taken. It is also not disclosed as to from which angle and from which place the photographs have been taken. Negatives 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, photographs, even if duly proved would not be good piece of evidence. In the case of United States Shipping Board v. The Ship “St. Albans”, AIR 1931 PC 180 it is inter alia observed that it is necessary to limit carefully the uses for which, upon mere production of them, photographs 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 established. In this view of matter reliance, placed by the learned Additional Sessions Judge on photographs Exhs. 15, 16, 18, 19 and 20 and parficularly Exhs. 15 and 16 for holding that street No. 4 in Vama 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, ordinarily cannot be used to contradict the eye-witness account and the evidence of panch as well as investigating officer.
9. Order accordingly.