Prem Chand Mahto v. State of Bihar — 1992 DIGILAW 39 (PAT)

JUDGMENT R. N. Sahay & Amir Das JJ. The appellant Premchand Mahto has been convicted for the offence of Matricide after he pleaded guilty to the charge and has been sentenced to under go rigorous Imprisonment for life by the Additional Sessions Judge Giridih. The appellant has challenged his conviction by preferring this appeal from jail. 2. The appellant is aged 35 years and was resident of village Bharodih. P.S. Jamua in the district of Giridih. On the early morning of 21.6.1987 the neighbours of appellant heard Shrieks of a women Eminiting from the house of the appellant. The women was crying for help. Two of the neighbours of the appellant namely Janki Mahto and his cousin Somar Mahto rushed to the house of the appellant. In the mean-time, some other neighbours also arrived. The cry of the women had ceased by them. They called the appellant and asked him to open the door. The appellant did not reply. The suspicion of the neighbours was roused. They made entry through the roof of the house after removing the thatch. From the varandah of the house of the appellant. They again asked the appellant to open the door. The appellant replied from inside his room that he, had killed his mother by Basuli and they could do what ever they liked. The neighbours flashed torch light inside the room through a opening. They saw the mother of the appellant Gangla Devi lying dead on the floor with copious blood around. The neighbours chalsed the room so that he may not escape. Some persons were deputed to keep watch there. Janki Mahto informed the Mahal Choukidar' and the Mukhiya and then lodged report at the Jamua Police station at 8.30 a.m. on 21.6.1987. The motive for the murder was that there used to be frequent quarrel between the deceased and the wife of the appellant. This led to the wife running away. She was not in the house at the time of the occurrence. 3. The statements of the accused was recorded on 24.6.1987 by the Judicial Magistrate when he confessed having murdered his mother. 4. The police, after investigation, submitted charge-sheet. The appellant was produced before the Additional Sessions Judge for his trial on 3.2.1988. She was not in the house at the time of the occurrence. 3. The statements of the accused was recorded on 24.6.1987 by the Judicial Magistrate when he confessed having murdered his mother. 4. The police, after investigation, submitted charge-sheet. The appellant was produced before the Additional Sessions Judge for his trial on 3.2.1988. The charge was read over and explained to him and according to the record he pleaded guilty but his statement was not recorded by the learned Additional Sessions Judge. He was examined Under Section 313 Cr.P.C. and on being questioned he confessed that he murdered his mother by means of a Basuli. He also stated that preceding the occurrence he had gone to Dhanbad and returned after 5 to 7 days. She quarreled with his wife. His wife went away with some persons who had come after the quarrel. He asked his mother but she replied nothing. 5. The learned Additional Sessions Judge, after conclusion of the proceedings, passed the following orders on the same day: "Accused produced from custody. Heard, on the point of charge. The accused Premchand Mahto alias Prema Mahto is said to have committed murder of his mother Ganaia Devi in his house situated at village Bhanedih, P. S. Jamua, district Giridih in the night between 20/21st June, 1987. He was charged accordingly. Charge was read over and explained to him in Hindi to which he pleaded guilty. His statement U/S 313 Cr. P. C. was recorded in which also he confessed that he committed the murder of his mother for her not disclosing the real fact about the where about of his wife. It appears that the accused had confessed his guilt u/s 164 Cr.P.C. before the Judicial Magistrate on 26.6.1987. I also enquired from the accused about the heinous murder of his mother. But he emphatically and categorically admitted that he committed the murder of his mother with Basuli. He is of sound state of mind. Therefore, accused Premchand Mahto alias Prema Mahto is found guilty u/s 302 I.P.C. and convicted accordingly. Sd/-P.N. Sinha 3rd A.J.C. The learned advocate from defence panel appearing on behalf of convict submitted that the convict is a young man aged about 35 years. He appears to have committed the crime in sudden and grave Provocation. Hence he submitted to award lesser punishment. Sd/-P.N. Sinha 3rd A.J.C. The learned advocate from defence panel appearing on behalf of convict submitted that the convict is a young man aged about 35 years. He appears to have committed the crime in sudden and grave Provocation. Hence he submitted to award lesser punishment. In the fact and circumstances of the case I sentence accused Premchand Mahto alias Prema Mahto to imprisonment for life. Sd/P. N. Sinha 3rd A.J.C." 6. The question arises for determination in this case whether the conviction of the appellant in the facts and circumstances of the case was legal. 7. Section 228 (2) of the Cr. P.C. 1974 provided when the judge frames any charge under clause (b) of Sub-section (1), charge shall be read over and explained to the accused and the accused shall be asked whether, he pleads guilty of the offence charge claims to be tried". If the accused pleads guilty. Section 299 of the Cr.P.C. 1973 provides, the Judge shall record the plea and may in his discretion, convict him thereon." The recording of the plea in the own words of the accused is a mandatory provision. 8. The conviction of a accused on a plea of guilty is perfectly legal and can be accepted by the trial Judge provided the trial Judge takes proper safe guards before accepting the plea. 9. A Special Bench of the Bombay High Court in Abdul Kader Allarkhia Vs. Emperor: AIR 1947: Bom : 345 has laid guide lines as to in what circumstances the plea of guilt can be acted upon. Stone C. J. speaking for himself has observed : "I see no reason why, if proper safeguards taken such a plea should not be accepted. Such safeguards must include the accused's representation by counsel who most be in a position to answer the questions of the Court, with regard to whether the accused knows what he is doing and the consequences of the plea and also a medical report or medical evidence upon him: see (1935) 25 Cr. App. Rep.55. Such safeguards must include the accused's representation by counsel who most be in a position to answer the questions of the Court, with regard to whether the accused knows what he is doing and the consequences of the plea and also a medical report or medical evidence upon him: see (1935) 25 Cr. App. Rep.55. Unless such safeguards are taken and unless the learned Judge is prepared to accept a' plea of guilty, the proper course is to tell the accused that he should, claim to be tried" and if he refuse to claim to be tried, to record the plea of" does not plead" (see S. 272 Criminal P.C) Sen, J: in his separate opinion observed as follows: "It seems to me that in such a case when the accused appears or is brought before the Court for the purposes of S. 272 his counsel also should be present and that the accused most in such cases have sufficient opportunity to consult his counsel. As to the second stage, namely, the reading out of the charge, its being explained to the accused and the accused being asked if he pleads guilty or claims to be tried, the Court will ordinarily assume (in the absence of any accused is capable of under standing and taking part in its proceedings. If there be any doubt on this point, the proceedings should be stopped till he becomes so capable and the accused may be sent for medical examination, if necessary. As to the third stage, the accused may adopt any of the following courses (1) he may say that he claims to be tried (2) he may say' that he refuses to plead (3) he may remain silent (4) he may make a statement without expressly saying that he pleads guilty or claims to be tried or refuses to plead (5) he may say that he is guilty but make such statement subject to certain reservations or he may say that he is guilty of a lesser offence than the one charged and (6) he may say that he is guilty. In cases (1) to (6), it is clear that the provisions of S. 272 will apply. In case (4) the accused may have to se questioned further. In cases (1) to (6), it is clear that the provisions of S. 272 will apply. In case (4) the accused may have to se questioned further. but if the result is the same as before, the answer should be treated as amounting to one of the pleas mentioned in S.272, in most cases that he claims to be tried. In case (5) the actual words used should be taken down and the plea ought to be treated as amounting to claims to be tried. The sixth case presents certain difficulties. Such a plea must be recorded (Sub S.(2) of S. 271). If the accused makes a statement which prima facie amounts to an admission that he is guilty of the offence charged, before the question of its acceptance by the Court can arise, the Court must ordinarily be satisfied that the statement has been made with full understanding of the plea and of the implications of the plea. For this purpose, in a suitable case (i.e. where any doubt arises on this point) the Court will further question the accused and then decide whether the plea taken is a genuine plea; but in the majority of cases no doubt arises on the point and the Court would be justified in regarding such plea as genuine. There are, however, cases in which the Court will not act on such plea in any case, i.e. irrespective of the question whether the accused has fully understood the charge and the implications of the plea, and hold it desirable to hold a trial by jury, exercising the discretion given to it by S. 271 (2) in favour of the accused. Such cases will include murder case: 5. Bom L.R. 240 and 19 Bom L.R. 356. In such cases it does not appear necessary that the Court should be strictly satisfied, even if some doubt appears, that the accused has taken the plea of guilty with full understanding and responsibility: and the mere recording by the Court of the words used by the accused as his plea should not be open to objection". Sen. In such cases it does not appear necessary that the Court should be strictly satisfied, even if some doubt appears, that the accused has taken the plea of guilty with full understanding and responsibility: and the mere recording by the Court of the words used by the accused as his plea should not be open to objection". Sen. J: deprecated the practice if recording of plea of the accused on opening day of the trial by making following observations: "I would go even further than my learned brother and suggest that such procedure should be adopted in all cases, i.e. that the practice of recording pleas of accused persons on the opening day in cases which are not to be tried on that day should be abandoned altogether. If a certain period is to elapse before a particular trial can be commenced it is desirable even in cases other than cases of murder, that the accused should, if possible, be enabled to get legal advice before he makes his plea". Rajdhyaksha, J. The third learned Judge constituting the Special Bench in his separate opinion 'made the following pertinent observations : "It is true that in most cases the accused pleads not guilty, but in those rare case where the accused does plead guilty, it is necessary for the Court to make sure that the accused understands the plea, and that he has properly been advised by his counsel before that plea is made by the accused. In England when the accused pleads guilty, the Judge satisfies himself that the prisoner understands what exactly he is pleading to and what the consequences of that plea may be. He further questions the counsel whether he has satisfied himself that the prisoner understands the implications of the plea and is not pleading guilty for any ulterior motive such as to protest some other person. In accordance with the practice followed in this Court it is impossible for the Judge to take an those precautions and it is very desirable that practice should be altered. There is no provision in the Criminal Procedure Code which requires that the pleas of all the accused who are to be tried at a particular Sessions should be recorded on the opening day. There is no provision in the Criminal Procedure Code which requires that the pleas of all the accused who are to be tried at a particular Sessions should be recorded on the opening day. There is no reason why in the case of accused charged with the capital offence the pleas should not be recorded when the actual case comes up for trial. By that time the accused has the benefit of being advised by his private counselor: by the counsel engaged at Government expense, and if under those circumstances the accused chooses to put up a plea of guilty, it is possible for the Judge to satisfy himself before accepting the plea, by putting the necessary questions to the accused and to his counsel. This procedure would also do away with the difficulty which has arisen in this case by reason of the plea being recorded on one day and the trial commencing three weeks afterwards when the accused completely went back on his plea. When the plea of the accused was taken in the present case, the only record of what occurred then is in these words "Pleas guilty, but he will be tried for murder". Under S. 271, Criminal P.C., when the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out and explained to him and he shall be asked whether he is guilty of the offence charged with or claims to be tried. If the accused pleads guilty the plea shall be recorded and he may be convicted thereon. Whether the accused has really pleaded guilty or not must be ascertained by recording his statement"............ in which case the accused can properly be tried under S. 272, Criminal P.C. On the other hand the statement made by the accused may disclose that the accused fully understands what he is stating, but gives no explanation as to how and why he committed the particular offence. In such a case the plea of the accused has to be recorded and then it is for the Judge to decide whether he should convict the accused thereupon". 10. In such a case the plea of the accused has to be recorded and then it is for the Judge to decide whether he should convict the accused thereupon". 10. In the present case, it appeals from record of the proceedings that the learned trial Judge accepted the plea on the opening day of the trial and the accused was not afforded opportunity to consult his lawyer appointed from Stale defence panel. The learned Judge did not apprise the accused of the consequence of his pleas nor he was told that he was not bound to plead guilty. The Judge ought to have adjourned the case to give him time for deliberation. 11. The learned Judge as stated earlier did not record the plea of the appellant at all in clear violation of Section 229 of the Cr.P.C. He put certain questions to him under section 313 Cr.P.C. when there was no such occasion, since under section 229, the accused can be convicted on his plea of guilt. The statement of the accused. under section 313 Cr.P.C. cannot be treated to be substituted for the statement under section 229 Cr.P.C. In the Special Bench Case of the Bombay H. C. (Supra) it was held by Sen, J: "If the plea was not (a)" Circumstances appearing in evidence against the accused" within the meaning of Section 342 of the Code, it cannot be said that the learned Judge who was justified under that section in putting the question to the accused recording the plea". 12. Now if, any of these infirmities were not there the next question for consideration is whether the trial Judge exercised his discretion properly in accepting the plea of guilt of the accused who had been charged with a capital offence. This topic has come-up for consideration on many occasions under the old Code when the court was called upon to accept the plea of guilt in a case where the offence charged was one of murder where court was likely to pass a sentence of extreme penalty under law. 13. One of the earliest cases on the point under the Code of 1898 is the decision of the Bombay High Court reported in Emperor V. Chinia Bhika Koli (1906) 3 Cri L.J. 337. 13. One of the earliest cases on the point under the Code of 1898 is the decision of the Bombay High Court reported in Emperor V. Chinia Bhika Koli (1906) 3 Cri L.J. 337. In that case, the Sessions Judge accepted the prisoner's plea of guilty, the trial Court held that the accused did not put forward any circumstance which might reduce the sentence to one of culpable homicide, and therefore, awarded the extreme penalty of death Jenkins. C.J. who pronounced the judgment on behalf of the Bench observed: "It is not in accordance with the usual practice to accept a plea of guilty in a case where the natural sequence would be a sentence of death". A man may plead that he hit some one who thereby died, and that he did it for the purpose of taking away the ornaments of person injured without necessarily admitting that he committed murder, for murder under the Penal Code requires a certain intention or a certain knowledge". Holding that it was not safe to accept the conclusion of the Sessions Judge the High Court set-aside the conclusion and sent the case back to the Sessions Judge for trial according to law. 14. In Queen Empress V Chinna Pavuchi, (1890) ILR 23 Mad. 151, the Madras High Court observed : "'The Code (Section 271) only says that the plea shall be recorded, and he may be convicted thereon. As a matter of practice the Sessions Judges, as we think very properly, prefer not to act on the plea of guilty, but proceed to take the evidence just as if the plea had been one of not guilty, and decide the case upon the whole evidence, including the accused's plea". 15. In Dalli V. Emperor, AIR 1922 All.233 (1) : 1922-23 Cri. L.J. 283) the Allahabad High Court on the question whether a plea of guilty should be acted upon in a case of murder held as follows: "In a case of murder it has long been the practice not to accept the plea of guilty. After all murder is a mixed question of fact and law and unless the Court is perfectly satisfied that the accused knew exactly what was necessarily implied by his plea of guilty, the case should be tried". The above decision was followed in Mt. Sukhta V. Emperor AIR 1922 All 266 : (1923-24 Cr. After all murder is a mixed question of fact and law and unless the Court is perfectly satisfied that the accused knew exactly what was necessarily implied by his plea of guilty, the case should be tried". The above decision was followed in Mt. Sukhta V. Emperor AIR 1922 All 266 : (1923-24 Cr. L.J. 609) and the rule of practice was reaffirmed in the following words: "That Rule is that when an accused is on his trial on capital charge, It Is not expedient that the Court should convict him even upon a plea of guilty entered before the trial Court itself. As a matter of practice the Court should, in its discretion, put such a plea on one side and proceed to record and consider the evidence, in order to satisfy itself, not merely of the guilt of the accused, but of the precise nature of the offence committed and the appropriate punishment for the same. 16. The Chief Court of Cochin had occasion to consider the question on more than one occasion. In Sirkar V. Pathu, 9 Cochin LR 397 (FB), Narayan Iyer, C.J. referred to the following passage in Queen Empress V. Bhadu. (1896 ILR 19 All 120 : "In this country it is dangerous to assume that a prisoner of this class understands what are the ingredients of the offence under Section 302 of the Indian Penal Code, and what are the matters which might reduce the act committed to an offence under Section 304. Even in England it is used to be the practice of some Judges, and probably is still, although they were not bound to do so to advise persons pleading guilty to a capital offence to plea not guilty and stand their trial. The learned Judge held: "The accused is charged with a capital offence, and it need hardly be pointed out that the usual practice in such cases is not to accept the plea of guilty, but to proceed to record evidence and base the order of conviction or acquittal according to the reliability or unreliability of that evidence" , 17. This does not however mean that a conviction entered on a plea of guilty in a case falling under Section 302 of the Indian Penal Code should always be set aside. This does not however mean that a conviction entered on a plea of guilty in a case falling under Section 302 of the Indian Penal Code should always be set aside. In fact, there are cases where the Court has upheld conviction based on the plea of guilty even in cases of murder, and this has been done after satisfying that the accused understood the nature and effect of the charge to which he pleaded guilty (See Nag Ywa V. Emperor, AIR 1935 Rang 49 : (1935 – 36 Cri. LJ 336) 18. The rule of practice adopted by the various High Courts in not acting upon a plea of guilty in cases of serious offences of murder is a rule of caution and prudence. An offence of murder involves not only the physical act of violence but also the mental element of intention or knowledge. A lay accused, when he pleads guilty is likely to be more concerned with the physical act and may not advert to the various ingredients constituting the offences, As mentioned in Dalli V. Emperor, AIR 1922 All 233 (1): (1922-23 Cri.LJ 28:) Whether the act constitutes murder is a mixed question of law and fact. The Court while holding an accused guilty of murder should also enter a finding that he did the act with the requisite intention or knowledge. For such a finding to be entered and to decide whether the offence is murder or a lesser offence the Court should have before it the detail of the occurrence the circumstances under which the act was done and the motive if any and for this purpose it is desirable that the entire evidence is placed before the Court. 19. In 1980 Raj Cr. Cases Cric 68 (D.B.) it has been held by the Rajasthan High Court that murder is a mixed question of law and because and unless the court is satisfied that the accused knew exactly what was implied by the plea of guilty the plea should not be accepted but the case should be tried specially when the accused is an ignorant person. In that case, the framing of charge against the accused recording of guilty and recording of conviction thereon was done by the court on the same day and the sentence was also imposed on the same day. In that case, the framing of charge against the accused recording of guilty and recording of conviction thereon was done by the court on the same day and the sentence was also imposed on the same day. It was held by the learned Judge that the conviction of the accused was illegal. 20 In a decision of Supreme Court of United States in Robert J ; Henderson V. Timpthy Gomorgan. 1977-49L-Ed 2nd (108) a seven Judges Bench of the U.S. Supreme Court was testing the validity of the conviction of the accused who had pleaded guilty to a charge of second decree murder and was convicted on that charge. After having exhausted a State remedy he filed a petition for writ of habeas corpus in the United State District Court alleging that his plea was involuntary because he was not aware that intention to accused death was ingredient of the offence. After protracted proceedings in the district court, that court held as a matter of fact in favour of the petitioner. This was affirmed by the court of appeals. The majority of the judges of the Supreme Court held that the judgment of conviction was entered without due process of law, since petitioner’s plea of guilty was involuntary in that he did not receive adequate notice of the offence. It was further held by the majority of the Judges : ‘The plea to guilty to a charge of second decree murder cannot support a judgment guilt unless it is voluntary in a constitutional sense and clearly the plea cannot be said to be voluntary in the sense that it constituted an intelligent appellant that he committed the offence unless the defendant (accused) recows kill notice of the brought nature of the charge against him, the first and most universally recognized requirement of the due process. If the defendant is not informed with an intention to cause death of the person killed was an element of the offence charged against him his plea of guilty cannot be said to be voluntary and the judgment of conviction in such a case is entered with due process of law 21. In the present case also the accused was also ignorant person the entire proceeding was concluded on the same day by the trial Judge the plea of the accused was not recorded. In the present case also the accused was also ignorant person the entire proceeding was concluded on the same day by the trial Judge the plea of the accused was not recorded. There is no indication in the order of conviction that the learned Judge was satisfied that the plea of guilt was voluntary and fit to be accepted. Before accepting the, plea of the accused, trial Judge ought to have explained the charge to the accused and satisfied himself by interrogation of the accused that he fully understood the responsibility by making a plea of guilty. Then only he would have been in a position to exercise properly the discretion in law allows. In Kisan Vs. State 18 Cr. L. J. 742, it was held that before a Judge convicts the accused on his plea, he ought to explain the charges to the accused and to satisfy himself by interrogations of the accused that he fully understands the responsibility which he assumes by making a plea of guilty. The judge is then in a position to exercise properly the discretion which law allows and to put upon the record the reasons which guide his discretion in either direction. The clause which he intends to persue should not be left in doubt. 22. In AIR 1960 Mys. 117. it has been held that the court must be satisfied whether the accused is aware of the facts on which the charge is founded against him and also whether he has admitted his guilt voluntarily without any extraneous pressure or expectation of lenient sentence. 23. In the present case, in our opinion, trial judge had failed to exercise the proper safeguard laid• down by various courts before accepting the plea of the guilt of the appellant. The conviction of the appellant therefore, is on the face of it illegal and must be set-aside. 24. In the result, this appeal is allowed and the conviction and sentenced passed by the learned Additional Sessions Judge is set aside. The case is remitted to the trial court for retrial of the appellant in accordance with law in the light of the observations made in this judgment. I agree Appeal allowed.