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2003 DIGILAW 22 (CHH)

KHILAWAN SINGH v. STATE OF CHHATTISGARH

2003-02-17

K.H.N.KURANGA, L.C.BHADOO

body2003
JUDGMENT As per Hon'ble Shri L.C. Bhadoo, J.:- 1. Appellant/accused Khilawan Singh has preferred this appeal through Superintendent, District Jail, Bilaspur being aggrieved by the judgment dated 11-12-1996 passed by the learned Second Additional Sessions Judge, Bilaspur in Sessions Case No. 428 of 1996 (State of Madhya Pradesh Vs. Khilawan Singh) convicting the appellant for the offence under Section 302 of IPC and sentencing him to undergo imprisonment for life. 2. Briefly stated the facts of the prosecution case are as follows: On 30- 7 -1996 at about 11.30 in the night one Shri Ajitram Nayak appeared in Seepat Police Station, district Bilaspur and reported that on that day at about 8 to 9 in the night in village Hardadeeh accused Khilawan ' Singh was carrying an iron Tangia in his hand and was going towards the, house of Sahodara Bai, he was saying that Sahodara Bai was a witch and she was practising watch-craft and therefore he would not leave her alive. Nar Singh, father of the appellant/accused tried to intervene but appellant Khilawan Singh started quarrelling with him. Thereafter, Nar Singh ran away. Appellant Khilawan Singh started banging the door of the house of Sahodara Bai with Tangia. At that point of time Laxamin Bai (Phoophoo) sister of the father of the appellant came and tried to advise him asking him not to quarrel with Sahodara Bai. Appellant Khilawan Singh became furious and started assaulting Laxamin Bai with Tangia on her chest, neck and head. After receiving the injuries Laxamin Bai fell down and succumbed to the injuries sustained by her on the spot itself. 3. On the basis of that report, the Police registered a case in Crime No.108 of 1996 and took up the investigation, arrested the accused/appellant, prepared the site plan, got the post mortem conducted on the dead body of deceased Laxamin Bai and after completion of the investigation filed the charge-sheet against the appellant in the Court of the Judicial Magistrate, First Class, Bilaspur who committed the case to the Court of District & Sessions Judge, Bilaspur for trial who in turn transferred the case to the Court of Second Additional Sessions judge, Bilaspur for trial. 4. 4. The learned Sessions Judge registered the case as Sessions Trial No. 428 of 1996 and after going through the records found that prima facie case for framing the charge under Section 302 of IPC had been made out against the accused and accordingly he framed the charge under Section 302 of IPC against the appellant/accused and read over the same to the accused. 5. The charge framed by the learned Second Additional Sessions Judge, Bilaspur against the appellant/accused reads thus: CHARGE I, Mazhar Yar Khan, Second Additional Judge to the Court of Sessions Judge, Bilaspur, do hereby charge you Khilawan Singh Nayak, S/o Narsingh Nayak as under :- That, you on 30-7-1996 in the night at about 8-9 p.m. at village Hardadeeh, Police Station Seepat intentionally committed the murder of deceased - Phoophoo Laxamin Bai by assaulting her with iron Tangia and thereby committed the offence punishable under Section 302 of IPC which is within the cognizance of this Court. Therefore, I order that the said offence Shall be tried by this Court. Bilaspur, Date 11th Dec., 1996 Sd/- Mazhar Yar Khan Second Additional Judge to the Court of Sessions Judge, Bilaspur The appellant/accused pleaded guilty to the said charge framed against him by the learned Sessions Judge. The plea of the accused recorded by the learned Second Additional Sessions Judge, Bilaspur read thus: Plea of the accused On the charge being read over and explained to the accused, he stated :- I accept. I have committed the murder of my Phoophoo by causing hurt on chest, stomach and neck with Tangia. I am voluntarily admitting the commission of offence of murder. Sd/- (Khilawan Singh) Sd/- Mazhar Yar Khan Second Additional Judge to the Court of Sessions Judge, Bilaspur 6. The learned Second Additional Sessions Judge, Bilaspur accepted the plea of the accused and convicted the appellant/accused for the commission of the offence under Section 302 of IPC and sentenced him to undergo imprisonment for life by the impugned judgment and order. 7. We have heard the learned counsel for the appellant/accused and Miss Sharmila Singhai, learned Deputy Govt. Advocate on behalf of the State/ respondent. 8. 7. We have heard the learned counsel for the appellant/accused and Miss Sharmila Singhai, learned Deputy Govt. Advocate on behalf of the State/ respondent. 8. Now the question arises for our determination is whether it is mandatory for the trial Court to act upon the plea of guilt of the accused and convict and sentence the accused on the basis of the said plea of the accused and whether in the present case the trial Court has adopted the correct procedure as per law. 9. In order to decide the said question we have to advert to Section 229 of the Code of Criminal Procedure which reads as under:- Conviction on plea of guilty : If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. 10. The two words 'may' and 'discretion' used by the legislature are very important. If we consider the word' may' along with the word' discretion' the natural interpretation in the ordinary sense would be that the legislature had left it to the discretion of the Judge concerned either to accept the plea of guilt of the accused and convict him accordingly or not to accept the plea and to proceed with the trial and thus it is not mandatory for the Court to accept and act upon the plea of guilt of the accused and to convict him. The legislature in its wisdom used these words to give discretion to the Judge to take a decision after considering all the pros and cons and the facts and circumstances of each case and the mental condition of the accused, the power of understanding of the accused and whether the accused has at all understood the consequences of his plea and whether he understood the ingredients of the offence and all other surrounding and supervening circumstances. 11. 11. It is the consistent view that in the cases involving the serious offences for which the death sentence or life imprisonment is prescribed It would always be safe and appropriate to proceed with the trial and after recording the evidence the Judge should decide the matter so that he would be able to reach the conclusion whether on the basis of the evidence adduced by the prosecution, the offence as alleged by the prosecution has been made out or not and whether the prosecution has been able to lead all such evidence to prove all the ingredients of the offence alleged against the accused or lesser offence has been made out. In this connection we are supported by the two judgments of Kerala and Mysore High Courts. 12. In Ramesan Vs. State of Kerala1, the Kerala High Court has held thus: 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 offence. Whether 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. 13. In Gavisiddappa Vs. State of Mysore2 the Court held thus: Where the accused pleads guilty to a charge of murder and the Judge is satisfied that the accused understands fully the implications of his plea then the plea must be recorded. After recording the plea it is open to the judge either to convict or not to convict the accused upon that plea, and as a matter of practice it is desirabie to proceed with the trial as if the plea was one of not guilty, lest and evidence may disclose that the facts proved do not, in law, constitute an offence of murder but some lesser offence. 14. 14. As laid down by the Kerala High Court and the Mysore High Court in the aforesaid judgments before taking a decision on the plea of guilt of the accused in serious cases particularly in murder cases the Court has to take into consideration many factors and for that simple plea of guilt is not sufficient. It is always better to take evidence of the prosecution and on the basis of the evidence of the prosecution the Court should decide whether all the ingredients constituting the offence of murder has been proved in the facts and circumstances of each case or on the basis of the evidence led by the prosecution whether a lesser offence has been made out by the prosecution against the accused. The Court has to take into consideration the mental condition of the accused when he committed the crime and other relevant factors and surrounding circumstances, which led to the commission of the offence by the accused and what was the motive for committing such crime. Therefore, in murder cases it is always safe to ask the prosecution to lead evidence and not to act upon the plea of guilt of the accused and convict and sentence him. In this background, we have to consider the facts and circumstances of the case on hand. 15. Even according to the prosecution the appellant/accused was fed up with the activities of Sahodari Bai who was known as a witch and was practising witchcraft and therefore he was going to the house of Sahodara Bai to teach her a lesson. When he was banging the door of Sahodara Bai with a Tangia, Laxamin Bai (Phoophoo) i.e. the sister of his father came and intervened and asked him not to quarrel with Sahodara Bai, the appellant/accused could not control his senses because he was so furious and without understanding the consequences of his act started inflicting injuries on the body of Lax am in Bai, his close relative. In the complaint itself filed by one Shri Ajitram Nayak it is stated that the appellant/ accused was going towards the house of Sahodara Bai carrying an iron Tangia in his hand saying that she was a witch and she was practising witchcraft on him and therefore he would kill her. In the complaint itself filed by one Shri Ajitram Nayak it is stated that the appellant/ accused was going towards the house of Sahodara Bai carrying an iron Tangia in his hand saying that she was a witch and she was practising witchcraft on him and therefore he would kill her. This itself shows that the intention of the accused was to assault Sahodara Bai and his intention was not to commit the murder of Laxamin Bai the deceased. Therefore, without the prosecution evidence in the present case it was not possible for the learned Sessions Judge to come to the conclusion whether the appellant had the intention to commit the murder of Laxamin Bai and therefore the learned Sessions Judge ought not to have acted upon the plea of guilt of the appellant/accused and ought not to have convicted him for the serious offence, of murder and ought not to have sentenced him for the same. 16. In the charge framed by the learned Sessions Judge against the accused, it is stated that the appellant/accused intentionally committed the murder of deceased Phoophoo Laxamin Bai by assaulting her with an iron Tangia, but the appellant/accused simply stated that "I accept the allegations" and further stated that he has committed the murder of his Phoophoo by assaulting her with Tangia. But he has not admitted that he assaulted the deceased Phoophoo with the intention of committing her murder. Moreover, he has only stated that he committed the murder of his Phoophoo and he has not admitted that he committed the murder of Laxamin Bai. Therefore, to ascertain what was the intention of the appellant at the time of assaulting the deceased Laxamin Bai with Tangia whether the appellant/ accused had intention to commit her murder or he wanted to teach Sahodara Bai a lesson, recording of evidence of the prosecution was necessary. The case of the prosecution itself is that the appellant wanted to teach a lesson to Sahodara Bai and when deceased Laxamin Bai intervened and tried to advise him not to quarrel with Sahodara Bai, the appellant/accused assaulted Laxamin Bai with Tangia. Thus, his intention was not to commit the murder of Laxamin Bai but was only to teach a lesson to Sahodara Bai. Thus, his intention was not to commit the murder of Laxamin Bai but was only to teach a lesson to Sahodara Bai. In the circumstances, recording of evidence of the prosecution by the learned Sessions Judge is necessary to find out whether the appellant/accused had intentionally committed the murder of Lax am in Bai. 17. We are of the opinion that in the facts and circumstances of the case, we have no option but to set aside the order of conviction and sentence passed by the learned trial Judge against the appellant and remand the case to the learned Second Additional Sessions Judge, Bilaspur for trial. 18. Accordingly, the appeal filed by the appellant/accused is allowed. The judgment of conviction and sentence dated 11-12-1996 passed by the Second Additional Sessions Judge, Bilaspur in Sessions Case No. 428 of 1996 stands set aside and the case stands remanded to the learned Second Additional Sessions Judge, Bilaspur with a direction to proceed with the trial and dispose of the case in accordance with law after recording evidence of the prosecution. Appeal allowed and case remanded for trial and disposal according to law after recording evidence.