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2004 DIGILAW 266 (GAU)

Lalhunpuia v. State of Mizoram

2004-04-08

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. This revision petition has been registered on the basis of the petition filed by the accused who is in jail after his conviction in Kolasib P.S. Case No. 171/2002 under Section 376(f) of the Indian Penal Code which culminated to G.R. Case No. 271/2002. Upon such conviction he was sentenced to under go imprisonment for 6(six) years and presently, he is in District Jail, Kolasib. 2. On the basis of the application sent by the petitioner from jail, this court has registered the instant case and requested Mr. S.N. Meitei, learned counsel to represent the accused as amicus curiae. 3. I have heard Mr. S.N. Meitei, learned counsel appearing on behalf of the petitioner as well as Mr. Aldrin Lallawmzuala, learned Asstt. Govt. advocate for the State of Mizoram. 4. The prosecution story of the case in brief, is that, on 29.9.2002 one Lalchhanhimi submitted an FIR to the Officer-in-charge, Kolasib police station to the effect that on 24.9.2002 at about 2.00 to 3.00 p.m. her daughter Lahighatzovi @ Zopuii of 12 years of age was raped by the accused who incidentally is the step-father of the victim girl. On the basis of the FIR, Kolasib P. S. Case No. 171/02 dated 29.9.2002 was registered under Section 376(f) IPC. 5. The police carried out the investigation and both the accused and the victim girl were medically examined. The police case culminated to G.R. Case No. 271/02. The prosecution examined 3 witnesses who are the mother of the victim girl victim girl herself and the doctor who had examined the victim girl and the accused. Both the mother and the victim girl during their deposition stated that the accused committed the crime on the victim girl. The doctor who was examined as a prosecution witness, however, in his deposition stated that on medical examination of the victim girl and the accused he did not find any injury on the private parts. No seminal stain was noted. According to his statement the victim girl was found to be suffering from same form of venereal disease. Regarding medical examination of the accused the doctor in his deposition stated that there was no stain, seminal or otherwise, on his body or cloths. His body showed no marks of violence. 6. The accused allegedly made a confessional statement on 4.10.2002. According to his statement the victim girl was found to be suffering from same form of venereal disease. Regarding medical examination of the accused the doctor in his deposition stated that there was no stain, seminal or otherwise, on his body or cloths. His body showed no marks of violence. 6. The accused allegedly made a confessional statement on 4.10.2002. The records of the case reveal that upon his arrest the police produced him before the learned magistrate on 4.10.2002 praying for his custody for a period of 14 days and also to record his confessional statement. It is on that basis the learned magistrate recorded the alleged confessional statement on the same very date then and there. The records further reveal that the accused whenever was produced before the learned magistrate was never represented by any lawyer. In due course the case was committed to the District Magistrate who received the case records on 10.12.2002. Thereafter as per the records, the accused was produced before the trial court form time to time and on each and every occasion he was remanded to judicial custody but on all the days he was not represented by any lawyer. On 5.5.2003 he was again remanded to judicial custody till 19.5.2003 without specifying anything that 19.5.2003 would be the date for consideration of charge. 7. On 19.5.2003 the accused was produced before the court and on the same date the charge was framed under Section 376(f) IPC and allegedly the same was explained to the accused. Thereafter on the ground of the accused having pleaded guilty, he was convicted and sentenced to under go simple imprisonment for six years. The accused is now jail in custody. On 6.6.2003 the accused made an application to this court through the Superintendent of prison, District Jail, Kolasib, Mizoram, on the subject of bail petition in connection with the aforesaid case. In the petition the accused has taken the following grounds : "1. Charge sheet was served to me to enlarge legal counsel and I have no defence counsel in the instant case. 2. I was not brought to the trial court at the time of pronouncing judgment as well as trailing magistrate give no chance to defence the accused 3. The honourable court engaged any legal counsel for the accused. 4. No witness was called in the instant case. 5. 2. I was not brought to the trial court at the time of pronouncing judgment as well as trailing magistrate give no chance to defence the accused 3. The honourable court engaged any legal counsel for the accused. 4. No witness was called in the instant case. 5. I neither pleaded guilty nor have any chance to express my innocent in this case. 6. Complainant was neither seen nor meet by the trailing magistrate. 7. I have no sexuality with the said victim. 8. At the time of pronouncing the judgment I was in the court police lock-up and not brought to the court. 9. Without physical facing the trailing magistrate even a single time, the poor appellant was harshly convicted." 8. On perusal of the records I find that the method and manner m which the trial against the accused was conducted is palpably illegal. The learned magistrate recorded the alleged confessional statement when the accused was brought from the police custody on the basis of a prayer made on behalf of the police. As noticed above the accused was produced before the learned magistrate on 4.10.2002 and the learned magistrate without giving him any time for reflection and without recording anything upon questioning the accused that such statement was being made voluntarily, recorded the alleged confessional statement. Couple with this the accused was also not afforded any opportunity to have any legal assistance by way of engaging and consulting his lawyer. The records reveal that the accused is a poor person and virtually illiterate. He ought to have been apprised of his right of engaging a lawyer and in absence of any source on the part of the accused, the trial court ought to have provided him with assistance of a legal practitioner. 9. The alleged confessional statement was recorded in a printed form and the signature of the accused was obtained. The recording magistrate did not make any statement regarding his reason for believing that the statement was made voluntarily. The procedure adopted by the learned magistrate strikes at the very root of criminal justice system and the provisions of Section 164 of the Cr.PC. 10. On 9.5.2003 when the accused was produced before the trial court like that of earlier occasions without assistance of lawyer, the trial court convicted the accused on the same date. The procedure adopted by the learned magistrate strikes at the very root of criminal justice system and the provisions of Section 164 of the Cr.PC. 10. On 9.5.2003 when the accused was produced before the trial court like that of earlier occasions without assistance of lawyer, the trial court convicted the accused on the same date. It was on that date only the trial court in its order stated that the date was fixed for framing of charge and consideration of the same. Upon hearing the prosecution side, the charge under Section 376(f) IPC was framed and it was allegedly read over to the accused to which he allegedly pleaded guilty. Adopting such a procedure the trial court convicted the accused and sentenced him to under go simple imprisonment for six years. In absence of any assistance of a Lawyer, the prosecution witnesses were also not cross-examined. The trial court simply recorded their statement without there being anything to suggest that the petitioner was afforded with any opportunity to cross-examine them. 11. From the aforesaid narration of facts and revelation made by the records it is clear that the accused has been convicted in violation of the established procedure to be adopted in criminal proceeding. The learned magistrate recorded the alleged confessional statement without following the under lying principle. He was also not examined by the trial court as regards the plea of guilty allegedly made by the accused. There is no material to show that the same was "voluntary" and "intelligent". The admission or confession to criminal charge cannot be truly voluntary unless the accused possess understanding of the law in relation to the facts. As a result of plea of guilty courts are required the utmost solicitude in canvassing the matter with the accused to make sure that he was in full understanding what the plea connotes and of its consequence. Needless to say that the plea of guilty is more than admission or confession. Records do not disclose that the plea of guilty as reflected in the impugned order of conviction was "voluntary" and "intelligent. 12. It is true that if the accused pleads guilty, he can be convicted on that basis and it will be the discretion of the trial court. Such discretion cannot be exercised arbitrarily and have to be on the basis of attending circumstances. 12. It is true that if the accused pleads guilty, he can be convicted on that basis and it will be the discretion of the trial court. Such discretion cannot be exercised arbitrarily and have to be on the basis of attending circumstances. The records do not reveal that the accused had pleaded guilty voluntarily or by making a statement and accepted the same by making any endorsement by putting his signature. Recording of confession or guilt is a proceeding under Section 303 of the code of criminal procedure. The accused has a right to consult with his lawyer and hence the magistrate ought to have extended to the accused of his such right before recording the alleged confessional statement and the plea of guilty. The accused who appears to be economically poor and socially backward, ought to have afforded with free legal aid as provided for under Section 304 Cr.PC by the learned trial Court. 13. In view of my above finding the decisions relied on by the Mr. Aldrim Lallawmzuala, learned public prosecutor on the question of proof beyond reasonable doubt reported in (Sucha Singh and Anr. v. State of Punjab); consequence of non-examination of the. I/O by the prosecution reported in (Narendra Nath Khaware v. Parasnath Khaware and Ors.) ; conviction on the basis or confessional statements reported in (Madi Ganga v. State of Orissa) and extra judicial confession made by accused reported in (Vonayal Sjovajirao Pol v. State of Maharastra) etc., need not be gone into. There is no dispute relating to the propositions of law laid down in those cases. 14. In view of the foregoing discussions and conclusion I set aside and quash the order of conviction and sentence. Consequently, dated 9.5.2003 the conviction and sentenced passed against the accused/petitioner Sh. Lalhunpuia by the District Magistrate in connection with Kolasib P. S. Case No. 171 of 2002 under Section 376(f) IPC vide G.R. No. 271 of 2002 also stand set aside and quashed. 15. Since the conviction and sentenced has been interfered with or ground of procedural irregularity and having regard to the nature of offence allegedly committed by the accused, I remand the matter back to the trial court for a fresh trial by providing all reasonable opportunity of defence to the accused. 15. Since the conviction and sentenced has been interfered with or ground of procedural irregularity and having regard to the nature of offence allegedly committed by the accused, I remand the matter back to the trial court for a fresh trial by providing all reasonable opportunity of defence to the accused. The trial court should specifically ask the accused as to whether he is in a position to engage any lawyer of his choice and would like to engage him in his personal capacity. On failure to do so by the accused the trial court shall provide the help of legal practitioner to the accused as contemplated under Section 304 Cr.PC. Such legal assistance should be provided to the accused all throughout the trial and the trial court shall also apprise the accused of his right of making prayer for bail through his counsel. If any such application for bail is made by the accused, the same shall be considered on its own merit. 16. The accused petitioner is in judicial custody for nearly about 1 (one) year. Subject to the out come of the bail application, which might be moved by the accused petitioner, it is, expected that the trial court will proceed with the matter afresh and complete the same within 2(two) months from the date of receiving the case records-While initiating and completing a fresh trial, the trial court will bear in mind the true sprit of criminal justice system and the right of the accused to defend himself by all possible means. 17. The Registry is directed to transmit the case records to the trial court immediately. Copy of this order shall be furnished to the accused/petitioner the Jail authority which in turn explain to him the outcome of his proceeding and his right of defence. 18. With the above directions and observations the criminal revision petition No. 5/03(J) stands allowed to the extent indicated above. Revision allowed.