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2006 DIGILAW 665 (GAU)

Mutum Seityaban Singh v. State of Manipur

2006-07-25

MAIBAM B.K.SINGH, T.NANDAKUMAR SINGH

body2006
ORDER M.B.K. Singh, J. 1. Heard Mr. Kh. Binoykumar, learned Counsel appearing on behalf of the Appellant, as well as Mr. Jalal, learned Addl. P.P. appearing on behalf of the Respondent fully. 2. This appeal is directed against the judgment and orders dated 23.8.2002 and 29.8.2002 passed by the Addl. Sessions Judge (FTC) Manipur East, Imphal in Sessions Trial Case No. 89/9115191/15/93/2/94/ 5/2002. The learned Addl. Sessions Judge (F.T.C.) Manipur East, Imphal vide the impugned judgment and order, convicted the present Appellant for the commission of the offence Under Section 302 IPC for causing death of one Moirangthem Lukhoisana Singh by stabbing with a knife on 22.8.86 at 9 P.M. and sentenced him to imprisonment for life with a fine of Rs. 2000/- 3. On perusal of the record of the trial court, in the light of the submission of both sides, we find that there are infirmities in the proceedings of the case before the learned Addl. Sessions Judge (F.T.C.) Manipur East, Imphal. One of the infirmities is omission on the part of the trial court to obtain evidence for ascertaining if the alleged previous statement of one of PWs, namely, Mutum Ongbi Mema Devi (PW 6), who was declared as a hostile witness with the permission of the Court, was proved or not. The other one is failure on the part of the trial court to question the accused/Appellant on the circumstances appearing against him in evidence so as to enable him to explain the same in compliance with mandatory provisions of Section 311(1)(b) of the Code of Criminal Procedure. 4. In respect of the above said first infirmity, it is to be noted that Section 162(1) of the Code of Criminal Procedure prohibits the use of statement recorded by the police in course of Investigation for any purpose in any enquiry or trial, except to a limited extent, as provided for in the proviso to this Section, if the enquiry or trial relates to an offence which was under investigation when the statement was made. The proviso to Section 162(1) of the Code of Criminal Procedure is as follows: Section 162(1). The proviso to Section 162(1) of the Code of Criminal Procedure is as follows: Section 162(1). Provided that when any witnesses is called for the prosecution in such enquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination. 5. The only purpose, besides those mentioned in Section 162(2) of the Code of Criminal Procedure, for which the statement of a witness recorded by the police in course of investigation can be used in any inquiry or trial, is for contradicting the statement of the witness concerned as made in Court in such inquiry or trial, if such witness is examined on behalf of the prosecution. This right can be availed of by the accused without any permission of the Court, but the prosecution is required to obtain the permission of the Court for exercise of any such right. In order to contradict a witness by such earlier statement, the procedure laid down in Section 145 of the Evidence Act has to be followed and as such his attention has, before the statement in writing can be proved, to be drawn to that part of the earlier statement in writing which is sought to be used for contradicting the statement as made in Court. Though there is no requirement first to prove the earlier statement before putting it to the witness, the said earlier statement must be duly proved subsequently in connection with use of it for contradiction. It is usually done by eliciting admission from the witness during cross-examination or through the Investigating Officer when he is examined as a witness or in any other way, for example, calling someone who was present when the statement was recorded. It is usually done by eliciting admission from the witness during cross-examination or through the Investigating Officer when he is examined as a witness or in any other way, for example, calling someone who was present when the statement was recorded. In case the said earlier statement is not duly proved as required under the proviso to Section 162(1) of the Code of Criminal Procedure, any use of the said statement purportedly for contradiction of the concerned witness by the prosecution with the permission of the Court will be of no consequence. 6. In the case before us, there is not any evidence to prove that the alleged earlier statement of the said Mutum Ongbi Mema Divi (PW 6) marked "X-I", with reference to which she was declared as a hostile witness with the permission of the Court and she was cross-examined, was in fact given by her to the I.O. of the case during its investigation. She (PW 6) herself denied to have given the said statement to the I.O. The learned P. P. did not also apparently put any question to the I.O. of the case to get any evidence about the fact if the said statement marked "X-I" was given to him by the witness or not. The learned Addl. Sessions Judge (FTC), Manipur East also did not try to ascertain if the statement marked "X-I" had been given by the Mema Devi, (PW 6) to the I.O. (PW 17) during the investigation of the case. The minimum that the learned P.P. ought to have done was to take all the necessary steps to ensure that the case of the prosecution was presented fairly. It was, as such, the duty of the Prosecutor as of the Court to ensure that full and material facts were brought on record so that there might not be miscarriage of justice. The I.O. of the case, after referring to the case diary, was in a position to testify about the facts if the said statement marked "X-I" had, in fact, been given by the said Mema Devi during the investigation of the case and if he recorded the said statement. However, neither the learned P.P. nor the trial court tried to get any evidence about the said facts. However, neither the learned P.P. nor the trial court tried to get any evidence about the said facts. As a result, in the facts and circumstances, it is not possible to find out the truth about the question if the said Mema Devi gave her statement marked "X-I", during the investigation of the case, contradictory to the statement given before the Court. 7. In our considered opinion, it is necessary to ascertain the truth on the said question for enabling this Court to decide about the credibility of PW 6 and thereby in making a just decision of the case. We are further of the opinion that there ought to be some evidence for ascertaining the truth about the question if the said Mema Devi gave the said statement marked "X-I" to the I.O. of the case during the investigation of the case. But there is no evidence before the Court in this regard. In other word, some evidence has been left out. In the facts and circumstances, there is a necessity for additional evidence for ascertaining about the above said question and thereby for enabling this Court to make a just decision of the case. Section 391 of the Code of Criminal Procedure empowers an appellate court to direct for taking the required additional evidence in the interest of justice. 8. In Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. (2004) 4 SCC 158 , the Supreme Court held at Para 47: 47. Section 391 of the Code is another salutary provision which clothes the courts with the powers to effectively decide an appeal. Though Section 386envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate court considers additional evidence to be necessary, the provisions in Section 386 and Section391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate court to call for further evidence before the appeal is disposed of. For this purpose it is open to the appellate court to call for further evidence before the appeal is disposed of. The appellate court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and powers under it must also be exercised with great care, especially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of a guilty man's escape through some careless or ignorant proceedings before a court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable. In the same case the Supreme Court held at Para 53: In the ultimate analysis where it is a case covered by Section 386 or Section391 of the Code, the underlying object which the court must keep in view is the very reason for which the Court exists, i.e. to find out the truth and dispense justice impartially and ensure also that the very process of courts are not employed or utilized in a manner which gives room to unfairness or land themselves to be used as instrument of operation and injustice. 9. We have also considered the question if a direction is given to the trial court for taking the required additional evidence, if that will amount to giving opportunity to the prosecution 'to fill the lacuna in the prosecution case'. In our opinion, since the direction to be given is only for taking evidence for enabling to decide the question if the said Mema Devi (PW 6) gave statement marked "X-I" contradictory to the statement given before the Court, one cannot say reasonably that by making the said direction for taking additional evidence, the prosecution will be given an opportunity to fill in its lacuna. It is to be pointed out that if there is a lacuna in the prosecution, the advantage of it must normally go to the accused/Appellant, but an oversight in the management of the prosecution cannot be treated as a lacuna in the prosecution. While dealing with Section 391 of the Code of Criminal Procedure, the Supreme Court held in Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 11, Oat paras 7 and 8: 7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not 'fill the lacuna in the prosecution case'. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as lacuna which a court cannot fill up. 8. Lacuna in the prosecution must be understood as the inherent weakness or a latest wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. 10. It is also well settled that the question of admission of evidence initially or as an additional evidence under Section 391 Code of Criminal Procedure is distinct from efficacy, reliability and its acceptability for consideration of claims in the appeal on merit. 10. It is also well settled that the question of admission of evidence initially or as an additional evidence under Section 391 Code of Criminal Procedure is distinct from efficacy, reliability and its acceptability for consideration of claims in the appeal on merit. It is only after admission, this Court is to decide if the alleged contradictory statement marked "X-I" was, in fact, given by the said PW 6 during the Investigation of the case to the I.O. of the case and which portion of the statement of the said witness is credit worthy and acceptable, after comparative analysis and consideration of the probabilities and probative value of the materials before the Court for ascertaining the truth. There is not any requirement that this Court should satisfy that the additional evidence would be necessary for rendering a verdict different from what was rendered by the trial court. After assessing the additional evidence, this Court may maintain the verdict of the trial court and similarly this Court on consideration of the additional evidence may upset the trial court's verdict. It all depends upon the relevance and acceptability of the additional evidence and its qualitative words in deciding the guilt or innocence of the accused. 11. In the light of the above considerations, we are of the opinion that interest of justice will be served if direction is given to the trial court for taking additional evidence on the question if the statement marked "X-I" alleged to have been given by the Mema Devi (PW6) to the I.O. of the case (PW 18) during the investigation was in fact given as alleged or not. By doing so, no prejudice will be caused to the Appellant inasmuch as he will be given opportunity to cross-examine in respect of any statement given at the time of taking the said additional evidence. 12. The second infirmity cannot also be taken so lightly. Section 313(i)(b) of the Code of Criminal Procedure casts the duty on the Court to examine the accused generally on the case after the witnesses for prosecution have been examined and before the accused is called upon for his defence. The examination is for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. Section 313(i)(b) of the Code of Criminal Procedure casts the duty on the Court to examine the accused generally on the case after the witnesses for prosecution have been examined and before the accused is called upon for his defence. The examination is for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. It is well settled that the proper way of questioning the accused is to put before him one by one all the vital and salient point in the evidence that go against him in short sentences, in easily understandable language and to ask if he has anything to say in regard to them by way of innocent explanation. Provisions of this Section are not complied with by asking him generally if he has anything to say in regard to the evidence given against him. We may refer to the case of Sharad Birdhi Chand Sarda v. State of Maharashtra AIR 1984 SC 1635 at Para 142 wherein it was held thus: 142...As these circumstances were not put to the Appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the Appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Changule v. State of Maharashtra (1976) 1 SCC 438 : AIR 1976 SC 557 , this Court held thus: The fact that the Appellant was said to be absconding not having been put to him under Section 342, Criminal Procedure Code, could not be used against him. 143. In Shamu Balu Changule v. State of Maharashtra (1976) 1 SCC 438 : AIR 1976 SC 557 , this Court held thus: The fact that the Appellant was said to be absconding not having been put to him under Section 342, Criminal Procedure Code, could not be used against him. 143. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat AIR 1979 SC 1566 where the following observations were made: In the first place, he stated that on the personal search of the Appellant, a chadi was found which was bloodstained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the Appellant. 144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the Appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration. 13. In State of Maharashtra v. Sukhdeo Singh AIR 1992 SC 2100 their lordships at Para 50 held: 50...The learned trial Judge is not expected, before he examines the accused under Section 313 of the Code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the Court finds that no incriminating material has surfaced that the accused may not be examined under Section 313 of the code. If there is material against the accused he must be examined. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the Court finds that no incriminating material has surfaced that the accused may not be examined under Section 313 of the code. If there is material against the accused he must be examined. In the instant case, it is not correct to say that no incriminating material had surfaced against the accused particularly accused No. 5, and hence the learned trial Judge was not justified in examining the accused under Section 313 of the Code. 14. A Division Bench of this Court in State of Mizoram v. Lalninghaka (2006) 1 GLR 574, after referring to the above said two decisions held at Para 9: 9. It is, now, settled beyond dispute by a catena of judicial pronouncements that every circumstance, on which a trial Court relies to hold an accused guilty, must be put to the accused person and his answer sought thereto. The very purpose of Section 313 Code of Criminal Procedure will stand defeated if a trial Court, without affording any opportunity to the accused of explaining the circumstances, which appear to the trial Court to be incriminating in nature, bases its conviction on such circumstances. It is in this view of the matter that the examination of an accused person under Section 313 Code of Criminal Procedure is a solemn act of a trial Court and it cannot and must not, be treated as an empty formality. 15. In the case before us, we find that there are many material circumstances which are required to be taken into account for the purpose of making a just decision of the case. However, the learned Addl. Sessions Judge (FTC), Manipur East, Imphal did not put any of the said material circumstance to the accused/Appellant for the purpose of giving opportunity to him for enabling him to explain them. The examination was done in a perfunctory manner disregarding the above mentioned well settled position of law. The said material circumstances can very well be ascertained on careful reading of the statements of the witnesses in the record. We do not think it necessary to specify those material circumstances. The examination was done in a perfunctory manner disregarding the above mentioned well settled position of law. The said material circumstances can very well be ascertained on careful reading of the statements of the witnesses in the record. We do not think it necessary to specify those material circumstances. Since we have already decided to direct the trial court for taking additional evidence on the matter already mentioned above, it will be fair and just to direct the trial Judge to comply with provisions of Section 313(i)(b) of the Code of Criminal Procedure in letter and spirit in the light of the various decisions of the Apex Court without considering the question if any prejudice has been caused to the Appellant by reason of failure to comply with the said provisions. It is expected that in future, the Additional Sessions Judge (FTC), Manipur East, Imphal will be very careful while dealing a sessions case by following the principles of a fair trial which is manifested itself in virtually every aspect of our practice and procedure including laws of evidence. 16. Ordinarily we would have re-appreciated the entire evidence on record to make a just decision of this appeal on merit. However, in view of the above said infirmities found in the proceedings of the case before the trial Judge, we consider that unless certain correctional measures are taken, interest of justice will suffer. Disposal of appeal does not mean disposal for statistical purposes but effective and real disposal to achieve the objects of any trial. We consider that the discovery, vindication and establishment of truth are the main objects of a trial. In the interest of justice and having regards to all the relevant considerations, we direct that the Addl. Sessions Judge (FTC), Manipur East, Imphal shall take additional evidence in respect of the question if the said Mema Devi (PW 6) gave statement marked "X-I" to the I.O. during the investigation of the case by giving due opportunities to both sides and if necessary by taking steps under the law from the side of the trial court. After taking the required additional evidence, the learned Addl. Sessions Judge (FTC), Manipur East shall certify such evidence to this appellate court. The Appellant/accused and his counsel shall have the right to be present when the additional evidence is taken. Further, learned Addl. After taking the required additional evidence, the learned Addl. Sessions Judge (FTC), Manipur East shall certify such evidence to this appellate court. The Appellant/accused and his counsel shall have the right to be present when the additional evidence is taken. Further, learned Addl. Sessions Judge (FTC), Manipur East, Imphal is directed to examine the accused/Appellant in respect of the material circumstances appearing in the evidence against him in compliance with the provisions of Section 313(i)(b) of the Code of Criminal Procedure in letter and spirit in the light of the decisions of the Apex Court already noted above. The learned Additional Sessions Judge (FTC), Manipur East shall have to do the needful and send the records back to this Court through the Registrar, Imphal Bench within two months from today. This appeal is to be taken up after receiving back the records from the trial court. 17. Send a copy of this order to the trial court, i.e. the Court of the Additional Sessions Judge (FTC), Manipur East, Imphal along with the trial court records for information and for doing the needful. The parties are directed to appear before the learned trial Judge on 31.7.2006 in connection with the proceeding before the Court as directed above.