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2009 DIGILAW 433 (GAU)

Lalremsiama v. State of Mizoram

2009-06-23

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. C. Lalramzauva, learned Counsel for the appellant as well as Ms. Dinari T. Azyu, learned A.P.P. for the State of Mizoram. 2. This appeal filed under Section 374, Cr PC read with Sections 389/439, Cr PC is directed against the judgment and order dated 27.11.2008 passed by the learned Session Judge, Lunglei District, Lunglei in G.R. Case No. 167 of 2002 in connection with Lunglei P.S. Case No. 126 of 2002 convicting the accused-appellant under Section 376(1) IPC and sentencing him to undergo simple imprisonment for a term of 7(seven) years from the date of pronouncement of the judgment and order. After completion of the investigation, the police submitted charge sheet and the learned trial court framed charge under Section 376(1), IPC against the accused-appellant. The accused-appellant pleaded not guilty and stood the trial. The prosecution examined as many as 16 witnesses while the defence examined none in his defence. Mr. C. Lalramzauva, learned Counsel for the accused-appellant submits that after closure of the evidence of prosecution witnesses, the accused-appellant was examined under Section 313, Cr PC without complying with the provisions there-under. The learned trial court put only two questions to the accused-appellant although, there was scope for putting more questions enabling the accused personally to explain the circumstances appearing in the evidence against him and, thereby a prejudice was caused to him. 3. His further submission is that, the Presiding Officer of the trial court who recorded the evidence of the prosecution witnesses was transferred before he could write and pronounce the judgment and order. In his place another Presiding Officer was posted who did not comply with the provisions under Section 234, Cr PC and passed the impugned judgment and order without hearing the arguments of the learned Counsel for the parties. Moreover, after passing the order of conviction, the learned Presiding Officer of the trial court did not hear the accused or his counsel on the question of sentence as required under Section 235(2) of the Cr PC. Without complying with the provisions under Section 235(2), the learned Presiding Judge of the trial court passed the impugned judgment and order which is contrary to the basic requirements of sentencing in the criminal trial. 4. Without complying with the provisions under Section 235(2), the learned Presiding Judge of the trial court passed the impugned judgment and order which is contrary to the basic requirements of sentencing in the criminal trial. 4. After hearing the argument of the defence, the prosecutor has to sum up his case and the accused or his pleader is entitled to reply to the same. This is a statutory requirement before any judgment is prepared by the trial court. From the record, it is found that no such argument took place and the learned Judge passed the impugned judgment and order convicting and sentencing the accused as stated above. There are two parts namely, conviction and sentence. Conviction can be ordered after hearing the arguments of the learned Counsel for the parties which should be followed by hearing of the accused person or his counsel on the sentence. In this regard, this Court in Amzad Ali vs. Ksh. Nobin Chandra Singh, 2006 (3) GLT 800 dealt with in elaboration about the provisions under Section 235(2), Cr PC. Referring to various decisions rendered by the Apex Court, it is held that it is the duty of the court to award proper sentence having regards to the nature of the offence and the manner in which it was executed or committed. In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. 5. Having found that the provisions under Section 313, Cr PC and also the provisions under Section 235(2), Cr PC have not been complied with and the impugned judgment and order has been passed by the learned Presiding Judge of the trial court who had no opportunity to record the evidence and passed the impugned judgment and order, that too without hearing the arguments of the learned Counsel for the parties vis-a-vis hearing not being provided on the question of sentence, I find that the matter, is required to be remanded back to the learned trial court for fresh trial from the stage of examination of the accused person under Section 313, Cr PC in the interest of justice and fair trial. The impugned judgment and order dated 27.11.2008 stands quashed and the matter also stood remanded for fresh trial as indicated above. 6. The Registry shall return the LC Rs forthwith. The impugned judgment and order dated 27.11.2008 stands quashed and the matter also stood remanded for fresh trial as indicated above. 6. The Registry shall return the LC Rs forthwith. On receipt of the same, the learned trial court shall direct production of the accused and, thereafter, proceed with the trial as indicated above. The accused, on appearance before the trial court, may file an application for bail and the same may be considered by the learned trial court in accordance with law. Appeal stands disposed of accordingly.