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2009 DIGILAW 479 (GAU)

Lalsangzuala v. State of Mizoram

2009-07-22

H.BARUAH, UTPALENDU BIKAS SAHA

body2009
JUDGMENT 1. The instant appeal is directed against the judgment and order 18.3.2008 dated by the Additional District Magistrate (J) Lunging G.R. No. 85 of 2003 whereby the and where under the appellant was convicted under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life with a fine of Rs. 2,000 in default to suffer further R.I. for six months. 2. Heard Mr. C. Lalramzauva, learned Counsel for the appellant and Mrs. Helen Dawngliani, learned Addl. Public Prosecutor appearing for the respondent State. 3. The prosecution case, in brief, is that on 7.4.2003 ASI Zirsanga of Hrangchalkawn Out Post (PW1) submitted a written report to Officer-in-Charge of Lunglei Police Station to the effect that on 6.4.2003 at about 8.25 P.M. Lalsangzuala, the appellant herein surrendered himself at Hrangchalkawn outpost stating that he had stabbed Lalrintluanga of Lungpuizawl twice at Pi Neihthangi's residence located at Lungpuizawl and stated that he might die of his injuries. According to the appellant, when he went to the residence of his divorced wife Malsawmdawngliani (PW7), daughter of Smt. Roneihthangi (PW2), he found the deceased victim in the bedroom. Thereafter, he left the place and subsequently returned with a knife, handle of which was made of bamboo and having a blade about 1 ft. long and stabbed the deceased victim who was eating dinne near the fireplace in the left rib area and in his left thigh. Believing that the victim died, he ran away from the place of occurrence and threw away his knife in the culvert near Pi. Neiththangi's residence. After recording the statement of the accused-appellant, he (informant ASI) proceeded towards the residence of Pi. Neihthangi at Lungpuizawl to verify the statement of the accused-appellant. When he reached the crime scene he found the deceased victim Pu. Lalrintluanga lying dead in the mud floor near the fireplace. Upon questioning the owner of the residence, Roneihthangi (PW2) and others present he became confirmed that the accused-appellant stabbed the deceased victim while he was eating dinner. The victim was lying dead covered in blood. The body had become cold and since it was night time and the light was inadequate, he could not perform inquest over the body. Due to dark, the also could not recover the murder weapon. 4. The O/C., Lunglei Police Station treating the aforesaid written report as First Information report, which is marked as Exbt. The body had become cold and since it was night time and the light was inadequate, he could not perform inquest over the body. Due to dark, the also could not recover the murder weapon. 4. The O/C., Lunglei Police Station treating the aforesaid written report as First Information report, which is marked as Exbt. 1 registered Lunglei P.S. Case No. 71 dated 7.4.2003 under Section 302 IPC. 5. On the basis of the said FIR lodged by PW1 police started investigation. During investigation, eleven witnesses were examined including the official witnesses and their statements were recorded under Section 161 of the Code of Criminal Procedure (for short the Code). On completion of investigation the investigating authority filed charge sheet against the accused-appellant under Section 302 IPC and accordingly, the case was committed to the court of deputy Commissioner who subsequently endorsed the case to the Additional District Magistrate (J), Lunglei for trial, who framed the charge under Section 302 IPC. 6. To bring home the charge, prosecution examined as many as eleven witnesses and exhibited some documents including the seizure list, but the defence none as his case was of pure denial. 7. On completion of examination of prosecution witnesses, the Addl. District Magistrate (J) examined the accused-appellant under Section 313 of the Code and thereafter, upon hearing the learned Counsel of both the parties and considering the evidence on record by the impugned judgment and order convicted the accused-appellant under Section 302 IPC and sentenced him to suffer R.I. for life with a fine of Rs. 2,000 i/d. to suffer R.I. for further six months. 8. Being aggrieved by the aforesaid judgment and order of conviction and sentence, the accused-appellant preferred the present appeal. 9. Mr. Lalramzauva, learned Counsel appearing for the accused-appellant would contend that the entire trial of the accused-appellant is vitiated for improper examination of the accused-appellant under 313 of the Code by the trial court. He contended that even if the entire evidence of prosecution witnesses are taken into consideration in toto then also it would appear that this is not a fit case for conviction of the accused-appellant under Section 302 IPC. At best it can be a case under Section 302 Part-II IPC. His main attack was regarding the improper examination of the accused-appellant under Section 313 of the Code by the trial court. At best it can be a case under Section 302 Part-II IPC. His main attack was regarding the improper examination of the accused-appellant under Section 313 of the Code by the trial court. According to him, due to improper examination, the accused-appellant did not get any opportunity to explain the circumstances appearing in the evidence against him and for that he failed to make out his defence. 10. In support of his aforesaid contention, learned Counsel for the accused-appellant placed reliance on the decision of the Apex Court in the case of Hate Singh Bharat Singh v. State of Madhya Bharat AIR 1953 SC 468 , which was subsequently followed by the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 wherein their lordships noted, inter alia, that the circumstances which were not put to the appellant in his examination under Section 313 of the Cr. PC have to be completely excluded from consideration. According to Mr. Lalramzauva in the instant case if the circumstances, which wore not put to the accused-appellant at the time of his examination under Section 313 of the Code are excluded, there remains nothing against him even for his conviction under Section 304 Part-II of IPC. He also relied on the Division Bench decision of this Court in State of Mizoram v. Lalninghaka 2007 (3) GLT 829 wherein this Court relying on the case of Sharad Birdhichand Sarda (supra) and the case of State of Maharashtra vs. Sukhdeo Singh and another, AIR 1992 SC 2100 set aside the conviction of the accused-appellant of that case and remitted the matter to the trial court. In support of his contention, learned coursed further referred to the decision of the Apex Court in Naval Kishore Singh vs. State of Bihar (2004) 7 SCC 502 , particularly para 5 of the said law report wherein the Apex Court noted thus:- 5. Counsel for the appellant pointed out that the Sessions Court committed serious error in not properly examining that accused under Section 313 Cr. PC. Our attention was drawn to the statement taken from the present appellant. Only three questions were put to the appellant. Counsel for the appellant pointed out that the Sessions Court committed serious error in not properly examining that accused under Section 313 Cr. PC. Our attention was drawn to the statement taken from the present appellant. Only three questions were put to the appellant. The first question was whether he heard the statement of the witnesses and the second question was that the evidence given by the witnesses showed that he committed the murder of the murder of the deceased and whether he had to say anything in defence. The questioning of the accused under Section 313 Cr. PC was done in the most unsatisfactory manner. Under Section 313 Cr. PC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving and opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such and opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence. In various decisions of this Court, the importance of questioning the accused under Section 313 Cr. PC was given due emphasis, e.g. Rama Sankar Singh v. State of W.B. Bhalinder Singh v. State of Punjab, State of Maharashtra vs. Sukhden Singh and Lallu Manjhi vs. State of Jharkhand. 11. In various decisions of this Court, the importance of questioning the accused under Section 313 Cr. PC was given due emphasis, e.g. Rama Sankar Singh v. State of W.B. Bhalinder Singh v. State of Punjab, State of Maharashtra vs. Sukhden Singh and Lallu Manjhi vs. State of Jharkhand. 11. He also placed reliance on the decision of the Apex Court in the case of Basavaraj R. Patil and other vs. State of Karnataka and other, (2000) 8 SCC 740 wherein in paras 19 and 20, the Apex Court discussed about the aims and object of Section 313 of the Code and noted as follows: 19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. 20. At the same time it should be borrie in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word may in Clause (a) of Sub-section (1) of Section 313 of the code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under Clause (b) of the Sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. 12. Mr. Lalramzauva finally contended that appropriate examination of the accused in a criminal trial under Section 313 of the Code is a sine quo non and for improper examination of the accused under the said section the entire criminal trial is liable to be vitiated and if not the conviction recorded against the accused is unsustainable. 13. In support of his aforesaid contention, learned Counsel placed reliance on the decision of the Apex Court in Latu Mahto and another vs. State of Bihar, (2008) 8 SCC 395 wherein in para 19 the Apex Court taking note of its earlier decisions observed thus - 19. 13. In support of his aforesaid contention, learned Counsel placed reliance on the decision of the Apex Court in Latu Mahto and another vs. State of Bihar, (2008) 8 SCC 395 wherein in para 19 the Apex Court taking note of its earlier decisions observed thus - 19. The High Court was clearly wrong in holding that the charges were properly explained to the accused persons while recording their statement under Section 313 Cr. PC. Therefore, their conviction as recorded by the trial court and upheld by the High Court cannot be maintained. 14. Per contra, Mrs. Helen Dawngliani, learned Addl. Public Prosecutor appearing for the respondent State placing reliance on the evidence of PW2, Smt. Roneihthangi and PW7, Smt. Malsawmdawnglianli contended that there was no provocation from the side of the deceased victim as it would be evident from the evidence of aforesaid PWs that the accused-appellant did not commit the offence at the out set when there was alleged quarrel between the parties but after leaving the house of PW2, he came again with a knife and stabbed the deceased victim with an intention to kill him. She also contended that the evidence of prosecution witnesses and other materials available on record are sufficient to show that the order of conviction passed by the learned trial court against the accused-appellant is proper and does not call for any interference by this Court. However, while she was responding to the submission of the learned Counsel for the accused-appellant regarding recording of statement of the accused-appellant under Section 313 of the Code, she contended that there may be some procedural lapses, but the said lapses cannot be a ground for setting aside the order of conviction and sentence as impugned in this appeal. 15. Her further contention was that the accused-appellant in his memo of appeal did not take any plea that he was prejudiced for his improper examination under Section 313 of the code by the trial court. Unless a prejudice is pleaded and established by the accused for improper examination under Section 313 of the code, he is not entitled to be acquitted from the charges leveled against him. Unless a prejudice is pleaded and established by the accused for improper examination under Section 313 of the code, he is not entitled to be acquitted from the charges leveled against him. She finally contended that the order of conviction passed by the trial court against the accused-appellant is not based on his confessional statement though according to her, the said confession of the accused-appellant could be used against him as that was before the Magistrate and was recorded under Section 164 of the Code. 16. In support of her contention Smt. Helen Dawngliani referred to the decision of the Apex Court in State of Punjab vs. Naib Din, (2001) 8 SCC 578 wherein the Apex Court discussed the effect of omission to put question to an accused under Section 313 of the Code and noted in para 12 as follows: 12. That apart, the respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined under Section 313 of the Code. No objection was raised in the trial court on the ground of such omission. No ground was taken up in the appellate court on such ground. If any appellate court or revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional court can endeavour to see whether it could be rectified. 17. Now, question comes up how and in what manner, the rectification of the lapses can be done. The Apex Court in the case of Naib Din (supra) also discussed that aspect. But if the lapse is so vital as would affect the entire case, the appellate or revisional court can endeavour to see whether it could be rectified. 17. Now, question comes up how and in what manner, the rectification of the lapses can be done. The Apex Court in the case of Naib Din (supra) also discussed that aspect. Relying on its earlier decision in Shivaji Sahabrao Bobade (supra) the Apex Court in Naib Din (supra) observed that such an omission does not ipso facto vitiate the proceeding unless prejudice is established by the accused. If the accused succeeds in showing any prejudice it is open to the appellate court to call upon the counsel for the accused to show what explanation the accused has got regarding the circumstances not put to him. 18. For proper appreciation of the submission of the learned Addl. Public Prosecutor, we have to notice the evidence of PWs. 2 and 7, mainly on the basis of which the impugned judgment and order of conviction and sentence was passed by the trial court, therefore, the salient portion of the same are reproduced herein under: PW2, Smt. Roneihthangi in her deposition stated that on 6.4.2003 in the evening Rintluanga, the deceased victim visited them at their residence. They used him as a messenger in regards to the marriage of her son Lalromawia. At the relevant evening the deceased victim and her (PW2) son Romawia and his wife Zanuli were having friendly chit chat inside the bedroom. At that moment the accused-appellant came bringing with him his puppy and entered into the bedroom. The puppy was thrown out by her son and it climbed on to her daughter. The accused-appellant took his puppy and went out. After a short period the accused-appellant came to them again. The deceased victim and her relative Hmangaiha were having a meal near the fire place. The accused-appellant sat behind the deceased victim and said to him what thing that he had said. The deceased victim replied that he had said nothing. The accused-appellant asked the same question again and further stated that he was a man. Suddenly he hold out a knife with his hand and stabbed the deceased victim. She (PW) stated that she saw him (accused-appellant) at least twice stabbing the deceased victim and she cried out and she also got hold of the deceased victim to prevent him. The accused-appellant asked the same question again and further stated that he was a man. Suddenly he hold out a knife with his hand and stabbed the deceased victim. She (PW) stated that she saw him (accused-appellant) at least twice stabbing the deceased victim and she cried out and she also got hold of the deceased victim to prevent him. She also got minor injury at her elbow. All other mule persons who were inside the house ran out in fear. The accused-appellant went out having a knife in his hand and called from outside her daughter Malsawmi to come out. Malsawmi went out and she thought them going towards Hrangchalkawn. She told her daughter Zonunpari to inform the matter to the wife of the deceased victim. She (PW2) again went to the body of the deceased victim and thought that he had died before she left him. PW7, Smt. Malsawmdawngliani deposed that the accused-appellant is her ex-husband. She did not remember the date and she thought that it was the month of April 2003, the deceased victim Rintluanga came to their residence. At that time she was living with her mother (PW2). On a particular date of April 2003 the deceased victim was drinking liquor and in the night the accused-appellant also came to their house. He was carrying a puppy with him. At that moment the deceased victim and some others were inside the bedroom. The puppy went into the bedroom and the deceased victim threw it out of the bedroom. She thought that it was the main cause of making the accused-appellant angry with the victim. When the deceased victim was sitting near the stove/fire place and taking his dinner with them suddenly the accused-appellant stabbed him with a knife on his rib and thigh. The victim fell down without making any word and the accused-appellant ran out of their residence quickly. As the victim was lying on the floor motionlessly, she thought that he died. Thereafter, the accused-appellant took her to Hrangchalkawn Police Outpost and surrendered himself to the police. 19. Mr. The victim fell down without making any word and the accused-appellant ran out of their residence quickly. As the victim was lying on the floor motionlessly, she thought that he died. Thereafter, the accused-appellant took her to Hrangchalkawn Police Outpost and surrendered himself to the police. 19. Mr. Lalramzauva, learned Counsel for the accused-appellant referring to statement of the accused-appellant under Section 313 of the Code contended that the trial court convicted the accused-appellant on the basis of other evidence than those were put to him at the time of his examination under Section 313 of the Code and from 313 statement it cannot be ascertained that which witness stated regarding the stabbing of the deceased victim by the accused-appellant. Therefore, the said evidence cannot be used against the accused-appellant. 20. Having heard the learned Counsel of both sides and after going through the evidence of prosecution witnesses and other materials on record, we find some force in the submission of Mr. Lalramzauva, learned Counsel for the appellant so far as the examination of the accused-appellant under Section 313 of the Code is concerned. The questions put to the accused-appellant by the learned trial court and the answers thereto are as follows:- Question 1 – From the evidence it appears that on the night of 6.4.2003, you stabbed Rintlunga to death, what do you have to say in this regard? Answer – I was too intoxicated and I don't know when I committed the act. Question 2 – Do you know that you had stabbed him to death on the spot? Didn't you surrender to the police too? Answer – Yes. 21. For better appreciation of the submission of the learned Counsel of the rival parties, it is necessary to notice the provision of Section 313 of the Code. Accordingly, Section 313 is quoted herein under: 313. Power to examine the accused – (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court. May at any stage, without previously warning the accused put such questions to him as the court considers necessary. Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case. May at any stage, without previously warning the accused put such questions to him as the court considers necessary. Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case. Provided that in a summons-case, where the court has dispensed with the personal attendance of the accused, it may also dispense with him examination under Clause (b). (2) No oath shall be administered to the accused when he is examined under Sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. 22. In Hate Singh Bhagat Singh (supra), the Apex Court in para 8 held thus - 8. The statement of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in evidence and treated as evidence and be duly considered at the trial. 23. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 , the Apex Court in para 16 observed as follows: 16. It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to, explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. 24. In view of the aforesaid decisions of the Apex Court on examination of accused under Section313 of the code, we are of the considered opinion that the trial judge failed to examine the accused-appellant under Section 313 of the Code in proper way. It is the duty of the trial court to put all the relevant evidences to the accused, which are going to be used against him in the trial. No evidence can be used against an accused of a criminal trial without providing him an opportunity to answer to the incriminating circumstances and not only that it is also the duty of the trial court to see that the accused should not be prejudiced in any way for his improper examination under Section 313 of the Code. As according to us, the examination of the accused-appellant under Section 313 of the Code was not proper, we would not like to appreciate the evidence on record as that would affect the merit of the case. 25. We have already stated that according to us, there is some force in the submission, of the learned Counsel for the accused-appellant in view of the judgment of the Apex Court as stated (supra) and we are not appreciation the evidence as adduced by PWs due to the lapses of the trial court in recording the statement of the accused-appellant under Section 313 of the Code. But at the same time, we are of the view that for such lapses of the trial court the accused-appellant is not entitled to be acquitted, at best he can be provided with a further opportunity to explain the incriminating circumstances appearing in the evidence by way of examination under Section-313 of the Code afresh. Therefore, the only way remains before us to observe that the accused-appellant should be given an opportunity to explain and make out his case of defence before the trial court for which the trial court is also supposed to put all the circumstances appearing in evidence, which are going to be used against him and pass the judgment on the basis of the evidence on record as per law without being influenced by our above observation. 26. For the aforesaid reasons, we set aside the impugned judgment and order of conviction and sentence and remit the case to the trial court for disposal afresh after examining the accused-appellant under Section 313 of the Code asking him to explain all the incriminating circumstances available against him in the evidence of prosecution witnesses and providing him an opportunity to adduce evidence, if he wishes, in his defence. 27. The appellant shall be set at liberty forthwith, if he is not wanted in any other case, on furnishing a bond of Rs. 10,000 with two sureties each of the like amount to the satisfaction of the trial court on further condition that he shall appear before the learned additional District and Sessions Judge, Lunglei on 3.8.2009 and the learned trial court is directed to complete the trial of the case preferably within two months from today. 28. It is made clear that if the appellant fails to appear before the learned trial court on 3.8.2009, the trial court shall be at liberty to take any step to secure presence for proceeding with the 512 trial in accordance with law. 29. The appeal is partly allowed.