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2010 DIGILAW 252 (JHR)

Mukesh Kumar v. State of Jharkhand

2010-02-17

R.R.PRASAD

body2010
Order This application is directed against the order dated 19.4.2006 passed by learned Judicial Magistrate, 1st Class, Bokaro in G.R. Case No. 1293 of 2005, whereby and whereunder, the petitioner on account of admitting his guilt was convicted under Sections 365 and 384 of the Indian Penal Code and also under Section 27 of the Arms Act and consequently was sentenced to undergo rigorous imprisonment for three years for the offence under Section 27 of• the Arms Act, whereas he was sentenced to undergo rigorous imprisonment for two years and also for one year for the offence under Sections 365 and 384 of the Indian Penal Code respectively. The petitioner was also saddled with fine for each of the offences. 2. The facts giving rise this application are that on 30.11.2005, the petitioner came to the house of Srikant Soni and asked him to come to Bokaro to see a person who had promised for giving job to him. On such inducement, he accompanied the petitioner and came to Village-Maheshpur where two persons, namely, Rakesh Kumar and Ram Prasad Manjhi, joined them but instead of taking Srikant Soni to Bokaro confined him in a room in Village-Maheshpur, where this petitioner on the point of revolver asked Srikant Soni to write a letter to his father asking him to bring Rs. 50,000/-. As he was under the threat of his life, he wrote a letter to his father. In the night; when all three accused persons fell asleep, the informant slipped away from there and came to C.I.S.F. personnel from where information was given to the Police Station telephonically. When the police came, he told about the occurrence, but they could not locate the place, as it was a dark night. However, in the next morning, they came to the same house, where Srikant Soni (informant) has been kept confined, and found all the three accused persons asleep. On search being made, the said letter written by the informant was recovered from the pocket of this petitioner. Accordingly, Srikant Soni submitted a written report on 1.12.2005 before the Officer In-charge, Haria Police Station upon which, a case was instituted as Haria P.S. Case No. 135 of 2005 under Sections 365, 346, 347, 384/34 of the Indian Penal Code and also under Section 27 of the Arms Act. 3. Accordingly, Srikant Soni submitted a written report on 1.12.2005 before the Officer In-charge, Haria Police Station upon which, a case was instituted as Haria P.S. Case No. 135 of 2005 under Sections 365, 346, 347, 384/34 of the Indian Penal Code and also under Section 27 of the Arms Act. 3. The petitioner was taken into custody and was remanded in the said Haria P.S. Case No. 135 of 2005 (G.R. No. 1293 of 2005). While the petitioner was in custody in connection with the aforesaid case, he was remanded in another case bearing Haria P .S. Case No. 19 of 2004 (G.R. No. 184 of 2004), which was pending from before in which case he was convicted on 23.1.2006 for the offence under Section 411 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/-. Subsequently, when the petitioner was serving sentence, he was produced before the court in connection with Haria P.S. Case No. 135 of 2005 (G.R. No. 1293 of 2005) on 5.4.2006 on which date, charges were framed under Sections 365, 384 and 420 of the Indian Penal Code and also under Section 27 of the Arms Act and the case was fixed for 19.4.2006 for evidence, However, in the meantime, the court did receive a letter dated 14.4.2006 of the Superintendent of Jail, Chas informing therein that the petitioner-Mukesh Kumar is willing to confess his guilt. That letter was ordered to be kept on record. On 19.4.2006, when the petitioner and other two accused persons were produced from jail custody, this petitioner expressed his intention before the court to confess his guilt. Accordingly, his case was ordered to be separated from the case of two accused persons and then recorded the statement of the accused on a form meant for recording of the statement under Section 313 Cr.P.C. It does appear that before recording the plea of guilt, the court put question to the petitioner as to whether he wants to plead guilty voluntarily and then he seems to have answered in affirmative. Thereupon, it was asked by the court as to whether on 30.11.2005, he had come to the house of Srikant Soni (informant) and took him to Village-Maheshpur on the pretext of providing job to him where he on the point of revolver got a letter written from the informant asking Rs. 50,000/- from his father. The answer was in affirmative. Thereupon, the court passed the order of conviction and sentence, as aforesaid. 4. The other aspect of the matter is that on 17.12.2008, the petitioner submitted an application before the Jail Superintendent praying therein to release him from jail custody as he has served the sentences inflicted upon him in both the cases. That application was referred to the court below for necessary instruction. The court on getting the said application did notice that the Superintendent of Jail has himself noted in the said letter that the petitioner has been convicted in two cases for which maximum sentence in each case has been awarded for three years and, therefore, whenever the petitioner would be completing the sentences in terms of Section 427 Cr.P.C., he would be releasing him from the custody. The court considering the said aspect of the matter, did not think it fit and proper vide its order dated 5.1.2009 to pass any order relating to release of the petitioner from the custody. 5. Being aggrieved with the said order of conviction and sentence as also with the order dated 5.1.2009, the petitioner has preferred this application. 6. learned counsel appearing for the petitioner submits that admittedly till date on which the order of conviction and sentence was recorded, the prosecution has not adduced any evidence whatsoever and, therefore, there was no occasion for the court to record the statement of the accused under Section 313 Cr.P.C., as no incriminating circumstance was there against the petitioner and under this situation, if the petitioner has admitted his guilt in his statement said to have been made under Section 313 Cr.P.C. that would never amount an evidence and as such that cannot be a ground for recording the order of conviction and sentence and as such, the said order, under which the petitioner was convicted and sentenced, is fit to be set aside. Learned counsel in support of his submission has referred to a decision rendered in a case of Dubraj Oraon vs. State of Bihar [ 2007(3) J.L.J.R. 347 ]. 7. The other submission advanced on behalf of the petitioner is that as the petitioner, who was in custody, since 2.12.2005, has been sentenced on 19.4.2006 for three years and before that he has also been sentenced for three years in Haria P.S. Case No. 19 of 2004 (G.R. No. 184 of 2004) on 23.1.2006, the petitioner has completed sentence of three years in both the cases, but the Superintendent of Jail, Chas did not release the petitioner and the court on the matter being referred also did not pass any order and hence, both of them have committed illegality in refusing to release the petitioner from custody. 8. Having heard learned counsel appearing for the parties, the question, which has cropped up, is as to whether the order of conviction can be based only on the statement recorded under Section 313 Cr.P.C. 9. No doubt, it is true that Section 313 Cr.P.C. is intended to afford a person accused of a crime an opportunity to explain the circumstances appearing in evidence against him. Sub-section (1) of the section is in two parts: the first part empowers the court to put such questions to the accused as it considers necessary at any stage of the inquiry or trial whereas the second part imposes a duty and makes it imperative on the court to question him generally on the prosecution having completed the examination of its witnesses and before the accused is called on to enter upon his defence. Therefore, it does appear that the purpose of examination of the accused under Section 313 Cr.P.C. is to give the accused an opportunity to explain the incriminating material which has surfaced on record. After the statement under Section 313 Cr.P.C. is recorded, opportunity is given to the defence to lead evidences and then to hear the arguments and to pronounce judgment. Therefore, no matter how weak and 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. Therefore, no matter how weak and 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 has been well settled that the statements made by the accused will not be evidence stricto sensu for the reason that no oath is administered to the accused before his statement is recorded. That is why sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. However, at the same time, one in order to decide the issue as has been formulated to take notice of the provision as contained in sub-section (4) which reads as under:- "313(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." 10. Thus, the answers given by the accused in response to his examination under Section 313 Cr.P.C. can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, the statement by the accused though cannot be taken strictly as evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. This proposition of law has already been laid down in the cases of State of Maharashtra vs. A.B. Chowdhari ( AIR 1968 S.C. 110 ), Hate Singh Bhagat Singh vs. State of M.B. [ AIR 1953 S.C. 468 ) and also in the case of Narain Singh vs. State of Pubjab [(1964)1 Cri.L.J. 730], wherein it has been held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. It would be better to reproduce the observation made in the case of Narain Singh vs. State of Pubjab (supra) by the Hon'ble Supreme Court by three Judges Bench: "Under Section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation-if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may be taken into consideration at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety." 11. It be noted that the present subsection (4) with which this Court is concerned is a verbatim reproduction of subsection (3). Therefore, the aforesaid observations apply with equal force. Subsequently, the Hon'ble Supreme Court in a case of State of Maharashtra vs. Sukhdev Singh and Another [ (1992)3 SCC 700 ] putting its reliance on the case of Hate Singh Bhagat Singh (supra) and also on the case of Narain Singh (supra) held that the answers given by the accused under Section 313 Cr.P.C. examination can be used for proving his guilt as much as the evidence given by a prosecution witness. However, a contrary view has been taken by this Court in a case of Dubraj Oraon vs. State of Bihar (supra), wherein it has been held that the accused cannot be convicted for the offence only on the basis of his statement made under Section 313 Cr.P.C. even though he may have admitted his guilt in his such statement, but while holding so, due consideration of the provision, as contained in subsection (4) of Section 300 (sic-311 ?), does not seem to have been taken nor decision rendered by the Hon'ble Supreme Court, as referred to, was taken into account, where it has been held that admission made by the accused if does constitute an admission of guilt of offence charged he can be held guilty. 12. Coming to the facts of the case, the petitioner was charged for an offence under Sections 365, 384 of the Indian Penal Code as also under Section 27 of the Arms Act on the allegation that he took the informant-Srikant Soni to Village-Maheshpur where he was joined by other persons, namely, Rakesh Kumar and Ram Prasad Manjhi, and there the petitioner by -pointing revolver forced the informant-Srikant Soni to write a letter of ransom. At the time of recording statement under Section 313 Cr.P.C. when the court put that question as to whether he has committed such offence, he accepted his guilt and on that basis learned trial court recorded the order of conviction and sentence, which, in my view, has rightly been recorded, as plea of guilt seems to be voluntary one keeping in view that the accused on being asked expressed his intention to plead guilty and before that he had also expressed his wishes to plead guilty before the jail authority and as such that order needs no interference by this Court. 13. Coming to the other points raised in this application, it be reiterated that while the petitioner was in custody in connection with Haria P .S. Case No. 135 of 2005 (G.R. No. 1293 of 2005), which has given rise this application, he was convicted on 23.1.2006 in Haria P.S. Case No. 19 of 2004 (G.R. No. 184 of 2004) and was sentenced to undergo rigorous imprisonment for three years. Subsequently, the petitioner was also convicted in Haria P.S. Case No. 135 of 2005 (G.R. No. 1293 of 2005) on 19.4.2006 and was sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act besides the lesser sentence imposed for the offence under Sections 365 and 384 of the Indian Penal Code. It be also noted that the petitioner was apprehended on 1/2.12.2005 in connection with G.R. No. 1293 of 2005 and perhaps for that reason, an application was filed cy the petitioner before the Superintendent of Jail, Chas on 19.12.2008 for his release on the ground that he has served sentence of three years in both the cases forgetting the fact that there was no order of the court regarding both the sentences being run concurrently in terms of Section 427 Cr.P.C. In absence of such order, the prayer made on behalf of the petitioner before the Jail Authority or even before the court was wholly unwarranted in view of the provision, as contained in Section 427 Cr.P.C., which clearly stipulates that if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment shall commence at the expiration of the imprisonment to which he has' been previously sentenced unless the court directs that the subsequent sentence shall run concurrently with such previous sentence. If no such indication is given, sentence shall run consecutively. 14. However, in the facts and circumstances and for the ends of justice, it would be appropriate to allow the sentences passed in both the cases in G.R. No. 1293 of 2005 and G.R. No. 184 of 2004 to run concurrently. 15. Accordingly, with the aforesaid observation, this writ application stands dismissed.