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2010 DIGILAW 363 (GAU)

Suraj Gupta v. State of Meghalaya

2010-05-24

B.D.AGARWAL, R.S.GARG

body2010
JUDGMENT R.S. Garg, C.J. 1. These three appeals have been filed by the accused persons being aggrieved by the judgment dated 24.7.2007 holding the accused persons guilty of offences punishable under Section 304A IPC, 302 IPC, both read with Section 120B and Section 201, IPC read with Section 34, IPC. 2. The learned trial judge after holding the accused persons guilty proceeded further to hear the accused persons on question of sentence and vide further order dated 24.8.2007 awarded death penalty to the three appellants for committing murder of Baivabh Singh @ Bebu @ Vishal, under Section 364A, IPC to undergo rigorous imprisonment for life and pay fine of Rs. 10,000 in default thereof each accused to undergo RI for three years and also sentenced them to undergo RI for six years, for offences under Section 201, IPC and did not propose to award any sentence for offence punishable under Section 120B of the IPC, in view of the fact that each of the accused had been convicted for the substantive offences. 3. We are not required to detail out the details of the prosecution case suffice to say that the prosecution story as unfolded in the FIR and before the court is that on the evening of 28.5.2006 at about 8.45 p.m. the OC of Tura Police Station, West Garo Hills received an oral communication from one Bibash Das about missing of a 9 years old boy, namely, Baivabh Singh @ Babu @ Vishal from a locality called Fancy Valley, Tura Town, West Garo Hills. It was alleged by the prosecution that one Suraj Gupta and his accomplice Sovraj Sonar and, Ajay Das @ Kirtaniya after entering into a conspiracy kidnapped the boy for ransom and thereafter murdered him. It was also alleged that the accused persons shared common intention and they had committed the crime. 4. It is to be noted that at the instance of some of the accused persons certain articles could be recovered, each of the accused was examined under Section 164, Cr.PC, the accused persons confessed their guilt, when charges were framed, they again pleaded guilty and when they were examined under Section 313, Cr.PC as written in the judgment but under Section 364, Cr.PC as recorded in the statements of the accused, they again confessed their guilt that for ransom they kidnapped the young boy and thereafter committed the murder. 5. 5. The learned Additional Deputy Commissioner in his judgment as referred to above after relying upon the evidence placed before him came to the conclusion that it could safely be held that the accused persons were guilty of the offences charged against them. He also came to the conclusion that though on plea of guilt, the accused persons could be convicted but the prudence demanded that the accused be given opportunity of hearing. He also observed that the accused persons committed murder punishable under Sections 302and 364A, IPC for kidnapping for ransom and, therefore, the accused persons could safely be convicted. The learned trial court after awarding capital punishment referred the matter to this Court under Section 366 of the Cr.PC for confirmation of the death sentence. Accordingly, the reference and the three appeals have been placed before us. 6. Learned Counsel for the appellants in each of the appeal firstly submitted that as the statement of the accused available on page 85 onwards of the paper book was not in accordance with Section 313 of the Cr.PC, the trial was vitiated and each of the accused is entitled to be acquitted. In the alternative, it is submitted that if the court is not agreeing with their submissions then they will be allowed to proceed with the matter. 7. Learned Counsel for the State on the other hand submitted that the accused persons on three different occasions either confessed their guilt or pleaded guilty and assuming all and sundry circumstances appearing against the accused were not put to them then too the trial would not stand vitiated. It is also submitted that the trial was conducted by the Additional Deputy Commissioner under Rule 16B of the Rules for the Administration of Justice and Police in the Garo Hills District, 1937 ('1937 Rules'), therefore, the principles enshrined under Section 313, Cr.PC would not apply. It is also submitted that the accused persons should be taken to be examined under Section281 of the Cr.PC and assuming there are some small lapses during the course of trial on the part of the trial Judge even then the accused persons were rightly held guilty. On this short question, we have heard the learned Counsel for the parties at length. 8. The 1937 Rules deal with the administration of justice in the area of Garo Hills. On this short question, we have heard the learned Counsel for the parties at length. 8. The 1937 Rules deal with the administration of justice in the area of Garo Hills. Chapter III of the said Rules relate to dispensing of criminal justice. Rule 15 provides that criminal justice should be ordinarily administered by the Deputy Commissioner and his Assistants, etc. Rule 16 provides that the Deputy Commissioner shall be competent to try any case and to pass sentence of death, transportation or imprisonment up to the maximum awardable under the Penal Code, or whipping and of fine up to any amount. It further provides that all sentence of death, transportation or imprisonment of seven years and upwards shall be subject to the confirmation by the High Court Assistant to the Deputy Commissioner shall, subject to the Deputy Commissioner's control, exercise such powers, not exceeding those of a Magistrate of the First Class as defined in the Criminal Procedure Code as they may be invested with by the Governor. 9. Rule 16A clearly provides that when the Deputy Commissioner passes sentence of death, the proceeding shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. 10. Section 21 provides for appeal to the Deputy Commissioner against the order of the Assistant and Section 22 provides for appeal to High Court and for revision of any sentence awarded by the Deputy Commissioner or Additional Deputy Commissioner. 11. Section 23 provides that the procedure of the High Court and the Deputy Commissioner and his Assistants shall be guided by the spirit of the Code of Criminal Procedure, as far as it is applicable to the circumstances of the district and consistent with 1937 Rules. 12. We are referring to its Rules in extenso, because one of this submissions made by learned Counsel for the appellants is that if the provisions of Code of Criminal Procedure are not applicable then too the policy underlying the Criminal Procedure Code should be applied and each court dispensing criminal justice shall be governed by said principle. 13. It would be apt and necessary for us to quote provisions contained in Sections 16, 16A and 23 to understand in what manner the criminal trial is to be conducted and finally decided. 16. Power of trial. 13. It would be apt and necessary for us to quote provisions contained in Sections 16, 16A and 23 to understand in what manner the criminal trial is to be conducted and finally decided. 16. Power of trial. - The Deputy Commissioner shall be competent to try any case and to pass sentence of death, transportation or imprisonment up the maximum amount awardable under the Penal Code, or whipping and of fine up to any amount: Provided that all sentence of death, transportation or imprisonment of seven years and upwards shall be subject to the confirmation by the High Court. Assistants to the Deputy Commissioner shall, subject to the Deputy Commissioner's control, exercise such powers, not exceeding those of a Magistrate of the First Class as defined in the Criminal Procedure Code as they may be invested with by the Governor. 16A. Death reference - When the Deputy Commissioner passes sentence of death, the proceeding shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. 16B to 16E XXX XXX XXX 17. to 22 XXX XXX XXX 23. Application of Criminal Procedure Code. - The procedure of the High Court and the Deputy Commissioner and his Assistants shall be guided by the spirit of the Code of Criminal Procedure, as far as it is applicable to the circumstances of the district and consistent with these rules. The Chief exceptions are: (a) Only verbal order or notice shall be requisite, except when the regular police are employed or the person concerned is not a resident of or in the district at the time; or if in the district, but residents beyond it, where his place of abode is not known. But verbal order or summons shall be for a fixed day, not exceeding sixteen days from that upon which the order is issued, and the order shall be made known to the persons affected or to some adult member of his family of proclaimed at the place he was last known to be at, in sufficient time to allow him, if he sees fit to appear. (b) A note of the substance of all the proceedings in cases tried before them must be kept by the Deputy Commissioner and his Assistants in the form prescribed by Section 236, Criminal Procedure Code. (b) A note of the substance of all the proceedings in cases tried before them must be kept by the Deputy Commissioner and his Assistants in the form prescribed by Section 236, Criminal Procedure Code. In cases requiring a sentence of three years or upwards a full note of the evidence and proceedings must be kept. Examinations and proceedings shall generally be recorded in English only. (c) The proceedings of laskars or other duly recognized village authorities need not be in writing, but it at the trial before the village authorities any person who can write can be found, a brief note of the proceedings is to be made. (d) All fines levied by laskars and other duly recognized village authorities shall be paid to the Deputy Commissioner or his Assistant or other officer empowered to receive them, within eight days from the date of realization. (e) It shall not be necessary to examine witnesses on oath unless the accused so desires, except in cases were the accused is charged with murder. It shall suffice that the Deputy Commissioner or its Assistant, at the commencement of any trial, inform the accused that if he so requires the witnesses will be put on oath. It is, however, at all times optional with the court to put witnesses on oath, but witnesses, whether on oath or not, shall be punishable for giving false evidence. For the defence of paupers accused of murder. Rules 49 to 51 of Assam Law Department Manual-Part II-Criminal Rules shall be followed Mutatis mutandis. (f) The Deputy Commissioner and his Assistants shall keep such registers as the High Court may from time to time prescribed. 23A. XXX XXX XXX (b) XXX XXX XXX 23B XXX XXX XXX 14. From a perusal of Rule 23 of 1937 Rules it would clearly appear that the procedure of the High Court and the Deputy Commissioner and its Assistants shall be guided by the spirit of Cr.PC as far as it is applicable to the circumstances of the District and consistent with the said Rules. Placing reliance upon the judgment of the Supreme Court in the matter of State of Nagaland v. Ratan Singh AIR 1967 SC 212 , it was contended by the learned P.P., that if 1937 Rules apply then there would be no scope for application of the Cr.PC to repeal 1937 Rules. Placing reliance upon the judgment of the Supreme Court in the matter of State of Nagaland v. Ratan Singh AIR 1967 SC 212 , it was contended by the learned P.P., that if 1937 Rules apply then there would be no scope for application of the Cr.PC to repeal 1937 Rules. It is contended that even if the accused was examined as a witness or the circumstances adverse to his interest were not to be put to him then too the trial cannot be held to be vitiated and the accused cannot be held entitled to any order in his favour. 15. Learned Counsel for the appellants on the other hand submitted that in the matter of Ganesh Gogoi v. State of Assam (2009) 7 SCC 404 , the Supreme Court has observed that the provisions of Section 313, Cr.PC are for the benefit of the accused and if the principles enshrined under the Cr.PC do not apply then at least the principles of natural justice would apply. Reliance as also placed upon yet another judgment of the Supreme Court in the matter of Ranvir Yadav v. State of Bihar (2009) 6 SCC 595 to contend that the endeavor of the learned trial Judge should always be to inform the accused about the circumstances or the evidence coming against him on the record and not to put a nail into the defence of the accused. It was also contended from the Rule 23 of 1937 Rules, it would clearly appear that the spirit of the Cr.PC is to be observed and assuming the Cr.PC or the principles underlying the Cr.PC or the spirit of Cr.PC is also not to be applied then too principles of natural justice, cast bounden duty upon the trial Judge to inform the accused that what circumstances are emerging in the case and what evidence is staring in his eyes. The submissions is that from perusal of the statements of the accused it would clearly appear that appropriate questions were not put and the accused in fact was forced to admit his guilt. 16. We have heard learned Counsel for the parties at length and have gone to the complete records and judgment cited before us. 17. The submissions is that from perusal of the statements of the accused it would clearly appear that appropriate questions were not put and the accused in fact was forced to admit his guilt. 16. We have heard learned Counsel for the parties at length and have gone to the complete records and judgment cited before us. 17. True it is that in the matter of State of Nagaland v. Ratan Singh, (supra), the Supreme Court had observed that in the given circumstances application or non-application of the Cr.PC would depend upon the circumstances falling in or controlling the conditions of that particular area. It is also true that, according to their lordships of the Supreme Court the Rules have been made elastic so that different kind of cases and different situations may be considered according to the said pattern, according to the requirement of the situation and the circumstances of the case. However, the Supreme Court was of the opinion that the Rules of 1937 were designed for an extremely simple and unsophisticated society and following the Rules of natural justice. 18. This observation made by the Supreme Court would make it clear that Rules of 1937 are simple Rules, these are for unsophisticated society and are basically based upon the principles of natural justice. The Supreme Court further observed that if a judge does not apply the spirit of the Code, goes against it or acts in a manner which may be considered to be perverse, the High Court will consider his action and set it right. According to the Supreme Court the law had not attempted to control discretion by Rules but had rather left discretion free so that the Rule may not hamper the administration of justice. 19. A fair reading and understanding of paragraph 33 of the judgment of the Supreme Court would make it clear that principles of natural justice are required to be observed in a case where the Cr.PC or any other procedural law is not applicable. Principle of natural justice are basically two in numbers. Those are (i) one cannot be a judge of his own cause, (ii) One cannot be condemned unheard. In the present matter, the 2nd principle that one cannot be condemned unheard would apply specially when learned trial Judge was trying to base his judgment on the circumstances which were not put to the accused. 20. Those are (i) one cannot be a judge of his own cause, (ii) One cannot be condemned unheard. In the present matter, the 2nd principle that one cannot be condemned unheard would apply specially when learned trial Judge was trying to base his judgment on the circumstances which were not put to the accused. 20. Section 313 of the Cr.PC reads as 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 - (a) may at any stage, without previously warning the accused put such questions to him as the court considers necessary; (b) 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 his 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. 20A. From a perusal of Section 313, Cr.PC it would clearly appear that in every enquiry or trial for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court is required to proceed in a particular direction. The court may at any stage without issuing any warning to the accused may put such question to him, may after the witnesses for the prosecution have been examined and before the accused who called on for defence question him generally on the case. Clause (b) of Section 313 of the Code of Criminal Procedure is not an empty formality. The intention of the Legislature behind enacting such a clause is to inform the accused that what is brought against him and what is required to be done. Clause (b) of Section 313 of the Code of Criminal Procedure is not an empty formality. The intention of the Legislature behind enacting such a clause is to inform the accused that what is brought against him and what is required to be done. The principle that nobody would be condemned unheard is to be applied to such a situation. The accused is to be informed by a Judge conducting the trial and appropriate opportunity is to be given to him. 21. In the present matter, if we agree with the argument raised by the learned Counsel for the State the Criminal Procedure Code would not apply, even then, we have to hold that the courts would be guided by the spirit of the Criminal Procedure Code insofar as its applicability in the circumstances of the case is consistent with the Rules. In the present matter, if the learned trial Judge thought that examination of the accused was a must then he was obliged to follow the spirit of the Code of Criminal Procedure insofar as it related to examination of the accused. Once it is held that the spirit of the Code of Criminal Procedure applies then there would be no scope but to observe the spirit as engrafted framed under Section 313 so far as it is applicable to the case on hand would have to be applied and in such a tact situation the court would be required to bring to the notice of the accused all circumstances and the evidence which have been brought on the record against the accused. On one side, learned Counsel for the State was submitting that the Code of Criminal Procedure would not apply but, at the same time, he was submitting that the accused persons were examined under Section 281 of the Code of Criminal Procedure. We are, at this stage, unable to understand that if Section 313 of the Code of Criminal Procedure does not apply, then how examination of the accused under Section 281 can be justified. One has to read and understand the provision in juxtaposition and interpret the same harmoniously to come to a logical conclusion. We are, at this stage, unable to understand that if Section 313 of the Code of Criminal Procedure does not apply, then how examination of the accused under Section 281 can be justified. One has to read and understand the provision in juxtaposition and interpret the same harmoniously to come to a logical conclusion. Section 281 is to apply at a different stage, that may be applied during pendency of the trial, but Section 313, Cr.PC would apply to a case where a trial is concluded and conducted before he is asked to enter upon his defence. Once we hold that the principles and spirit underlying Section 313, Cr.PC are applicable to a given set of case then one can't go contrary to it. Rule 23 of 1937 Rules simply provides that the trial judge shall be guided by the spirit of the Code of Criminal Procedure, so far as it is applicable to the circumstances of the case and is in consistence with the Rules. 22. If the principles of natural justice are to be read in 1937 Rules then it would become the bounden duty of a learned trial Judge to apply the spirit of the Code of Criminal Procedure. It is not the case of the prosecution that the Code of Criminal Procedure could not be applied looking to the circumstances of the case or if those were applied those would be inconsistence with 1937 Rules. Once we hold that in the given set of the circumstances of the case, the spirit of the Code of Criminal Procedure is to be applied then again there would be no scope for holding that the accused was not required to be examined under Section 313 or in accordance with the spirit of the Principle of natural justice. 23. In the present matter, all the three accused persons were examined by the trial court on 16.4.2007, under Section 364 of the Code of Criminal Procedure. Section 364 as mentioned in the said statement of the accused may be a misnomer, we would read that to be Section 313 of the Code of Criminal Procedure. The questions were put to the accused persons by the learned Judge were instead of telling them as to what were the circumstances flowing on the surface of the record were making an inquiry from the accused as if they were before the court as witnesses. The questions were put to the accused persons by the learned Judge were instead of telling them as to what were the circumstances flowing on the surface of the record were making an inquiry from the accused as if they were before the court as witnesses. In all, ten questions were put to the accused persons, which are quoted as below: - Q. 1. Do you know that there is a case against you for kidnapping and murder of 1(one) minor boy Bhaivab Singh of Fancy Valley? Ans. Yes, I know that there is a case against me for kidnapping and murder of 1(one) minor boy called Bhaivab Singh of Fancy Valley, Tura. Q.2. How did, you kidnap? Where did you take him and what did you do to him? Ans. The boy was very close to me. He used to visit regularly my house. On 28th May, 2006 the boy came to my house also and on that day we kidnapped the boy from the compound between my house and Bhaivab Singh house. We hired a car Indica and took him towards Williamnagar road. On reaching before Chinabat we stopped the car and we found that the boy was senseless and not getting up. So, we packed the victim boy in a gunny bag and threw him into the deep gorge. After that we went to Guwahati by the same Indica car. Q.3. Have you taken the gold fingering and also the gold necklace from the boy before he was thrown into the deep gorge in a gunny bag? Ans. Yes, we did. Q.4. It is a fact that you have contacted the victim's boy father asking him to pay Rs. 50 lakhs for boy's release? Ans. Yes, it is a fact that we have contacted boy's father to pay Rs. 50 lakhs for boy's release. Q.5. Did you pre-plan to kidnapped the boy? Ans. Yes, it was pre-plan to kidnapped the victim boy. Q.6. What did you do with the gold finger-ring and the gold necklace which you have taken from the victim boy? Ans. We sold them for money in the jewellery shop at Guwahati, although I was not present at the time of selling those ornaments. But we plan to sell them for money. Q.7. Did you confess before the Magistrate? Ans. What did you do with the gold finger-ring and the gold necklace which you have taken from the victim boy? Ans. We sold them for money in the jewellery shop at Guwahati, although I was not present at the time of selling those ornaments. But we plan to sell them for money. Q.7. Did you confess before the Magistrate? Ans. Yes, I have confessed before the Magistrate about kidnapping, throwing the victim boy into the deep gorge and also demanding ransom of Rs. 50 lakhs. Q.8. Do you plead guilty of kidnapping the boy and murdering him by throwing him into the deep gorge? Ans. Yes, I plead guilty. Q.9. Do you have any witness in defence? Ans. No. Q. 10. How many of you are actually involve in the commission of crime? Ans. We 3(three) of myself, Sobraj Sonar and Ajay Das are involved in commission of this crime. 24. A fair perusal of these questions would make it clear that the learned court below was making a fishy inquiry into the conduct of the accused persons instead of telling them that what were the circumstances and in relation to what the accused were to be given opportunity to answer. The question No. 2 as referred to above would clearly show that the learned Judge had exercised his authority in extracting evidence. The accused undisputedly is governed by 1937 Rules coming from a tribal area is not aware of his rights even if is represented by counsel would not be in a position to understand as to what he was required to say and what would be the defence of his statement or admission of his confession. The manner in which these questions were put would clearly show that the learned trial Judge had made up his mind to come to a conclusion that the accused persons have kidnapped the young boy and later on some foul was played. When Section 313, Cr.PC in consistent with 1937 Rules provides that the circumstances flowing against the accused persons are to be brought to their notice then fair inquiry required that the accused in the set of circumstances were informed about the circumstances which have come on the records. 25. When Section 313, Cr.PC in consistent with 1937 Rules provides that the circumstances flowing against the accused persons are to be brought to their notice then fair inquiry required that the accused in the set of circumstances were informed about the circumstances which have come on the records. 25. Reliance was placed by the learned Counsel for the appellant on the judgment of the Supreme Court in the matter of Ranvir Yadav (supra), to contend that incriminating materials are required to be put to the accused and if incriminating evidence is not found to be put to the accused then the trial would stand vitiated. In the said matter, the Supreme Court referred to all the questions put to the accused and ultimately came to the conclusion that no incriminating materials were put to the accused while he was being examined. After going through the said judgment, we have no hesitation in holding that the evidence brought on the record against the interest of the accused is clearly to be brought to the notice of the accused so that in his examination before the court he may explain, bring certain circumstance or he may decide as to what defence, evidence is required to be given by him. Reliance was also placed upon yet another judgment of the Supreme Court in the matter of Ganesh Gogoi (supra). In the said matter, the Supreme Court had observed that provisions of Section 313 are for the benefit of the accused and to give the accused an opportunity to explain the "circumstances appearing in the evidence against him". Placing reliance upon the judgment of the Supreme Court in the matter of Basavaraj R. Patil v. State of Karnataka and Ors. (2000) 8 SCC 740 , the Supreme Court held that provisions of Section 313 are not against the interest of the accused but meant for his benefit. It was also observed that the provisions are based on the principle of natural justice and the maxim audi alteram partem has been enshrined in them. The Supreme Court went to the extent of observing that the examination under Section 313 has to be of utmost fairness and that if it is not done then it would vitiate the trial. It was also observed that the provisions are based on the principle of natural justice and the maxim audi alteram partem has been enshrined in them. The Supreme Court went to the extent of observing that the examination under Section 313 has to be of utmost fairness and that if it is not done then it would vitiate the trial. From the said view if the question put to the accused and the answers given by him are understood then it would clearly appear that the learned trial Judge had not been fair to the accused as he had already made up his mind. It would clearly appear from the warp and weft with which the question were woven and the texture of the question would clearly show that the learned trial court was trying to extract the materials from the accused so that they could be convicted. Such attempt on the part of the trial court cannot be said to be giving a fair opportunity to the accused. In our opinion, the learned court below was not justified in recording the statement of the accused in the manner in which it has been done and consequently was also not justified in convicting and sentencing the accused persons. 26. It was contended before us that the accused persons cannot be convicted as of the trial stands vitiated but taking into consideration that Deputy Commissioner are not aware of the technical/legal ground, we do not think that we are required to enter into the merits of the case especially when the statement of the accused recorded under Section 364(313) of the Criminal Procedure Code are taken to be bad. 27. The conviction recorded and the sentence awarded are hereby quashed. The matter is remitted back to the learned trial court with a direction that the trial court in accordance with Section 313 and the spirit underlying, shall put all the circumstances to the accused and would elucidate his explanation. After recording fresh statement of the accused persons the trial court would inquire from the accused whether he wants to enter into his defence. If the accused wants to enter into his defence, appropriate opportunity to lead evidence would be given to him and thereafter parties would be heard in accordance with the law. The learned trial Judge shall decide the matter afresh. The appeal to the extent indicated above is allowed. If the accused wants to enter into his defence, appropriate opportunity to lead evidence would be given to him and thereafter parties would be heard in accordance with the law. The learned trial Judge shall decide the matter afresh. The appeal to the extent indicated above is allowed. The statements of the accused recorded earlier are also quashed. 28. As the conviction and sentences are being set aside, the references made under Section 366 are to be answered in the negative. While disposing of this appeal, we make it clear that we have not made any observation on the merits of the matter. The trial court after hearing the parties would be entitled to decide the case afresh. 29. Crl. Reference 1(SH) of 2007 also stands disposed of.