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2011 DIGILAW 192 (GAU)

Rohmingthanga v. State of Mizoram

2011-03-08

H.BARUAH, MADAN B.LOKUR

body2011
JUDGMENT Madan B. Lokur, J. 1. The Appellant is aggrieved by his conviction and sentence by a judgment and Order dated 18th January, 2010 passed by the District and Sessions Judge, Lunglei Judicial District, Lunglei. 2. The Appellant was accused of having stabbed Shri Lalruatkima on 8.2.2007 and as a result of the injuries suffered by Lalruatkima, he passed away. 3. A charge sheet was filed against the Appellant alleging the murder of Lalruatkima but at the time of framing the charge, the learned Trial Judge was of the view that instead of a charge under Section 302 of the IPC, a charge under Section 304 of the IPC would be more appropriate. The Appellant was charged accordingly and it was explained to him. The Appellant pleaded not guilty and claimed trial. 4. After recording oral evidence, the learned Trial Judge examined the Appellant under Section 313of the Code of Criminal Procedure and thereafter on hearing arguments, the Appellant was convicted of having committed an offence under Section 304 part II of the I.P.C. and sentenced to 7 years imprisonment. 5. We have gone through the examination of the Appellant under Section 313 of the Code of Criminal Procedure and find that it is not in accordance with law. Section 313(1) of the Code of Criminal Procedure is relevant and it reads as follows: (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). The above provision makes it clear that evidence appearing against the accused shall be put to him so that he may explain the circumstances with regard to the inculpatory evidence. On a reading of the examination conducted in this case under Section 313 of the Code of Criminal Procedure it is quite clear that the inculpatory evidence was not put to the Appellant. On a reading of the examination conducted in this case under Section 313 of the Code of Criminal Procedure it is quite clear that the inculpatory evidence was not put to the Appellant. The learned Trial Judge merely asked the Appellant a few questions regarding the incident and thereafter closed the examination under Section 313 of the Code of Criminal Procedure. We find that there were 2 eye witnesses to the incident i.e. P.W. 2 and P.W. 3 and what they said in evidence was not put to the Appellant. This is apart from the evidence of the other prosecution witnesses. 6. Under the circumstances, since there has been an irregular examination of the Appellant under Section 313 of the Code of Criminal Procedure we have no option but to set aside the judgment and Order under appeal and remand back the matter to the learned District and Sessions Judge, Lunglei Judicial District, Lunglei for a retrial of the Appellant from the stage of his examination under Section 313 of the Code of Criminal Procedure. We make it clear that the learned District and Sessions Judge will put to the Appellant the relevant facts and materials against him to enable him to offer an explanation under Section 313 of the Code of Criminal Procedure and thereafter hear arguments. 7. A free copy of this order be furnished to the Appellant and an opportunity be given to him to enable him to engage a lawyer in the trial court. If for some reason the Appellant is unable to engage a lawyer, he should be provided with a legal aid counsel at State expense. 8. We make it clear that this judgment and order does not mean that the Appellant is entitled to be automatically released because the trial is still continuing as far as he is concerned. 9. List the matter before the District and Sessions Judge, Lunglei Judicial District, Lunglei on 18th April, 2011 for further proceedings. 10. The learned Trial Judge is requested to expedite the disposal of the case. 11. With the above observations, the appeal is disposed of. Trial court record be sent back immediately. 12. For the valuable assistance rendered by the learned Amicus Curiae the Mizoram State Legal Services Authority will remunerate him to the extent of Rs. 5000/-.