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2011 DIGILAW 195 (GAU)

Union of India v. Ngurthankhumi

2011-03-08

MADAN B.LOKUR

body2011
JUDGMENT Madan B. Lokur, J. 1. Appellant is aggrieved by his conviction and sentence by 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 stab Shri Lalrukima on 8.7.2007 and as a result of the injuries suffered by Shri Lalrukima he passed away. 3. A charge sheet was filed against the Appellant on the ground of having committed the murder of Shri Lalrukima but at the time of framing charge the learned trial judge was of the view that instead of a charge sheet under Section 302 of the IPC, a charge under Section 304 of the IPC which was more appropriate. The Appellant was charged accordingly and the charge framed was explained to him. The Appellant treated not guilty and claim trial. 4. After having gone through the record, the learned trial judge examined the Appellant under Section 313 of the Code of Criminal Procedure and thereafter on hearing arguments the Appellant was convicted of having committed an offence under Section 304 part I of the CrPC 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 which is relevant reads as follows: ... The above provisions 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 inculpable evidence. On reading of the examination conducted in this case under Section 313 of the Code of Criminal Procedure It is quite clear that the inculpable evidence put was not put to the Appellant. The learned trial judge mainly make asked the Appellant 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 evidence i.e. P.W. 2 and P.W. 3 and what have had said in evidence was not put to the Appellant. This is apparent from the evidence of the other prosecution witnesses. 6. We find that there were 2 eye witnesses to the evidence i.e. P.W. 2 and P.W. 3 and what have had said in evidence was not put to the Appellant. This is apparent from the evidence of the other prosecution witnesses. 6. Under the circumstances, since there has been a culpable examination of the Appellant under Section 313 of the Code of Criminal Procedure we have no option but to remand back the matter to the learned District and Sessions Judge, Lunglei Judicial district, Lunglei for retrial of the matter of the Appellant under Section 313 of the Code of Criminal Procedure We make it clear that the Appellant will be put the relevant facts and materials against him to enable him to offer an explanation as reply by Section 313 of the Code of Criminal Procedure 7. Since the Appellant is not represented by a counsel an Amicus Curiae has been appointed to represent him, a free copy of this order be furnished to the Appellant 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 advocate at that stage. 8. With the above observations, the appeal is disposed of. 9. List the matter before the District and Sessions Judge, Lunglei Judicial district, Lunglei on 18th April, 2011. 10. The learned trial judge is requested to expedite the disposal of the case. The judgment and order of conviction and sentence is set aside and the matter is remanded back for fresh trial before the learned District and Sessions Judge, Lunglei Judicial district, Lunglei. 11. We make clear that the effect of this judgment and order does not mean the Appellant is entitled to be released because the trial is still continuing as far as he is concerned. The record be sent back. 12. For the assistance rendered by the Amicus Curiae and Member Secretary, Mizorma State Legal Services Authority we will remunerate the Amicus Curiae to the extent of Rs.5000/-.