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2012 DIGILAW 1298 (GAU)

Vabeiki Pachorana v. State of Mizoram

2012-11-27

T.VAIPHEI

body2012
JUDGMENT T. Vaiphei, J. 1. This Jail appeal is directed against the judgment and order dated 16.3.2012 passed by the learned Sessions Judge, Lunglei in Crl. Trial No. 14 of 2011 convicting the appellant and the non-appellant under Section 392 IPC and sentencing the appellant to undergo rigorous imprisonment for five years with fine. The case of the prosecution is that on 28.5.2005 at 10 PM, one Lianuka lodged a written ejahar stating that on 28.5.2005 at about 3.30 PM, two miscreants robbed of the late Ngunchungnunga of Hripei village ("the deceased" for short), Myanmar, of Rs. 8,000/- and severely assaulted him at a place called College Veng Saiha. The victim was evacuated to Civil Hospital, Saiha where he succumbed to his injuries on the same day at about 9.30 PM. On the basis of the FIR, the police registered Saiha P.S. Case No. 126/05 under Section 392/ 302 IPC duly and investigated the case. On investigation, the police found that on 28.5.2005, when the appellant and the non-appellant, namely, Lalramengliana, proceeded towards N. Colony through the approach road, they met three persons, who were coming from the opposite side, on a bridge and demanded money from the victim and his friends by threatening them with sharp knives and frisked them. At that point, the deceased resisted their frisking and tried to move aside but was followed by the appellant and the non-appellant and while he was on the run from them, he slipped over the edge of the nearby approach road and fell into the gorge. The appellant and the non-appellant followed him to the gorge and snatched away Rs. 8,000/- from him, who was then lying unconscious and made their escape towards N. Colony leaving behind the deceased unattended. As noted earlier, deceased subsequently succumbed to his injury. According to the prosecution, the cause of death of the victim was due to the threat from the appellant and the non-appellant. In the course of investigation, a sum of Rs. 6,290/-was recovered from the appellant and the non-appellant. Post mortem examination was conducted on the deceased wherein it was found that the deceased had died of subdural hemorrhage resulting from his head injury. The police, having found a prima facie case against the appellant and the non-appellant under Section 392/ 302/ 75 IPC, charge-sheeted them to stand the trial. 2. 6,290/-was recovered from the appellant and the non-appellant. Post mortem examination was conducted on the deceased wherein it was found that the deceased had died of subdural hemorrhage resulting from his head injury. The police, having found a prima facie case against the appellant and the non-appellant under Section 392/ 302/ 75 IPC, charge-sheeted them to stand the trial. 2. The learned Sessions Judge, after hearing the parties, framed the charges against the appellant and the non-appellant under Section 392/ 302 IPC, to which they pleaded not guilty and claimed to be tried. The prosecution examined five prosecution witnesses to bring home the charges against the appellant and the non-appellant. No defense witness was adduced by the appellant and the non-appellant. At the conclusion of the trial, the trial Court by the impugned judgment and order convicted both the ed under Section 392 IPC. After sentence hearing, the appellant was sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 500/-, in default thereof, to suffer another 15 days of simple imprisonment. However, the non-appellant could not be sentenced as yet as he has apparently absconded since his release on bail on 10.3.2008. No appeal has been preferred by him as yet. Aggrieved by the conviction and sentence, this appeal is now preferred by the appellant from jail. 3. Assailing the conviction, Mr. Zochhuana, the learned amicus curiae, submits that this is a case in which the finding of guilt has been recorded by the trial Court without the evidence of any ocular witness, and the two ocular witness available were not even examined by the trial Court the appellant could not have been convicted by the trial Court in the absence of ocular witness. According to the learned amicus curiae, the trial Court has also completely overlooked the many discrepancies and contradictions glaring in the evidence of the prosecution witnesses such as the contradiction between the statement of the IO and that of PW 3 on the recovery of Rs. 6,290/- from the appellant. He also submits that none of the prosecution witnesses could identify the appellant thereby casting serious doubt on his involvement in the crime and that the statements of the prosecution witnesses are also hearsay in nature, and hearsay evidence is not admissible in law. 6,290/- from the appellant. He also submits that none of the prosecution witnesses could identify the appellant thereby casting serious doubt on his involvement in the crime and that the statements of the prosecution witnesses are also hearsay in nature, and hearsay evidence is not admissible in law. He also submits that the informant was not even examined by the prosecution, and there is thus absolutely no evidence to substantiate the charge against the appellant. Moreover, maintains the learned amicus curiae, it is a settled proposition of law that the admission of guilt made by the appellant in his examination under Section 313 CrPC cannot be made the basis for conviction, and the trial Court has grossly erred in convicting the appellant on the basis of such inadmissible evidence. In support of his various contentions, the learned amicus curiae heavily relies on the following decisions :- (i) Bishnu Prasad Sinha & Anr. Vs. State of Assam, (2007) 11 SCC 467 ; (ii) Mahabir Singh Vs. State of Harayana, 2001 SCC (Cril) 1262 and (iii) State of Mizoram Vs. Remengmawia, 2006 (1) GLT 762. In any view of the matter, argues the learned amicus curiae, the impugned judgment of conviction and sentence cannot be sustained in law and is liable to be set aside and the appellant be set at liberty forthwith. 4. Per contra, Mr. Lalsawirema, the learned Additional Public Prosecutor, strenuously defends and justifies the impugned conviction and submits that the trial Court has correctly convicted the appellant on the basis of circumstantial evidence. He concedes that there is no credible ocular evidence to bring home the charge against the appellant under Section 392 IPC, but the cumulative result of all the proved circumstances unerringly point to the guilt of the appellant True, submits the learned APP, admission in the accused examination cannot form the sole basis for conviction of the appellant, but in the instant case, there are corroborative evidence which taken together with such admission are sufficient to prove his guilt beyond any shadow of doubt. It is further contended by the learned APP that contradictions and discrepancies pointed out by the learned amicus curiae are minor in nature, and they cannot in any case destroy the core of the prosecution which has a ring of truth. The learned APP cites the following decisions to buttress his various contentions :- (i) State of Gujarat Vs. It is further contended by the learned APP that contradictions and discrepancies pointed out by the learned amicus curiae are minor in nature, and they cannot in any case destroy the core of the prosecution which has a ring of truth. The learned APP cites the following decisions to buttress his various contentions :- (i) State of Gujarat Vs. Anirudhsing (1997) 6 SCC 514 : AIR 1997 and (ii) Earabhadrappa Vs. State of Karnataka, (1983) 2 SCC 330 and (iii) Deepak Panyang Vs. State of Arunachal Pradesh, 2011 (4) GLT 266. He, therefore, urges this Court to uphold the impugned judgment of conviction and sentence, which is otherwise based on solid evidence and dismiss the appeal. 5. Section 392 IPC is the penal section of the offence of robbery. The offence of robbery is explained in Section 390 IPC, which reads thus : 390. Robbery.-In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. For better understanding of the offence of robbery, I may as well reproduce Illustrations (b) Section 390 IPC as under : (b) A meets Z on the high roads, shows a pistol, and demands Z's purse. Z in consequence, delivers his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. Z in consequence, delivers his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has, therefore, committed robbery. 6. Extortion aggravated by causing fear of instant death, etc. is thus robbery. In the instant case, as it is nobody's case that there is theft, the question for determination is whether there is extortion and whether extortion was committed by the appellant by putting the victim in fear of instant death or instant hurt or instant wrongful restraint. At this stage, I cannot lose sight of the fact that the appellant had already pleaded guilty to the charge of Section 392 IPC but pleaded not guilty the charge of Section 302 IPC at the time of framing of charges by the trial Court, and claimed to be tried. Nevertheless, the trial Court proceeded with the trial of the case even for the offence of Section 392 IPC possibly because the offence of robbery is a major offence. As the learned APP has strongly relied upon the admission of guilt made by the appellant in his examination under Section 313 CrPC, I reproduce hereunder all the questions and answers recorded in the proceeding : Q. No. 1:- The evidence against you is that on 28.5.2005 at around 3.30 PM, you with Lalramengliana met two Burmese at College Veng, Saiha. They were taking pigs from Burma. Is it correct? Ans. Yes, it is correct. Q. No. 2:- The evidence against you is that by carrying a knife in your hand demanded money from them. What do you have to say? Ans. Yes, it is correct. But we did not physically assault them. They (were?) simply afraid of us. Q. No. 3:- The evidence against you is that you threatened them to kill if you they did not allow to give you the money What do you have to say? Ans. We did not threatened (threaten?) them. We passed each other. But, suddenly, they began to run. Q. No. 4:- Both of you tried to snatch away money from them and in the struggle, one of them Ngunchungnunga fell down to a deep and narrow gorge and died in consequence. What do you have to say? Ans. In fear, he fell down. We passed each other. But, suddenly, they began to run. Q. No. 4:- Both of you tried to snatch away money from them and in the struggle, one of them Ngunchungnunga fell down to a deep and narrow gorge and died in consequence. What do you have to say? Ans. In fear, he fell down. Q. No. 5:- The evidence against you is that you took money from them Rs. 8,000/-. What do you have to say? Ans. Ngunlianchunga left some amount of money as the money fell out of his pocket on the ground and I picked the money. Q. No. 6:- The evidence against you is that S.I. V.L Hruaia arrested you in the jungle. You admitted before your (him?) that you had taken money from Ngunlianchunga. In fear of you, he jumped down, police officer recovered Rs. 6,290/- from you that you had extorted money from the victim. What do you have to say? Ans. In the countryside, police arrested me and duly recovered Rs. 6,290/-. Q. No. 7:- Do you have anything to say? Ans. We did not assault the victim, we simply asked them to give us money. Simply they (were?) afraid of us and they fled. 7. The fact, that the appellant and the non-appellant demanded money from the deceased/victim at knife point, is admitted by him and further that though they did not physically assault him, the victim was simply afraid, is also admitted by him. Similarly, the appellant also admitted to the fact that though they did not threaten the victim and his associate, they began to run away. The appellant also admitted to the fact that he had picked from the ground Rs. 8,000/- which fell out from tile pocket of the victim and further that the police recovered Rs. 6,290/- from him. On reading and re-reading the proceeding of the aforesaid accused examination, I have not the slightest doubt that the appellant was answering the question put to him by the trial Court truthfully and honestly. This is quite consistent with the plea of guilt made by him at the time of framing the charges by the trial Court wherein he had admitted the charge of robbery though he denied the charge under Section 302 IPC, which, in my judgment, is corroborative evidence of his admissions in the accused examination. This is quite consistent with the plea of guilt made by him at the time of framing the charges by the trial Court wherein he had admitted the charge of robbery though he denied the charge under Section 302 IPC, which, in my judgment, is corroborative evidence of his admissions in the accused examination. Now, once the appellant has admitted that he demanded money from the deceased and picked from the ground Rs. 8,000/- which fell out from the pocket of the deceased, the onus of proof has shifted to him to demonstrate that he did not extort the same after putting the deceased in fear of instant death, or, of instant hurt, or of instant wrongful restraint. The fact that a sum of Rs. 6,290/- was recovered from him by the police and that the statement of the IO in his examination-in-chief that the same amount was recovered from him is not denied by him in his cross-examination, will go a long way in establishing sufficient circumstantial evidence against him. It is interesting to note that the appellant did not adduce any evidence to rebut such presumptive evidence of guilt of his own making. 8. The question to be determined now is whether the admission made by the appellant in his examination under Section 313 CrPC can be used for convicting him for the offence of Section 392 IPC? The law is well-settled that the statement of an accused recorded under Section 313 CrPC cannot be ignored lightly and has to be given due weight and adequate emphasis while recording the guilt against him. However, the plea of guilt of the accused must be clear, unambiguous and unqualified and the Court must be satisfied that the accused admits facts or ingredients constituting the offence. It is also equally settled that an accused cannot be convicted solely on the confession of his guilt made in the examination under Section 313 CrPC in the absence of any other evidence on the record to establish the charge against him. Similarly the admission made by the accused under this section should be read as a whole and should not be dissected and considered only in part where that part is inextricably linked with the other part.--See Mandhari Vs. State of Chhattisgarh, AIR 2002 SC 9161; State of Maharashtra Vs. Sukhdev Singh, (1992) 3 SCC 700 & Dadarao Vs. Similarly the admission made by the accused under this section should be read as a whole and should not be dissected and considered only in part where that part is inextricably linked with the other part.--See Mandhari Vs. State of Chhattisgarh, AIR 2002 SC 9161; State of Maharashtra Vs. Sukhdev Singh, (1992) 3 SCC 700 & Dadarao Vs. State of Maharashtra, (1974) 3 SCC 630 . After reading the evidence of the prosecution witnesses, it becomes crystal clear that the inculpatory statements made by the appellant in his examination under Section 313 IPC have been fully corroborated by the evidence of the IO on the recovery of Rs. 6,290/- from him and by the admission of guilt to the offence of Section 392 IPC made by him at the time of framing of the charges by the trial Court. In other words, this is not a case in which the trial Court convicted the appellant solely on the basis of his statement under Section 313 CrPC, but this is the case where there are other corroborative evidence on record to establish the charge against him. 9. Moreover, as noticed earlier, the trial Court convicted the appellant on the basis of circumstantial evidence: there is no ocular witness worth the name examined by the prosecution. The question as to when can conviction be founded solely on circumstantial evidence was lucidly explained by the Apex Court as early as 1983 in the case of Earabhadrappa case (supra). It was held therein that in cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis with his innocence. The following are the chains of circumstances brought out by the prosecution : (1) The appellant pleaded guilty to the charge of Section 392 IPC at the time of framing of the charge by the trial court. (2) The appellant, however, did not plead guilty of the charge of murder and claimed to be tried. The following are the chains of circumstances brought out by the prosecution : (1) The appellant pleaded guilty to the charge of Section 392 IPC at the time of framing of the charge by the trial court. (2) The appellant, however, did not plead guilty of the charge of murder and claimed to be tried. (3) The plead of guilt made by the appellant to the charge of Section 392 IPC was never retracted by him at any subsequent stage. In fact, his defense throughout the trial was that he is innocent of the charge of murder. (4) The appellant admitted to the fact that he along with the co-accused demanded money from the deceased at knife point and that a sum of Rs. 6,290/- was recovered from him by the police and that there is no denial from him that this amount was a part of Rs. 8,000/-, which fell out from the pocket of the deceased, was picked up by him from ground. In other words, there is no denial on the part of the appellant that this money did not belong to the deceased. (5) He also did not deny the statement of the IO in his examination-in-chief that Rs. 6,290/- was recovered from him. 10. In my opinion, the aforesaid circumstances proved to the hilt by the prosecution are not only consistent with the guilt of the appellant but they in their effect are entirely incompatible with his innocence, and have also totally excluded every reasonable hypothesis consistent with his innocence. It is, however, contended by the learned amicus curiae that the plea of guilt by the appellant to the charge of Section 392 IPC was not properly recorded, and hence conviction based on such defective recording of plea cannot be sustained in law. I have carefully examined the plea of guilt recorded by the trial Court, and examination of the record does not reveal any substantive defect vitiating the trial. In the first place, I reiterate herein, the appellant at no point of time had retracted his admission of guilt, Secondly; the plea of guilt made by him at the time of the framing of the charge was not made the sole basis by the trial Court for convicting the appellant. Thirdly, it could not be pointed out by the learned amicus curiae about the prejudice caused to the appellant. Thirdly, it could not be pointed out by the learned amicus curiae about the prejudice caused to the appellant. Under Section 464(1) CrPC, any mere error, omission or irregularity in the charge will not invalidate the finding as a matter of law in the absence of prejudice to the convicted person. Even vagueness of the charge will not make the trial illegal when no prejudice is caused to the accused. In Tulsi Ram Vs. State of H.R.; AIR 1963 SC 666 , where the charge by merely referring to various sections of the Indian Penal Code made clear the objects of conspiracy, the charge was full understood by the accused, and they never complained at the appropriate stage that they were confused or bewildered, it was held that the charge was proper. In the instant case also, it has been the consistent stand of the appellant right from the time of framing the charge that he was guilty of the charge of robbery and was innocent of the charge of murder and has never complained up to the stage of accused examination about the vagueness of the charge, no prejudice could have been caused to him by any error in the charge framed against him. It is never his case that the charge so framed against him has ever caused confusion and bewilderment to him. The contradictions harped on by the learned amicus curiae to cast doubt on the case of prosecution have also paled into insignificance when the prosecution has successfully established solid circumstantial evidence; man may lie, but circumstances never lie. The law is now well-settled that "proof beyond reasonable doubt" is merely a guideline, and not fetish; the prosecution is not required to meet any and every hypothesis put forward by the accused; a reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based on reason and common sense. In the view that I have taken, I am of the firm view that the impugned judgment of conviction does not suffer from any infirmity warranting my interference. However, regard being had of the absence of proved previous conviction, a limited interference in the impugned sentence may be in order. 11. For the reasons stated in the foregoing, the impugned judgment of conviction of the appellant under Section 392 IPC need not be interfered with, and is accordingly upheld. However, regard being had of the absence of proved previous conviction, a limited interference in the impugned sentence may be in order. 11. For the reasons stated in the foregoing, the impugned judgment of conviction of the appellant under Section 392 IPC need not be interfered with, and is accordingly upheld. It is, however, pointed out at the bar that the appellant is now on parole and that he has undergone imprisonment of 3 years, five months and nineteen days in jail. Considering the fact that there is no proved previous conviction against the appellant heretofore, he is therefore, sentenced to the period already undergone by him in jail as convict or otherwise. He need not surrender to his bail-bonds/parole bond and is accordingly set at liberty forthwith. The appeal is thus partly allowed by modifying the impugned sentence in the manner and to the extent indicated. The learned Amicus Curiae shall be paid a sum of Rs. 10,000/- by the Mizoram State Legal Service Authority as a fees for the services rendered by him. Appeal allowed.