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2013 DIGILAW 250 (GAU)

Lalrokunga and Ors. v. State of Mizoram

2013-04-08

P.K.SAIKIA

body2013
1. Heard Mr. Khiangte Zalchhanliana, learned counsel for the petitioner/appellant and also heard Mr. A.K. Rokhum, PP, Mizoram appearing for the state of Mizoram. 2. With the consent of both the parties, this Crl. revision is disposed of at the motion stage itself. 3. The brief facts necessary of the disposal of the present appeal are that on 15.2.12 an FIR was lodged by the Member Child Welfare Committee, Aizwal alleging that on 11.2.2012 at about 12 Noon, three persons namely Sri. Rokunga and Maduhawma of Bethlehem and Sri Bagge of ITI took one minor boy, aged about 7 years was taken away from his house at Rangvamual, took him to the wine shop and allowed him to take huge amount of alcohol for which he became unconscious soon thereafter. 4. When the boy lost his consciousness, his parents took him to the Civil Hospital Aizwal and provided him necessary treatment. In the meantime, the Child Welfare Committee came to know about such incident and lodged an FIR with O/C Aizwal Police Station. On the receipt of the FIR, Police registered a Case vide Aizwal PS. C/No. 70/1 dated 15.2.2012 under section 25 of the Juvenile Justice (Care and Protection of Children), Act, 2000 ('the Act of 2000'). 5. Since the boy died after the lodging of the FIR, subsequently, offence under section 304, IPC was also added. The Police Officer who was ordered to investigated the case, examined the witnesses, sent the death body to the post-mortem examination arrested the accused person did other needful and on the conclusion of the investigation submitted charge sheet under sections 23 and 25 of the Act of 2000 and under section 304 of the IPC against the accused persons and forwarded them to the court to stands their trial. 6. Since the offence under section 304, IPC is exclusively triable by Court of Sessions, the Magistrate before whom the charge sheet was laid, committed the case to the Court of Sessions. The learned Sessions Judge committed the case to the Addl. Sessions Judge No. V, Aizwal for disposal in accordance with law. 7. The Addl. 6. Since the offence under section 304, IPC is exclusively triable by Court of Sessions, the Magistrate before whom the charge sheet was laid, committed the case to the Court of Sessions. The learned Sessions Judge committed the case to the Addl. Sessions Judge No. V, Aizwal for disposal in accordance with law. 7. The Addl. Sessions Judge, Aizwal, on the receipt of the case on commitment and on hearing the parties and on going through the materials on record framed charge under sections 23/25 of the Act of 2000 and also under section 304, IPC against the accused/petitioners and charges, so framed, on being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. It is that Order which has been assailed in the present revision. 8. Being aggrieved by and dissatisfied with the aforesaid order passed on 1.2.2013 by Addl. Sessions Judge No. V, Aizwal in S.R Case No. 413/ 2012, the petitioners preferred this revision citing several infirmities in the order, impugned. According to learned counsel for the petitioners, there are absolutely no materials on record to presume that accused/ petitioners had committed the offences, they were charged with. Learned counsel therefore urges this court to discharge the accused of the offences, they were charged with on setting aside the order, impugned. 9. On the other hand, learned Public Prosecutor appearing on behalf of the State respondent has submitted that order, impugned, invites no interference since the materials on record prima facie disclose that the accused had committed the offences they were charge with. He therefore submits that this proceeding may be dismissed. 10. I have considered rival submissions having regard to the materials on record keeping an eye on the laws, involved, here. 11. For ready reference, the provisions of sections 23/25 of the Act of 2000 as well as the provision of law incorporated in section 304, IPC are reproduced below : "23. 10. I have considered rival submissions having regard to the materials on record keeping an eye on the laws, involved, here. 11. For ready reference, the provisions of sections 23/25 of the Act of 2000 as well as the provision of law incorporated in section 304, IPC are reproduced below : "23. Punishment for cruelty to juvenile or child : Whoever, having the actual charge of or control, a jovenile or the child, assaults, abandons, expose or will folly neglects the jovenile or censes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such jovenile or the child unnecessary mental or physical suffering shell be punishable with imprisonment for a term which may extend to six months, or fine, or with both". "25. Penalty for giving intoxicating liquor or narcotic drug or psychotropic substance to juvenile or child: "Whoever gives, or causes to be given, to any juvenile or the child any intoxicating liquor in a public place or any narcotic drug or psychotropic substance except upon the order of duty qualified medical practitioner or in case of sickness shell be punishable with imprisonment for a term of three years and shell also be liable to fine." "304, IPC. Punishment far culpable homicide not amounting to murder: "Whoever commits culpable homicide not amounting to murder, shell be punished with imprisonment of life> or imprisonment of either description for a term which may extend to ten years, end shell also be liable to fine, if the act by which the death is censed is done with the intention of causing death, or of causing such bodily injury as it likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cense death, but without any intention to cense death, or to cense such bodily injury to cense death." 12. A very careful perusal of materials on record reveals that prosecution story, as narrated above, finds support from the statements of the witnesses, recorded by the I.O. during investigation as well as other documents, relied on the prosecution in the case under consideration. Such materials, in my opinion, require one to presume that on the fateful . A very careful perusal of materials on record reveals that prosecution story, as narrated above, finds support from the statements of the witnesses, recorded by the I.O. during investigation as well as other documents, relied on the prosecution in the case under consideration. Such materials, in my opinion, require one to presume that on the fateful . day, all the accused/petitioners took the deceased, a young boy of about 7 years of age, to a wine shop and allow him to drink in huge quantity which later caused him to slip to swoon and which occasion is death few days later. 13. Above being the position, on the materials on record, it can be presumed that on the day in question, all the accused/petitioners committed the offence under section 25 of the Act of 2000 as well as offence under section 326, IPC. In this connection, I also find it necessary to reproduce the provision of law incorporated in the section 326, IPC : "320. Voluntarily causing grievous hurt by dangerous weapons or means: Whoever, except in the case provided for by section 335, voluntarily cense grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any explosive substance, or to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to tan years, and shall also be liable to fine "(emphasis supplied by me). 14, It also worth noting to know the meaning of the word voluntarily in legal parlance. In that connection, I find it necessary to reproduce the terms voluntarily as defined in the Indian Penal Code. The definition of the terms voluntarily is rendered in section 39 of the IPC and same as well as the illustration given there-under is reproduced below : "33. In that connection, I find it necessary to reproduce the terms voluntarily as defined in the Indian Penal Code. The definition of the terms voluntarily is rendered in section 39 of the IPC and same as well as the illustration given there-under is reproduced below : "33. "Voluntarily" -A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it." Illustration "A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery end thus causes the death of a person. Here, A may not have intended to cause death, and may even be sorry that death has been caused by his act, yet; if he knew that he was likely to cause death, he has caused death voluntarily." 15. When one reads the materials on record, in the light of definition of "voluntarily" as rendered in section 39 of the IPC together with section 326, IPC, their cannot be any escape from the conclusion that on the materials on record, one needs to presume that each of the accused/ petitioners committed the offence under section 326 IPC. 16. However, on the materials on record, it cannot be presumed that accused/petitioners committed offence under section 23 of the Act of 2000 since they were not in actual custody of the child aforementioned who met his death in tragic circumstances on 15.2.2012. 17. One thing that deserves discussions, here, is that learned trail court opined that on the materials on record, accused persons needs to be presumed that they had committed the offence under sections 304/34, IPC. Section 304, IPC speaks about the punishment for a person who committed culpable homicide which does not amount to murder. 18. But before an act of person becomes a culpable homicide not amounting to murder, it must be shown that the accused person(s) caused the death of the person but same is covered by one of the exceptions as specified in section 300, IPC. But in the present case, on the materials on record, it cannot be presumed that accused persons had caused the death of the boy aforesaid which does not amount to culpable homicide not amounting to murder. But in the present case, on the materials on record, it cannot be presumed that accused persons had caused the death of the boy aforesaid which does not amount to culpable homicide not amounting to murder. That being so, in my opinion, framing of charge under section 304, IPC is also not tenable in law. 19. In the result, the framing of charge against the accused petitioners under section 25 of the Act of 2000 is found well justified and as such, same does not invite any interference from this revisional court. 20. However, as stated above, charge under section 23 of the Act of 2000 as well as under section 304, IPC is untenable since on the materials on record it cannot be presumed that accused/petitioners had committed offence under section 23 of the Act of 2000 or under section 304, IPC. Consequently, the framing of charge under section 23 of the Act of 2000 as well as under section 304, IPC against the accused persons is set aside. 21. Since learned trial court has already framed charge under section 25 of the Act of 2000 same needs no alternation. However, as stated above, learned court below would require to frame charge under section 326, IPC against all the accused persons. 22. Since neither the offence under section 25 of the Act nor the offence under section 326, IPC is not exclusively triable by court of Sessions, the learned Sessions Judge, on framing of the charges under section 326, IPC against the accused persons, as required above, may order the transfer of case to the concerned Chief Judicial Magistrate in the terms of section 288(1)(a) of the Cr.PC for trail. 23. With the above observations and directions, the present proceeding is partly allowed. 24. A copy of this order be furnished to the court below for doing needful.