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Meghalaya High Court · body

2014 DIGILAW 293 (MEG)

Shemphang Rani v. State of Meghalaya

2014-12-09

T.NANDAKUMAR SINGH, UMA NATH SINGH

body2014
Judgment T. Nandakumar Singh, J. 1. These four criminal appeals are directed against the judgment and order dated 10.01.2012 passed by Smti. I. Mawlong, MCS, learned Additional District Magistrate, Ri Bhoi District, Nongpoh in GR Case No. 128/2000 for convicting the appellants/accused for the offence under Sections 364/302/34IPC and sentence order dated 15.12.2011 for sentencing the appellants/accused maximum sentence of life imprisonment. 2. Heard Mr. N.M. Masuri, learned counsel appearing for the appellants/accused and Mr. N.D. Chullai, learned Sr. PP assisted by Mr. S. Sen Gupta, learned PP for the State respondents. 3. Prosecution story as unfolded during the trial, in nutshell, is recapitulated hereunder. On 11.09.2000, a report was lodged by Smti. Leria Sancley (PW No. 3), wife of the deceased Elias Mawthoh to the Sordar Shnong, Umiong Jirang that on 11.09.2000, some persons whose identity were not known to her, came to her house while she was sleeping with her husband Elias Mawthoh and assaulted her husband and dragged him away to the unknown place. Though, she made an attempt to trace out the whereabouts of her husband Elias Mawthoh, she could not trace out her husband Elias Mawthoh and the assailants. On receipt of the said report, the Secretary and the Sordar of Umiong Jirang lodged an Ehajar on 12.09.2000 to the Officer-in-Charge, Police Outpost Patharkhmah and the Officer-in-Charge, Nongpoh Police Station registered an FIR being Nongpoh PS Case No. 86 (9) 2000 under Sections 364/302/34 IPC against the unknown persons on 15.09.2000. In the course of the investigation, the dead body of Elias Mawthoh (deceased) with multiple injuries was found lying in Umiong River near the place called Shlangblei. According to PW 6 Shri. W. Sumer, Investigating Officer, he came to know that the appellants/accused are the authors of the crime of committing the murder of (L) Mr. Elias Mawthoh only when the appellants/accused confessed to him that they jointly murdered Elias Mawthoh and thereafter, 13 accused persons including the appellants/accused were arrested. PW 6 Shri. W. Sumer also stated that the confessional statements of the accused persons were also recorded by the Magistrate under Section 164 Cr.P.C. After completing the investigation, charge sheet had been filed against the 13 accused persons including the appellants/accused and they appeared for the trial of GR Case No. 128 of 2000 for the offence under Sections 364/302/34 IPC in the Court of Smti. I Mawlong, MCS, Additional District Magistrate, Ri Bhoi District, Nongpoh. The trial court after appreciation of the evidence had come to the finding that the prosecution had proved the case of the prosecution only against the 11 accused persons i.e. the present appellants/accused of (i) Crl. Appeal No. 1/2012, (ii) Crl. Appeal No. 2/2012, (iii) Crl. Appeal No. 3/2012 and (iv) Crl. Appeal No. 4/2012 and another accused person, that the appellants/accused and another accused person had murdered the deceased Elias Mawthoh after kidnapping him vide impugned judgment and order dated 10.01.2012. 4. We have carefully analyzed and re-appreciated the statements of PWs and the exhibited documents vis-a-vis the impugned judgment and order dated 10.01.2012. We are not oblivious that this Court being the First Appellate Court has to discuss and re-appreciate the statement of PWs and exhibited documents, more particularly, in case we cannot persuade ourselves to concur the finding of the trial. Regarding this point, reference may be made to the decision of the Apex Court in Ramakanta Rai v. Madan Rai & Ors (2003) 12 SCC 395 wherein the Apex Court held that "when the appellate court concurs with the views of the trial court necessity for elaborately dealing with the various aspects may not always be necessary. But when a view contrary to that of the lower court is expressed, it is imperative that reasons therefor should be clearly indicated. There is no scope for any departure from these basic requirements". 5. The prosecution had examined as many as six prosecution witnesses namely (i) PW 1 Shri. Ledis Narlang, a villager of Umiong village, (ii) PW 2 Shri. Arwin Syngkli to whom the appellants/accused made a confession that they have murdered the deceased Elias Mawthoh for the reason that the deceased was a very bad man, who had been living a bad life, (iii) PW 3 Smti. Leria Syngkli (wife of deceased), (iv) PW 4 Shri. Tarial Mawthoh, younger brother of the deceased, (v) Dr. F.A. Ahmed, who performed the postmortem examination of the dead body of Elias Mawthoh (deceased) and PW 6 Shri. W. Sumer Investigating Officer of Nongpoh Case No. 86 (9) of 2000 under Sections 364/302/34 IPC, who submitted the charge sheet. The learned trial court basing on the statements of the 3 (three) PWs i.e. PW 2 Arwin Syngkli, PW 3 Smti. The learned trial court basing on the statements of the 3 (three) PWs i.e. PW 2 Arwin Syngkli, PW 3 Smti. Leria Syngkli (wife of the deceased) and PW 6 Shri. W. Sumer (Investigating Officer) had passed the impugned judgment and order dated 10.01.2012 for convicting the appellants/accused for the offence under Sections 364/302/34 IPC and imposed sentence to a maximum of life imprisonment to the appellants/accused vide impugned judgment and order dated 15.12.2011. 6. PW 1 Shri. Ledis Wahlang stated that he know all the accused persons i.e. 13 accused persons including the appellants/accused and came to know that they murdered (L) Mr. Elias Mawthoh about three years ago in the wintertime when he was at his paddy field only when the appellants/accused surrendered themselves to the Police. The examination-in-chief of the PW 1 recorded by the trial court reads as follows:- "On Oath: I know all the accused standing in the dock. The accused were arrested, to my knowledge for murder, about three years ago in the winter time as far as my information goes the deceased Elias Mawthoh was killed by the accused when he was in the paddy field. Only when the accused surrendered themselves to the police then I came to know that they had committed the offence. The Dorbar Rangbah informed the Police. I was examined by the Police. The reason of the murder was because the deceased was a bad man who used to commit nuisance in the village. That is all." PW 1, he is not an eyewitness and his statement is only hearsay; over and above, there is no material particular as to how he got the information; his statement is very cryptic. PW 2 Shri. Arwin Syngkli without mentioning the names and particulars of the accused persons, simply stated that he know about the incident as the accused persons came to confess to him that they had committed the offence. The examination-in-chief of the star witness PW 2 is reproduced in toto: "On Oath: I know all the accused persons standing in the dock. The accused to my knowledge were arrested for the murder of one Elias Mawthoh October, 2000, date I do not remember in the pynthor about 2 furlong away from Umiong village. The examination-in-chief of the star witness PW 2 is reproduced in toto: "On Oath: I know all the accused persons standing in the dock. The accused to my knowledge were arrested for the murder of one Elias Mawthoh October, 2000, date I do not remember in the pynthor about 2 furlong away from Umiong village. I know about the incident as the accused came to confess to me about the deed that they had committed, reason that the deceased was a very bad man who had been living a bad life. The accused used to steal all kinds of things like pumpkins, utensils, animals, cattle also used to keep them at ransom. He was a very bad man and no one dared to report about him to the police. There was an incident when electric line was stolen by him and the matter was reported to the police but who did not take any action against the deceased. Exhibit 1 is the FIR and Exhibit-1/1 is my signature. The accused had beaten the deceased and had drowned him. That is all." PW 3 Smti. Leria Syngkli wife of the deceased Elias Mawthoh had identified the accused persons for the first time in the dock. PW 3 had already stated in her said report dated 12.09.2000 to the Sordar Shnong that the identity of the accused persons were not known to her. In her examination-in-chief, she stated that the accused persons came at night to her paddy field and assaulted her husband Elias Mawthoh and she related about the whole incident to the headman of the village. The statement of PW 3 is absolutely lack of material particulars viz., if anybody present at the time of the incident and was there sufficient light to see the face of the accused persons and whether the accused persons armed with any dangerous weapon and if they are armed with, what types of arm. The examination-in-chief of the star witness PW 3 is reproduced in toto hereunder:- "On Oath: I know all the accused persons standing in the dock. The accused persons are the people involved in the murder of my husband on 11.09.2000 in the paddy field near the village known as Umlaper. The accused persons came at night time to my shed in the paddy field. They assaulted my husband. The accused persons are the people involved in the murder of my husband on 11.09.2000 in the paddy field near the village known as Umlaper. The accused persons came at night time to my shed in the paddy field. They assaulted my husband. I was very much present at that time and witnessed the whole incident. The matter was reported to the Headman of the village. Then I reported the matter to the police Patharkhmah along with the Headman and other elders of the village. The police questioned me on the matter and I related the whole thing to them. Then, the police came to the village and arrested the accused persons who are present and standing in the dock. My husband was accused of stealing, practicing witch-craft and adultery and that was why he was murdered." 7. The statement of PW 3 was not corroborated by any witness of the prosecution, so also, the extra judicial confession or confession of the accused persons 13 in numbers to the PW 2 were not corroborated by any prosecution witness. But an attempt had been made by the prosecution to corroborate the statement of PW 2 about the confessional statements of the accused persons by the statement of the Police Officer-PW 6 that the accused persons had voluntarily confessed to him. 8. The trial court, who clearly misunderstood the law relating to extra judicial confession and as to what are the materials evidence and also the relevant laws and procedures relating with confessional statement of the accused person recorded under Section 164 of the Cr.P.C. and test identification parade of the accused persons, had not correctly appreciated the statements of the prosecution witnesses and passed the impugned judgment and order dated 10.01.2012 for convicting the appellants/accused and acquitting the two on the same set of evidence and also passed the impugned sentence order dated 15.12.2011 for sentencing the appellants/accused to suffer imprisonment for life before conviction. The portions of the cryptic judgment and order dated 10.01.2012, which deal with the appreciation of the statements of PWs are quoted hereunder:- "Other Prosecution Witnesses are not material witnesses, except that of Smti Leria Sankly wife of the deceased. She said:- "I know all the accused standing in the dock. The accused persons are the people involved in the murder of my husband on 11-09-2000 in the paddy field near the village known as Umlaper. She said:- "I know all the accused standing in the dock. The accused persons are the people involved in the murder of my husband on 11-09-2000 in the paddy field near the village known as Umlaper. The accused persons came at night then to my shed in the paddy field. They assaulted my husband, I was very much present at that time and witnessed the whole incident. In her cross-examination, she repeated that:- "I saw the accused attacking my husband after which they tied him up with ropes and pulled him away." This Prosecution Witness is the only eyewitness whose evidence could not be shaken. The following two entries made by Dr. F.A. Ahmed in his Post Mortem Report amply justified the charge made U/S 302I.P.C. against the accused. The entries are:- (i) There is deep cut wound caused by sharp weapon on chin, left side cheek, in left ear and the left side of the head. The wounds are antemortem in nature and are homicidal in nature. (ii) In my opinion, the deep cut wounds that sustained on the face and on head causing severe hemorrhages as well leading to shock then to cardio respiratory failure and death. The following accused were examined and made their statements under the provisions of Section 164 Cr.P.C. Accused Shemphang Rani "My name is Shemphang Rani and I reside at Umiong Jirang. I admit that on 11-09-2000. I took part in beating of one Shri Elias Mawthoh to death as he is suspected of practicing witchcraft. He was also a thief and a rapist". Accused Berias Mawthoh "Elias Mawthoh was a rapist, thief and wizard, so we murdered him and threw him to the river" Accused William Mawthoh "I am Willliam Mawthoh from Umiong, Jirang, Elias Mawthoh is a bad man. Whenever he curses it always happen. He used to rape women young and old and also cuts the electric wires and carried to his house. Around 10 P.M, 13 of us on that day went with the intention of killing him and killed him on that day. That's all Madam." Accused Armik Nareng "Elias Mawthoh was a thief, witchcraft and rapist 13 of us at around 9:30 or 10 P.M we went to pull him out of the house, beat him and killed him. I then threw his body to the river. That's all Madam." Accused Armik Nareng "Elias Mawthoh was a thief, witchcraft and rapist 13 of us at around 9:30 or 10 P.M we went to pull him out of the house, beat him and killed him. I then threw his body to the river. That's all Madam," Accused Roles Patho "Around 10 P.M., we went to Elias Mawthoh's house, pulled him out of his house, beat him and tied a rope around his neck and then threw him into the river because he was an evil person. He raped women, stole things and he is also a wizard. That's all Madam" Accused Belium Sanckly "We went to beat Elias Mawthoh because he was a bad man, he is too much. He used to rape women, perform witchcraft and also stole things. We pulled him with a rope which was tied around his neck and then threw him into the river. That's all Madam" Accused Lukstar Narleng "Elias Mawthoh was a thief, wizard and a rapist. We beat him and tied a rope around his neck and threw him into the river. That's all Madam" Accused Livingstone Mawthoh "We murdered Elias Mawthoh because he was a rapist, a thief and a wizard. That's all Madam" Accused Darsing Narleng We murdered Elias Mawthoh because he was a wizard, thief and rapist. That's all Madam" Accused Media Narleng "I admit we had murdered Elias Mawthoh because he was a thief, rapist and a wizard. That's all Madam" Accused Koman Narleng "13 of us murdered Elias Mawthoh because he was a rapist, wizard and thief. We threw his body in the river. That's all Madam" The accused with one mind have killed the victim on one common ground - that he was a thief, a wizard and a rapist and so their statements are corroborative to each other. The statements U/S 164 Cr.P.C. were reduced to writing by Magistrates in accordance with the provisions of the Criminal Procedure Code, the record is admissible in evidence without further proof. The statements were made in Khasi and recorded by a Khasi Magistrates then were "read over and accepted correct" after the accused having been put their marks thereon. The statements were made at a time when the accused were no longer in Police custody. No threat, promise or inducement were made to them. The Magistrates have certified that the statements were made voluntarily. The statements were made at a time when the accused were no longer in Police custody. No threat, promise or inducement were made to them. The Magistrates have certified that the statements were made voluntarily. There is no ambiguity, doubt, mistake or infirmity requiring the trial court to summon the Magistrates who made the recordings for clarification on any point. The statements made are clear, simple with no element of any doubt. They demonstrate the vivid intention of the accused to kill and without a remorse. They deserve punishment to be inflicted on each one of them U/S 302 I.P.C. The incriminating statements made by the accused have been put to them in terms of the provisions contained in Section313 Cr.P.C. as shown below." ***** ***** ***** 9. The solitary statement of PW 3, as stated above, is not corroborated in material particular by any prosecution witness. The statement of PW 3 is so cryptic and absolutely lack of material particular. Over and above, PW 3, who did not know the identity of the accused persons, identified for the first time when the accused were in the dock. There is absolutely no material on record and also no statement from the side of the PW 3 that how many accused persons were present in the dock on the day of recording her statement. If only because all the accused persons had been identified by the PW 3 for the first time in the dock, the appellants/accused had been convicted, then why the other accused persons had been acquitted. The statement of PW 3, which is a cryptic and lack of material particular, cannot be sufficient for conviction. The learned trial court had completely misunderstood the material particular of the statement of the witnesses and extent of requirement of the solitary witness for proving the prosecution case in the case in hand. Such cryptic solitary statement of PW 3, even by way of hypothesis, cannot be the ground for conviction under the criminal jurisprudence of our country. 10. Under our criminal jurisprudence, a person has a profound right not be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. No doubt, this standard is a high standard but there is no absolute standard. 10. Under our criminal jurisprudence, a person has a profound right not be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. No doubt, this standard is a high standard but there is no absolute standard. The Apex Court in Krishnan & Anr v. State represented by Inspector of Police (2003) 7 SCC 56 had observed that what degree of probability amounts to "proof" is an exercise particular to each case. The concepts of probability, and the degrees of it, cannot obliviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. To constitute reasonable doubt, it must be free from over emotional response, zest for abstract speculation. Doubt must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence and/or lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. The Apex Court is of similar view in Ramakant Rai v. Madan Rai & Ors (2003) 12 SCC 395 (Paras 24 and 25 of the SCC, p.405) "24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case. 25. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. 25. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachalia, J (as His Lordship then was) in State of U.P. v. Krishna Gopal (1988) 5 SCC 302." 11. When the uncorroborated solitary statement of PW 3 is not accepted for establishing the high standard of evidence for proving the case of the prosecution beyond reasonable doubt, the only evidence left out is extra judicial confession of PW 2, which is also completely lack of material particular and not corroborated by any independent witness. The statement of PW 2 cannot be corroborated by the statement of Police Officer-PW 6, who stated that the accused persons had voluntarily confessed the crime to him. Section 25 of the Indian Evidence Act, 1872 clearly provides that the confession made to a Police Officer, shall not be proved against a person accused of any offence. No doubt, extra judicial confession can form the basis of conviction but by way of abundant precaution, however, may look for some corroboration. The Apex Court in Gagan Kanojia & Anr v. State of Punjab (2006) 13 SCC 516 observed that "Extra Judicial Confession, as is well know, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration. Extra judicial confession cannot ipso facto be termed to be tainted. An Extra judicial confession, if made voluntarily and proved can be relied upon by the courts. (See Sukhwant Singh v. State (2003) 8 SCC 90 )". By way of abundant caution, however, the court may look for some corroboration. Extra judicial confession cannot ipso facto be termed to be tainted. An Extra judicial confession, if made voluntarily and proved can be relied upon by the courts. (See Sukhwant Singh v. State (2003) 8 SCC 90 )". The Apex Court in Kishorchand v. State of H.P. reported in (1991) 1 SCC 286 held that: "Unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity." 12. The learned trial court had completely misunderstood the requirement of Section 164 Cr.P.C. for recording the confessional statement and its evidential value. The learned trial court had relied on the so called confession statements of the accused persons recorded under Section 164 Cr.P.C., which were not even exhibited by the prosecution. In the course of the trial, the prosecution did not examine the Magistrate, who recorded the statements of the accused persons under Section 164 Cr.P.C. as prosecution witness. The Apex Court in a catena of cases held that Magistrate or Sessions Judge before whom the accused who is unable to engage the services of a lawyer on account of poverty or indigence has produced, has an obligation to inform him that he is entitled to obtain free legal services at the cost of the State. From the record, it is clear that the appellants/accused had not been informed of their right to engage the services of a lawyer when they were produced before the Magistrate for recording their confessional statements. The Apex Court in Mohammed Ajmal Mohmmad Amir v. Union of India & Ors: (2012) 9 SCC 1 held that: "457. The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing. A defence lawyer has to conduct the trial on the basis of the materials lawfully collected in the course of investigation. The test to judge the constitutional and legal acceptability of a confession recorded under Section 164 Cr.P.C. is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary. The test to judge the constitutional and legal acceptability of a confession recorded under Section 164 Cr.P.C. is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 it has to be trashed; but if a confession is established as voluntary it must be taken into account, not only constitutionally and legally but also morally." 13. The learned trial court without any finding regarding the acceptability of the confessional statements of the accused persons under Section 164Cr.P.C. and also without examining the Magistrate, who recorded the confessional statements of the accused persons, had relied upon the alleged confessional statements of the appellants/accused which were not exhibited in the court of the trial for convicting the appellants/accused. 14. The learned trial court put only three stereo type questions to all the accused persons at the time of recording their statements under Section 313Cr.P.C. We have given anxious consideration to the statements of the accused persons recorded perfunctorily by the trial court. The Apex Court in Lallu Manjhi & Anr v. State of Jharkhand (2003) 2 SCC 401 held that: "14. Incidentally, it may also be stated that the manner in which the Trial Court has recorded the statements of the accused persons u/s 313 Cr.P.C. is far from satisfactory. The entire prosecution case running into very many details has been summed up into just 5 questions asked to each of the accused persons. It is obligatory on the part of the Trial Court to examine the accused for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording the conviction of the accused persons." The Apex Court in Naval Kishore Singh v. State of Bihar (2004) 7 SCC 502 held that: "5. Counsel for the appellant pointed out that the Sessions Court committed serious error in not properly examining the accused under Section 313 Cr.P.C. Our attention was drawn to the statement taken from the present appellant. Only three questions were put to the appellant. Counsel for the appellant pointed out that the Sessions Court committed serious error in not properly examining the accused under Section 313 Cr.P.C. Our attention was drawn to the statement taken from the present appellant. Only three questions were put to the appellant. The first question was whether he heard the statement of witnesses and the second question was that the evidence given by witnesses showed that he committed the murder of the deceased and whether he had to say anything in defence. The questioning of the accused under Section 313 Cr.P.C. was done in the most unsatisfactory manner. Under Section 313 Cr.P.C. the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of question and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in slipshod manner, it may result in imperfect appreciation of evidence. In various decisions of this Court, the importance of questioning the accused under Section 313 Cr.P.C. was given due emphasis, e.g. Rama Shankar Singh v. State of W.B AIR 1962 SC 1239 : (1962) 2 Cri LJ 296, Bhalinder Singh v. State of Punjab (1994) 1 SCC 726 : 1994 SCC (Cri) 462, State of Maharashtra v. Sukhdev Singh (1992) 3 SCC 700 : 1992 SCC (Cri) 705 and Lallu Manjhi v. State of Jharkhand (2003) 2 SCC 401 : 2003 SCC (Cri) 544". 15. 15. The golden thread which runs through the web of administration of justice and criminal case is that if two views are possible on the evidence adduced in the case, (i) pointing to the guilt of the accused and (ii) another to his innocence, the view which is favourable to the accused should be adopted. The paramount duty of the court is to ensure that miscarriage of justice is prevented. 16. The learned trial court had completely misunderstood Section 235 of the Cr.P.C., which reads as follows:- "235. Judgment of acquittal or conviction. - (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law." It is really shocking that the learned trial court passed the sentence order dated 15.12.2011 for sentencing the appellants/accused to serve the sentence for imprisonment for the commission of the offence under Sections 364/302/34 IPC long before the appellants/accused had been convicted by the impugned judgment and order dated 10.01.2012 for the offence under Sections 364/302/34 IPC. The stereo type cryptic order of sentence dated 15.12.2011 is quoted hereunder:- "IN THE COURT OF SMTI. I. MAWLONG, MCS, ADDITIONAL DISTRICT MAGISTRATE, RI BHOI DISTRICT, NONGPOH. G.R. Case No. 128 of 2000 U/S 364/302/34 IPC State -VERSUS- Shri. Shemphang Rani & 12 Ors ORDER 15-12-2011 C.R. put up today. Ld. P.P. present. Ld. Defence Counsel is present along with accused persons. Today is fixed for deliberation on the quantum of sentence. Ld. P.P. observed that the Confession Statements U/S 164 Cr.P.C. of all the accused persons sheds ample light and beyond reasonable doubt of their involvement in the crime. They failed to show any remorse or regret for the act of commission of the heinous felony throughout the proceedings of the trial. Accordingly, he prays the Court to award the maximum punishment of life imprisonment to the accused persons. Ld. Defence Counsel submits that the conviction is unwarranted. Even if the confession of the accused persons U/S 164Cr.P.C. is taken cognizance, life imprisonment is too harsh a sentence. Hence prays that the same be commuted to a lesser term. Given the above, I consider the submission of the Ld. Ld. Defence Counsel submits that the conviction is unwarranted. Even if the confession of the accused persons U/S 164Cr.P.C. is taken cognizance, life imprisonment is too harsh a sentence. Hence prays that the same be commuted to a lesser term. Given the above, I consider the submission of the Ld. P.P. Accused persons shall serve the maximum sentence of life imprisonment for the commission of the crime U/S 364/302/34IPC. Sd/- Smti. I. Mawlong, MCS, Additional District Magistrate, Ri Bhoi District, Nongpoh." It is the clearest example that true fact is stranger than fiction inasmuch as, the learned trial court, who is the senior officer passed the sentence order dated 15.12.2011 before the judgment and order dated 10.01.2012 for convicting the appellants/accused for the offence under Sections 364/302/34IPC. It is very well settled law that in the new code i.e. Code of Criminal Procedure, 1973, Parliament has wisely written into the law a post-conviction stage when the Judge shall "hear the accused on question of sentence and then pass the sentence on him according to law". Section 235 of the Cr.P.C. consists of two parts, first part i.e. pronouncement of judgment for conviction and second part to hear the accused on the question of sentence. In the present case, it is just the reverse, which is not permissible under the law. The Apex Court in Ediga Anamma v. State of Andhra Pradesh (1974) 4 SCC 443 held that "guilt once established, the punitive dilemma begins. The choice between death and life term has to be made in a situation which is not altogether satisfactory. Modern penology regards crime and criminal as equally material when the right sentence has to be picked out, although in our processual system there is neither comprehensive provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence. However, in the Criminal Procedure Code, 1973 about to come into force, Parliament has wisely written into the law a post-conviction stage when the Judge shall "hear the accused on the question of sentence and then pass sentence on him according to law." (Section 235 and Section 248)". 17. However, in the Criminal Procedure Code, 1973 about to come into force, Parliament has wisely written into the law a post-conviction stage when the Judge shall "hear the accused on the question of sentence and then pass sentence on him according to law." (Section 235 and Section 248)". 17. For the foregoing discussions, we are of the considered view that there are reasonable doubts that the appellants/accused, who have the profound right not to be convicted under the offence which is not established by evidential standard of proof beyond reasonable doubt, are authors of the crime and accordingly, the appellants/accused are acquitted from all the charges leveled against them in the present case. In consequence thereof, the impugned sentence order dated 15.12.2011 and the impugned judgment and order dated 10.01.2012 passed by the leaned Additional District Magistrate, Ri Bhoi District, Nongpoh in G.R. Case No. 128/2000 under Sections 364/302/34 IPC are hereby set aside and quashed. 18. In the result, the appeals are allowed. 19. The appellants/accused are set at liberty and personal bonds and security bonds of the appellants/accused are discharged. 20. Send a copy of this judgment and order to the concerned Additional District Magistrate, Ri Bhoi District, Nongpoh.