Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 750 (GAU)

Lalmalsawma v. State of Mizoram

2014-07-31

TINLIANTHANG VAIPHEI

body2014
JUDGMENT Tinlianthang Vaiphei, J. 1. The legality of the judgment dated 7.10.2013 passed by the learned District and Sessions Judge, Lunglei District in Crl. Trial No. 85 of 2012 convicting the appellant under Section 376(1) IPC and sentencing him to undergo five years of rigorous imprisonment with a fine of Rs. 1,000/- and, in default thereof, to suffer another one month of simple imprisonment, is called into question in this criminal appeal. The case of the prosecution is that on 4.4.2012, a written F.I.R. was lodged by one Margaret Lalramsiami (25), D/o. Kapchungnunga of L-IV, Chanmaari, Kanan Veng, Lawngtlai stating that on the night of 3.4.2012 between 11 PM and 12 mid-night, Ms. Cathy Laramdinpui, D/o. Vanlalhruailiana of L-IV, who is living with her grand-mother at Chawngte Peng, was taken out by the appellant, who was suspected to have raped her. The victim is said to be abnormal as she is deaf and dumb. The Lawngtlai Police Station, therefore, registered the said police case and investigated into the case. In the course of investigation, the informant and the victim were examined by the police, who recorded their statements. The victim was sent for medical examination, which disclosed a sign of hymen tear and her hymen ruptured. The appellant was thereafter arrested and thoroughly examined. He is stated to have confessed to the crime. As per her Baptism Certificate, her age was only 15 years old though her age was wrongly written as 16 years in the FIR. After completion of the investigation, the police charge-sheeted the appellant U/s. 376(1) IPC and sent him for trial before the learned Chief Judicial Magistrate, Lawngtlai. 2. On receipt of the charge-sheet, the learned Chief Judicial Magistrate, Lawngtlai committed the case to the learned Sessions Judge, Lunglei Judicial District as the case is exclusively triable by the latter. The learned Sessions Judge, having found a prima facie case of rape, framed the charge against the appellant U/s. 376(1) IPC, to which the appellant pleaded not guilty and claimed to be tried. In the course of trial, the prosecution proceeded to examine six witnesses to bring home the charge against the appellant. Interestingly, the prosecutrix was not examined by the prosecution nor was any attempt made by the trial court to examine her in accordance with Section 119 of the Evidence Act, 1872. In the course of trial, the prosecution proceeded to examine six witnesses to bring home the charge against the appellant. Interestingly, the prosecutrix was not examined by the prosecution nor was any attempt made by the trial court to examine her in accordance with Section 119 of the Evidence Act, 1872. The appellant was, however, examined by the trial court under Section 313, CrPC, which contained both inculpatory and exculpatory statement. Anyway, at the conclusion of the trial, the learned Sessions Judge by the impugned judgment convicted the appellant and sentenced him in the manner already noticed. Aggrieved by this, this appeal is now preferred by the appellant. 3. Assailing the impugned judgment, Mr. J.C. Lalnunsanga, the learned counsel for the appellant submits that in the absence of the evidence of the prosecutrix, who was never examined by the prosecution, there is absolutely not an iota of evidence to convict the appellant. In support of his contention, he has relied upon the decisions of the Apex Court in Uday v. State of Karnataka, AIR 2003 SC 1639 , Jinish Lal Sah v. State of Bihar, (2003) 1 SCC 605 and Ram Murti v. State of Haryana, (1970) 3 SCC 21 . A number of contentions have also been raised by the learned counsel for the appellant, but in view of my decision to set aside the impugned judgment on a short point, it is not necessary to burden this judgment with those contentions. On the other hand, Mr. AK Rokhum, the learned Public Prosecutor, supports the impugned conviction and submits that sufficient circumstantial evidences have been established by the prosecution to prove the guilt of the appellant beyond any shadow of doubt. He, therefore, strenuously urges that the impugned judgment is not liable to be interfered with. 4. In convicting the appellant, the learned Sessions Judge placed reliance upon the statements of PW 6 (Ms. Chanchinmawii Zathang) and PW 8 (Mr. Lalramsanga, Judicial Magistrate 1st Class, Lawngtlai), who had recorded the statement of the prosecutrix under Section 164 CrPC. I have perused the depositions of the remaining four prosecution witnesses, who are mostly seizure witnesses, Medical Officer and the 10 of the case. Chanchinmawii Zathang) and PW 8 (Mr. Lalramsanga, Judicial Magistrate 1st Class, Lawngtlai), who had recorded the statement of the prosecutrix under Section 164 CrPC. I have perused the depositions of the remaining four prosecution witnesses, who are mostly seizure witnesses, Medical Officer and the 10 of the case. Apart from the evidence of the Medical Officer, who was examined as PW 10 and whose evidence appears to have some evidentiary value, the statements of the remaining prosecution witnesses, I am afraid, do not even have corroborative evidence. To satisfy myself that the prosecution has proved the guilt of the appellant beyond reasonable doubt, I shall now proceed to appreciate the evidence of PW 6 and PW 8. 5. PW 6 happens to be aunty of the prosecutrix: she is the younger sister of the mother of the prosecutrix. In her deposition, she stated that the victim grew up in their family since her childhood. According to this witness, the victim is a deaf, but she could communicate with her to some extent as she grew up with her. She deposed that she asked the victim at the police station as to what happened to her on the night of 3.4.2012, to which she replied that the appellant lit his mobile torch and signalled her to go to him outside. According to her, the victim went on to tell her that she had gone out and the appellant invited her to accompany him to College Veng, but she refused initially. She further testified that the appellant finally persuaded the victim when he told her that she was his dear one like sister and she then followed him to College Veng. PW 6 further deposed that the appellant let the victim undressed her wearing apparel whereafter he laid her on the bike and committed sexual intercourse with her. It is the testimony of PW 6 that the victim felt pain and after the appellant finished, he told her to wear her cloth quickly and then he then took her on his bike and proceeded for home; he let her got down from the Bike at some distance away from her residence. One need not refer to her cross-examination inasmuch as all her depositions are heresy in nature and have no evidentiary value. 6. One need not refer to her cross-examination inasmuch as all her depositions are heresy in nature and have no evidentiary value. 6. This then takes me to the testimony of PW 8, who had recorded the statement of the victim under Section 164 CrPC. All that he stated in his deposition is that the victim is deaf and dumb and could not talk like normal person: she used gesture and could express few words. She testified that she recorded the statement of the victim with the help of interpreter, namely, PW 6. She exhibited the said statement of the victim. The law is very clear: such statement cannot be used as evidence unless the maker of the statement comes forward to tender her evidence, prove the statement and subjects herself to cross-examination. In the instant case, the victim did not tender her evidence. Therefore, the evidence of PW 8, who is not even an ocular witness, is not legal evidence and cannot be relied upon to substantiate the prosecution case. Similarly, the evidence of the IO, who is also not an eye-witness, cannot also be relied on to convict the appellant. 7. As already noticed, the examination of the appellant under Section 313 CrPC admitting that he carried the victim on his bike on the night of the incident, but he did not have sex with her, is also not sufficient to prove the case of the prosecution. Such evidence can only be used to corroborate the evidence of other prosecution witnesses. This is a case in which the evidence of the prosecution witnesses examined by the trial court do not inspire confidence. Where the evidence of all the eyewitnesses are wholly unreliable, the question of one witness corroborating the other would not arise nor would the question of separating chaff from grain arise.--See Mohd. Iqbal Sheikh & Ors. v. State of Maharashtra, (1998) 4 SCC 494 . The net result of my aforesaid findings is that the prosecution has not been able to procure sufficient evidence to prove the guilt of the appellant. The findings made by the learned Sessions Judge to the contrary are based on surmise, conjecture and guess-work, and are, therefore, perverse and cannot be sustained in law. It is now well-settled that benefit of doubt belonged to the accused. Similarly, suspicion, however grave it may be, cannot take the place of a proof. The findings made by the learned Sessions Judge to the contrary are based on surmise, conjecture and guess-work, and are, therefore, perverse and cannot be sustained in law. It is now well-settled that benefit of doubt belonged to the accused. Similarly, suspicion, however grave it may be, cannot take the place of a proof. It is equally well-settled that there is a long distance between "may be" and "must be".--See Narendra Singh & Anr. v. State of M.P. (2004) 10 SCC 699 . 8. Having said that the moot point still remaining to be decided is whether the appellant should be allowed to go scot-free due to faulty and half-hearted prosecution, partly compounded by the act of omission on the part of the trial court, which, unfortunately, has failed to rise to the occasion. A trial court is not merely to act as tape-recorder recording the evidence, overlooking the object of trial i.e. to get at the truth, and oblivious to the active role to be played for which there is not only ample scope but sufficient powers conferred under CrPC. It has greater duty and responsibility i.e. to render justice in a case where the role of prosecuting agency itself is put in issue. Trial court shall have to ensure that accused persons are duly punished and if deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the deficiencies, deal with the same appropriately within the framework. Justice has no favourite, except the truth. It is as much the duty of the prosecution as of the courts so that there might not be miscarriage of justice.--See Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749 . At the risk of repetition, trial courts must be reminded of the following observations of the Apex Court in Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 : "32. Thus, in a criminal trial a Prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. Thus, in a criminal trial a Prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that 'society suffers by wrong convictions and it equally suffers by wrong acquittals'. I find that this Court in recent times has consciously taken notice of these facts from time to time. In the case Inder Singh v. State (Delhi Admn) (1978) 4 SCC 161 : 1978 SCC (Cri) 564 : AIR 1978 SC 1091 , Krishna Iyer, J. laid down that: "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes." In the case of State of UP v. Anil Singh 1988 Supp SCC 686 : 1989 SCC(Cri) 48 : AIR 1988 SC 1998 , it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not 3 escape. One is as important as the other. Both are public duties which the Judge has to perform. A Judge also presides to see that a guilty man does not 3 escape. One is as important as the other. Both are public duties which the Judge has to perform. In the case of State of W.B. v. Orilal Jaiswal : (1994) 1 SCC 73 : 1994 SCC (Cri) 107 it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. In the case of Mohan Singh v. State of MP : (1999) 2 SCC 428 it was held that courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused." 9. In the instant case, the prosecution did not make an attempt to procure the evidence of the prosecutrix in Court. They simply closed her evidence. The conviction was obtained by short cut process and without proper application of mind by the trial court and without legal evidence. The victim is the star witness. Though she is deaf and dumb, she could have been examined in accordance with Section 119, Evidence Act, 1872 as amended by Criminal Law Amendment Act, 2013, which came into force with effect from 3.2.2013. The amended provision of Section 119 is in the following terms: "119. The victim is the star witness. Though she is deaf and dumb, she could have been examined in accordance with Section 119, Evidence Act, 1872 as amended by Criminal Law Amendment Act, 2013, which came into force with effect from 3.2.2013. The amended provision of Section 119 is in the following terms: "119. Witness unable to communicate verbally.-- A witness who is unable to speak may give his evidence in any other manner in which he can make if intelligible, as by writing or signs; but such writing must be written and the signs made in open court, evidence so given shall be deemed to be oral evidence: Provided that if the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or special educator the statement, and such statement shall be videographed." 10. It may be noted that the statement of this witness had been recorded by PW 8 U/s. 164 CrPC. The manner in which such statement is to be used is again provided for in the newly inserted Section 164(5-A)(b) in the following manner: "164(5-A)(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in Section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recoding the same at the time of trial." It may be noted that the trial of the case had been going on and had not been completed when the amendment came into force. The question as to whether an amendment of procedural law will operate prospectively or retrospectively is no longer res integra. In Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445 , the Apex Court quoted with approval the statement of law enunciated in Halsbury's Laws of England, (4th Edn.), Vol. 44, p. 570 wherein it has been stated that: "922. Presumption against retrospection.--The general rule is that all statutes, other than those which merely declaratory, which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature." 11. Presumption against retrospection.--The general rule is that all statutes, other than those which merely declaratory, which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature." 11. In the instant case, the learned Sessions Judge was perhaps unaware of the Criminal Law Amendment Act, 2013. Normally, it is the duty of the prosecution to produce its witnesses and may seek the assistance of the trial court to employ even coercive measures under Section 87 CrPC to procure the attendance of such witness if he or she fails to cooperate with the prosecution. However, in case the prosecution, for any reason, did not produce a vital witness, it is the duty of the trial court to compel his attendance and the court should enforce the attendance of such witness by the said process including use of coercive method. Acquittal or conviction without following such measures will be negation of justice. Just as wrong acquittal is bad, wrong conviction without sufficient evidence is equally bad. The trial court ought to have been more pro-active. It is as much the duty of the prosecution as of the trial court to ensure that vital witnesses are examined to unearth the truth. In the instant case, as already noticed, the victim herself, albeit deaf and dumb, whose statement could be recorded by a Judicial Magistrate, was not examined by the trial court for no apparent reason. This is a case in which the most important witness i.e. the victim was not examined. The victim should have been given an opportunity to adduce her evidence, if necessary, with the aid of an interpreter, etc. There were no other ocular witnesses. The fate of the prosecution case inevitably hinges on the evidence of the victim, but she was not examined. Justice appears to have been buried. 12. Conviction by suspicion, surmises or conjectures merely to satisfy the family of the victim or the public is no substitute for conviction on the basis of solid evidence. Conviction for the sake of conviction without sufficient evidence should be avoided at any cost. On the other hand, acquittal without due process of law must be equally discouraged. 12. Conviction by suspicion, surmises or conjectures merely to satisfy the family of the victim or the public is no substitute for conviction on the basis of solid evidence. Conviction for the sake of conviction without sufficient evidence should be avoided at any cost. On the other hand, acquittal without due process of law must be equally discouraged. It must be kept in mind that if the evidence of the prosecutrix is convincing and trustworthy, such evidence can be used to convict the accused without corroboration. Grave miscarriage of justice has been caused to both the prosecution as well as the appellant. Since the vital omission in the instant case has been caused by the non-examination of the victim only, I do not think that this is a fit case for retrial. On the other hand, since the evidence of the victim is necessary in order to enable the Court to give a correct finding, this Court will be justified in taking recourse to Section 391, CrPC which reads thus: "S. 391. Appellate Court may take further evidence or direct it to be taken.-- (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the appellate court is a High Court, by a Sessions Court or a Magistrate. (2) When the additional evidence is taken by the Court of Sessions or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this Section shall be subject to the provisions of Chapter XXIII, as it were an inquiry." 13. It is noteworthy that Section 391 is not intended to remedy the negligence or laches of the prosecution. Nor is it intended to give the prosecution a second chance of proving their case. It cannot, however, be disputed that by some oversight or through sheer ignorance of law, the trial court did not examine the prosecutrix, which has come to the notice of this Court at the appellate stage. Nor is it intended to give the prosecution a second chance of proving their case. It cannot, however, be disputed that by some oversight or through sheer ignorance of law, the trial court did not examine the prosecutrix, which has come to the notice of this Court at the appellate stage. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court. In other words, where the Court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section391 is desirable. The reception of additional evidence may be allowed when there is likelihood of failure of justice without it. This power can be exercised by the High Court suo motu or through the application of the parties. In my judgment, to subserve the interest of justice and, conversely, to prevent gross injustice, the evidence of the prosecutrix shall have to be taken as additional evidence through the learned Sessions Judge, Lunglei Judicial District. The learned Sessions Judge, Lunglei Judicial Division is, therefore, directed to take the evidence of the victim (Ms. Cathy Lalramdinpuii) under Section 391(2), (3) and (4), CrPC in accordance with Section 119 Evidence Act with Section 164(5-A)(b) CrPC as amended by Criminal Law Amendment Act, 2013 by giving adequate opportunity of cross-examination to the appellant/his pleader and the evidence so taken by her shall be transmitted to this Court under her certification. The exercise shall be completed within a period of two months from the date of receipt of the L.C. record from this Registry, which shall transmit the same forthwith to the learned Sessions Judge, Lunglei Judicial Division together with a copy of this judgment. If the appellant is not on bail, he shall remain in custody until further order of this Court. List the appeal for further hearing just after the receipt of the evidence recorded by the learned Sessions Judge, Lunglei Judicial Division together with the LC record.