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2015 DIGILAW 1347 (GAU)

David Vanlaltlanchhuaha v. State of Mizoram

2015-10-14

B.K.SHARMA, M.R.PATHAK

body2015
JUDGMENT : B.K. Sharma, J. This appeal is directed against the judgment of conviction dated 30th August, 2012 of the learned Additional District & Sessions Judge-I, Aizawl passed in Criminal Trial No.799/2007 (Reference Aizawl P.S. Case No.262/2007, under Section 302 IPC) (State of Mizoram v. David Vanlaltlanchhuaha). By the said judgment, the appellant has been convicted under Sections 302 IPC and sentenced him to undergo rigorous imprisonment for life with a fine of Rs. 1000/- (Rupees One Thousand), in default, further rigorous imprisonment for 3 (three) months. 2. The prosecution story in brief is that on 10th June, 2007, the deceased was found lying dead on her bed with blood and cut injury on her throat. To that effect narrating the said incident an FIR was lodged on 11th June, 2007 with the Officer-in-Charge, Aizawl Police Station. Based on the said FIR, Aizawl Police Station Case No.202/2007 dated 11th June, 2007 was registered under Section 302 IPC. Police carried out the investigation and observed the required formalities and thereafter, submitted the charge-sheet against the accused. Charge having been framed under Section 302 IPC, it was explained to him and he pleaded not guilty. Thereafter, trial started and during trial, the prosecution examined 12(twelve) witnesses. 3. The learned Trial Court scrutinising the evidence on record formed the opinion that the offence committed by the accused/appellant stood established on the basis of the circumstantial evidence and accordingly, passed the impugned judgment of conviction. Hence, this appeal from jail. 4. We have heard Mr. T.J. Lalnuntluanga, learned Amicus Curiae representing the accused/appellant. We have also heard Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram. 5. Mr. Lalnuntluanga, learned Amicus Curiae referring to the evidence on record and citing 3(three) decisions of the Apex Court submits that the conviction of the accused/appellant is wholly unwarranted in the given facts and circumstances of the case. The decisions on which he has placed reliance are Premjibhai Bachubhai Khasiya v. State of Gujarat & Anr. reported in 2009 Cri.L.J. 2888', Raja Ram & Anr. v. State of U.P. reported in 2000 Cri.L.J. 926 and Sanatan Naskar & Anr. v. State of West Bengal reported in AIR 2010 SC 3570 . 6. Countering the above argument, Mr. Rokhum, learned Public Prosecutor, Mizoram, submits that the circumstantial evidence being overwhelming towards establishing the offence committed by the accused/appellant, the impugned judgment of conviction is not required to be interfered with. v. State of West Bengal reported in AIR 2010 SC 3570 . 6. Countering the above argument, Mr. Rokhum, learned Public Prosecutor, Mizoram, submits that the circumstantial evidence being overwhelming towards establishing the offence committed by the accused/appellant, the impugned judgment of conviction is not required to be interfered with. 7. We have given our anxious consideration to the submissions advanced by the learned counsel appearing for the parties. We have also perused the entire materials on record. 8. As will be evident from the record, the examination of the accused/appellant under Section 313 Cr.P.C. was in a very perfunctory manner. He was put to only 2(two) questions, reproduced below, and his answers were in the negative:- "Q. 1. From the evidence it appears that on 10.6.2007 at around 10 am you had gone to Zarkawt near the site of the murder, is this true? Ans. No, 1 did not go there. Q.2. From the evidence it appears, that the hair sample taken from the site of the murder and the hair sample taken from you seems to be of the same person. This means that the hair found on the site of the murder appears to be your hair, what do you have to say about this? Ans. 1 do not believe that it is my hair since I had not gone there." 9. It is submitted by Mr. Lalnuntluanga, learned Amicus Curiae that the accused/appellant was also not apprised of and/or given the right to adduce his defence evidence. While he was examined under Section 313 Cr.P.C., he was also not put any question towards explaining the circumstances appearing against him. The learned Trial Court in the impugned judgment has held that there is no direct evidence and that the prosecution only relied upon the circumstantial evidence. Referring to the 2(two) decisions of the Apex Court in State of U.P. v. Ram Balak & Anr. reported in (2008) 15 SCC 551 and G. Parashwanath v. State of Karnataka reported in (2010) 8 SCC 593 . the learned Trial Court came to the conclusion that it was a case of proving the offence against the accused/appellant beyond all reasonable doubt based on the circumstantial evidence. The above finding of the learned Trial Court is primarily on the basis of the evidence of PWs-3, 4, and 11. 10. PW-1 is the person who had lodged the FIR (Exhibit-P/1). The above finding of the learned Trial Court is primarily on the basis of the evidence of PWs-3, 4, and 11. 10. PW-1 is the person who had lodged the FIR (Exhibit-P/1). PW-2 is the wife of the PW-1, who, in her deposition stated as to how-on return home they found the dead body of the victim on her bed. PWs-3, 5, 7 and 9 are the seizure witnesses, who, in their depositions stated about the seizure of some hair found on the place of occurrence; bed sheet; socket lock etc. However, the PWs-3 and 4, on whose evidence the learned Trial Court heavily relied upon, stated in their cross-examination that at the beginning they were not allowed to enter the room but after some time they were called upon by the police and they did not see the actual seizing of the materials. PW-11 is the Assistant Director of Forensic Science Laboratory, who, in his deposition stated about examining the articles (hair) sent to him in an envelope. He was provided with the scalp hair of the accused and the hair collected from the place of occurrence. He in his deposition supporting the Exhibit-P/6 report stated that the hairs matched with each other and accordingly, it was suspected that the hairs found at the place of occurrence belonged to the accused/appellant. 11. Mr. Lalnuntluanga, learned Amicus Curiae submits that the very collection of the hairs from the place of occurrence being doubtful in view of the seizure of the hairs in absence of the seizure witnesses, namely, PWs-3 and 4. the report of the Assistant Director (PW-11) cannot be relied upon. By now it is well settled that no conviction can be based solely on the basis of the expert's opinion, unless the same is corroborated by independent evidence. In the instant case, the learned Trial Court has convicted the accused/appellant primarily on the basis of the report of the PW-11 said to be corroborated by the evidence of PWs-3 and 4. However, the fact of the matter is that as per their evidence, when the seizure was made, they were not inside the room. It was only after the seizure, they were allowed to enter into the room. 12. The learned Trial Court has also placed reliance on the evidence of PW-2 towards convicting the accused/appellant. However, the fact of the matter is that as per their evidence, when the seizure was made, they were not inside the room. It was only after the seizure, they were allowed to enter into the room. 12. The learned Trial Court has also placed reliance on the evidence of PW-2 towards convicting the accused/appellant. According to the evidence of PW-2, he had seen the accused/appellant at the place of occurrence. This piece of evidence will have to be considered in reference to the fact that on the first day of evidence, this witness did not state about seeing the accused/appellant at the place of occurrence. However, on the next day when she was again examined, she stated about seeing the accused/appellant at the place of occurrence. 13. In Premjibhai Bachubhai Khasiya (supra), the Apex Court referring to the DNA report held that a positive report can be of great significance, where there is supporting evidence. However, such report cannot be accepted in isolation as the sole piece of evidence to record conviction. 14. In Raja Ram (surpa), the Apex Court dealing with the conviction on the basis of the circumstantial evidence held that mere presence of the accused persons near the complainant's house before the incident cannot be the circumstance indicating their guilt particularly when they are resident of the same village with their house nearby. 15. In Sanatan Naskar (supra), the Apex Court concerned with recording of the statement of the accused under Section 313 Cr.P.C. Dealing with the object of recording such statement, the Apex Court observed that it is incumbent to put to the accused every important incriminating piece of evidence thereby granting him an opportunity to answer and explain them. In the instant case, no such opportunity was afforded to the accused. 16. Above being the position, we are of the considered opinion that the conviction of the accused/appellant on the basis of the above evidence is not sustainable in law. Accordingly, we allow this appeal by setting aside the impugned judgment of conviction dated 30th August, 2012 passed by the learned Additional District & Sessions Judge-I, Aizawl in Criminal Trial No.799/2007. Consequently, the accused/appellant shall be set at liberty forthwith if not wanted in connection with any other case. 17. Before parting with the case records, we mention our words of appreciation for the services rendered by Mr. T.J. Lalnuntluanga, the learned Amicus Curiae. Consequently, the accused/appellant shall be set at liberty forthwith if not wanted in connection with any other case. 17. Before parting with the case records, we mention our words of appreciation for the services rendered by Mr. T.J. Lalnuntluanga, the learned Amicus Curiae. We also ordered that he will be entitled to a hearing fee of Rs. 7,500/- (Rupees Seven Thousand Five Hundred), which shall be paid to him by the Legal Services Authority, State of Mizoram, upon production of a copy of this order, which the Registry shall furnish to him free of cost.