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2015 DIGILAW 1348 (GAU)

Johny H. Lalthakima v. State of Mizoram

2015-10-14

B.K.SHARMA, M.R.PATHAK

body2015
JUDGMENT AND ORDER B.K. Sharma, J. - This appeal is directed against the judgment and order dated 04/11/2011 of the learned District and Sessions Judge, Lunglei Judicial Court District, Lunglei in Criminal Trial No. 21/2011, by which the accused appellant has been convicted under Section 302 IPC with the penalty of R.I. for life. 2. The prosecution story in brief is that on the night on 18/09/2006 in between 12 mid-night to 5.00 a.m. in the morning, the younger brother of the first informant i.e. the deceased was found with serious injuries on his neck which was suspected to be inflicted by other person. Narrating the said incident, an FIR was lodged on 19/09/2006, on the basis of which Lawngtlai Police Station Case No. 72/2006 was registered under Section 326 IPC. In due course it was converted to one under Section 302 IPC as in the meantime the injured died in the hospital. On completion of the investigation that was carried out, charge sheet was submitted and the charge under Section 302 IPC having been framed, the trial started. 3. During trial, the prosecution examined 16 witnesses and the statement of the accused appellant was also recorded under Section 313 Cr.P.C. Although the prosecution referred to the purported confessional statement of the accused appellant but the fact of the matter is that the Judicial Magistrate recorded the said confessional statement was not examined during the trial. 4. Mr. Lalchhanliana Khiangte, learned counsel for the accused appellant referring to the evidence on record has submitted that there being no evidence whatsoever, the impugned judgment of conviction is not sustainable in law. He submits that while it is true that a conviction can be sustained on the basis of circumstantial evidence but such evidence must be strong enough to sustain a conviction. According to him, there is no circumstantial evidence against the accused appellant so as to convict him under Section 302 IPC. 5. Countering the above argument, Mr. A.K. Rokhum, learned PP, Mizoram submits that the learned trial Court having assessed the evidence in their true perspective, the impugned judgment is required to be sustained. 6. We have given our anxious consideration to the submissions advanced by the learned counsel for the parties and also gone through the entire materials on record. 7. Countering the above argument, Mr. A.K. Rokhum, learned PP, Mizoram submits that the learned trial Court having assessed the evidence in their true perspective, the impugned judgment is required to be sustained. 6. We have given our anxious consideration to the submissions advanced by the learned counsel for the parties and also gone through the entire materials on record. 7. During trial, the prosecution examined 16 witnesses and admittedly none of the said witnesses had seen the incident and for that matter inflicting the injury on the deceased by the accused appellant. PW-15 i.e. the I.O. who had conducted the investigation frankly admitted in his cross examination that there was no eye witness and that he had given his statement based on circumstantial evidence. However, he denied the suggestion that the accused did not admit his guilt before him. 8. PW-14 in his deposition stated that on 19/09/2006 while he was at his residence, the Officer-in-Charge, Lawngtlai Police Station called him to come to the Police Station and he was informed that there was a vehicular accident between Thingkah and Thingfal. On receipt of the information, he and his party went to the place of occurrence and found the particular auto-rickshaw bearing Registration No, MZ-02/4166 on the road. They also saw a pull of blood on the road and also the face. He could realise that it was not a normal accident but someone had caused it. After visiting the place of occurrence, they returned to Lawngtlai and went to the hospital where they found the deceased who was the Driver of the Auto-rickshaw. They could notice injuries on his throat. The Doctor opined that the injury was caused by sharp weapons. 9. PW-14 while deposing stated that he could realise that it was a case of causing injuries to the deceased by another. According to him, he made further enquiry and on such enquiry he could come to know that the deceased was accompanied by the accused appellant and they were heading towards Lawngtlai. 10. PW-12 in his deposition stated that when the injured was in his senses he had asked him as to who had assaulted him but he did not indicate anyone. Later on, in the hospital also he had asked the injured about the identification of the person causing the injury but on that occasion also he did not divulge anything. 11. PW-12 in his deposition stated that when the injured was in his senses he had asked him as to who had assaulted him but he did not indicate anyone. Later on, in the hospital also he had asked the injured about the identification of the person causing the injury but on that occasion also he did not divulge anything. 11. PW-5 in his deposition although stated about the seizure of the weapon i.e. the knife and the jeans pant of the accused appellant but in his cross examination he admitted that he did not see the actual recovery. He also admitted that he put his signature on the seizure memo on being asked by the Police. Likewise, PW-7 also (a seizure witness) admitted in his cross examination that he did not see the act of recovery. 12. PW-6 in her deposition stated that the accused stayed in the night in her residence. In her cross examination, she stated that she did not notice any abnormality in appearance of the accused. Learned counsel for the accused appellant has pointed out the inherent contradiction in respect of the testimonies of PW-9 and PW-10. While according to the PW-9, the long pant and the T-shirt of the accused appellant had been seized by the police before she could wash them, but on the other hand, PW- 10 in her deposition stated that she had washed the T-shirt of the accused appellant. 13. In the statement that was made by the accused appellant under Section 313 Cr.P.C., he denied commission of the offence. Answering the question No. 4, by which he was asked about the infliction of the injury on the victim by him, while denying the same he stated that the police had tortured him and his statement made before the police was not correct. Answering the question No. 5 regarding recovery of the knife, he answered that his mother had put the knife used in the kitchen under his pillow and that the knife was usually kept above the fire place /hearth. He also specifically stated that he did not use that knife for anything else. As regard the admission of the guilt by the accused before the PW-16, the accused answered in negative with the statement that it was a false evidence and that the statement was made because of the torture meted out to him. 14. He also specifically stated that he did not use that knife for anything else. As regard the admission of the guilt by the accused before the PW-16, the accused answered in negative with the statement that it was a false evidence and that the statement was made because of the torture meted out to him. 14. It is on the basis of the above evidence, the prosecution argued before the learned Trial Court that the circumstantial evidence was overwhelming towards establishing the guilt/offence committed by the accused/appellant. The learned Trial Court also accepting the said argument has convicted the accused/appellant. While doing so, the learned Trial Court held that the prosecution could establish the offence committed by the accused/appellant beyond all reasonable doubt warranting his conviction and sentence under Section 302 IPC. 15. On a careful scrutiny of the evidence on record, we are of the considered opinion that there is no circumstantial evidence, not to speak of any direct evidence warranting conviction of the accused/appellant. The oral testimonies of the prosecution witnesses briefly discussed above cannot be said to have pointed out to a situation in which it can be safely concluded that the prosecution could establish the offence allegedly committed by the accused/appellant beyond all reasonable doubt. Circumstantial evidence whatsoever strong may be, but if the same is based on suspicion, the same cannot lead to establishing the offence on the part of the accused, which is required to be established beyond all reasonable doubt. The learned counsel for the accused appellant also brought to the notice of the Court that the prosecution even failed to get the FSL opinion on the seized articles i.e. knife and the T-shirt which the Police had seized in presence of the PW-5 and 7. He submits that the prosecution had failed miserably to prove the case beyond all reasonable doubt. 16. In view of the above, we are of the considered opinion that the accused/appellant is entitled to the benefit of doubt. Accordingly, the impugned judgment of conviction stands set aside and quashed. Consequently, the accused/ appellant shall be set at liberty forthwith if not wanted in any other case. 17. The Criminal Appeal is allowed. The Registry shall send down the LCR to the learned Court below along with a copy of this order.