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2015 DIGILAW 525 (GAU)

Sh. Lalremruata v. State of Mizoram

2015-05-06

A.K.GOSWAMI, M.R.PATHAK

body2015
A.K. Goswami, J 1. Heard Mr. Vanlalnghaka, learned amicus curiae appearing for the appellant/accused as well as Mr. A.K. Rokhum, learned Public Prosecutor appearing for the State of Mizoram. 2. This appeal from Jail is directed against the judgment and order dated 14.12.2011 passed by the learned Additional Sessions Judge-I, Aizawl in Crl. Trial No. 1229/2005 whereby the accused/appellant was convicted under section 302, IPC and sentenced to suffer Rigorous Imprisonment(RI) for life with a fine of Rs. 2,000, in default,'RJ. for 2 months. By the said judgment, the accused/appellant was also convicted under section 380, IPC and sentenced to suffer R.I for 3 years with a fine of Rs. 1,000, in default, R.I for one month. The sentences are to run concurrently. 3. An ejahar was lodged on 4.8.2005 by one F. Lalhriata, who is PW1, before the Officer-in-charge, Serchhip Police Station stating that his mother Smt. Zopuii, who was not keeping good health and was alone at home, was found lying dead on the bed by her grandson Lalchhanhima, who is PW5, on 3.8.2005 when he returned home from work at around 5.30 pm. It was found that her neck was broken and, therefore, it was suspected that it was a case of murder. It was further stated in the ejahar that the deceased used to keep a wallet tied to her waist and a sum of Rs. 3,000 to Rs. 5,000, which was believed to be in the wallet, was also found missing. Accordingly, Serchhip P.S. Case No. 81/2005 under sections 302/380, IPC was registered. Police started investigation and inquest was also done on 4.8.2005. Postmortem examination was conducted. The accused/appellant was arrested on 3.9.2005. On conclusion of investigation, charge sheet was submitted under sections 302/376/380, IPC against the accused/appellant. Charge under section 380/376(i)/ 302, IPC was framed and the same having been read over, the appellant pleaded not guilty and claimed to be tried. 4. During trial, prosecution examined 11 witnesses while the defence adduced no evidence. 5. PW1, who is son of the deceased and is working as a Constable in 2nd IR Battalion, was not present when the occurrence had taken place and he came from his place of posting on being informed about the news of his mother's death. He was informed that his mother had died due to heart failure. 5. PW1, who is son of the deceased and is working as a Constable in 2nd IR Battalion, was not present when the occurrence had taken place and he came from his place of posting on being informed about the news of his mother's death. He was informed that his mother had died due to heart failure. On his reaching home, he was told by one Vanlalchhunga, who is PW2, that his mother's death could not be as a result of heart failure, because her neck bone was broken and there was also bleeding with blood clot in her nose. He also found the wallet with the money missing and, being suspicious, lodged the ejahar. It is stated by him that Lalchhanhima, who is PW5, was the first person who had discovered the dead body of his mother. 6. PW2 was, at the relevant time, the President of YMA, which is a social organisation and he was a witness to the inquest report exhibited as Exhibit P-II. He had stated that when the police examined her dead body, her nose was bleeding a bit and he presumed that bone of her neck was broken since her head could be moved around easily. According to him, there were four very clear fingerprints seen on her neck and it seemed to him that she was strangulated by the right hand. In cross-examination, he indicated that he had noticed Sub-Inspector J. Rokima (PW8) examining the private parts of the deceased and he could learn that there was no sign of violence. 7. PW3 is the witness to seizure, Exhibit P-III, in respect of a bunch of keys (Exhibit M-I). It was stated by him that he was called by Police to the house of the accused and was told that the bunch of keys belonged to the deceased. He was also told that the keys were recovered from a pit latrine outside the house of the accused. However, he stated that he did not personally know wherefrom the keys were recovered. 8. PW4 is the daughter of the deceased and mother of PW5. It is stated by her that she had stayed up along with others the whole night and the funeral took place on 4.8.2005. However, he stated that he did not personally know wherefrom the keys were recovered. 8. PW4 is the daughter of the deceased and mother of PW5. It is stated by her that she had stayed up along with others the whole night and the funeral took place on 4.8.2005. According to her, the accused strangulated the deceased with a green cloth and, a month later, on 4.9.2005, the police came to their house and stated that the accused had informed them that he had kept the green cloth in the corner of the room and that is why they had come searching for the cloth. They searched for the cloth and she found the cloth inside the wardrobe and the said cloth was seized by the police which was exhibited as Exhibit M-I (There was already an Exhibit M-I). In cross-examination, she had stated that her son used to live with her mother. She had also stated that she had not seen her son on the day of the incident but saw her son only in the morning on 3.8.2005. It was also revealed from her cross-examination that she had not looked around for the green cloth in the corner despite Police giving her that information, but she had looked around for the cloth in the wardrobe. She had, on re-examination, stated that the green cloth, exhibited as Exhibit M-I, was used by her mother. 9. PW5 is the son of PW4 and grandson of the deceased. He used to live with her grandmother. PW5 stated that on 3.10.2005, some Community work was called and he had requested the accused to go there on his behalf. The request was declined by the accused and PW5 also did not go for the Community work and, instead, left for his own work and when he returned at around 5.30 p.m., he found the door and windows open and he started looking around for his grandmother. There was no response from his grandmother. He wanted to call the neighbours but realizing that he had not checked the bed room, went inside whereupon he found his grandmother lying in bed. He felt her and found that she was cold and was no more. Accordingly, he went out to inform the neighbours who then came to their residence. There was no response from his grandmother. He wanted to call the neighbours but realizing that he had not checked the bed room, went inside whereupon he found his grandmother lying in bed. He felt her and found that she was cold and was no more. Accordingly, he went out to inform the neighbours who then came to their residence. He suspected that the accused must have committed the crime as, prior to the incident, he had come to their house in his absence which he came to learn from his grandmother. 10. PW6 is a nephew of the deceased, he being a son of the elder sister of the deceased. They received information on 4.9.2005 to the effect that the accused had confessed that he had killed the victim. He along with the Joint President of YMA proceeded to the Police Station and they were told by the Officer-in-charge that the accused had told police that he had murdered the victim and that he would show the cloth with which he had strangulated the victim, that the accused had also described the cloth used and when they had reached the house of the deceased, PW4 searched for the cloth and she found the cloth which was stained with blood. The Police seized the cloth vide Exhibit P-III. In cross-examination, he stated that the accused was arrested in connection with another offence and, in the course of interrogation, he had stated that he had killed the victim in the instant case. He however, stated that he was not present when the accused confessed. 11. PW7 is a Sub-Inspector of Police who seized some coins from the possession of the accused vide Exhibit P-IV. The seized coins were exhibited as Exhibit M-II. 12. PW8 was posted at the relevant point of time as the Second Officer-in-charge of Serchhip Police Station. He stated in his evidence that he had removed the wearing apparel of the deceased at the time of conducting inquest and he had also sent the dead body for conducting post mortem examination. He had seized one undergarment (skirt) vide Exhibit P-V and the skirt was exhibited as Exhibit M-I (Again as M-I). In his cross-examination, he had stated that at the time of inquest, there was no mark of injury except bruise mark on the neck and there was no bleeding also. 13. He had seized one undergarment (skirt) vide Exhibit P-V and the skirt was exhibited as Exhibit M-I (Again as M-I). In his cross-examination, he had stated that at the time of inquest, there was no mark of injury except bruise mark on the neck and there was no bleeding also. 13. PW9 was a Constable in the Serchhip Police Station and he had stated that the accused/appellant was arrested in connection with theft of a bicycle and while he was in the custody of the police, he along with another police officer had interrogated the appellant and, during such interrogation, he admitted that he had killed the victim Pi Zopuii. He also stated that though he was not present at the time of seizure of certain coins, he had signed as the witness to the Seizure Memo which was exhibited as Exhibit P-IV. 14. PW10 was the Officer-in-charge of Serchhip Police Station and he had taken up investigation after earlier Investigating Officer J. Rokima, PW8, was transferred. He had deposed that he had arrested one person, namely, Thanglampau of Tiddim, Myanmar, but, later on, finding no prima facie case against him, he was released on 4.8.2005 and, thereafter, the appellant was arrested on 3.9.2005 in connection with a petty case. He had seized 5 Nos. of 10 paise coins and 1 No. of 25 paise coin from his wallet. According to him, the coins belonged to the victim in the present case. Based on the statement of the appellant, a wallet and a bunch of keys were recovered and seized as Exhibit P-II from the pit latrine of the accused person. He also referred to the seizure of green-coloured cloth seized vide Exhibit P-III and Seizure Memo for the coins as Exhibit P-IV. He exhibited the charge sheet as Ext- VI. In his cross-examination, he had stated that the accused was not taken to the latrine when they had seized the wallet and a bunch of keys. He had stated that there was no clinical proof that the semen found in the vagina of the victim was of accused/appellant. 15. PW11 is the Doctor who conducted post mortem examination, exhibited as Exhibit P-VII. In Exhibit P-VII, it is recorded that the cause of death was due to asphyxia as a result of manual throttling and dislocation of cervical vertebrae and fracture of hyoid bone and thyroid cartilage. 15. PW11 is the Doctor who conducted post mortem examination, exhibited as Exhibit P-VII. In Exhibit P-VII, it is recorded that the cause of death was due to asphyxia as a result of manual throttling and dislocation of cervical vertebrae and fracture of hyoid bone and thyroid cartilage. In his report, under organ of generation, it was indicated as follows : "Remains of blood flow from the vagina to the anal orifice and about 20 grams of fecal matter was found at the anal orifice. There was also potechial haemorrhage at the mucous membrane of the lower 1 /3rd of vaginal canal and small abrasion at the posterior wall of vaginal canal." In his report under scalp, skull and vertebrae, it is indicated that there is dislocation at the cervical vertebrae giving rise to free movement at the neck. 16. At this stage, it will be relevant to quote in its entirety the questions asked to and answers given by the accused/appellant in his examination under section 313, Cr.PC. The same read as under : "Q. From the evidence it appears that you were responsible for the death of Smt. Zoipuii at her home on 3.8.2005, is this true? Ans: Yes. Q. How did you kill her? Ans : We had a quarrel and she tried to hit me with a broomstick, she was wearing a scarf on her neck, I pulled her scarf and she died. Q. What was the reason of your quarrel? Ans: I was a friend of her grandson Lalchhanhima, she accused me of leading him into bad ways, that was the reason of our quarrel. Q. It appears that you stole her money, is this true? Ans. No. Q. It also appears that you raped her, is this true? Ans. No." 17. Mr. Vanlalnghaka, learned amicus curiae has submitted that there is no circumstantial evidence pointing to the guilt of the accused and the accused alone. There was not even a room for suspicion against the appellant. The appellant was arrested in connection with a petty offence and a purported confessional statement was supposed to have been made by the appellant before PW9. The seizure of the keys and the wallet was not done in presence of the appellant and there is no acceptable material on record, even otherwise, to connect the said bunch of keys and the wallet to the deceased. The seizure of the keys and the wallet was not done in presence of the appellant and there is no acceptable material on record, even otherwise, to connect the said bunch of keys and the wallet to the deceased. The undergarment seized was also not sent for forensic examination. The seizure of coins cannot also, in any way, further the ease of the prosecution in the instant case, he submits. The substratum of the argument of Mr. Vanlalnghaka is that there is no incriminating material whatsoever against the appellant in connection with the death of Pi Zopuii save and except the statement made by the appellant under section 313, Cr.PC. It is submitted by him that conviction cannot be based solely on the basis of the statement made by the accused in his examination under section 313, Cr.PC and that there has to be independent evidence to establish the guilt of the accused beyond reasonable doubt and the onus of leading such evidence lies squarely on the prosecution. To buttress his arguments, the learned amicus curiae places reliance on the judgment of the Apex Court in Rajkumar Singh v. State of Rajasthan, (2013) 5 SCC 722 . 18. Mr. A.K. Rokhum, learned Public Prosecutor, on the other hand, has supported the impugned judgment of the learned trial court and has submitted that the accused in his statement under section 313, Cr.PC had voluntarily confessed and narrated the circumstance leading to the murder of Pi Zopuii. It is also contended by him that it is not that the prosecution has not been able to lead convincing and reliable evidence to establish the guilt of the accused beyond reasonable doubt. In substance, the learned Public Prosecutor submits that the impugned judgment of the learned trial court warrants no interference. 19. We have considered the submissions of the learned counsel for the parries and have perused the materials on record. 20. In a criminal trial, the purpose of examining the accused under section 313, Cr.PC is to enable the accused personally to explain any circumstances appearing in the evidence against him. In the event of the accused explaining any circumstance, appearing against him, the court is obliged to take into account such explanation. 20. In a criminal trial, the purpose of examining the accused under section 313, Cr.PC is to enable the accused personally to explain any circumstances appearing in the evidence against him. In the event of the accused explaining any circumstance, appearing against him, the court is obliged to take into account such explanation. The circumstances, which are not put to the accused in his examination under section 313, Cr.PC, cannot be used against him at a later stage and have to be omitted from the purview of consideration. It is also to be borne in mind that the statement of the accused under section 313, Cr.PC is not taken on oath and the same is not a substantive piece of evidence. It can, however, be used for appreciating the evidence led by the prosecution to accept or reject it. While the statement recorded under section 313, Cr.PC cannot be the sole basis for conviction of the accused, it can certainly be a relevant consideration for the courts to examine, when the prosecution has, otherwise, been able to establish the chain of events. 21. In Rajkumar Singh (supra), the Apex Court had laid down that the statement of the accused under section 313, Cr.PC, though cannot be made a basis for his conviction, the same can, however, be used for appreciating the evidence led by the prosecution though it cannot be a substitute for the evidence of the prosecution. It is further held that in case the prosecution evidence is not found sufficient to sustain the conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. 22. In the context of the legal position as adumbrated hereinabove, it will be necessary for this court to examine whether the prosecution had been able to adduce evidence establishing the guilt of the accused and demonstrating that the chain of events is complete. 23. When we examine the evidence led by the prosecution, we find that PW5 was the first person to have found the deceased in the bed. PW5 suspected that the accused might have committed the crime as prior to the incident he had come to their house in his absence. PW5 himself has stated that he had known the accused from his childhood. 24. PW4 had also stated in her evidence that her son is a friend of the accused. PW5 suspected that the accused might have committed the crime as prior to the incident he had come to their house in his absence. PW5 himself has stated that he had known the accused from his childhood. 24. PW4 had also stated in her evidence that her son is a friend of the accused. It is noticeable that there is no evidence that there was any enmity between the accused and the victim. Therefore, even assuming that the accused had visited the residence of PW5, such visit cannot be termed as unusual, so as to generate suspicion. 25. Another circumstance sought to be projected against the accused is the recovery of a blood-stained cloth purportedly recovered at the instance of the accused. The blood-stained cloth was not sent for any forensic examination. It is also relevant to note that PW4 had stated in her evidence that the accused had strangulated the deceased with a green cloth. How it was possible for her to say that when the alleged confession of strangulating the victim by a green cloth came much later? According to the statement of PW4, the cloth was not found out from the place where the accused allegedly stated to have put it, but from a different place. Though PW6 stated that the accused himself described the cloth and thereupon PW4 had found out the cloth, PW4 categorically stated that the accused did not tell her anything about the blood-stained cloth. PW4, in her evidence, did not also say that the cloth was blood-stained. Further, the seizure list, Exhibit P-m, shows that there is an endorsement that the piece of cloth was seized on being produced by PW4. 26. PW2, who is an independent witness, had stated that he had noticed four distinct fingerprints on the neck of the victim. PW8, who was Officer-in-charge, had stated in his evidence that at the time of inquest he had noticed that there was bruise mark on the neck of the victim. The post¬mortem report also refers to four small abrasions on the right side of the neck of the deceased, which is consistent with the theory of strangulation by hand. 27. PW3 had stated that he was merely a witness to the seizure list relating to the bunch of keys and stated in his cross-examination that he did not know where the keys had been recovered from. 27. PW3 had stated that he was merely a witness to the seizure list relating to the bunch of keys and stated in his cross-examination that he did not know where the keys had been recovered from. PW10 had stated that the bunch of keys and a wallet was seized together from the pit latrine. Furthermore, there is also no evidence forthcoming from the side of the prosecution that any such keys or the wallet belonged to the victim. Therefore, no credence can be placed on such alleged seizure. Less said is better about the seizure of total of 75 paise from the accused. 28. PW9 stated that the accused had admitted before him at the police station that he had killed Pi Zopuii. Such alleged admission or confession has no place in the eye of law as PW9 is a police officer. 29. In view of the above discussion, we are of the considered opinion that the prosecution has failed to establish and drive home the case against the appellant. When the prosecution failed to produce any acceptable incriminating materials pointing to the guilt of the accused alone, no reliance could have been placed on the statement of the accused tinder section 313, Cr.PC for the purpose of his conviction. The learned trial court convicted the accused primarily basing on the statement of the accused made under section 313, Cr.PC. 30. Accordingly, we allow the appeal, set aside the impugned judgment and order dated 14.12.2011 passed by the learned Additional Sessions Judge-I, Aizawl, and acquit the accused/appellant of the charges. 31. Before parting with the records, we record our appreciation of the assistance rendered by Mr. Vanlalnghaka, learned amicus curiae. The learned amicus curiae will be paid a sum of Rs. 7,000 towards his fee by the Mizoram State Legal Services Authority. 32. Send back the LCR.