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2015 DIGILAW 995 (JHR)

Jhuba Oraon v. State of Jharkhand

2015-08-19

PRAMATH PATNAIK, R.R.PRASAD

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JUDGMENT : The appellant upon pleading guilty of committing murder of his wife Somri Orain, one son Mahendra Oraon, aged about 3 years and a daughter Tito Kumari, aged about 5 years, was convicted by the then Sessions Judge, Gumla vide its judgment dated 03/05/2000, for the offence punishable under Section 302 of the Indian Penal Code and sentenced him vide its order dated 11/05/2000, to undergo imprisonment for life. 2. The case of the prosecution, as it appears from the fardbeyan of Birsa Oraon, the father of the appellant, is that on 25/09/1999 at about 08:00 A.M when he was feeding his cattle, Dhucha Oraon, son of the appellant, informed him that upon finding the door of a room in which his mother, brother and sister were sleeping, being closed from outside, he opened it and saw all of them sleeping. He tried to wake them up but they did not make any response. On getting such information, when the informant came to that room, he found all the three persons dead having several injuries. At that point of time, he did not find his son (appellant) anywhere in the house. They tried to search him out but he failed. In course of search, he found one 'Tangi' smeared with blood and, as such, suspected that someone has killed all the three persons by the said 'Tangi'. However, it was stated that the appellant in the night of the occurrence had also slept in that room, in which his wife, son and daughter were sleeping but in the morning, he was traceless. 3. On getting such information, when S. Khalkho, Officer-incharge of Bharno Police Station came to the house of the informant Birsa Oraon, he recorded the fardbeyan of Birsa Oraon, wherein the informant narrated about the incident as has been disclosed above. It was further stated by him that the appellant was not interested at all in doing the work and that invariably he used to ask money from his wife and whenever it was not being paid by his wife, he used to have altercation with his wife. At several occasions, he was asked to mend his ways but he never cared for it and, thereby, suspicion was raised that the appellant might have killed all those persons. 4. On such fardbeyan, a case was registered against the appellant. At several occasions, he was asked to mend his ways but he never cared for it and, thereby, suspicion was raised that the appellant might have killed all those persons. 4. On such fardbeyan, a case was registered against the appellant. The matter was taken up for investigation, during which the Investigating Officer did record the statements of the witnesses and also got autopsy of the dead body done by the Doctor. The Investigating Officer having found the culpability of the appellant, submitted charge sheet upon which, cognizance of the offence was taken against the appellant. Thereupon, when the case was committed to the Court of Sessions, the prosecution opened its case and then when the charge was read over to the appellant-accused, he pleaded guilty. Immediately, thereafter the question was put to the appellant under Section 313 Cr. P.C. as to whether he has killed his wife, son and daughter, answer came in affirmative. 5. Thereafter, the Court, resorting to the provision under Section 229 of the Code of Criminal Procedure, recorded the order of conviction and sentence on the basis of the said guilty being pleaded by the appellant. Said judgment of conviction and order of sentence is under challenge. 6. Mr. Rahul Dev, learned counsel appearing for the appellant submits that no doubt it is true that the Court does have discretion under Section 229 of the Code of Criminal Procedure to convict a person on the plea of guilty but normal practice which is prevailing is that the Court, in cases of serious offence like that of the murder, should not have acted upon only on the basis of plea of guilty, rather should have asked the prosecution to lead evidences to prove its case and also to the accused to defend himself. But, here the Court, in stead of putting the case for evidence, proceeded to convict the accused on the basis of the plea of guilty and, thereby, the Court committed illegality in recording the order of conviction and sentence. Hence, it is fit to be said aside. Further, it was submitted that the accused has been in custody for about last 16 years and, thereby, the appellant be set at liberty after setting aside the judgment. 7. As against this, Mr. Hence, it is fit to be said aside. Further, it was submitted that the accused has been in custody for about last 16 years and, thereby, the appellant be set at liberty after setting aside the judgment. 7. As against this, Mr. Nagmani Tiwari, learned counsel appearing for the State submits that there never happens to be any rule of law that the Court should not act upon the plea of guilty, rather it is otherwise where the provision as contained in Section 229 of the Code of Criminal Procedure, does stipulate that the Court can convict accused on the plea of guilty and the same thing has happened in this case as the appellant not only at the time of framing charge did plead the guilty but even at a later stage when the question was put under Section 313 Cr. P.C. about three person being done to death by him, he again pleaded guilty, accepting in clear term that he had committed murder of those persons and, thereby, the Court is absolutely justified in recording the order of conviction and sentence, which needs not to be interfered with. 8. Thus the question, which does arise for consideration as to whether the Court did commit illegality in recording the order of conviction and sentence on the basis of the plea of guilty? 9. At the out set we will be referring to Section 229 appearing in Chapter-XVIII relating to the trial before a Court of Session, which reads as follows:. “229. Conviction on plea of guilty. If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.” 10. In spite of such provision being there, several High Courts are of the view that the Court as a rule of caution and prudence should not act upon plea of guilty in the cases of serious offence like that of murder, rape etc. Reason being that any offence including the offence of murder not only involves the physical act of violence but also the mental element of intention or knowledge. If an accused pleads guilty, he states before the Court about the physical act and not about the mental act, which may indicate that though the accused by committing physical act has done an offence but he may not have any intention or knowledge to commit such offence. If an accused pleads guilty, he states before the Court about the physical act and not about the mental act, which may indicate that though the accused by committing physical act has done an offence but he may not have any intention or knowledge to commit such offence. Keeping in view this aspect of the matter, a proposition has been laid down by several High Courts to the effect that as a rule of caution and prudence the Court should not act upon a plea of guilty in cases of serious offences. Such proposition finds place in a case of “Ramesan versus State of Kerala (1981 Cr. L.J. 451)”. 11. In the case of “Tyron Nazarath versus State (1989 Cr. L.J. 123)” the Bombay High Court has been pleased to hold that recording of conviction on the basis of plea of guilty is not barred merely because offences are serious but the rule of prudence demands that a man should not be convicted without recording the evidence. 12. In this regard we may refer to a decision rendered in a case of “State of Maharashtra versus Sukhdev Singh Alias Sukha & Others [ (1992) 3 SCC 700 ]”, wherein it has been held as under:- “The procedure for the trial of Session cases is outlined in Chapter XVIII of the Code. Section 229 of the Code provides that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting any acting on the plea of guilt.” 13. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting any acting on the plea of guilt.” 13. However, some of the High Courts have gone a step further so far it relates to caution to be taken whereby it has been held that plea of guilty can very well form basis of conviction but before order of conviction is passed on the basis of plea of guilty, the Court must ensure that the accused, who pleads guilty, has been doing so with full knowledge and is also aware of the consequences of his plea. In this regard, we may refer to a case of “Abdul Kader versus Emperor, AIR (34) 1947 Bombay, 345, wherein Stone C.J. At Para 4 & 5 observed as follows: “In my opinion the whole of this procedure was irregular. In the first place the appellant having asked the committing Magistrate for legal aid ought never to have been allowed to plead to a capital charge when he was unrepresented by counsel. This is all the more so, because it appears to be the practice of the Sessions Courts of this Province never to accept a plea of guilty to a capital charge, though the authorities on which this proposition is said to rest, viz, “(1906) B Bom. L.R. 240, Emperor V Chinila; and (1917) 19 Bom. L.R. 356: 4 AIR 1917 Bom. 220: 40 I.C. 699, Emperor V. Laxmya Shiddappa” do not lay down that a plea of guilty can never be accepted; but that it is not in accordance with the usual practice to do so. Speaking for myself, I see no reason why, if proper safeguards are taken, such a plea should not be accepted. Such safeguards must include the accused representation by counsel who must be in a position to answer the questions of the Court, with regard to whether the accused knows what he is doing and the consequences of his plea and also a medical report of medical evidence upon him.” 14. Such safeguards must include the accused representation by counsel who must be in a position to answer the questions of the Court, with regard to whether the accused knows what he is doing and the consequences of his plea and also a medical report of medical evidence upon him.” 14. Thus, we find that it has never been a rule of law that plea of guilty cannot be the basis for conviction, but before acting on the plea of guilty the Court must be satisfied that the person, who pleads guilty, has understood the nature of allegations and is also aware of it consequences. If the Court finds that the accused having understood the nature of allegations and also of its consequence, the Court may proceed to record the conviction, otherwise the Court should proceed to record the evidence as a rule of caution and prudence. 15. Here, in the instant case, we, after examining the records including the relevant order sheets, do find that the Court before recording the plea of guilty, failed to press in to service the safeguards to make them understand the nature of allegations and also of its consequence and, thereby, the Court, in stead of acting on the plea of guilty, should have proceeded with the trial for recording evidences. 16. Under the circumstances, we do find that the trial court committed illegality in recording the order of conviction and sentence on the basis of the plea of guilty and, thereby, the judgment of conviction and order of sentence, passed against the appellant is hereby set aside and the matter is remanded back to the court concerned to proceed with the trial in accordance with law so as to same be concluded within six months from the date of receipt/production of a copy of this judgment. 17. However, regard being had to the fact that the appellant has been in custody for the last 16 years, we do not find it proper and appropriate that he be allowed to remain in custody during trial and, hence, the appellant, named above, is directed to be released on bail on furnishing personal bond of Rs. 17. However, regard being had to the fact that the appellant has been in custody for the last 16 years, we do not find it proper and appropriate that he be allowed to remain in custody during trial and, hence, the appellant, named above, is directed to be released on bail on furnishing personal bond of Rs. 500/- (five hundred) with one sureties of the like amount to the satisfaction of the Sessions Judge, Gumla in connection with Sessions Trial No. 27 of 2000, subject to the condition that he shall remain personally present before the Court on each and every date fixed in the trial. 18. Thus, this appeal stands allowed.