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Gauhati High Court · body

2016 DIGILAW 696 (GAU)

Thawmliana v. State of Mizoram

2016-07-28

AJIT SINGH, MICHAEL ZOTHANKHUMA

body2016
JUDGMENT : 1. Heard Mr. L.H. Lianhrima, senior advocate, who is the amicus curiae in the present case. Also heard Mrs. Linda L. Fambawl, Addl. Public Prosecutor for the State respondent. 2. The present appeal has been filed against the judgment and order dated 11.2.2013 and sentence order dated 13.2.2013 passed by the Additional Sessions Judge, Lunglei in Criminal Trial No. 236/2010, wherein the appellant has been convicted under section 302, IPC and sentenced him to undergo RI for life and also to pay a fine of Rs. 5,000, in default, RI for another 5 months. 3. The prosecution story in brief is that on 13.7.2010 at about 2:00 p.m., Sh. F. Lalrawna s/o F. Thanhmunga (L) of Lungzarhtum village, Lawngtlai District, Mizoram, submitted a written FIR to the Officer in-Charge, Sangau Police Station to the effect that, on 10.7.2010 at about 6:00 a.m., his sister F. Menthaii (54 yrs.) d/o F. Thanhmunga (L) of Lungzarhtum went to her jhum about 2 kms. North-West from the village to collect some vegetables. F. Menthaii did not return home even on the evening of the following day, i.e., 11.7.2010 (Sunday). Then, the complainant with his son and other persons went to the jhum to search for his sister. On reaching the jhum, they found his sister lying dead at the edge of her jhum with a severe cut injury on her throat and in that cut injury, a wooden stick measuring 1 feet in length was imbedded. Then, they informed the villagers of Lungzarhtum, and the dead body was: brought to the village. Hence, Sangau Police Station Case No. 5/2010 dated 13.7.2010 under section 302, IPC was registered and duly investigated into. 4. During the course of investigation, information was received by the Police that the appellant had disappeared from Lungzarhtum village in the early morning of 10.7.2010, i.e., during the time of death of the deceased. The appellant not being found in the village, a search was conducted for the appellant. W.T. Messages were sent to Lawngtlai and Saiha Police Station with regard to the disappearance of the appellant. The Young Lai Association (YLA), an NGO, was also requested to search for the appellant and the appellant was found by the YLA in Lawngtlai. The Police were informed and the Police arrested the appellant on 15.7.2010. W.T. Messages were sent to Lawngtlai and Saiha Police Station with regard to the disappearance of the appellant. The Young Lai Association (YLA), an NGO, was also requested to search for the appellant and the appellant was found by the YLA in Lawngtlai. The Police were informed and the Police arrested the appellant on 15.7.2010. The case I.O. thereafter conducted his investigation and on the basis of the disclosure made by the appellant, another wooden stick measuring 4 feet in length, 4½ inches diameter and one knife (khukri type) measuring 13½ inches in length, inclusive of the handle measuring 4½ feet were seized. The case IO having found a prima facie case under section 302, IPC against the appellant, charge sheet was submitted. 5. Charge was framed under section 302, IPC against the appellant on 30.11.2010, wherein the appellant pleaded guilty by saying that he had killed the deceased not for money but because she had ill feelings against the appellant and as she hated the appellant. Thereafter, 13 out of 17 prosecution witnesses were examined along with 4 court witnesses. 6. The appellant was examined under section 313, Cr.PC, in which he had stated that instead of the deceased repaying the appellant against the loan taken by the deceased, the two brothers of the deceased had tortured him. As such, he took revenge against the victim and that he was repentant of the act committed by him. In his examination under 313, Cr.PC, the appellant also admitted that the seized wooden stick and the knife were recovered upon the disclosure made by him. 7. The learned trial court thereafter having found the appellant guilty of having committed the crime of murder, the appellant was convicted under section 302, IPC and sentenced to undergo RI for life and to pay a fine of Rs. 5,000, in defaut, RI for another 5 months. 8. The learned amicus curiae submits that the deceased was a close relative of the appellant and, as such, there was no question of the appellant murdering the deceased. The learned amicus curiae also submits that the recovery of the stick and the knife on the alleged disclosure made by the appellant is a wrong statement of fact and that the appellant did not make any disclosure statement regarding the seized weapons. The learned amicus curiae also submits that the recovery of the stick and the knife on the alleged disclosure made by the appellant is a wrong statement of fact and that the appellant did not make any disclosure statement regarding the seized weapons. The learned amicus curiae also submits that the evidence adduced does not prove the fact that the appellant has committed the murder of the deceased beyond all reasonable doubt. He, therefore, prays that the judgment and order dated 11.2.2013 and the Sentence Order dated 13.2.2013 passed by the Additional Sessions Judge, Lunglei Judicial District in Criminal Trial No. 236/2010 should be set aside and quashed. 9. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, Mizoram, on the other Aizawl Bench hand, submits that though there were no eye witnesses to the crime in question, the appellant, at the time of framing of charge had pleaded guilty to murdering the deceased. The learned Addl. Public Prosecutor also submits that the statement given by the accused in his examination under section 313, Cr.PC corroborated the evidence of the prosecution witnesses to the fact that the appellant had committed the crime in question. The Addl. Public Prosecutor also submits that the statement of the accused at the time of examination under section 313, Cr.PC, the evidence of the prosecution witnesses and Court witnesses point to the fact that the weapons were recovered from the disclosure statement made by the appellant and this has to be taken into account. The learned Addl. Public Prosecutor also submits that besides the throat of the deceased being cut by a knife and a 1 foot long wooden stick being imbedded in the cut injury, the deceased had other injury marks on the other parts of her body. The learned Addl. Public Prosecutor, thus, submits that as the circumstantial evidence available has clearly pointed to the guilt of the appellant, the impugned Judgment Order dated 11.2.2013 and sentence order dated 13.2.2013 passed by Additional Sessions Judge, Lunglei Judicial District in Criminal Trial No. 236/2010 should be upheld. 10. We have heard the learned counsels for the parties. 11. On perusal of the materials on record, we find that the appellant had pleaded guilty to the charge under section 302, IPC, wherein he has stated that he had killed the deceased because she hated him. 10. We have heard the learned counsels for the parties. 11. On perusal of the materials on record, we find that the appellant had pleaded guilty to the charge under section 302, IPC, wherein he has stated that he had killed the deceased because she hated him. However, the appellant stated that he had not killed the deceased for money at the time of framing of the charge. 12. The brother of the victim, PW-1 in his evidence has stated that as the deceased had not returned on Sunday even after having set out on Saturday for her jhum hut, PW-1 and others went out in search of the deceased. She was found near her jhum and her skull and neck bones were broken. It also appeared that she had been severely beaten. There was a cut on her neck and a stick measuring 1 feet was inserted on the cut injury. PW-3 in his evidence has stated that he stood as seizure witness in respect of the 1 feet long stick which was inserted on the cut injury of the victim. PW-4, the President of YLA, an NGO, has stated that at the place of occurrence, there were large footprints. As the appellant was a big person in comparison with other residents of his village, they voiced their suspicion to the Police that the appellant may have a hand in the death of the victim. PW-4 also states that he was present when the accused confessed his guilt before the Police and he accompanied the Police and the appellant in recovering the wooden stick/club and the knife. The knife was recovered from Siahatlangkawn. 13. PW-5 in his evidence has stated as follows: “I was present at the P/S at the time the accused was interrogated by the Police. I saw and heard by my own eyes and ears that the accused has confessed that he had beaten to death the victim at the jhum with wooden stick (objected D/L). The accused stated that he had beaten the victim with a dub and he would be able to know where he had left the dub. The Police requested them to accompany to the P/O. I followed them and the accused tell us to the P/O and showed us the dub. He himself picked it up. I stood as seizure witness. M-Ext-II is the dub seized by the Police. The Police requested them to accompany to the P/O. I followed them and the accused tell us to the P/O and showed us the dub. He himself picked it up. I stood as seizure witness. M-Ext-II is the dub seized by the Police. Ext-P-III is property seizure memo. The accused further stated to the Police that he had hidden a knife at a village named Saihatiangkawn that he had used it for cutting the throat of the victim. He led us to Saihatiangkawn and he showed us the knife and Police seized the same. M-Ext-I is the knife seized by the Police. Ext-P-IV is property seizure memo and Ext-P-IV (a) is my signature.” The evidence of PWs 7 and 9 is to the effect that they discovered the appellant and on detaining him, he had confessed to killing the deceased. The Police were informed and he was taken to the Police Station. 14. The evidence of S.I. Lalchhuanawma, PW-12 is to the effect that on carefully checking the body of the deceased, he found injury marks all over the body of the victim, from the waist up. 15. The evidence of the Doctor, PW-14, who attended to the body of the deceased in Civil Hospital, Saiha was to the following effect that: (1) There was laceration injury on the frontal of the neck (submental area) measuring 7 into 3 cm exposing jaw bone. (2) There was laceration injury on the back of the head measuring 5 into 3 cm exposing skull bone which is intact. (3) There was contusion over the front of the neck with subcutaneous emphysema. (4) There was contusion with superficial abrasion over the left colar bone. PW-14 stated that in his opinion, the cause of death was fracture of the laryngeal cartilages and trachea leading to suffocation of the deceased. It appears that the victim strangulated forcibly (suffocated). The culprit also used sharp object. 16. The evidence of the court witness Nos. 1, 3 and 4 is to the effect that the appellant had made a disclosure statement on 20.7.2010 at 11:30 a.m. and that the appellant had put his signature on the disclosure statement, where after, the appellant had led the case I/O and them to the place of occurrence and the wooden stick measuring 4 ft was seized. Court witness Nos. Court witness Nos. 1, 3 and 4 also stated that the appellant led them and the case I/O to the resident of one Lalhriatpuia, from where the knife (khukri type) was seized. 17. The statement of the Court Witness No. 2 is to effect that the deceased did not borrow any money from the appellant. 18. The appellant in his examination under section 313, Cr.P.C: had given the following answers to some of the questions, as reproduced below: Q-3. It is the evidence that you led the Police and the witnesses Lalrema, L.R. Fanchun and others to the P.O. and recovered the club used by you for beating Mentha-i. What will you say? Ans. Yes, it is correct I led the Police to the P.O. and the Police recovered the club as pointed by me. Q-4. It is in the evidence that you led that Police and witnesses to Saihatiangkawn and recovered a knife. What will you say? Ans. Yes, it is correct, I led the Police and witnesses to Saihatiangkawn in order to recover the knife used by me for cutting the throat of Mentha-i. Q-5. Do you have any other thing to say? Ans. Victim Mentha-i borrowed my money which I had drawn from NREGS. I supported my wife and two minor children. I asked the victim Menth-i to give back my money, but she did not pay me. 19. The Property Search and Seizure Forms dated 13.7.2010, 21.7.2010 and 15.7.2010 shows that the weapons were seized by the Police. The arrest memo shows that the appellant was arrested on 15.7.2010. 20. The above facts show that though there was no eyewitness to the crime, the evidence adduced, statements made by the appellant during framing of charge and under section 313, Cr.PC dearly proves that the appellant had committed the murder of the deceased. The motive for the crime, it seems, is the non-repayment of the loan taken by the victim. There is no other reason given by the appellant as to why the victim should hate the appellant. The evidence of the civilian prosecution witnesses is to the effect that the appellant confessed before them that he killed the victim. The circumstantial evidence and recovery of weapons on the disclosure made by the appellant clearly proves the connected chain of events pointing to the guilt of the accused, in having committed the crime. The evidence of the civilian prosecution witnesses is to the effect that the appellant confessed before them that he killed the victim. The circumstantial evidence and recovery of weapons on the disclosure made by the appellant clearly proves the connected chain of events pointing to the guilt of the accused, in having committed the crime. In the case of Geejaganda Somaih v. State of Karnataka, (2007) 9 SCC 315 , the Apex Court has held that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by the Apex Court. The Apex Court in Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 has held that circumstantial evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” In Geejaganda Somaih (supra), the Apex Court has also held that the most important circumstance for the prosecution in the case is the disclosure statements of the accused persons and recoveries of the weapons of offence. The Apex Court has held that the court must ensure the credibility of evidence by the police because this provision is vulnerable to abuse. In the present case, the civilian witnesses have in their evidences stated that they were present at the time of the appellant's disclosure and that they were led, along with the police to the place of recovery of the weapons by the appellant. Thus, this court holds that the recovery of the weapons has been made on the disclosure made by the appellant and that the disclosure statement was made voluntarily. 21. Thus, this court holds that the recovery of the weapons has been made on the disclosure made by the appellant and that the disclosure statement was made voluntarily. 21. In the case of Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747 , the Apex Court has held that statements made under section 313, Cr.PC solely by themselves are not enough to convict the accused. However, the statements can be used for corroboration along with other evidence for conviction. 22. On perusing the entire evidence, we find that there is a connected chain of events that proves the guilt of the appellant in having murdered the deceased. We also find that the statements made by the appellant in his examination under section 313, Cr.PC corroborates the evidence adduced that he had murdered the victim. Accordingly, we find no infirmity with the impugned judgment and order dated 11.3.2013 and sentence order dated 13.2.2013 passed by the Additional District & Sessions Court, Lunglei Judicial District in Crl. Trial No. 236/2010. The appeal is accordingly dismissed. 23. Send back the LCRs. 24. In appreciation of the assistance rendered by the learned amicus curiae Mr. L.H. Lianhrima, the fee of the amicus curiae is fixed at Rs. 9,000, which shall be paid by the Mizoram State Legal Services Authority as per the Notification No. J. 11013/1/2011-UE dated 4.12.2014 issued by the Secretary to the Government of Mizoram, Law & Judicial Department and published in the Mizoram Gazette dated 5.12.2014.