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2017 DIGILAW 435 (GAU)

Zosangliana v. State of Mizoram

2017-04-06

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT : Michael Zothankhuma, J. (Oral) Heard Mr. C. Lalfakzuala, learned Amicus Curiae for the appellant. Also heard Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, Mizoram for the respondents. 2. The present appeal has been filed from jail against the Judgment & Order dated 27.10.2015 passed by the Court of the District & Sessions Judge, Aizawl in S.C No. 57/2013 in Criminal Trial No. 856/2013, wherein, the appellant has been convicted under Section 367(1)/511 IPC and sentenced to undergo Rigorous Imprisonment of 4 (four) years with a fine of Rs. 1,000/-, I.D 1 (one) month S.I. 3. The learned Amicus Curiae submits that the issue relates to an attempt to rape by the appellant, who is a 43 year old person in respect of a 91 year old lady. The learned Amicus Curiae fairly submits that the evidence of the prosecutrix clearly proves that attempt to rape has been made out by the appellant and that the same is corroborated by the statement given by the appellant in his examination under Section 313 Cr.P.C. The learned Amicus Curiae, however, submits that besides the above, the major challenge to the impugned Judgment & Order is to the fact that the sentencing of the appellant was done on the same date when he was convicted. He submits that as per the decision of the Apex Court in Allauddin Mian And Others v. Sharif Mian And Another reported in 1989 3 SCC 5 , the Trial Court should have given a future date for having a sentence hearing. 4. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, Mizoram submits that the appellant was heard on the quantum of sentence to be awarded by the Trial Court and as such, there is no infirmity in sentencing the appellant on the date of conviction of the appellant. 5. On going through the records of the case, I find that the appellant has attempted to rape the complainant. The evidence of the prosecutrix clearly points to the fact that the appellant had tried to rape the prosecutrix. This Court also does not find any reason to disbelieve the evidence of the prosecutrix, as it inspires confidence. 6. 5. On going through the records of the case, I find that the appellant has attempted to rape the complainant. The evidence of the prosecutrix clearly points to the fact that the appellant had tried to rape the prosecutrix. This Court also does not find any reason to disbelieve the evidence of the prosecutrix, as it inspires confidence. 6. In the case of Narender Kumar v. State (NCT of Delhi) reported in 2012 7 SCC 171 , the Apex Court has held at para 20 as follows: "It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case." 7. Besides the above, the appellant in his examination under Section 313 Cr.P.C has made the following statements:- "Yes, on this day I drank liquor and when I massage her evil enter into me and I forced myself upon her and try to committed rape upon her. I regretted and did not commit rape upon her." "Yes, it is true. I was convicted in the year 2002 for 10 years." In the case of Ashok Debbarma v. State of Tripura reported in 2014 4 SCC 747 , the Apex Court has held that Section 313 Cr.P.C statements, solely by themselves are not enough for conviction. They can however be used for corroboration along with other evidence for conviction. 8. This Court finds that the impugned Judgment & Order was passed on 27.10.2015 after hearing was held on 07.10.2015. The appellant was convicted and sentenced on the same day, i.e. 27.10.2015. 9. In the case of Allauddin Mian And Others v. Sharif Mian And Another (Supra), the Apex Court, after taking into consideration Section 235 Cr.P.C has held as follows: "The requirement of hearing the accused is intended to satisfy the rule of natural justice. The appellant was convicted and sentenced on the same day, i.e. 27.10.2015. 9. In the case of Allauddin Mian And Others v. Sharif Mian And Another (Supra), the Apex Court, after taking into consideration Section 235 Cr.P.C has held as follows: "The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced subsection (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality........... We think as a general rule the trial court should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender." 10. In view of the fact that the Trial Court has not followed the law laid down by the Apex Court, this Court deems it proper that a date for sentence hearing should be fixed by the Trial Court and after hearing the prosecutrix and the appellant and his representatives afresh, an appropriate order of sentence may be passed by the Trial Court. Consequently, the impugned Judgment & Order dated 27.10.2015 is set aside, only to the extent of the sentence awarded to the appellant. 11. Consequently, the impugned Judgment & Order dated 27.10.2015 is set aside, only to the extent of the sentence awarded to the appellant. 11. The impugned Judgment & Order dated 27.10.2015 passed by the learned District & Sessions Judge, Aizawl in S.C No. 57/2013 in Criminal Trial No. 856/2013 is hereby set aside to the extent indicated above. Send back the LCRs. 12. In appreciation of the assistance rendered by the learned Amicus Curiae, the learned Amicus Curiae shall be paid a fee of Rs. 7,500/- (Rupees Seven thousand five hundred) only by the State Legal Services Authority, Aizawl.