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2017 DIGILAW 45 (MEG)

Saw Dohling v. State of Meghalaya

2017-06-23

DINESH MAHESHWARI, VED PRAKASH VAISH

body2017
JUDGMENT & ORDER : Dinesh Maheshwari, J. By way of this appeal under Rule 4 of the High Court of Meghalaya (Jurisdiction over District Council Courts) Order, 2014 read with section 374 of the Code of Criminal Procedure, 1973 ['CrPC'], the accused-appellant has assailed the judgment of conviction dated 08.09.2015 and the order of sentence dated 13.09.2016 as passed in GR Case No.14 of 2000 by the District Council Court, Khasi Hills, Shillong whereby, he has been convicted for the offence of murder under Section 302 IPC and has been sentenced to 7 years' simple imprisonment. 2. Having regard to the circumstances noticed hereafter, we find it rather imperative to dispose of this appeal finally at this stage itself and to restore the matter for re-trial, from the stage of conclusion of the prosecution evidence, by a competent Court who would not disregard the fundamentals and basics of law, as had been the approach of the Presiding Officers of District Council Court, Shillong in the present case. 3. As the matter is proposed to be remanded for re-trial from the stage of conclusion of prosecution evidence, only a brief reference to the background aspects would suffice. 4. GR Case No. 14 of 2000, leading to the conviction and sentencing of the accused/appellant, had its genesis in FIR dated 05.06.2000 as lodged at Police Station Sohra with the allegations that on 04.06.2000, at about 9.00 pm, the victim Donphrang Marwein of Laitumiong, Elaka Mawbeh was assaulted at Umdiengpoh village. The headman lodging the FIR stated that no one was able to identify the assailant. The victim was removed to Civil Hospital, Shillong, where he succumbed to the injuries. The accused/appellant was arrested in relation to the said case and was charge-sheeted for the offence under Section 302 IPC. In the trial, the prosecution examined as many as 12 witnesses. After the prosecution evidence, the learned Judge, District Council Court took up the process of examination of the accused; and purportedly recorded the so-called statement of the accused/appellant under Section 313 Cr.P.C., 1973 This so-called statement under Section 313 Cr.P.C., 1973 needs to be noticed and is reproduced, in extenso, as under:- "In the Court of the Judge, District Council Court, Shillong G.R. Appeal/Case No. 14 of 2000 Present:- Mr. J. Reenbohn Judge Deposition of Witness No. _____________for the ___________ taken on oath or solemn affirmation on 22nd day of November 2006. J. Reenbohn Judge Deposition of Witness No. _____________for the ___________ taken on oath or solemn affirmation on 22nd day of November 2006. My name is U Saw Dohling Son/daughter/wife of (L) U Tik Nonkynrih by caste Khasi. My age is 29 years, I reside at Umdiengpoh. Village of Sohra Syiemship/Sirdarship/Lyngdoh, Police Station-District. My occupation is Labourer. Statement under section 313 CR.P.C., 1973 In the year 2000 I was at Umdiengpoh in the teastall along with my friends. There were some outsiders who were present also from other villages. In the teastall we played carom board. At that time there was one person who was injured and the charge that I killed him is not true. It is not me who killed him and I do not know who assaulted him. All the evidence against me that I assaulted the deceased is false. I denied them. It is not true that there was a quarrel in the tea stall. Sd/- Saw Dohling R.O. & A.C. Sd/- Judge" 5. It is at once clear that the learned Judge dealing with trial of the case involving offence under Section 302 IPC did not look into the basic norms and spirit of the procedural law; and, in the name of statement under Section 313 Cr.P.C., 1973 only a few lines stated by the accused/appellant were noted down but nothing of any incriminating material was put to him. We are informed that the learned Judge, who chose to record the statement of the accused/appellant under Section 313 Cr.P.C., 1973 in such a casual and perfunctory manner has since retired. However, the aforesaid had not been the only flaw in this matter; rather, the proceedings thereafter in the Trial Court had been more shocking and disturbing. 6. The record shows that after the aforesaid recording of the so-called statement under Section 313 Cr.P.C., 1973 on 22.11.2006, the matter was adjourned for about 8 years for variety of reasons. In the entire year 2007, the matter was adjourned for the purpose of preparation of the copies of depositions, so that the same may be supplied to the PP. Such copies were ultimately supplied on 11.03.2008. Thereafter, the matter was adjourned for whole of the year 2008 for the reasons that either PP was not ready or both sides were not ready. Such copies were ultimately supplied on 11.03.2008. Thereafter, the matter was adjourned for whole of the year 2008 for the reasons that either PP was not ready or both sides were not ready. Again, in the year 2009, the matter was adjourned granting time, either to the PP or defence counsel, to get ready with the matter. Then, on 03.02.2010, the accused was found absent and bailable warrant was issued. The accused, of course, appeared on 11.03.2010 and again, the matter was adjourned on several occasions. Then, on 30.06.2010, the matter was adjourned while waiting for appointment of a new PP. Thereafter, the defence counsel sought several adjournments in the year 2010; and then, the matter was adjourned on several occasions for want of PP in the year 2011. This story of adjournments continued, for one reason or the other, in the years 2012, 2013 and 2014 also! The result had been that in this matter, where the so-called statement under Section 313 Cr.P.C., 1973 was recorded on 22.11.2006, final hearing did not take place for about 8 years. However, finally, the learned PP and the learned defence counsel filed their written arguments on 28.07.2014 and the judgment was reserved. Then, more than a year later, the learned Judge recorded in the order-sheet dated 25.08.2015 that the judgment was ready and therefore, the matter may be posted for delivery of judgment. In this manner, the judgment was ultimately delivered on 08.09.2015. 7. It is noticed that in about 111/2 printed pages of the impugned judgment dated 08.09.2015, the learned Judge, District Council Court made a brief reference to the prosecution story on the first page and then, from page 2 to page 7, only reproduced the written arguments of the PP and of the defence counsel. Thereafter, from page 8 onwards, the learned Judge purportedly started looking at the evidence and for that matter, again reproduced a part of the testimony of PW 6 to PW12. After such reproduction, the so-called findings by the learned Judge could be somehow noticed in a few lines at page 11 of the judgment impugned wherein, while relying on the statements of PW6 to PW9, the learned Judge held the accused person guilty of the offence of murder. It is very difficult to construe the impugned judgment as being that of considered findings after due appreciation of the evidence on record. 8. It is very difficult to construe the impugned judgment as being that of considered findings after due appreciation of the evidence on record. 8. The said judgment of conviction was delivered on 08.09.2015 and thereafter, the matter was fixed for hearing on the question of sentence. After a few adjournments, on 24.11.2015, learned counsel for the accused moved an application under Section 233 Cr.P.C., 1973 seeking permission to lead evidence. The matter was, thereafter, adjourned on several occasions for arguments on this application and ultimately, the application was rejected on 02.03.2016. Even thereafter, the matter was adjourned on nine occasions from 30.03.2016 to 26.07.2016. Finally, the matter was heard on the point of sentence on 09.08.2016 and yet, the learned Judge fixed the matter beyond one month for passing the final order. Ultimately, the order of sentence was pronounced by the learned Judge, District Council Court on 13.09.2016 i.e., more than one year after the judgment of conviction. 9. Even if all the aforesaid shortcomings are left aside for a moment, the final jolt comes from the impugned order dated 13.09.2016 whereby, the learned Judge, District Council, Khasi Hills, Shillong, who had already convicted the accused/appellant for an offence of murder under Section 302 IPC, chose to award the sentence of 7 years' simple imprisonment! The learned Judge observed that after the conviction order dated 08.09.2015, the accused was 'very cooperative with the Court'; and after careful perusal of the evidence on record and the age of the accused, he was satisfied to convict (sic) the accused to 7 years' simple imprisonment! The operative part of the order impugned reads as under:- "..... As regards the prayer of the Ld. Prosecution who prayed the Court to give a maximum punishment, I am of the view that during the proceedings of the trial of this case, especially when the accused is convicted vide Judgment dated 8th September, 2015, the accused person is very cooperative with the Court. Therefore, after careful consideration of the matter from all angles, after careful perusal of the evidence on records, as well as the age of the accused person, I am satisfied to convict the accused person to 7 (seven) years simple imprisonment. The quantum of punishment shall start from the date of his being arrested and shall expire after the period of 7 (seven) years is completed. The quantum of punishment shall start from the date of his being arrested and shall expire after the period of 7 (seven) years is completed. The Officer In-charge Sohra Police Station is directed to arrest the accused person on the strength of this order. The accused person is hereby convicted to 7 (seven) years simple imprisonment......" 10. Strangely enough, even on the date of pronouncement of this order, the accused was not taken in custody and he later on surrendered on 03.11.2016. 11. The aforesaid narration of the manner of conduct of proceedings by the District Council Court and the contents of the impugned judgment/order is sufficient to show a total cursory approach on the part of the District Council Court towards the matters before it. It is but clear that: (i) examination of the accused under Section 313 Cr.P.C., 1973 had not at all been in accord with the basics of law and nothing of incriminating material occurring against him was put to the accused; (ii) the judgment of conviction dated 08.09.2015 is, in fact, no judgment in law, where the categorical findings after due appreciation of evidence are difficult to be found; and (iii) the learned Judge, District Council Court has chosen to award the sentence only of 7 years' imprisonment after convicting the accused/appellant for an offence under Section 302 IPC though the punishment for such an offence is either life imprisonment or death and where imposition of fine is mandatory part of sentencing. As already noticed, even on several other aspects, things had been rather terrible where, after recording the so-called statement of the accused under Section 313 Cr.P.C., 1973 the matter was heard finally about 8 years later and even thereafter, the delivery of judgment yet took another one year; and the order of sentence was passed after yet another year from the date of conviction. For the aforesaid state of affairs, where neither the plain provisions of law are respected nor the requirements of expeditious proceedings are attended at, we cannot help observing that the District Council Court, by its conduct, has shown scant respect for the rule of law. 12. For what has been noticed hereinabove, the impugned judgment dated 08.09.2015 and the impugned order dated 13.09.2016 are required to be set aside and the matter is required to be remanded for trial afresh from the stage of closure of the prosecution evidence. 12. For what has been noticed hereinabove, the impugned judgment dated 08.09.2015 and the impugned order dated 13.09.2016 are required to be set aside and the matter is required to be remanded for trial afresh from the stage of closure of the prosecution evidence. 13. Before parting with the matter, we are constrained to reiterate that the manner of dealing with the matter by the District Council Court at every relevant stage had been thoroughly dissatisfactory, as noticed above. At this juncture, we may also indicate that only yesterday, in PIL No. 2 of 2014, while dealing with the matters of UTPs in the State of Meghalaya, we have noticed a shocking state of affairs in the District Council Court, Shillong where a particular trial is pending since the year 2005 and the accused is in jail for about 12 years; and shockingly, the District Council Court had not drawn any order sheet after 07.10.2016. The manner of approach of the District Council Court towards its duties has left many things to be desired. 14. We are impelled to indicate yet another shortcoming on the part of the District Council Court in relation with the matters before it. We find from the original record of the present case that the impugned judgment dated 08.09.2015 runs in 11 typed pages and the concluding two lines are on the 12th page. However, the certified copy of this judgment, as filed with this appeal, is running in as many as 63 pages. Such nature copies are regularly received from the District Council Court and it is a clear wastage of papers and other stationery and, of course, public money. Apart from all other aspects, the District Council Court is immediately required to take corrective measures for avoiding such unnecessary wastage. 15. Learned senior counsel Shri. HS Thangkhiew, who has appeared as Amicus Curiae in the said PIL No. 2 of 2014 as also learned counsel Shri. K Paul, who is assisting us on behalf of the District Council in the said case, have stated assurance before the Court that henceforth, the District Council Court would attend on all its duties and responsibilities with utmost seriousness. We hope and trust that the assurance stated by the learned responsible counsel before this Court would not be belied by the District Council Court; and taking note of such assurance but with a stern warning for all the concerned in the District Council Court, we are closing this appeal. However, it is required to be made clear that a particular adjudicatory forum in the State like the District Council Court cannot be permitted to deal with the matters with impunity as shown in this matter and thereafter, leave it to the High Court to simply transfer of the matter to the other Courts of the Judicial Officers. Having said so, we leave all other aspects of the matter to be examined in other pending proceedings, including PIL No. 2 of 2014. 16. We are also constrained to observe that even the approach of the prosecution has also left several fundamental things to be desired. It is noticed from the record that strangely enough, several adjournments were given by the Trial Court only because PP was either not available or was not ready. This apart, the learned Judge, District Council Court, in total disregard of law, chose to award the sentence of 7 years' imprisonment even after convicting the accused/appellant under Section 302 IPC but the State never bothered to challenge this part of the order impugned. Shri. K Paul, learned counsel assisting us on behalf of the District Council has rightly pointed out that but for this appeal by the accused, the sentence as awarded by the Judge, District Council Court, squarely against the law, would have been a fait accompli and that would have been nothing but a mockery of justice. There appears no reason that the prosecution wing of the State did not take necessary steps to challenge the fundamentally illegal part of the order impugned. The prosecution wing of the State is also required to take note of its faults and shortcomings and to take corrective measures immediately. 17. For what has been noticed hereinbefore, we find it unsafe to remand this matter to the District Council Court for fresh proceedings and deem it imperative in the interest of justice that the matter be handed over to a competent Sessions Judge, who would deal with the same in a proper manner and in accord with the basic norms of law. 18. 18. Accordingly, this appeal is allowed in part in the manner that the impugned judgment dated 08.09.2015 and order dated 13.09.2016 are set aside; and GR Case No. 14 of 2000 stands restored for re-trial from the stage of closure of the prosecution evidence. However, for the purpose of this re-trial, GR Case No. 14 of 2000 stands withdrawn from the District Council Court, Shillong and is handed over to the Court of Sessions Judge, Shillong for fresh proceedings in terms of this order. 19. It has been informed that the accused/appellant is in custody since 03.11.2016. For the first appearance after this order, the accused/appellant be produced before the learned Sessions Judge, Shillong on 05.07.2017. The learned Sessions Judge shall ensure adequate representation of the appellant/accused and thereafter, shall proceed expeditiously with the matter in accordance with law. Having regard to the circumstances, we deem it appropriate and hence, provide that it shall be permissible for the accused/appellant to move an application for bail before the learned Sessions Judge, Shillong; and if such a bail application is moved, the learned Sessions Judge shall deal with the same in accordance with law. 20. With the observations, directions and requirements foregoing, this appeal stands disposed of. 21. The record of GR Case No. 14 of 2000: State v. Shri. Saw Dohling, as received from the District Council Court, Shillong be sent to the learned Sessions Judge, Shillong along with a copy of this order for appropriate proceeding in accordance with law. Further a copy of this order be sent to the Judge, District Council Court, Shillong for appropriate steps and be also given to the learned senior counsel Shri. HS Thangkhiew and learned counsel Shri. K Paul for appropriate advice. 22. The copies of this order be also forwarded to the Chief Secretary to the Government of Meghalaya and the Registrar General of the High Court of Meghalaya for appropriate proceedings/actions.