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2017 DIGILAW 787 (GAU)

Temsulemba v. State of Nagaland

2017-06-14

L.S.JAMIR

body2017
JUDGMENT AND ORDER : L.S. Jamir, J. Heard Mr. Imti Longchar, learned counsel for the appellant. Also heard Mr. K. Wotsa, learned P.P., Nagaland appearing for the State. 2. This appeal is directed against the judgment and order dated 28.06.2010 passed in GR. 179/2009 by the learned District and Sessions Judge, Dimapur whereby the appellant was convicted and sentenced to undergo 6 years R.I for offences under Section 457, 6 years for offences under Section 392 and another 1 year for offences under Section 216 (A) I.P.C. which were to run concurrently. 3. The case of the prosecution in brief is that on 25.03.2009 at about 23:36 hrs, a telephonic information was received from Mrs. Tiakala Aier that some miscreants had entered her house. The Duty Officer of East Police Station, Dimapur rushed to the spot, by which time, the miscreants had escaped. However one accused, namely, Punato Zhimo was arrested from the place of crime. After interrogation, the arrested accused Mr. Punato Zhimo stated that he along with four persons had entered the house of Mr. Imti-wapang Aier, SDO, Police Project, Kohima and had stolen money and jewellery and also gang raped his daughter. During the course of investigation, it was also found that the present appellant who was serving as a Warder at Sub-Jail Dimapur had conspired with some of the co-accused persons, namely, Hetoi @ Heboto and Imtikumzuk to commit theft in the house of Mr. Imokaba Jamir, Joint Commissioner, Income Tax Department. However, the accused persons had wrongly entered the premise of Mr. Imtiwapang Jamir. Therefore, the appellant was also charged for harboring the co-accused Hetoi @ Hetobo and Imtikumzuk. It is also the case of the prosecution that the accused Hetoi @ Hetobo and Imtikumzuk were arrested by the NSCN (IM) and were later assassinated. Charge sheet No. 100/2009 dated 25.6.2009 was submitted and that proceeded. 4. Charges against the appellant were framed under Section 109/120 B/21 6A IPC to which the appellant pleaded guilty. The prosecution examined 5 witnesses and no witness was examined by the appellant. The appellant was also examined under Section 313 Cr.P.C. Thereafter, after hearing the parties, the learned District and Sessions Judge, Dimapur passed the impugned judgment and order dated 28.06.2010. 5. The prosecution examined 5 witnesses and no witness was examined by the appellant. The appellant was also examined under Section 313 Cr.P.C. Thereafter, after hearing the parties, the learned District and Sessions Judge, Dimapur passed the impugned judgment and order dated 28.06.2010. 5. The case of the appellant before this Court is that while the charges were framed against the appellant, there was no explanation with regard to the charges framed against him nor was the said charges explained to the appellant in the language that he understands. The 2nd ground of the appellant is that when he was examined under Section 313 Cr.P.C., no specific questions were put against the appellant and that he was questioned generally on the charges brought against him. Lastly, it is the case of the appellant that as the co-accused, namely, co-accused Hetoi @ Hetobo and Imtikumzuk were not before the trial court, the question of abetment does not arise. 6. This Court has considered the materials available on records. A consideration of the examination of the appellant under Section 313 Cr.P.C. would clearly indicate that no specific questions were put to the appellant and in fact he was generally questioned on the charges brought against him. The examination of the appellant under Section 313 Cr.P.C. is reproduced herein below:- "Form for Recording Examination of Accused Persons under Section 313 the Criminal Procedure ('Code) The Examination of Temsulemba age about 31 year taken before me S. Hukato Swu language interpreted by My name is______________________ My father's name is Nokmatsuba I am by Caste/Tribe Ao Naga And by occupation Teacher (Rtd) My home is at Walford P.S. East Police Station, Dimapur, District Dimapur I reside at Walford. Accused Temsulemba has been questioned generally on the charges brought against him. He has stated that he had bailed out Hetobu whose case was pending. To dispose his case, 30 to 40 thousand rupees would be involved. So, I suggested that he rob the house of Imokaba from my village. They went and robbed the wrong people. I have no involvement in the rape. I was not a party to the commission of the offence. Sd/- Temsu 15.02.10 Sd/-S.Hukato Swu, 15.02.10" 7. To dispose his case, 30 to 40 thousand rupees would be involved. So, I suggested that he rob the house of Imokaba from my village. They went and robbed the wrong people. I have no involvement in the rape. I was not a party to the commission of the offence. Sd/- Temsu 15.02.10 Sd/-S.Hukato Swu, 15.02.10" 7. After considering the examination of the appellant under Section 313 Cr.P.C., this Court is of the considered opinion that the learned trial court has not examined the appellant in terms of Section 313 Cr.P.C. It is a settled position of law that every circumstances on which a trial relies to hold an accused guilty must be put to the accused person and his answer sought thereto. In the present case, the very purpose of Section 313 Cr.P.C. stands declared inasmuch as, no specific question was put before the appellant and that he was only questioned generally on the charges brought against him. In the case of Sharad Birdhi Chand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622 , the Hon'ble Supreme Court has held as under:- "As these circumstances were not put to the appellants in their statement under Section 313 Criminal Procedure Code they must be completely excluded from consideration because the appellants did not have any chance to explain them. This has been consistently held by this Court as far back as 1953, wherein the case of Hata Singh Bhagar v. State of Madhya Bharat, AIR 1953 SC 468 this Court held that may circumstances in respect of which an accused was not examined under Section 342 of the Cr.P.C. cannot be used against him. Ever since this decision there is a catena of authorities of this Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Cr.P.C. the same cannot be used against him... It is not necessary for us to multiply authorities on this point as the question now stands concluded by several decision of this Court in this view of the matter the circumstances, which were not put to the appellant in his examination under Section 313 Cr.P.C. have to be completely exhibited from consideration." 8. It is not necessary for us to multiply authorities on this point as the question now stands concluded by several decision of this Court in this view of the matter the circumstances, which were not put to the appellant in his examination under Section 313 Cr.P.C. have to be completely exhibited from consideration." 8. This being the position, this Court has no other option but to conclude that if the appellant is not examined in terms of Section 313 Cr.P.C. as warranted by law, a valuable right vested on the appellant stands denied. In that view of the matter, without entering into the merit of the case, this Court is of the considered opinion that the learned trial court should re-examine the appellant under Section 313 Cr.P.C. as provided by law. 9. Accordingly, this appeal is allowed. 10. The impugned judgment and order dated 28.05.2010 passed by the learned District and Sessions Judge, Dimapur is set aside and quashed. The matter is remanded back to the learned trial Court with a direction to frame charge as indicated herein above and to examine the appellant in terms of the requirement of Section 313 Cr.P.C. and there-after dispose of the matter in accordance with law. The appellant is also allowed to adduce evidence, if he so desires. 11. Considering that the matter has been dragging for a considerable period of time, the learned trial court is expected to dispose of the matter at the earliest but not later than six months from the date of receipt of a copy of the order of this Court by the learned trial Court. 12. The parties shall appear before the learned District and Sessions Judge. Dimapur on 20.07.2017. 13. Send down the LCR forthwith along with a copy of this Court's Judgment and order.