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2018 DIGILAW 1551 (GAU)

C. Hia Hluna v. State of Mizoram

2018-10-23

M.R.PATHAK, MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : M.R. PATHAK, J. 1. This criminal appeal from jail has. been filed by the appellant/accused, namely, Sh. Chhiahhluna, being aggrieved with the Judgment & Order of conviction and sentence dated 05.03.2013 passed by learned Additional Sessions Judge-I, Aizawl, in Criminal Trial No. 299/2011, arising out of Champhai Police Station Case No. 177/2011, wherein he has been convicted for the offence under Section 302 IPC and sentenced him to undergo Rigorous Imprisonment for life with a fine of Rs. 5,000/-, in default of payment of fine, Rigorous Imprisonment for another period of 6(six) months, setting off the period of detention. 2. The prosecution case, as it emerges from the First Information Report dated 23.12.2011 (Exhibit-P-1), lodged by one Mangdova (PW-1), father of the deceased, before the Officer-in-Charge of Champhai Police Station is that on the previous night, i.e. on 22.12.2011 around 10:10 PM, when his son Zoramsanga went to the residence of Mr. C. Lalramenga (PW-2), the accused Chhiahhluna, son of Late Lianduha, resident of Chhunchung of Halkha District, Myanmar struck him on his back with an axe and that the said victim succumbed to his injury at around 9:00 AM on 23.12.2011 in the outskirt of Khuangleng Village when he was taken to the Champhai hospital. The said FIR was accordingly registered and numbered as Champhai P.S. Case No. 177/2011 under Section 302 IPC read with Rule 6(a) of the Pass Port (Entry into India) Rules 1950. 3. During investigation, the Investigating Officer of the case (PW-11) visited the place of occurrence, i.e., the house of C. Lalramenga (PW-2), drawn the sketch map, recorded the statements of the witnesses acquainted with the facts of the case under Section 161 Cr.P.C. seized one blood stained axe measuring about 2 inches width, 10 inches long with 25 inches long handle from the place of occurrence used by the accused for commission of the offence (Material Exhibit No. 1) as well as blood stained wearings of the victim like one black T-shirt, one army jersey, one black colour kamis (shirt) by preparing the seizure memo in the presence of the witnesses (Exhibit-P-2), conducted the inquest on the dead body of the deceased Zoramsanga and sent the same to the Champhai Public Health Centre for its Postmortem examination, arrested the accused Chhiahhluna by preparing Arrest Memo (Exhibit-P-5) and had his medical examination done. After completion of the investigation and obtaining the Post Mortem Report of the deceased (Exhibit-P-3) as well as Inquiry Report of the accused (Exhibit-P-4), finding a prima facie case against the accused person under Section 302 IPC read with Rule 6(a) of the PP (Entry into India) Rules, 1950 well established; the said Investigating Officer (PW-11) on 03.04.2012 submitted the charge sheet (Exhibit-P-6) in said Champhai P.S. Case No. 177/2011. 4. On receipt of the charge sheet and as the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the Trial Magistrate committed the said case to the Court of learned Sessions Judge, Aizawl wherein it was numbered as Criminal Trial No. 299/2011. A formal charge under Sections 302 IPC was framed against the accused appellant charging him with committing murder on the victim, where the learned Trial Judge read over the charge to the accused/appellant & explained the same to him, to which he pleaded not guilty and claimed to be tried. Accordingly, the trial of the case commenced. 5. In order to bring home the charge against the present appellant/accused, the prosecution examined as many as 11 (eleven) witnesses on its behalf, including the autopsy doctor, who conducted the Postmortem examination on the body of the deceased as well as the Investigating Officer of the case. The Trial Judge, after closure of the evidence of the prosecution witnesses, recorded the statement of the accused/appellant under Section 313 Cr.P.C. wherein he denied the accusation made against him. Though the defence cross-examined the prosecution witnesses, but evidence was not adduced by the accused. 6. The learned Additional Sessions Judge-I, Aizawl, upon appreciation of the evidence adduced by the prosecution, recorded the impugned judgment of conviction and sentence as aforesaid. Hence, the present appeal by the accused appellant. 7. Heard Mr. F. Lalengliana, learned Amicus Curiae for the accused appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, Mizoram for the State. 8. Mr. F. Lalengliana, learned Amicus Curiae for the accused/appellant submitted that there was no prior enmity between the deceased and the accused and it is the victim who pushed the appellant on his neck that made him angry and he hit the victim with a stick without knowing it to be an axe. 8. Mr. F. Lalengliana, learned Amicus Curiae for the accused/appellant submitted that there was no prior enmity between the deceased and the accused and it is the victim who pushed the appellant on his neck that made him angry and he hit the victim with a stick without knowing it to be an axe. From the evidence of the case recorded by the learned Trial Judge, the learned Amicus Curiae submitted that the prosecution failed to prove the guilt of the accused/appellant under Section 302 IPC and the offence committed by the accused should be considered under Section 304 IPC. Mr. Lalengliana also submitted that there was no sentence hearing as required under Section 235(2) of the Cr.P.C. depriving the accused/appellant to place his case before recording of the impugned sentence against him by the learned Trial Judge. He also stated that the learned Trial Judge failed to decided the charge under Rule 6(a) of the Pass Port (Entry into India) Rules 1950 and therefore, submitted that for all these lapses, the impugned Judgment of conviction and sentence dated 05.03.2013 needs to be set aside and quashed against the accused. In support of his argument on behalf of the appellant/accused, the learned Amicus Curiae placed reliance on the Judgments of the Hon'ble Supreme Court in the cases of Sukhbir Singh Vs. State of Haryana, reported in (2002) 3 SCC 327 and Ankush Shivaji Gaikwad Vs. State of Maharashtra reported in (2013) 6 SCC 770 . 9. However, Mrs. Fambawl, learned Additional Public Prosecutor appearing for the State, supporting the impugned Judgment submitted that the prosecution has placed sufficient materials to prove the guilt of the appellant/accused beyond all reasonable doubt and that the learned Trial Judge has rightly recorded the impugned Judgment of conviction and sentence dated 05.03.2013 against the accused. 10. We have considered the submissions advanced by the learned amicus curiae appearing for the appellant/accused as well as the learned Additional Public Prosecutor for the State and also perused the evidence on record, apart from the Judgment of conviction recorded by the learned Trial Judge. 11. In order to appreciate the arguments, advanced by the learned counsels appearing for the parties and to examine the correctness of the impugned Judgment & Order of conviction, let us briefly scrutinize the evidence on record. 12. It is seen from the records that the PW-9 (10), Dr. 11. In order to appreciate the arguments, advanced by the learned counsels appearing for the parties and to examine the correctness of the impugned Judgment & Order of conviction, let us briefly scrutinize the evidence on record. 12. It is seen from the records that the PW-9 (10), Dr. C. Vanlalhlua, the Autopsy Doctor, who conducted the Post Mortem on the dead body of the deceased Zoramsanga, on his examination found that the said dead body suffered external injury measuring about 6 x 3 cm and 6 inches deep on the back of the chest, found injury to the left side of his chest wall with 3rd rib and medial margin of scapula, pleura torn, with massive hemorrhage on left hemothorax/pleura space, found left lung injured/penetrated through the medical segment of the lung and also found that the right major bronchial vessels were injured/torn. He opined that the cause of death of the said deceased was due to massive hemorrhage following extensive injury to the left lung. Said evidence of the Autopsy Doctor PW-10 could not be demolished by the defence while cross examining him. 13. The prosecution, therefore, could prove that the deceased Zoramsanga died because of the injuries found on his body. The question, therefore, which requires to be considered is - whether the appellant is the author of the crime or not? 14. PW-1, Mangdova, the informant identified the accused and in his examination-in-chief deposed that he knew the accused and on the night of 22.12.2011 (the date of the incident) around 10:30 PM Lalremruati (PW-3), wife of Lalramenga (PW-2) called him in his residence and stated that the accused Chhiahhluna hacked his son Zoramsanga by an axe in her residence and hearing it he immediately went to the house of Lalramenga (PW-2) and saw that his son was lying upon the thigh of Lalramenga, with blood all over on his body and the floor and he was informed that the accused Chhiahhluna fled away. He also stated that his said son was taken to Community Health Centre, Fawkawn, from where he was referred to the Champhai Civil hospital and while the victim was being taken to Champhai along with his co-villagers, his son died on the way and then he informed the same to the villagers of Farkawn and submitted the FIR (Exhibit-P-I) before the Champhai Police Station. In his cross-examination PW-1 stated that as he was not present at the place of occurrence during the time of the incident, he did not see the accused inflict the injury upon his son, who succumbed to his injury and that his statement in the FIR was based upon the information duly furnished to him by Lalremruati (PW-3). 15. PW-2 C. Lalramenga who identified the accused, in his examination-in-chief stated that on 22.12.2011, he along with Zoramsanga and the accused Chhiahhluna had liquor at IB Veng, Fawkawn and thereafter, went to his residence where Zoramsanga paid him Rs. 500/- and discussed regarding collection of timber on the following day and during such time the accused started measuring Zoramsanga's shoes by using his hand and being fed up with such behavior, Zoramsanga pushed the accused on his neck, PW-2 stated that at that time he advised the accused to go to bed and accordingly, the accused went towards the bed and though he thought that the accused went to bed immediately on his request, but after sometime, the accused came out from the bed and suddenly chopped Zoramsanga from his backside, using an axe that was kept in his bathroom and that his wife [Lalremruati (PW-3)] also saw the act of the accused, who cried out for help and went out from the house. He further deposed that the accused also went out of the house and fled away and he looked after the victim Zoramsanga and thereafter the neighbours came in and took the victim to the hospital at Farkawn where Doctor referred him to Champhai hospital and that before they could reach Champhai, the victim died on the way. The defence failed to demolish the said evidence of PW-2, an eye witness to the incident that occurred in his house. 16. PW-3, Lalremruati identified the accused and in her evidence-in-chief she deposed that the accused was employed by her for sawing timber and he occasionally use to stay with them and that on the night of 22.12.2011 while she, with her children, were on their bed, her husband C. Lalramenga (PW-2), Zoramsanga, the deceased and Chhiahhluna, the accused entered their house at around 9/10 PM, and Zoramsanga paid her Rs. 500/- and thereafter all the above persons started discussing about cutting timber. 500/- and thereafter all the above persons started discussing about cutting timber. During that time the accused, started measuring the shores of Zoramsanga with his hand and the latter being fed up with such behavior, pushed the accused on his neck. She also deposed that at that stage, her husband (PW-2), instructed the accused to go to bed and accordingly, the accused went to his bed, undressed his clothes and after sometime she saw that the accused got up from his bed, took the axe that was kept in the bathroom and chopped Zoramsanga on his back, while the victim and her husband were sitting near the fireplace and that seeing the same, she immediately ran out of her residence, cried out that Chhiahhluna had chopped Zoramsanga and informed Zoramsanga's parents about the incident. The defence failed to wreck the said evidence of PW-3, an eye witness to the incident that had occurred in her residence on the fateful night 17. PW-4 Lalpuiliana and PW-5 Sanghnuna, who are immediate neighbors of PWs-2 and 3, identified the accused and in their evidence-in-chief deposed that on the night of 22.12.2011 while they were on their bed, hearing the out-cry of Lalremruati (PW-3) that Chhiahhluna @ Zungpiauva had chopped Zoramsanga using an axe, they woke up, came to the place of occurrence, saw the victim lying on the floor full of blood and the axe that was used by the accused in injuring the victim. They also deposed that they took the victim to Farkawn hospital and that in the meantime, the accused fled away, who was later apprehended by local people of Farkawn Village and was detained by them. However, in their cross examination, said PWs-3 and 4 stated that they were not aware whether the accused had any intention, knowledge and motive before committing the said offence and that there was no personal enmity or hatred between the accused and the deceased. 18. However, in their cross examination, said PWs-3 and 4 stated that they were not aware whether the accused had any intention, knowledge and motive before committing the said offence and that there was no personal enmity or hatred between the accused and the deceased. 18. PW-6 Vanhlupa, in his examination-in-chief stated that on 22.12.2012, Mangdova (PW-1), informed him about the incident around 10:15 PM and then he proceeded to the place of occurrence and therein he found the victim Zoramsanga suffered from severe injury on his back and that the said victim was taken to Farkawn hospital wherein he was referred to Champhai hospital and on the next morning at around 7:00 AM he got a phone call and came to know that Zoramsanga died on his way to Champhai hospital due to his injuries and that on 23.12.2011 itself, the accused was arrested by Champhai police and the axe used by the accused to commit the offence as well as the clothes of the victim were seized by police. 19. PW-7(9), C. Zodingliana, President of Young Mizo Association in the year 2011 as well as PW-8, R.B. Lalngailiana, President of the Village Council in the year 2011 are the seizure witnesses of Exhibit-P-2, blood stained clothings of the victim and the Material Exhibit-M-1, the axe used by the accused to commit the offence, in their examination-in-chief deposed that around noon on 23.12.2011 police from Champhai Police Station came to their Village and seized those articles, which were produced before the Court. However, in their cross examinations they stated that they had no knowledge from where the seized articles were seized and brought by police, but stated that to their knowledge, the axe was brought from the place of occurrence. 20. PW-10, 11), Malsawmhlua in his evidence-in-chief deposed that on the night of 22.12.2011 while he was sleeping, Lalremruati (PW-3) woke him up around midnight, and told him that Zoramsanga was chopped and then he proceeded to the place of occurrence, saw the victim lying on the lap of Engtea and from them he learnt that accused Chhiahhluna @ Gungpiau had fled away and then he went out in search of him and on spotting him on Khankawn road, caught hold of Chhiahhluna, tied him with a rope in front of the Villagers of Farkawn. He also deposed that later he proceeded to the hospital, took the victim to the Champhai hospital and that the said victim died on his way due to his injury. The defence, even on this occasion, failed to demolish the evidence of this witness that the PWs-2 and 3 informed him that after committing the crime; the accused fled away from the place of occurrence and also failed to obliterate the evidence that the accused was not apprehended by the said witness on the Khankawn road on the night of the incident on 22.12.2011 and was not tied by him with a rope. 21. PW-11, Sanjay Thapa. S.I. of Mizoram Police, the officer who conducted the investigation of the case, in his evidence-in-chief deposed that a written FIR was received from Mangdova (PW-1) on 23.12.11 with regard to the incident and that during his investigation he seized the axe used for commission of the offence and the blood stained clothes of the deceased, arrested the accused person and after completion of the investigation submitted the charge sheet. During his cross examination, the said I.O. PW-11 deposed that the weapon "axe" used by the accused for committing the offence belonged to Lalramenga (PW-2) who is the owner of the residence, where the offence took place and it was evident that the accused had taken the said weapon from the bathroom and used it for committing the said offence. In his cross said police officer also stated that during his investigation it was revealed that the deceased victim and the accused had exchanged heated words before the said offence took place and that from the investigation he found that the deceased and the accused were good friends and were also drinking partners. 22. It is seen that the accused in his statement under Section 313 Cr.P.C. stated before the learned Trial Judge that it was Zoramsanga, the deceased, who assaulted him first, which made him angry and then he took a stick and hit Zoramsanga, but found out that it was an axe and when the learned Trial Judge enquired whether he was from Burma, said accused replied in the affirmative stating that he was in Mizoram for the last 30 years. 23. 23. Placing reliance on the Judgments of the Hon'ble Supreme Court in the cases of Sukhbir Singh (supra) and Ankush Shivaji Gaikwad (supra) as well as the evidence of the I.O. of the case (PW-11), more particularly his cross examination by the defence, the earned Amicus Curiae prayed for alteration of the offence of the appellant/accused to culpable homicide not amounting to murder, punishable under Section 304 (Part-I) of the IPC, with maximum imprisonment for 10 years. He submitted that it is in the evidence of the Investigating Officer that before the incident took place, the deceased and the accused had exchanged heated words and that there was no previous animosity between them and the incident occurred without any premeditation, on sudden provocation. The Amicus Curiae also stated before the Court that the accused in his statement under Section 313 Cr.P.C. had stated before the learned Trial Judge that since Zoramsanga, the deceased assaulted him, he was angry and therefore, in the heat of passion, he took a stick and hit Zoramsanga without realising it to be an axe. 24. The Hon'ble Apex Court in both the cases of Sukhbir Singh (supra) and Ankush Shivaji Gaikwad (supra) have held that- "To avail the benefit of exception 4 (of Section 300 IPC), the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception." 25. The Hon'ble Supreme Court in the case of Ghapoo Yadav Vs. State of M.P., reported in (2003) 3 SCC 528 have held that- "Heat of passion requires that there must be no time for the passions to cool down". But in the present case from the clear and unrebutted evidence of the eye witnesses to the incident, PWs - 2 and 3, it can be seen that the accused had sufficient time to cool down his passion, because before committing the crime, he went to his bed, undressed his clothes and after sometime, went to bathroom, took the axe therefrom and hacked the victim Zoramsanga on his back while he and the PW-2 were sitting near the fireplace. It can also be seen that the accused was aware that the axe was there in the bathroom. Though there was no previous enmity between the victim, but the accused committed the crime of hacking the deceased with an axe after he went to his bed, undressed his clothes, woke after sometime went to bathroom, took the axe from there and gave the axe blow on the victim, on his backside. This act of the accused clearly establishes the commission of offence of murder without any exception, more particularly when his said action was not immediate or in the heat of his passion, but, after sometime, after sufficient time had elapsed to cool down his passion. The defence has failed to place in evidence the time gap, between the heated exchange of words between the victim and the accused and the commission of offence by the accused, to prove that his said action was immediate, without any waste of time. 26. The defence has failed to place in evidence the time gap, between the heated exchange of words between the victim and the accused and the commission of offence by the accused, to prove that his said action was immediate, without any waste of time. 26. Though it is submitted by the learned Amicus Curiae that the accused was under the influence of liquor, but from the evidence of PW-2 it can be seen that the said PW-2, the victim and the accused consumed liquor at IB Veng, Farkawn and thereafter they came to the house of the PW-2, where the incident occurred. But it is not the case of the accused that without his knowledge he was made to consume the liquor or that he was compelled to consume the liquor against his will to reach the stage of intoxication, since it is settled law that voluntary drunkenness is no excuse for commission of a crime and more over, from the evidence it is seen that after committing the crime, the accused fled away from the place of occurrence. 27. Though it is urged by the learned Amicus Curiae that the learned Trial Judge did not provide any opportunity to the accused for sentence hearing as required under Section 235(2) of the Cr.P.C., but from the perusal of the impugned judgment of conviction and sentence dated 05.03.2013 we have observed that after holding that the prosecution proved the guilt of the accused/appellant herein under Section 302 IPC beyond a shadow of all reasonable doubts and convicting the accused accordingly (para-34 of the impugned judgment) and further the learned Trial Judge heard both the prosecution and defence regarding sentence as he recorded that the Public Prosecutor submitted before him to award punishment for imprisonment for life to the accused and the defence counsel, i.e., the counsel for the accused submitted before him that if the accused has been convicted under Section 302 IPC, where there are only two punishments, (i) death or (ii) life and that if the prosecution had prayed to sentence the accused to undergo imprisonment for life, he had nothing to say (para-35 of the impugned judgment). 28. 28. From the perusal of the impugned judgment of conviction and sentence dated 5.3.2013, we have also noticed that after the conviction of the accused under Section 302 IPC, the learned Trial Judge heard the accused, where, he prayed to show a mercy upon him (para-36 of the impugned judgment). The learned Trial Judge, only thereafter sentenced the accused to undergo Rigorous Imprisonment for life with fine of Rs. 5,000/- (para-37 of the impugned judgment). 29. As such, the submission of the learned Amicus Curiae of not giving an opportunity of sentence hearing to the appellant/accused under Section 235(2) of the Cr.P.C. is not correct. However, following the decision of the Hon'ble Apex Court in the case of Mukesh Vs. State (NCT of Delhi), reported in (2017) 6 SCC 1 , we allowed the learned Amicus Curiae to take proper instruction from the accused regarding the sentence and on instruction, the Amicus submitted that as the accused has been convicted under Section 302 IPC and since he has been given the lesser punishment of life imprisonment under the said section of the IPC, he has no further submission to make in that regard. 30. From the above discussion, we are of the considered view that the impugned Judgment & Order of conviction and sentence dated 05.03.2013 passed by learned Additonal Sessions Judge-I, Aizawl, in Criminal Trial No. 299/2011, arising out of Champhai Police Station Case No. 177/2011, does not call for any interference, where the prosecution could prove the quilt of the appellant/accused under Section 302 IPC, beyond all reasonable doubt. 31. Accordingly, this Criminal Appeal being devoid of merit stands dismissed. 32. The Court appreciates the valuable assistance rendered by both Mr. F. Lalengliana, learned Amicus Curiae for the accused appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, representing the State of Mizoram. The State Legal Services Authority, Mizoram, Aizawl shall pay a sum of Rs. 7,500/- to Mr. F. Lalengliana, learned Amicus Curiae towards his professional fee on raising a bill. 33. F. Lalengliana, learned Amicus Curiae for the accused appellant and Mrs. Linda L. Fambawl, learned Additional Public Prosecutor, representing the State of Mizoram. The State Legal Services Authority, Mizoram, Aizawl shall pay a sum of Rs. 7,500/- to Mr. F. Lalengliana, learned Amicus Curiae towards his professional fee on raising a bill. 33. Before parting with the case, we direct the learned Sessions Judge, Aizawl Judicial District, Aizawl to take appropriate action against the erring persons for the loss of the case record of Criminal Trial No. 299/2011 from the custody of his establishment and shall submit a detailed report, within a month, before the Registrar of this Court, about the action taken by the said authority regarding the loss of valuable Court records. 34. Registry shall return the reconstructed LCR to the Court of learned Sessions Judge, Aizawl Judicial District, Aizawl with a copy of this judgment. Registry shall also forward a copy of this judgment to the present appellant/accused through the Special Superintendent of Central Jail, Aizawl for his necessary use.