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2019 DIGILAW 819 (GAU)

Kumar Subha v. State of Mizoram

2019-07-11

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. Heard Mr. Jonathan L. Sailo, the learned Amicus Curiae for the appellant and Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor for the State. 2. This is an appeal from Jail filed by the accused appellant against the Judgment and Order dated 07.05.2018, passed by the Additional District and Sessions Judge, Champhai in Sessions Case No. 22/2015, convicting the appellant under Section 302 of the IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 9000/- along with a default clause. 3. The prosecution's story in brief is that on 05.08.2014, one Smt. Challiani (PW 1) lodged an FIR before the Officer-in-Charge, Khawzawl Police Station to the effect that on 05.08.2014 at around 9.20 pm, her son Vanlalfela who set out to collect firewood at Khuailui area was struck by a dao on his neck by the appellant who is the owner of the farm house, where they spent the night. As a result, her son, succumbed to his injury and died. Khawzawl Police Station Case No. 66/2014 under Section 302 IPC was therefore registered on the same day and investigation conducted. Upon completion of the investigation, a charge sheet was submitted before the Trial Court whereafter, a charge under Section 302 IPC was framed against the appellant. The appellant pleaded not guilty to the charge and claimed for trial. A criminal trial was thus set into motion. During the trial, the prosecution examined as many as 8 prosecution witnesses although 10 witnesses were cited. Amongst the cited witnesses, PW 2 and PW 7 were not examined. No witnesses were examined by the defence. The appellant was thus examined under Section 313 of the CrPC and consequently, the trial was concluded and vide the impugned Judgment and Order, the appellant was convicted and sentenced as already mentioned herein above. 4. Mr. Jonathan L. Sailo, the learned Amicus Curiae at the outset submits that there is no mens rea, motive or intention on the part of the appellant to kill the deceased. Referring to the explanation made by the appellant in his examination under Section 313 of the CrPC, the learned Amicus Curiae submits that the appellant was provoked by the deceased by pointing a gun towards him and saying how he wished to kill him. Referring to the explanation made by the appellant in his examination under Section 313 of the CrPC, the learned Amicus Curiae submits that the appellant was provoked by the deceased by pointing a gun towards him and saying how he wished to kill him. Seeing this, the friends of the deceased took away the gun from him and the appellant feeling unpleasant, entered the farm house. However, the deceased followed him and throttled him by his neck asking him as to whether he was angry although the appellant said that he was not angry, the deceased grabbed him by his chest and during which time, the appellant reacted by grabbing a dao, which was placed above the fireplace. The appellant however did not know that he had grabbed a dao. As he struck the deceased, the dao sliced his neck and as a result, the deceased succumbed to his injury. It is therefore clear that the appellant did not have any intention to kill the deceased. 5. The learned Amicus Curiae further submits that from the evidence led by the prosecution witnesses, a case under Section 302 IPC has not been established. But it would fall under Section 304A and if not at best under Section 304 Part-2 of the IPC. The learned Amicus Curiae in support of his submission that there was no mens rea or motive behind the death of the deceased relies upon the following authorities:- (1) State of Rajasthan Vs. Hakam Singh, (2011) 15 SCC 171. (2) Sakharam Vs. State of Madhya Pradesh, (1992) 2 SCC 153 . (3) Rajinder Kumar and Others Vs. State of Punjab, (1966) AIR SC 1322. 6. Mrs. Linda L. Fambawl, the learned Addl. Public Prosecutor on the other hand submits that the fact of a gun being involved in the incident is only a made up story. She submits that none of the prosecution witnesses except for the Case I.O had mentioned about a gun having been pointed by the deceased towards the appellant. She submits that the Case I.O, who was examined as PW 10 has only narrated the statements of the witnesses recorded under Section 161 of the CrPC. She submits that statements recorded under Section 161 CrPC does not have any evidentiary value in the trial proceedings and cannot be the basis for convicting or acquitting an accused. She submits that the Case I.O, who was examined as PW 10 has only narrated the statements of the witnesses recorded under Section 161 of the CrPC. She submits that statements recorded under Section 161 CrPC does not have any evidentiary value in the trial proceedings and cannot be the basis for convicting or acquitting an accused. She submits that as many as 8 prosecution witnesses were examined and the analysis of the evidence reveals that the deceased had no weapon in his hand. The appellant however responded with a dao. Since the PW 4 was present inside the house when the incident occurred, the question of there being a motive or intention on the part of the appellant is irrelevant. She thus submits that the Trial Court is therefore only justified in passing the impugned Judgment and Order. 7. We have heard the submissions advanced by the learned counsels for the rival parties and we have also perused the materials available on records including the LCR. 8. As already noticed, the prosecution examined only 8 witnesses, out of the 10 witnesses cited. From the records, it is seen that PW 2, P.C Rosiama and PW 7, Saila Rai have not been examined. The order sheet of the Trial Court reflects that these two (2) witnesses were dropped as they failed to appear despite summons issued to them. The Trial Court under Chapter-VI of the CrPC is empowered to secure the presence of a witness by issuance of a bailable or non-bailable warrant of arrest. The examination of all the cited witnesses is important in view of the explanation of the appellant in his examination under Section 313 of the CrPC. As already seen, the PW- 10 in his examination-in-chief stated that while he conducted the investigation, he recorded the statement of the witnesses wherein it was stated that the deceased misbehaved amongst his friends with a gun. He stated that the accused told him that the deceased pointed a gun towards him and he reacted by using a Dao. While such was the evidence of PW 10, which only corroborates with the explanation of the appellant in his statement under Section 313 of the CrPC, the learned Trial Court should have come up with a finding on this issue. 9. Having regard to the same and considering the non- examination of the prosecution Witness Nos. While such was the evidence of PW 10, which only corroborates with the explanation of the appellant in his statement under Section 313 of the CrPC, the learned Trial Court should have come up with a finding on this issue. 9. Having regard to the same and considering the non- examination of the prosecution Witness Nos. 2 & 7, we are of the view that the matter should be remanded back to the Trial Court for fresh consideration from the stage of examination of prosecution witnesses i.e. PW 2 and PW 7. The Trial Court shall also record a finding as to whether or not a gun was involved in the incident as can be derived from the deposition of PW 10 and from the 313 statements of the appellant. 10. Because of the view that we have taken as mentioned herein above, it will not be necessary to examine the case on any other aspect and likewise, appreciate the authorities relied upon by the learned Amicus Curiae. 11. The appeal is thus disposed of by setting aside the impugned Judgment & Order dated 07.05.2018 and with a direction to the Trial Court to examine PW 2 and PW 7 and also record a finding about the involvement of a gun. The Trial Court shall conclude the trial as expeditiously as possible and preferably within a period of 2 (two) months from the date of receipt of the LCR. We also make it clear that we have not expressed anything on merit and the Trial Court is at liberty to come to its own conclusion. 12. Considering the fact that the appellant was on bail before his conviction, we deem it appropriate to release him on bail subject to him executing a bail bond of Rs. 20,000/-(Rupees twenty thousand) only, with one local surety of the like amount to the satisfaction of the Additional Sessions Judge, Champhai. 13. For the valuable assistance rendered by Mr. Jonathan L. Sailo, the learned Amicus Curiae, his fee is quantified at Rs. 9000/-. The amount shall be paid to him by the Mizoram State Legal Services Authority on production of a copy of this order. 14. Registry to send back the LCR forthwith.