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2020 DIGILAW 310 (GAU)

Hura Mangha v. State of Arunachal Pradesh

2020-02-28

MICHAEL ZOTHANKHUMA, SANJAY KUMAR MEDHI

body2020
JUDGMENT Michael Zothankhuma, J. - This appeal has been filed against the judgement dated 18.04.2019 passed by the Sessions Court in Sessions case No.218/2013(YPA), by which the appellant has been convicted under Section 326 and 201 IPC. The appellant has been sentenced to undergo rigorous imprisonment for 10 (ten) years with a fine of Rs. 20,000/-, in default simple imprisonment for 6 (six) months under Section 326 IPC and to undergo imprisonment for 3 (three) years with a fine of Rs. 5,000/-, in default simple imprisonment for 2 (two) months under Section 201 IPC. 2. The prosecution case in brief is that one Shri Tana Tayo lodged an F.I.R. on 31.03.2013 at 1550 hours, which was to the effect that on 31.03.2013 at about 1;00 pm, his son Tana Martin''s right hand was chopped off by one unidentified person, who was riding a red coloured Pulsar bike bearing registration No. AR-01-D-9325. On the basis of the F.I.R., Doimukh P.S. Case No. 14/2013 under Section 326/307 IPC was registered. Prior to the submission of the written F.I.R., a telephonic information was also received by the Doimukh Police Station that on 31.03.2013, one unknown person in a red Pulsar bike fled away after chopping off the hand of a boy. Investigation was initiated and search was conducted and the said red Pulsar bike was recovered from the road side of the RGU Catholic Church on 31.03.2013. 3. Investigation revealed that the red Pulsar bike belonged to one Shri Hura Nyakum, who was the cousin of the appellant and that the bike had been used by the appellant. The investigation further revealed that the attack on the victim Tana Martin had been carried out by the appellant as a revenge act, due to Tana Martin and a group of friends having beaten the appellant in the previous year. The appellant thereafter, confessed to his crime before the Chief Judicial Magistrate 2nd Class on 25.07.2013 and the Investigating Officer having found sufficient evidence against the appellant, filed the Charge-sheet under Section 307/326 IPC on 09.08.2013. Charge under Section 326/307 IPC was framed against the appellant on 13.05.2014, wherein, the appellant pleaded not guilty and claimed to be tried. After the evidence of 9(nine) prosecution witnesses were adduced, along with one defence witness, the statement of the appellant was recorded under Section 313 Cr.P.C.. Charge under Section 326/307 IPC was framed against the appellant on 13.05.2014, wherein, the appellant pleaded not guilty and claimed to be tried. After the evidence of 9(nine) prosecution witnesses were adduced, along with one defence witness, the statement of the appellant was recorded under Section 313 Cr.P.C.. The learned Trial Court, thereafter, convicted the appellant under Section 326/201 IPC and sentenced him as stated earlier. 4. The appellant being aggrieved, has filed the present appeal and challenged the impugned judgment on the ground that there were no eye witnesses to the crime committed upon Tana Martin. Secondly, evidence given by Tana Martin (PW-I), does not prove that the appellant was the perpetrator of the crime. Thirdly, the appellant having retracted his confessional statement while giving his statement under Section 313 Cr.P.C., the confessional statement made by the appellant before the Chief Judicial Magistrate 2nd Class on 25.07.2013, was not admissible as evidence. Fourthly, no Test Identification Parade (TIP), was conducted by the Police, prior to PW-1 giving his evidence, to prove that the appellant was the perpetrator of the crime. Fifthly, no legal aid counsel was provided to the appellant, prior to the confession being made by the appellant, before the Chief Judicial Magistrate 2nd Class. The learned counsel for the appellant also submits that the Magistrate recording the confessional statement of the appellant had given only half an hour time for reflection, which was not sufficient. Accordingly, the confessional statement could not be relied upon, for the purpose of convicting the appellant. In addition to the above grounds given for challenging the impugned judgement, the appellant''s counsel has in the alternative prayed for reducing the sentence imposed upon the appellant, in the event this Court upholds the findings of the Trial Court. 5. The learned counsel for the appellant submits that the appellant is having a wife with three minor children and in view of his incarceration in jail, his family are living a hand to mouth existence. Accordingly, this Court should show some leniency as the injury inflicted upon the victim was not life threatening and as the victim has recovered. 6. In support of his submissions, the learned counsel for the appellant has relied upon the judgements of the Apex court in the cases of: wxyz (i). Rajesh Govind Jagesh vs. State of Maharashtra & Ors., (1999) 8 SCC 428 zyxw wxyz (ii). 6. In support of his submissions, the learned counsel for the appellant has relied upon the judgements of the Apex court in the cases of: wxyz (i). Rajesh Govind Jagesh vs. State of Maharashtra & Ors., (1999) 8 SCC 428 zyxw wxyz (ii). Babubhai Udesinh Parmar vs. State of Gujrat., (2007) CriLJ 786 zyxw wxyz (iii). Parmananda Pegu vs. State of Assam., (2004) AIR SC 4197 zyxw wxyz (IV). State of Rajasthan vs. Netrapal & Ors., (2007) 4 SCC 45 zyxw wxyz (v). Pashora Singh & Anr. vs. State of Punjab, (1993) AIR SC 1256 zyxw wxyz (vi). Kashiram & Ors. vs. State of Madhya Pradesh, (2006) CriLJ 3488 zyxw 7. The learned Addl. P. P., on the other hand, submits that there is no infirmity with the judgment passed by the learned Trial Court. He also submits that the confessional statement made by the appellant is enough to convict the appellant. He also submits that the evidence of PW-1 is corroborated by the evidence of PWs- 4, 6 & 7. Accordingly, he prays that the impugned judgment should be upheld. 8. We have heard the counsels for the parties. 9. Though the appellant''s counsel has taken the stand that there were no eye witnesses to the crime, the very fact that the victim himself had seen the appellant hit him with a Dao clearly shows that there could not have been any other better eye witness to the crime in question. 10. The learned counsel for the appellant has relied upon the statement of the victim (P.W1), given in his cross-examination, to support his stand that the appellant was not identified as the perpetrator of the crime, which is as follows: wxyz " After the incident, I called my mother and informed about the incident thereafter my mother told my father about the incident I told my mother that I could not identify the person who chopped off my hand." zyxw 11. This statement of the PW-1, to our understanding, is subjective as it could mean that he did not know the name of the person or that he could not identify him straightaway at the time of the attack. This statement of the PW-1, to our understanding, is subjective as it could mean that he did not know the name of the person or that he could not identify him straightaway at the time of the attack. However, the inconsistency is explained in the later part of his crossexamination where he states as follows: wxyz " It is true that on 22.02.2012, there was some assault case between me and present accused and one Biri Tusum wife of Biri Gatu and in connection with that case, the F.I.R. was lodged and I was also arrested ... It is not true that the accused did not come to Midpu on the incident day. It is not true that the accused was not sitting on the back seat of the motor cycle as pillion rider after the incident." zyxw wxyz The victim Tana Martin (PW-1) in his examination-in-chief has stated as follows: zyxw wxyz "when I look back I saw the accused person, who is standing on the dock today heading towards me with a dao on his hand to hit me again. Then I suddenly jumped and crossed the fencing and started running away. At that time I also saw the accused and there was another person who was on motorcycle." Thus, the evidence of PW-1 as a whole, clearly goes to show that though the victim could not identify the appellant straight away, the victim could identify and remember the appellant at a later time. This, does not in any manner, mean that the appellant was not identified by the victim as the perpetrator of the crime. zyxw 12. The confessional statement of the appellant recorded by the Judicial Magistrate 2nd Class, under Section 164 Cr.P.C., shows that prior to his statement being recorded, the appellant had been given half an hour time for reflection. The relevant portion of the confessional statement dated 25.07.2013 is reproduced below: wxyz " Q. Were you acquainted with the victim Master Tana Martin before the incident on 31st March 2013? zyxw wxyz Ans:- Yes, I knew him because last year i.e. on 2012 somewhere near the Nyakum festival Master Tana Martin and his five friends had physically assaulted me and robbed Rs. 3500/- from me. Due to the physical assault inflicted on me I had sustained back injury for which I received treatment at R. K. Mission Hospital. zyxw wxyz Ans:- Yes, I knew him because last year i.e. on 2012 somewhere near the Nyakum festival Master Tana Martin and his five friends had physically assaulted me and robbed Rs. 3500/- from me. Due to the physical assault inflicted on me I had sustained back injury for which I received treatment at R. K. Mission Hospital. After the assault I recognized Master Tana Martin but he fail to recognized me. zyxw wxyz Q. What happed on 31st March Around 1.00 pm at the place ofoccurrence of the incident? zyxw wxyz Ans:- on the day of the incident I was travelling by bike through MidpuIII village on Joyrido when suddenly I saw Mst. Tana Martin was also roaming there. Seeing him there I recall the incident of last year when he had brutally beaten me up and I got very angry and on the heat of the moment I attacked him and chopped off his right hand. After the attack the Police and relative of Mst. Tana Martin started pursuing me and I fled from incident spot. I disposed the bike somewhere near RGU university and fled towards the jungle on foot and proceeded towards Harmuty and from Harmuty I proceeded towards my Hometown on Truck and after two days I reached my hometown. zyxw wxyz Q. What was the weapon used for inflicting the grievous injury? zyxw wxyz Ans:- Traditional Sword (Dao) zyxw wxyz Q. Where''s the weapon used? zyxw wxyz Ans:- I threw the Dao in the river on my way to the Home Town. zyxw wxyz Q. Who is the owner of the bike bearing Reg No AR-01-D-9325? zyxw wxyz Ans:- My cousin brother Hura Nyakum was the owner of the bike. zyxw wxyz Q. Did the owner of the bike had prior information of the motive behind the use of the bike for the accomplishment of the alleged crime? zyxw wxyz Ans:- No, he had no idea. zyxw wxyz Q. Did you pre-plan the attack on Master Tana Martin? zyxw wxyz Ans:- No, I attacked him on the heat of the moment. zyxw wxyz Q. Did anyone helped you in the alleged crime? zyxw wxyz Ans:- No. zyxw wxyz Q. Do you want to Add any more information regarding the incident" zyxw wxyz Ans:- No. zyxw wxyz Q. What was your motive or reason behind the attack on Mst. Tana Martin? zyxw wxyz Q. Did anyone helped you in the alleged crime? zyxw wxyz Ans:- No. zyxw wxyz Q. Do you want to Add any more information regarding the incident" zyxw wxyz Ans:- No. zyxw wxyz Q. What was your motive or reason behind the attack on Mst. Tana Martin? zyxw wxyz Ans:- My reason for assault on Mst. Tana Martin was basically for revenge. Last year when I was driving a private vehicle and was on my way to my Employees(sic) house when Mst. Tana Martin and his five friend physically assaulted me and my Employees(sic) female relative and also robbed me of Rs. 3500. The attacked resulted in sever back injury and I underwent medical treatment at R.K. Mission Hospital. I am the sole bread earner of my family and I had to support my wife and three kids and due to the back injury I am unable to do so. My recurrent back pain and emotional trauma led to a feeling of anger, frustration and revenge feeling in me because of which I attacked Mst. Tana Martin when I saw him on 31st March 2013 around 1.00 pm. My action was spontaneous and on the heat of the moment and not pre-planned. " zyxw 13. The relevant portion of the appellant''s statement under Section 313 Cr.P.C., whereby, he has retracted his confessional statement when questioned with the evidence given by P.W.8, i.e. the Magistrate who recorded the confessional statement, is reproduced below: wxyz "Answer:- It is true that I have confessed before the magistrate for commission of alleged offence. But the I.O of the case compelled me to confess. The I.O threatened me to kill if I don''t give a confessional statement. But in reality I have not committed the alleged offence as confessed before the magistrate. zyxw wxyz Answer:- It is true that in earlier occasion victim Tana Martin assaulted me for which I lodged complaint before the police but thereafter I did not pursue the matter. But I did not assault the victim taking revenge of that assault incident. But the police compelled me to confess before the magistrate that I have assaulted victim taking revenge on him." zyxw 14. The law on retracted confession is to the effect that the Courts, while arriving at a finding of guilt would not ordinarily rely solely upon the retracted confession but would look for corroboration of material particulars. But the police compelled me to confess before the magistrate that I have assaulted victim taking revenge on him." zyxw 14. The law on retracted confession is to the effect that the Courts, while arriving at a finding of guilt would not ordinarily rely solely upon the retracted confession but would look for corroboration of material particulars. Such corroboration must be individual and conclusive in nature. In the case of Aloke Nath Dutta Vs. State of West Bengal, (2007) 12 SCC 230 , the Apex court has held at paragraph Nos. 114 & 117, as follows: wxyz "...114. Caution and prudence in accepting a retracted confession is an ordinary rule. Although if a retracted confession is found to be corroborative in material particulars, it may be the basis of conviction. zyxw wxyz 117. There cannot, however, be any doubt or dispute that although retracted confession is admissible, the same should be looked with some amount of suspicion - a stronger suspicion than that which is attached to the confession of an approver who leads evidence to the court." zyxw wxyz In the case of Parmananda Pegu vs. State of Assam, (2004) 7 SCC 779 , the Apex Court has held at paragraph No. 19 as follows: zyxw wxyz "19. In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the Court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the Court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true. The law on the subject of retracted confession has been succinctly laid down by a three Judge bench of this Court in Subramania Goundan Vs. State of Madras, (1958) SCR 428 which lays down: zyxw wxyz "..The next question is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. State of Madras, (1958) SCR 428 which lays down: zyxw wxyz "..The next question is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being In re Kesava Pillai [ILR 53 Mad 160 : (AIR 1929 Mad 837)] (B) that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this Court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated one of the latest cases being Balbir Singh Vs. State of Punjab (S), (1957) AIR SC 216 (C), but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession." zyxw wxyz In the case of Parmananda Pegu (Supra), the Apex Court has held that a retracted confession may form the legal basis of conviction if the Court is satisfied that it was true and voluntarily made. But it has been held that a Court shall not base a conviction on such a confession without corroboration. But it has been held that a Court shall not base a conviction on such a confession without corroboration. It is not a Rule of law, but is only, a Rule of prudence. zyxw 15. In the present case, though the appellant has retracted his confessional statement, the victim has identified the appellant as the attacker. Also the evidence of PW-4 is to the effect that he had seen the accused person standing on the dock near the Pulsar bike and one person was standing near the gate of Tana with his mouth covered with a muffler. The evidence of PW-6 is to the following effect: wxyz "...The incident took place on 31.03.2013 on Sunday. On that day, I was working in Tana Shelly''s house preparing for some local puja. At around 10.30 victim Martin and his friend Tana Tamin also came to Tana Shelly''s house. After working for about more than hour Martin and Tana Tamin left Shelly''s house I did not even realize when they left. But suddenly I heard Martin holding his right hand by his left hand shouting for help and saying his hand been chopped. Then immediately I rushed towards him and saw Martin was holding is right hand and told me that two persons with red pulsar fled towards Doimukh after chopping his hand. Earlier I also saw the said the red pulsar bike being parked in that area, two persons were standing there, one stick measuring above 1 1/2 ft. dao like was also tied in that bike on the side. I did not care and notice properly to the persons standing there as normally people used to park their bike in that place. After incident I also saw that two persons riding bike too speedily about to fall but they manage to cross the turning. Then immediately after being informed by Martin about the incident I also took my bike and tried to follow the miscreants but my bike could not go speed as mistakenly the choke of the bike was kept open and it did not allow me to go speed. However, later on, I followed them. But could not see them. While reaching long bridge and as people standing there and they told me that a bike had gone to Doimukh side so I followed them and reached near police station, Doimukh. However, later on, I followed them. But could not see them. While reaching long bridge and as people standing there and they told me that a bike had gone to Doimukh side so I followed them and reached near police station, Doimukh. On being asked, the constable told me that the persons left towards Gumto Side. So, again I followed towards Gumto side I searched all along but could not find them. However, in the process while I was talking to Tana Shelly to stop any pulsar bike coming from Doimukh side, then I saw the same red pulsar bike speedily going towards Doimukh side. At that time, there was only one single person so I did not care about. Later on, after searching for them all around Gumto I went towards the university and found the same red pulsar bike being parked and handle locked near the steps before reaching university. Then I informed Tana Topu about the presence of bike. By the time he reached the place, police also reached the place where the bike was parked. The bike was red color pulsar bike." zyxw wxyz On considering the evidence adduced by the victim, PWs. 4 & 6, this Court finds that the same corroborates the retracted confessional statement made by the appellant. Further the Magistrate had followed all the safeguards required under Section 164 Cr.P.C, before the recording the confessional statement of the appellant. In any event, even if the retracted confessional statement is not considered, the fact remains that the appellant was identified by the victim as the perpetrator of the crime. zyxw 16. In respect of the appellant''s counsel''s contention that no Test Identification Parade (TIP) had been carried out to prove that that appellant was the perpetrator of the crime, we are of the view that the absence of an identification of TIP does not vitiate the prosecution case, inasmuch as, the victim (PW-1) has indentified the appellant as the perpetrator of the crime. wxyz The judgments of the Apex Court in Rajesh Govind Jagesh vs. State of Maharashtra & Ors. (Supra) and State of Rajasthan vs. Netrapal & Ors.(Supra), is with regard to the obligatory nature on the part of the investigating agency, to hold identification parade for the purpose of enabling the witness to identify the person, alleged to have committed the offence. In the present case, no identification parade was held. (Supra) and State of Rajasthan vs. Netrapal & Ors.(Supra), is with regard to the obligatory nature on the part of the investigating agency, to hold identification parade for the purpose of enabling the witness to identify the person, alleged to have committed the offence. In the present case, no identification parade was held. This, however, does not vitiate the Prosecution case, as the holding of a identification proceeding may not be substantive evidence though it can be used for corroborative purposes. In the present case, the appellant having been identified by the victim, we are of the view that no prejudice has been caused to the appellant due to an identification parade not being held. zyxw 17. With respect to the appellant''s counsel''s submission that no legal aid was provided to the appellant, prior to the appellant giving his confessional statement, we do not find that the same has caused any prejudice to the appellant, inasmuch as, the appellant was represented by a private defence counsel during the proceedings before the Trial Court. If he could afford a private defence counsel during the trial proceedings, he could have surely engaged a counsel during the time his confession was made. 18. With respect to the submission made by the appellant''s counsel that half an hour was not enough time for reflection, the appellants counsel has not been able to show as to why the half an hour reflection time was not enough, or whether the same had caused any prejudice to the appellant. There can be no hard and fast rule, with regard to the time to be given for reflection and each case would have to be tested on the basis of each individual case, facts and circumstances. Going through the confessional statement, we find that the learned recording magistrate had taken all precautions required under Section 164 Cr.P.C., before recording the appellant''s confessional statement. wxyz In the case of Babubhai Udeshinh Parmar vs. State of Gujrat (Supra), the Apex Court has held that the Court must give sufficient time to an accused to ponder over as to whether he would make a confession or not. In the present case there is nothing to show that the confession was not voluntary or truthful in nature. wxyz In the case of Babubhai Udeshinh Parmar vs. State of Gujrat (Supra), the Apex Court has held that the Court must give sufficient time to an accused to ponder over as to whether he would make a confession or not. In the present case there is nothing to show that the confession was not voluntary or truthful in nature. Accordingly, we do not find any reason to hold that the half an hour reflection time given to the appellant, prior to recording his confessional statement, was not enough and had caused prejudice to the appellant. zyxw 19. In view of the reasons stated above, we do not find any grounds to interfere with the impugned judgment passed by the learned Trial Court. The above being said, the next question that has to be decided is whether the sentences imposed upon the appellant could be reduced. wxyz In the case of Pashora Singh and Anr. vs. State of Pujab (Supra) and in the case of Kashiram and Anr. vs. State of Madhya Pradesh (Supra), the Apex court had reduced the sentence imposed upon the accused, keeping in view the suffering that would be inflicted upon the family of the accused person. zyxw wxyz As, can be seen from the impugned judgment, the appellant has been convicted for 10 (ten) years under Section 326 IPC along with a fine of Rs. 20,000/-, in default simple imprisonment for 6 (six) months. On considering the above judgements and the fact that appellant is having a family consisting of a wife with 3 (three) minor children and as the age of the appellant is approximately 34 years, we are of the view that besides a sentence being a deterrent, the same should also be made for reformation of the convict. Also, as per the evidence adduced, it is seen that though the injury upon the hand of the victim was quite serious as it was nearly chopped off, the victim has recovered to a great extent. Keeping the above in view, we are of the view that justice would be served, if the sentence imposed upon the appellant under Section 326 IPC is reduced to 5 (five) years. zyxw wxyz Accordingly, the appellant is sentenced to undergo rigorous imprisonment for 5 (five) years, along with a fine of Rs. 20,000/-, in default simple imprisonment for 6 (six) months under Section 326 IPC. zyxw 20. zyxw wxyz Accordingly, the appellant is sentenced to undergo rigorous imprisonment for 5 (five) years, along with a fine of Rs. 20,000/-, in default simple imprisonment for 6 (six) months under Section 326 IPC. zyxw 20. In respect of the sentence of 3 (three) years imposed upon the appellants with a fine of Rs. 5,000/-, in default simple imprisonment for 2 (two) months under Section 201 IPC, the lower Court records and the impugned judgment does not indicate how the appellant was convicted under Section 201 IPC, as there is no alteration of the charge under Section 307 IPC or addition of the charge under Section 201 IPC, made by the Trial Court, as required under Section 216 Cr.P.C. Further, the offense under Section 307 IPC and Section 201 IPC are distinct offences and as such, Section 216 (2) Cr.P.C had to be followed if charge was to be altered or a new charge added, which was not done in this case. 21. In that view of the matter, we hold that the appellant could not have been convicted under Section 201 IPC and accordingly, the conviction and sentence under Section 201 IPC is not sustainable. The same is accordingly set aside. 22. In view of the reasons stated above, the appellant is convicted under Section 326 IPC and sentenced to undergo rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 20,000/-, in default simple imprisonment for 6 (six) months. 23. Consequently, the impugned judgement dated 18.04.2019, passed by the Sessions Court, Yupia, in Sessions Case No. 218/2013(YPA), is modified to the extent indicated above. 24. The appeal is accordingly disposed of. 25. Send back the L.C.R.