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2021 DIGILAW 10 (MEG)

Sambar Kharthangmaw v. State of Meghalaya

2021-03-03

R.V.MORE, WANLURA DIENGDOH

body2021
JUDGMENT : R.V. More, J. 1. Heard learned counsels for the respective parties. 2. By the impugned judgment and order dated 29.03.2018, the learned District & Sessions Judge, West Khasi Hills District, Nongstoin convicted the accused/appellant for an offence punishable under Section 302 IPC and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees ten thousand) only and in default to suffer simple imprisonment for a further period of one year. 3. The prosecution's story in brief is that on 14.11.2015 (P.W. 1) Shri. Phling Kharthangmaw son of (L) Smti. Story Kharthangmaw appeared at the police station and submitted a written FIR to the effect that his mother Smti. Story Kharthangmaw was murdered by her own brother Shri. Sambar Kharthangmaw, the present appellant on 14.11.2015 at about 7:00 PM. 4. On receiving the FIR, police registered a case vide Mairang P.S. Case No. 55 (11) 2015, arrested the appellant/accused and started the investigation. After completion of the investigation, the police submitted the charge sheet against the present appellant for the offence punishable under Section 302 IPC. 5. The learned Sessions Judge framed charge against the accused for an offence punishable under Section 302 IPC, to which the present appellant/accused pleaded guilty. The learned Sessions Judge despite that, proceeded to record the evidence of the prosecution's witnesses. The prosecution in order to prove the guilt of the appellant/accused examined as many as twelve witnesses including the eye witness (P.W. 9). The learned Sessions Judge examine the last prosecution witness, namely S.I. H. Thabah (P.W. 12) on 01.02.2018 and thereafter, made endorsement in order sheet that prosecution evidence is treated as closed. On very same day, the endorsement was also made in the order sheet that the accused person has pleaded guilty and therefore, statement under Section 313 of the Cr.P.C. is not required. The order sheet further shows that no opportunity was given to the defence to examine the defence witnesses. 6. The learned Sessions Judge after analyzing the evidence on record led by the prosecution and after hearing the arguments of both sides came to the conclusion that the evidence of the prosecution's witnesses are trustworthy and reliable and charge of the accused/appellant is proved. As stated earlier, the appellant/accused was thereafter sentenced to suffer imprisonment for life. 7. Mr. 6. The learned Sessions Judge after analyzing the evidence on record led by the prosecution and after hearing the arguments of both sides came to the conclusion that the evidence of the prosecution's witnesses are trustworthy and reliable and charge of the accused/appellant is proved. As stated earlier, the appellant/accused was thereafter sentenced to suffer imprisonment for life. 7. Mr. S.D. Upadhaya, learned Legal Aid Counsel submitted that in the present case, neither the statement of the accused/appellant under Section 313 is recorded, nor opportunity was given to the defence to examine defence witnesses. In the circumstances, he submitted that the trial is vitiated and the benefit of which must go to the appellant/accused. He lastly submits that the appeal may be allowed by quashing and setting aside the impugned judgment and order dated 29.03.2018. 8. Mr. N.D. Chullai, learned AAG fairly conceded that gross error is committed by the learned Sessions Judge in not recording the statement of the appellant/accused under Section 313 and not giving an opportunity to the appellant to examine the defence witnesses. Learned AAG relying upon the decision of the Apex Court in Nar Singh v. State of Haryana: (2015) 1 SCC 496 submitted that the matter may be remanded to the learned Sessions Judge for fresh trial from the stage of recording of the statement under Section 313. 9. Admittedly, the accused and the deceased are tribals and they fall in tribal areas. By virtue of the provisions of Section 1 of Cr.P.C. only the Chapters other than Chapter VIII, X and XI are not applicable to the tribal areas. Nevertheless, there is no dispute that the spirit of the Cr.P.C. is applicable. The procedure for the trial of Sessions case is outlined in Chapter XVIII of the Cr.P.C. According to the procedure provided in that Chapter after the case is opened as required under Section226, if, upon consideration of the record of the case and the documents submitted therewith, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for reasons to be recorded. If, however, the Judge does not see reason to discharge the accused he is required to frame in writing a charge against the accused as required by Section 228 of the Cr.P.C. Where the Judge frames the charge, the charge so framed has to be read over and explained to the accused and the accused is required to be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision shows that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying the case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea he must fix a date for the examination of the witnesses i.e. the trial of the case. 10. In the present case, undoubtedly, the appellant/accused pleaded guilty to the charge. Despite this, the learned Sessions Judge proceeded to record the evidence of the prosecution's witnesses. The Trial Court subsequent to the guilt pleaded by the appellant proceeded to record the evidence of the prosecution's witnesses, which shows that the learned Sessions Judge did not act upon the guilty plea of the appellant/accused. The appellant is found guilty on the basis of the learned Sessions Judge coming to the conclusion that the appellant is guilty of committing an offence under Section 302 IPC and sentenced him to life imprisonment relying upon the evidence led by the prosecution's witnesses and not on the guilty plea of the accused. 11. The appellant is found guilty on the basis of the learned Sessions Judge coming to the conclusion that the appellant is guilty of committing an offence under Section 302 IPC and sentenced him to life imprisonment relying upon the evidence led by the prosecution's witnesses and not on the guilty plea of the accused. 11. In the above circumstances, in our considered opinion, the learned Sessions Judge could not have refused to record the statement of the accused under Section 313 merely because the appellant/accused pleaded guilty. The scope and object and importance of the statement under Section 313 is reiterated by the Apex Court in Nar Singh (supra) wherein the Apex Court made a distinction between Section 313(1)(a) and (b) and held that Section 313(1)(a) relates to any stage of the inquiry or trial, while Section 313(b) Cr.P.C. takes place after the prosecution's witnesses are examined and before the accused is called upon to enter upon his defence. The Apex Court further held that the former is particular and optional; but the latter is general and mandatory. The importance of provisions of Section 313 of Cr.P.C. is highlighted by the Apex Court in this case by making observation in paragraph 16 which reads as follows: "76. Undoubtedly, the importance of a statement under Section 313 Cr.P.C., insofar as the accused is concerned, can hardly be minimised. The statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case. If an objection as to Section 313 Cr.P.C. statement is taken at the earliest stage, the Court can make good the defect and record additional statement of the accused as that would be in the interest of all. When objections as to defective Section 313 Cr.P.C. statement is raised in the appellate court, then difficulty arises for the prosecution as well as the accused. When the trial court is required to act in accordance with the mandatory provisions of Section 313 Cr.P.C., failure on the part of the trial court to comply with the mandate of the law, in our view, cannot automatically enure to the benefit of the accused. When the trial court is required to act in accordance with the mandatory provisions of Section 313 Cr.P.C., failure on the part of the trial court to comply with the mandate of the law, in our view, cannot automatically enure to the benefit of the accused. Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. Insofar as non-compliance of mandatory provisions of Section 313 Cr.P.C. is concerned it is an error essentially committed by the learned Sessions Judge. Since justice suffers in the hands of the court, the same has to be corrected or rectified in the appeal." 12. Then in paragraph 30 of Nar Singh (supra) case, the Apex Court summarized the course available to the appellate Court that, whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, the relevant paragraphs i.e. 30, 30.1, 30.2, 30.3 and 30.4 are reproduced herein below for ready reference: "30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under: 30.1. Whenever a plea of non-compliance with Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer. 30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits. 30.3. 30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits. 30.3. If the appellate court is of the opinion that non-compliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness, if any, and dispose of the matter afresh. 30.4. The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused." 13. In the light of the observation of the Apex Court in paragraph 16 reproduced above in Nar Singh (supra) case, we are unable to accept the submission of the learned Legal Aid Counsel that the trial of the Sessions case is vitiated. We are accepting the submission of the learned AAG to remand the matter back to the Sessions Court for re-trial from the stage of the recording of the statement under Section 313. 14. In the above facts and circumstances, we are disposing of the appeal by passing the following order: i. The impugned judgment and order convicting the appellant for an offence punishable under Section 302 is quashed and set aside. ii. The matter is remitted back to the Trial Court for proceeding afresh from the stage of Section 313 Cr.P.C. iii. The Trial Court shall record the statement of the appellant/accused under Section 313 and thereafter, shall give an opportunity to him to adduce evidence, if any. iv. Thereafter, considering the evidence on record and pass appropriate orders. 15. The Trial Court shall complete the entire exercise expeditiously and preferably within a period of 6(six) months from the date of receipt of this order. 16. iv. Thereafter, considering the evidence on record and pass appropriate orders. 15. The Trial Court shall complete the entire exercise expeditiously and preferably within a period of 6(six) months from the date of receipt of this order. 16. Registry is directed to send the record of proceedings back to the Trial Court immediately. 17. We make it clear that we are not expressing our opinion on the merits of the case and the Trial Court to decide the matter independently in accordance with law. 18. Appeal disposed of accordingly.