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2021 DIGILAW 11 (MEG)

Aseng Sangma v. State of Meghalaya

2021-03-04

R.V.MORE, WANLURA DIENGDOH

body2021
JUDGMENT : R.V. More, J. 1. The above appeals arise out of the judgment and order dated 09-08-2017 passed by the Sessions Judge, East Garo Hills District, Williamnagar in Sessions Case. No. 32/2008. By the said impugned judgment, learned Sessions Judge found Shri. Waidel Momin and Shri. Aseng N. Sangma, accused No. 1 and accused No. 2 guilty for an offence punishable under Section 302/34 IPC and accordingly sentenced them to seven years imprisonment and fine of Rs. 500/- (Rupees five hundred) only and in default a further term of simple imprisonment for fifteen days. The accused No. 2, Shri. Aseng N. Sangma and the accused No. 1, Shri. Waidel Momin, being aggrieved by the said judgment and order filed criminal appeals being Crl.A. No. 3/2017 and Crl.A. No. 4/2017 respectively, challenging their conviction and sentence. The State also being aggrieved by the judgment and order, filed appeals being Crl.A. No. 5/2018 and Crl.A. No. 6/2018 for enhancement of the sentence. 2. We accordingly heard Mr. K.C. Gautam, learned counsel for the appellants (original accused in Crl.A. No. 3/2017 and Crl.A. No. 4/2017) and Mr. A. Kumar, learned AG for the State in Crl.A. No. 5/2018 and Crl.A. No. 6/2018. We propose to dispose of the above said appeals by passing this common judgment. 3. The prosecution story in brief is that an FIR was lodged on 01-01-2006 at Rongjeng Police Station by one Smti. Bially N. Marak to the effect that her husband, Shri. Lakson Sangma, on 31-12-2005 at around 3:30 P.M had gone to Rongjeng Bazaar to purchase meat for New Year's Eve but he never returned home. She further stated in the FIR that her husband was attacked by a group of 11 people from Boldilgittim village and while attempting to flee from the assailants, he succumbed to his injury at Rongmil. The FIR was registered as Rongjeng P.S. Case No. 1(1) 2006 u/s. 302/34 IPC. The Investigating Officer with his staff thereafter went to the place of occurrence on the date of lodging of FIR but as it was late at night, the dead body was kept at the place of occurrence and on the following morning, it was brought to the Thana where inquest panchnama was done and thereafter dead body was forwarded to Williamnagar Civil Hospital for post mortem examination. During the investigation, the material exhibit wooden log was seized from the place of occurrence. It was also revealed that eye witness saw three persons namely, Shri. Waidel Momin, Shri. Aseng N. Sangma and Shri. Timbal N. Sangma brought the deceased victim to her compound and beaten him to death at around 3:00 P.M. and reported the matter to the Sordar, Shri. Bura Sangma. The Investigating Officer accordingly recorded statement of witnesses under Section 161. After completion of the investigation, charge sheet was filed on 27-10-2007 in which police cited eight witnesses to bring home the charge of murder against the accused persons under Section 302/34 IPC. 4. The learned Sessions Judge on 30-01-2015, after hearing the arguments was pleased to frame charge against all the three accused persons for an offence punishable under Section 302/34 IPC. Charge was read over and explained to the accused, however, they pleaded not guilty and claimed trial. During trial, to establish the guilt of the accused, the prosecution examined as many as seven witnesses and exhibited the Post Mortem Report at Ext-1, Seizure List of materials at Ext-2 and Ext-3 respectively and the Inquest Report at Ext-4. After closure of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was prepared during which it was found from the record that accused, Shri. Timbal N. Sangma was a minor of 15 years old at the time of incident. On behalf of the accused Shri. Timbal N. Sangma, defence filed Petition No. 93/2017 to send him to the Juvenile Justice Board, Willimanagar. Since it was found that accused Shri. Timbal N. Sangma was a juvenile at the time of the incident, his case was separated and send to the Juvenile Justice Board, Williamnagar, while the statement under Section 313 Cr.P.C. against the rest two adults accused was recorded in which they totally denied all allegations and have adduced evidence in their defence by four defence witnesses. 5. After hearing the final arguments, the learned Sessions Judge as stated hereinabove, convicted both the appellants in Crl.A. No. 3/2017 and Crl.A. No. 4/2017 for an offence punishable under Section 302/34 IPC and sentenced to suffer seven years imprisonment and fine of Rs. 500/- (Rupees five hundred) only and in default a further term of simple imprisonment for fifteen days. 6. The prosecution witness No. 1 is Smti. 500/- (Rupees five hundred) only and in default a further term of simple imprisonment for fifteen days. 6. The prosecution witness No. 1 is Smti. Luthalin Momin who claimed to be the eye witness to the incident in question. Prosecution witness No. 2 is Dr. Bollen Sangma who conducted the Post Mortem on the dead body of the deceased. Prosecution witness No. 3 and No. 4, Shri. Niren Sangma and Shri. Belason Sangma are Seizure witnesses. Prosecution witness No. 5 is Smti. Bially N. Marak who is the wife of the deceased. Prosecution witness No. 6 is SI G.M. Momin who has registered the FIR and Prosecution witness No. 7 is SI J. Thrisu who is the Investigating Officer. 7. The Sessions Court held that the evidence of eye witness PW-1 is truthful and convincing and solely relying upon her evidence convicted both the appellants. 8. Mr. K.C. Gautam, learned counsel for the appellants accused in Crl.A. No. 3/2017 and Crl.A. No. 4/2017, submitted that since the conviction of the accused is solely based on the testimony of PW-1, it is required to be seen whether her evidence is unassailable and unimpeachable. He took us through the evidence of PW-1 and submitted that the evidence of PW-1 is unreliable since it is in conflict with the evidence of the other witnesses. He submitted that there are contradictions in the testimony of PW-1 the alleged eye witness and PW-7 the Investigating Officer which renders the version of PW-1 doubtful and unworthy of credence. 9. Mr. A. Kumar, learned AG on the contrary submitted that the evidence of PW-1 is unassailable and unimpeachable as was correctly found by the Sessions Court and relying upon this evidence, the appellants in the above appeals are rightly convicted. Learned AG further submitted that the State was compelled to file two appeals being Crl.A. No. 5/2018 and Crl.A. No. 6/2018 as the learned Sessions Judge sentenced both the accused to seven years imprisonment and fine of Rs. 500/- (Rupees five hundred) only and in default a further term of simple imprisonment for fifteen days. He submitted that the minimum sentence under Section 302 being life imprisonment, the appeals filed by the State government requires to be allowed and the accused ought to be sentence to suffer imprisonment for life. 10. 500/- (Rupees five hundred) only and in default a further term of simple imprisonment for fifteen days. He submitted that the minimum sentence under Section 302 being life imprisonment, the appeals filed by the State government requires to be allowed and the accused ought to be sentence to suffer imprisonment for life. 10. The principles governing the evidentiary value of sole/solitary witness are reiterated by the Apex Court in Govindaraju alias Govinda v. State & Anr. (2012) 4 SCC 722 . In para 25, the Apex Court observed thus: "25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty." In the light of the observation reproduced hereinabove in Govindaraju's case (Supra), we have to see whether the evidence of PW-1 is unassailable and unimpeachable. The evidence of PW-1 (in verbatim) is as under: "I have received summon to depose in court today about a murder case of one Shri Lakson Sangma. The people who murdered the victim are Waidel, Aseng Sangma and Timbal Momin. These three people they brought the victim to my compound and beaten him to death. The incident took place in the year 2005 but I could not recollect the date and month. The incident took place in the evening around 3:PM. At that time I was alone at home. The victim died on the spot. The matter was reported by me to the village Sordar Shri Bura Sangma. The dead body was removed by the police. I know the accused persons being from neighboring village but I do not know the victim. The incident took place in the evening around 3:PM. At that time I was alone at home. The victim died on the spot. The matter was reported by me to the village Sordar Shri Bura Sangma. The dead body was removed by the police. I know the accused persons being from neighboring village but I do not know the victim. I cannot tell for what reason the accused persons had killed the victim. XXX by D/L of the three accused persons. I am not sure about the day most probably the incident took place on Monday. Yes, I have seen the victim while being beaten up by the accused persons. The name of the deceased persons is Rapson Sangma. I have seen the victim was beaten by the bamboo stick. The place of occurrence is not far from my house. The victim was beaten up the sound of the victim while beaten by accused persons some distance away which could not be seen due to thick bush. The deceased at the time of incident was wearing something whitish. Among the culprits some wearing green some are wearing white. Immediately on the same evening I had gone to inform the Sordar." The investigating officer SI J. Thrisu is examined as PW-7 and has deposed in the court that: "...I along with the staff to the PO and at that time it was dark so inquest could not be done and the dead body was kept in the PO overnight as there was no any vehicle for transporting the body. Next morning the dead body was brought to the Thana where inquest was done Ext-4 is the inquest report and Ext-4/1 is my signature thereon." 11. PW-7, Investigating officer has proved the inquest report which is exhibited at Ext-4. We have gone through the inquest report. In the inquest report, the Investigating officer has recorded that the place of occurrence is half a kilometer away from the village inside a jungle near Rongmil. Thus, there is major contradiction with regard to the place of occurrence in the evidence of Investigating officer and the eye witness PW-1. PW-1 has deposed that the victim was beaten to death in her compound by the accused persons and that victim died on the spot. According to PW-1, the dead body was removed by the police. Thus, there is major contradiction with regard to the place of occurrence in the evidence of Investigating officer and the eye witness PW-1. PW-1 has deposed that the victim was beaten to death in her compound by the accused persons and that victim died on the spot. According to PW-1, the dead body was removed by the police. However, inquest report shows that the place of occurrence is half a kilometer away from the village, inside a jungle near Rongmil. If the place of occurrence is half a kilometer away from the village, inside a jungle near Rongmil as per inquest report, then the version of PW-1 that the victim was beaten to death in her compound and died on the spot becomes doubtful and unworthy of credence. This major contradiction in the evidence of PW-7 Investigating officer, regarding the place of occurrence renders the evidence of PW-1 doubtful. In our considered view therefore, the conviction of the appellants accused cannot be based on the sole testimony of PW-1. 12. Apart from the above major contradiction which creates doubt about the testimony of PW-1, her testimony is fraught with improbabilities and doubts. The version of PW-1, if taken on its face value, we find same is improbable particularly when she states that she witnessed the murder with her own eyes and that after the assault the victim died on the spot, yet she did not inform the matter to the police. Her statement that she reported the matter to the Sordar does not find corroboration with the other prosecution witnesses. It is highly improbable that the lady who is witness to a fatal assault will not raise cry for help, particularly when the alleged fatal assault is taking place in her compound, equally improbable is the fact that she would not report the matter to the police. The version of PW-1 is therefore, not reliable. The evidence of PW-1 when taken as a whole is laced with improbabilities and inconceivable with normal human conduct in the surrounding facts and circumstances of the case. The version of PW-1 is doubtful in the light of the above discussion, benefit of which would go to the accused appellants. Since conviction order is based upon the evidence of the sole eye witness PW-1, which we have concluded that is not reliable and trustworthy. The version of PW-1 is doubtful in the light of the above discussion, benefit of which would go to the accused appellants. Since conviction order is based upon the evidence of the sole eye witness PW-1, which we have concluded that is not reliable and trustworthy. The conviction of the appellants accused therefore cannot be sustained, same is accordingly quashed and set aside. 13. As we have set aside and quashed the conviction of the appellants, normally we need not go into the merits of the appeals filed by the State government for enhancing of sentence. However, the above appeals by the State are filed challenging the sentence awarded by the trial court to the appellants accused. Learned AG submitted that the appellants accused being found guilty for an offence punishable under Section 302/34 IPC, the trial court could not have awarded punishment less than what is prescribed under Section 302. He submitted that the trial court was duty bound to award at least life imprisonment. We find substance in the submission of learned AG. 14. Perusal of the impugned judgment and order discloses that the trial court invoked the provisions of Rule 17 of the Administration of Justice and Police in the Khasi and Jaintia Hills, 1937 to reduce the life sentence provided for an offence under Section 302 to seven years Rigorous Imprisonment. The trial court has reduced the sentence to seven years at the instance of learned Public Prosecutor. Rule 17 of the Administration of Justice and Police in the Khasi and Jaintia Hills, 1937 reads as follows: "17. Power to Deputy Commissioner to pass sentence in original cases and revisional powers of High Court or Deputy Commissioner.- The Deputy Commissioner shall be competent to pass sentence of death, transportation, or imprisonment up to the maximum amount provided for the offence, or whipping and of a fine up to any amount: Provided that all sentences of death, transportation or imprisonment of seven years and upwards shall be subject, to the confirmation by the High Court of Assam, hereinafter referred to as the High Court. The High Court or Deputy Commissioner may call for the proceedings of any other subordinate to him and reduce, enhance or cancel any sentence passed or remand the case for re-trial, but no offender shall be punished by a sentence exceeding that awardable under the Indian Penal Code Assistants to the Deputy Commissioner shall, exercise such powers, not exceeding those of a Magistrate of the First Class as defined the Criminal Procedure Code as they may be invested with by the Governor." Rule 17 deals with the power of the Deputy Commissioner to pass sentence in original cases and revisional powers of High Court or Deputy Commissioner. First part of Rule 17 deals with the powers of the Deputy Commissioner to pass sentence in original cases under which the Deputy Commissioner is competent to pass sentence of death, transportation, or imprisonment up to the maximum amount provided for the offence, or whipping and of a fine up to any amount. Under the proviso to the first part of this rule, the sentence of death, transportation, or imprisonment of seven years and upwards shall be subject, to the confirmation by the High Court of Assam. Second part of Rule 17 deals with the revisional powers of the High Court or Deputy Commissioner. Under this part, while exercising revisional powers, the High Court or Deputy Commissioner may reduce, enhance or cancel any sentence passed or remand the case for re-trial to the lower court. Reading of the provision of Rule 17 makes it clear that the trial court could not have reduced the sentence prescribed for an offence punishable under Section 302 from life imprisonment to seven years in original jurisdiction. The reliance of learned trial court on the provision of Rule 17 of the Administration of Justice and Police in the Khasi and Jaintia Hills, 1937 to reduce the sentence is misplaced and uncalled for. 15. The principle of sentencing is well settled. The Apex Court has held that the punishment cannot be imposed lower than the prescribed punishment. Reference can be made to the decision of the Apex Court in Bharatkumar Rameshchandra Barot v. State of Gujarat (2018) 18 SCC 388. In this case, the Apex Court held that any punishment which is less than the life imprisonment, as prescribed under Section 302 IPC, if awarded by any court, is per se illegal and without authority of law. Reference can be made to the decision of the Apex Court in Bharatkumar Rameshchandra Barot v. State of Gujarat (2018) 18 SCC 388. In this case, the Apex Court held that any punishment which is less than the life imprisonment, as prescribed under Section 302 IPC, if awarded by any court, is per se illegal and without authority of law. Indeed, there is no discretion left with the court in awarding the punishment except to award the punishment which is prescribed under Section 302 IPC. 16. In the light of the above discussion, we allow the appeals being Crl.A. No. 3/2017 and Crl.A. No. 4/2017. Appellants conviction and sentence is quashed and set aside. The appellants in these appeals shall forthwith be released if not required in any other cases. The appeals being Crl. A. No. 5/2018 and Crl.A. No. 6/2018 filed by the State government are accordingly disposed of. 17. Registry is directed to return back the record to the trial court concerned.