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2021 DIGILAW 9 (MEG)

Tiret Mawlong v. State of Meghalaya

2021-03-01

R.V.MORE, WANLURA DIENGDOH

body2021
JUDGMENT : R.V. More, J. 1. Heard Mr. S.D. Upadhaya, learned Legal Aid counsel for the appellant-accused as well as Mr. S. Sengupta, learned Addl. PP for the respondents. 2. The appellant (original accused No. 2), by impugned judgment and order dated 21-03-2018, passed in Session Case No. 107/2015 came to be convicted for an offence punishable under Section 302 IPC and sentenced to suffer Rigorous Imprisonment (R.I.) for life and to pay a fine of Rs. 10,000/- (Rupees ten thousand) only and in default to suffer simple imprisonment for further period of six months. 3. The prosecution story in brief is that on 03-06-2015 at about 11:30 P.M, one Riket Mawlong was murdered at Sohdadek village by his sister, Smti. Tiret Mawlong, that is, present appellant accused No. 2 and her husband, Shri. Kornik Kharthangmaw of Sohdadek village with lethal weapons. The victim was murdered during a fight after a hot altercation on inheritance of property issues at the residence of present appellant accused No. 2. 4. The FIR was registered at the instance to Pw-1, Shri. Aiji Mawlong on 04-06-2015 by PW-8 Sub-Inspector H. Thabah. The appellant accused No. 2 and the accused No. 1, that is, the deceased husband of accused No. 2, were arrested on 05-06-2015 and the investigation was started by Pw-9, Sub Inspector M.K. Marak. After completion of the investigation, charge-sheet was submitted on 31-07-2015 against the appellant-accused No. 2 and her deceased husband accused No. 1 under Section 302/34 IPC. 5. Subsequent to the submission of the charge-sheet, the original accused No. 1, Shri. Kornik Kharthangmaw expired due to accident. Therefore, charge was framed only against the appellant (original accused No. 2) on 06-05-2016 for an offence punishable under Section 302/34 IPC to which the appellant (original accused No. 2) pleaded guilty. The learned Sessions Judge apparently has not accepted the plea of guilt of the appellant accused and thereafter, decided to proceed with the trial. 6. In order to prove the guilt of the appellant accused, the prosecution examined nine witnesses including the Doctor who carried out the postmortem and the Investigation Officer. There were no eye witnesses to the incident in question and therefore, prosecution case depended only on circumstantial evidence. 6. In order to prove the guilt of the appellant accused, the prosecution examined nine witnesses including the Doctor who carried out the postmortem and the Investigation Officer. There were no eye witnesses to the incident in question and therefore, prosecution case depended only on circumstantial evidence. In order to prove the guilt of the present appellant accused, the prosecution mainly relied upon the following circumstances: (i) The dead body of the deceased was found in the compound of the house of the accused. (ii) Recovery of the weapons, namely, one Khasi dao and one iron rod from the possession of the appellant accused. (iii) Extra judicial confession of present accused appellant to PW-2. 7. The Sessions Court as stated above, after appreciation of the evidence came to the conclusion that the charges under Section 302 against the present appellant accused stands proved and accordingly convicted the appellant accused and sentence to suffer Rigorous Imprisonment for life and also payment of fine of Rs. 10,000/- (Rupees ten thousand) only and in default to suffer simple imprisonment for further period of six months. 8. Mr. S.D. Upadhaya, learned legal aid counsel on behalf of the appellant accused submitted that in the trial court, the appellant accused was not in a position to engage a lawyer and therefore was given State defence lawyer. He further submitted that the appellant accused is a rustic and uneducated lady and despite the fact that she was given State defense lawyer, the Sessions Court did not allow cross examination of Pw-5 and Pw-6. He also submitted that the learned Sessions Court failed to record the statement of the present appellant accused under Section 313 Cr.P.C. He submits that recording of the statement under 313 Cr.P.C. being mandatory, great prejudice is caused to the appellant accused, therefore, the matter needs to be remanded back to the Sessions Court. 9. Mr. S. Sengupta, learned Addl. PP appearing for the State is not in a position to dispute the fact that the appellant accused in the Sessions Court was given State defence. He does not dispute that there is failure of cross examination of Pw-5 and Pw-6. He further submitted that it is the duty of the Sessions Court to record the statement of the accused under Section 313 Cr.P.C., however, the learned Session Judge failed to discharge this mandatory duty. 10. He does not dispute that there is failure of cross examination of Pw-5 and Pw-6. He further submitted that it is the duty of the Sessions Court to record the statement of the accused under Section 313 Cr.P.C., however, the learned Session Judge failed to discharge this mandatory duty. 10. With the help of learned counsel appearing for the respective parties, we have perused the order sheet dated 19-08-2016 which reads as follows: "C.R put up. The case is fixed today for evidence (PWs). Accused is physically present in the Court. Ld Prosecution, Shri. Rakesh Singh is present. Examined Pw-5 Shri. Shngainlut L. Nonglait and Pw-6 Shri. Ping Kharkongor and discharge. The deposition of Pw-5 and Pw-6 above are placed with the case record. Issue summon to Pw-7 Dr. H.L. Kharchandy. Fixed 04-10-2016 for evidence (Pws)." 11. The paper-book discloses that examination in chief of Pw-5 and Pw-6 was recorded, however, there is no cross examination of these witnesses. The reason why these witnesses were not cross examined is apparent from the order sheet dated 19-08-2016 referred above. The said order sheet reveals that though the present appellant accused was physically present in the Court, the State defence counsel was not present on that date. The Public Prosecutor, Shri Rakesh Singh however, was present. By now, it is settled principle of law that the right to get fair trial is a fundamental right of the accused and for the purpose of fair trial only, State defence was given to the appellant accused as she was not in a position to engage a lawyer. The appellant accused being a rustic and uneducated lady was not expected to understand the proceedings of the Court. However, it was the duty of the Presiding Officer to see that the rights of the appellant accused are protected. In above circumstances, in our considered view when the State Defence lawyer was not present, the Presiding Officer ought to have adjourned the case of cross examination of Pw-5 and Pw-6 to the next date. However, that opportunity was not given to the appellant accused. 12. On 25-11-2016, subject Session Case was fixed for evidence of Pw-8 and Pw-9. The order sheet of that day shows that the appellant accused was physically present in court. Public Prosecutor, Rakesh Singh and Defence counsel were also present. However, that opportunity was not given to the appellant accused. 12. On 25-11-2016, subject Session Case was fixed for evidence of Pw-8 and Pw-9. The order sheet of that day shows that the appellant accused was physically present in court. Public Prosecutor, Rakesh Singh and Defence counsel were also present. The order sheet of said date further shows that on 25-11-2016, the prosecution examined Pw-8, SI H. Thabah and Pw-9, SI M.K. Marak and the State defence counsel cross examined them. The prosecution evidence was thereafter treated as closed. The learned Presiding Officer thereafter made a remark that the statement of the appellant accused under 313 Cr.P.C. is not required as she pleaded guilty to the charge. Accordingly, the Session case was adjourned to 03-01-2017 for filing of list of DWs (Defence witnesses). 13. The order sheet dated 03-01-2017 reads as follows: "C.R put up. The case is fixed today for filing list of DWs. Accused is physically present in Court and informed that she will not file any list of defence witnesses. Both Ld prosecution, Shri Rakesh Singh and Defence counsel are absent. Fix 03-02-2017 for copies of deposition." On 03-02-2017, the copies of deposition were furnished to both the counsel namely, prosecution and defence counsel and thereafter, matter was adjourned to 07-04-2017 for final argument. 14. In our considered view, when the appellant accused was given State defence and especially as she was rustic and illiterate was not conversant with the court procedure, the Presiding Officer ought not to have relied upon the answer of the appellant accused that she does not want to file defence witnesses, especially when her lawyer, State defence counsel was not present on 03-01-2017. It is true that on 03-01-2017, both the prosecution as well as the defence counsel were absent. In this scenario, the Presiding Officer ought to have adjourned the matter and ascertained from the State defence counsel whether he wants to file the list of defence witnesses. We are compelled to arrive at this opinion since cross examination of Pw-2, Pw-3 and Pw-4 disclose that defence of the appellant accused was that the deceased was killed in exercise of private defence. If that be so, then the Presiding Officer ought to have ascertained from the State defence counsel and not from the appellant accused whether they want to examine any defence witnesses. 15. If that be so, then the Presiding Officer ought to have ascertained from the State defence counsel and not from the appellant accused whether they want to examine any defence witnesses. 15. It is settled law that the object of Section 313(1)(b) of Cr.P.C. is to bring the substance of accusation of the accused to enable the accused to explain each and every circumstance appearing in the evidence against him/her. The provisions of this section are mandatory and cast a duty upon the court to afford opportunity to the accused to explain each and every circumstance and incriminating evidence against him/her. The examination of the accused under Section 313 (1)(b) Cr.P.C. is not mere formality. Reference in this regard can be made in a decision of the Hon'ble Apex Court in Nar Singh vrs. State of Haryana (2015) 1 SCC 496 . The Apex Court in Nar Singh case (Supra) summarised the courses available to the Appellate Court whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the Appellate Court as follows: "30.1. Whether 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 circumstances, 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. 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 defense witness, if any, and dispose of the matter afresh. 30.4. 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." 16. In the present case, the statement of the accused under Section 313(1)(b) Cr.P.C. was not recorded, apparently for the reasons that she pleaded guilty to the charge. The procedure for the trial of Sessions cases is outlined in Chapter XVIII of the Code. According to the procedure provided in that Chapter after the case is opened as required by Section 226, 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 Code. 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 guilt. 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 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. 17. In our considered view, the learned Sessions Judge committed grave error in not affording opportunity to the appellant accused in this regard. Though, in the present case, the appellant accused pleaded guilty to the charge under 302/34 IPC, the Sessions Judge did not accept the same and ordered the trial. Ultimately, prosecution examined 9(nine) witnesses and on the basis of this evidence, the appellant accused was convicted. Therefore, in our view, when the conviction of the appellant is based on the prosecution evidence, then it was mandatory on the part of the Presiding Officer to give opportunity to the appellant accused to explain the facts and circumstances appearing against her in the prosecution's evidence. 18. In our considered view, the appellant accused is not entitled for acquittal on the ground of non-compliance of mandatory provision of Section 313 Cr.P.C., as the omission on the part of the court to put question under Section 313 Cr.P.C. cannot enure to the benefit of the accused. We agree to some extent that the appellant accused is prejudiced. We accordingly dispose of the appeal by passing following order: (i) The impugned judgment and order convicting the appellant accused for an offence punishable under Section 302 is quashed and set aside. Matter is remitted back to the trial court, for proceeding afresh from the stage of recording the statement of appellant accused under Section 313 Cr.P.C. (ii) The learned Sessions Judge shall give an opportunity to the appellant/State defence to recall Pw-5 and Pw-6, namely Shri. Shngainlut L. Nonglait and Shri. Ping Kharkongor for cross examination. Matter is remitted back to the trial court, for proceeding afresh from the stage of recording the statement of appellant accused under Section 313 Cr.P.C. (ii) The learned Sessions Judge shall give an opportunity to the appellant/State defence to recall Pw-5 and Pw-6, namely Shri. Shngainlut L. Nonglait and Shri. Ping Kharkongor for cross examination. (iii) Trial Judge shall thereafter record the statement of the appellant accused under 313 Cr.P.C. (iv) Trial Judge shall afford opportunity to the appellant accused to examine defence witnesses, if any, and proceed to decide the matter afresh. 19. Since the incident in question is of 2015, the trial court is directed to expedite the matter and dispose of the same in accordance with law preferably within the period of six months from the date of receipt of this order. As we have quashed and set aside the conviction order of the appellant accused, she is at liberty to move for bail before the trial court, if she is so advised. If such application is moved by the appellant accused, the trial court shall consider the same in accordance with law. We expressly make it clear that we have not expressed any opinion on the merits of the matter. The appeal stands disposed of in above terms. 20. Registry is directed to send the record of the proceedings back to the trial court immediately.