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2022 DIGILAW 269 (GAU)

Limatoshi v. State of Nagaland

2022-03-15

ARUN DEV CHOUDHURY, DEVASHIS BARUAH

body2022
JUDGMENT : Arun Dev Choudhury, J. 1. Heard Mr. Sentiyanger, learned Legal Aid counsel for the appellant and Mr. K Wotsa, learned Public Prosecutor, State of Nagaland. 2. This appeal is directed against the judgment and conviction dated 12.06.2014 passed by the learned Sessions Judge, Mokokchung, Nagaland in GR Case No. 154/2013 wherein the present appellant was convicted under Section 376 (2)(f)(i) IPC and sentenced him to undergo RI for 10 (ten) years and to pay a fine of Rs. 1,000/-, in default of which the appellant was to undergo RI for 2 (two) months. 3. The facts of the case, briefly stated are that one N.S. Kichu, ASI of NKG-PS-II had lodged an ejahar before the Officer-in-Charge, PS-II, Mokokchung, Nagaland informing that on 01.12.2013 at 4.40 p.m. an information received through reliable source that a commotion was going on near AR Helipad area, Mokokchung. On the basis of the aforesaid information, the informant along with available police party rushed to the spot and one person namely, Yampangrepba was apprehended by the public on the ground that he had raped a minor girl on the evening of 30.11.2013. The aforesaid first information reveals that the accused was taken into custody police immediately. The victim as well as the accused persons were sent for medical examination. Accordingly, PS case No. 0045/2013 under Section 376(2)(f)(i) IPC was registered on 01.12.2013. 4. During the course of investigation, the I/O had recorded the statements of witnesses and the statement of the Victim and also took photographs of the place of occurrence. 5. The record reveals that the I/O recorded the statement of the mother of the victim, who had stated that on 30.11.2013 she had gone to help her sister in cutting fire wood. When she returned home, she had called the victim (name is withdrawn as the victim is a minor) for wash up and while doing so, her daughter, the victim had complained abdomen pain and when she checked she had seen blood spotting on her under garment. On enquiry the victim had revealed that she had been severely assaulted by the accused, namely, Yampangrepba. 6. The statement of the victim was recorded at her residence itself. On enquiry the victim had revealed that she had been severely assaulted by the accused, namely, Yampangrepba. 6. The statement of the victim was recorded at her residence itself. According to the charge-sheet, the victim stated before the I/O that on 30.11.2013, while the victim was about to return back home after she had fetched some non-eatable meet, which her step father had forgotten to bring, she had met Yampangrepba at the pig firm. Thereafter the accused Yampangrepba took her inside the jungle with a promise to give her Rs. 10/-. Then the accused Yampangrepba had opened her pants and inserted his finger inside her vagina and also touched her vagina with his penis and the accused dropped her in her residence on his scooter. 7. It is the case of the I/O that during further investigation it was revealed that some other person(s) might also be involved in the committing of sexual assault upon the victim. Therefore, the I/O had deputed some reliable sources in and around the locality and got the information and apprehended the step father of the victim namely Limatoshi, (the present appellant) and according to the I/O, on examination the present appellant admitted that he had sexually assaulted his step daughter on three different occasions. Upon completion of the investigation, the I/O had submitted charge-sheet against the two accused, namely, Yampangrepba and Limatoshi under Section 376 (2)(f)(i) of the IPC. 8. The present accused appellant has been under custody, initially under police custody and thereafter under judicial custody. The record reveals that while the case was fixed on 28.05.2014 and the accused including the present appellant was produced from judicial custody for CC, the defense counsel of Limatoshi had applied for withdrawal of vakalatnama on the ground that the said counsel was not being a authorized or engaged for trial. On that date, the present appellant prayed before the learned Sessions Judge, Mokokchung for free legal aid, as he did not have means to afford to engage a lawyer as he was daily wage earner. The aforesaid order is quoted hereinbelow : "Accused persons produced from J/C for CC. However, Defence Counsel for alleged Limatoshi has applied for withdrawal of Vakalatnama as has not being authorized or engaged for trial. The aforesaid order is quoted hereinbelow : "Accused persons produced from J/C for CC. However, Defence Counsel for alleged Limatoshi has applied for withdrawal of Vakalatnama as has not being authorized or engaged for trial. Further, the accused Limatoshi prays for free legal aid as "I don't have means to afford to engaged a lawyer as I am daily wage labourer." Hence, case referred to Combine Frontal Office Mokokchung to ascertain and take up necessary steps, if entitle by the accused. Case be put up after lunch hour, today." 9. On the same date itself i.e. on 28.05.2014 charges were framed against both the accused, namely, Yampangrepba and Limatoshi under Section 376(2) (f)(i) of the IPC. The record reveals that the accused Yampangrepba pleaded not guilty and accordingly it was directed that the trial shall proceed. 10. The accused Limatoshi pleaded guilty and accordingly, he was convicted under Section 376 (2) (f) (i) IPC and sentenced him to undergo RI for 10 (ten) years and to pay a fine of Rs. 1,000/-, in default of which the appellant was undergo RI for 2 (two) months, which is under challenge in the present proceeding. The question put the appellant reads as follows : "The accused Yampangreba pleaded not guilty and shall proceed for trial. Whereas, the accused Limatoshi pleaded guilty to the charge framed. Examination of accused Limatoshi. Q 1. As per the prosecution evidence on medical report raped there was raped Ms. Temsumenla aged about 7 years before the alleged offence. What do you say? Ans: Yes, I have raped her on two occasions and on the first occasion I only insertion finger and on second and third I physically had sexual intercourse with her. On the accused voluntary plead of guilty to the charge and on accused Limatoshi examination and the medical report it is crystal clear that the accused Limatoshi had committed raped on her step-daughter of about 7 years old in his residence. Further, the accused demeanuor also shows no sign of remorse to face the consequences of punishment, but to face it on his own wrong. Thereby, this court is satisfied to convict U/s 379(2)(f)(i) of the Indian Penal Code." 11. Further, the accused demeanuor also shows no sign of remorse to face the consequences of punishment, but to face it on his own wrong. Thereby, this court is satisfied to convict U/s 379(2)(f)(i) of the Indian Penal Code." 11. Now the issue before this court is whether the aforesaid judgment is sustainable under law in the given facts and circumstances of the present case, more particularly in a situation where the conviction is based on the plea of guilty by the accused appellant. 12. The Chapter XVIII of the Code of Criminal Procedure, 1973 deals with trial before a court of Sessions. The Section 228 of the Cr.P.C., 1973 provides for framing charges. Section 228 (2) mandates that when the Sessions Judge frames any charge, exclusively triable by the Sessions court, the charge(s) shall be read and explain to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. 13. Thus, from the facts and circumstances as discussed hereinabove, it is clear that the present accused appellant was convicted following the procedure of the Section 229 of the Cr.P.C. 14. The learned Counsel for the appellant relies on two judgments of this Court reported in (2006) 1 GLR 745 (State of Mizoram Vs. Remeng Mawia) and in (1998) 2 GLT 291 Hussain Ali (Mahammad) Vs. State of Assam to buttress his argument that the impugned judgment has been passed in total derogation of the provisions of Section 229 of the Cr.P.C' and ignoring the settled position of law. 15. The law is by now well settled that when a conviction of an accused is based entirely on his plea of guilt, the court must take care to ensure that the plea of the accused is voluntarily, clear, unambiguous. The accused needs to be clarified and the accused must understand the nature of the allegation made against him and the accused must admit all such facts which are necessary and essential to constitute the offence. The accused needs to be clarified and the accused must understand the nature of the allegation made against him and the accused must admit all such facts which are necessary and essential to constitute the offence. The law is also well settled that while convicting a person taking recourse to the provision of Section 229 of the Cr.P.C., the court must have before it all such facts which are essential to constitute the offence and such facts must be admitted by the accused before plea of guilty on the accused is acted upon. The law is also equally settled that Section 229 gives discretion to the court to proceed with the trial even if the accused pleads guilty and such discretion need to be exercised judiciously with proper application of mind 16. The determination of this Court made in Remeng Mawia (supra) at paragraphs 5, 6, 7 being relevant for determination of the issue in hand are quoted herein below : "5. While considering the present reference, what strikes us is that the entire conviction of the accused under Section 302 IPC rests on the accused person's plea of guilt. The questions, therefore, which stare at us, most prominently, are: (i) whether it is legally permissible to convict a person of a serious charge, such as, murder on his own plea of guilt and if so, what cautions are required to be applied, for this purpose, by the Court and (ii) whether, in the facts and circumstances of the present case, the plea of guilt, acted upon by the learned Court below, is legally sustainable ? 6. While considering the questions posed above, it may be noted that a Sessions Court's power to convict an accused on his plea of guilt is embodied in Section 229 of the Code of Criminal Procedure, 1973. This section corresponds to Section 271(2) of the Code of Criminal Procedure, 1898. Though there is slight variation in the language of Section 229 of the present Code, it substantially remains the same as in Section 271(2) of the old Code. According to Section 229, if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict thereon. 7. Though there is slight variation in the language of Section 229 of the present Code, it substantially remains the same as in Section 271(2) of the old Code. According to Section 229, if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict thereon. 7. A careful analysis of the provisions of Section 229 Cr.P.C. makes it clear that though there is no legal impediment, on the part of the Court of Sessions, to convict a person on his own plea of guilt, discretion does vest in the Court to convict or not to convict an accused based entirely on his plea of guilt. Since no discretion can be exercised by a Court arbitrarily, the exercise of the discretion to convict or not to convict an accused on his plea of guilt can also not be arbitrary and is, in fact, Governed by sound judicial principles and precedents. 17. The other judgment which renders assistance in determining the present case is the decision in Hussain Ali (supra). The relevant paragraphs are quoted hereinbelow : "4. ...............Referring to the statement of the accused appellant, recorded under Section 229 Cr.P.C. wherein the accused stated that he dealt with blow with 'dao' on the neck of his wife because she always used to quarrel with him. Taking up a clue from this statement Mr. Islam argued that the possibility of sudden quarrel resulting in sudden unfortunate incident cannot be ruled out................................. 5.............................We are of the view that the discretion exercised by the trial Judge cannot be said to be an appropriate exercise of discretion. As is well known, as a matter of practice Judges prefer not to act on plea of guilt in murder cases lest the evidence may disclose that the facts proved do not in law constitute offence charged, but some lesser offence................................" 18. Coming to the present case, it is apparent from the record that on the date when the accused pleaded guilty he was under judicial custody and he was having no defense counsel to advice him regarding the implication of pleading guilty inasmuch as the record itself reveals that the appellant is an illiterate daily wage earner and belongs to poor strata of the society. In such a situation, it will not be proper to assume that a person like the appellant will be well informed regarding the ingradiance of the offence charged and the punishment thereof. 19. The record and the order impugned also reveals that at no point of time the learned Sessions Judge has intimated/informed/warned the accused regarding the implication of his pleading guilty of the offence charged. According to this court, while exercising discretionary power under Section 229 of the Cr.P.C., a duty is cast upon the court to warn the accused person and to explain the implication of pleading guilty, more particularly in a case like the present one, who is illiterate, who is without any defense counsel and in the judicial custody. The word "Explain" used in Section 228 certainly shall include explaining the implication of the plea of guilty. In the case in hand no such explanation is discernible from the record. As the said course of action has not been taken by the learned Sessions Judge while passing the impugned order in exercise of his discretionary power under Section 229 Cr.P.C., in the considered opinion of this court, the same is liable to be interfered. 20. A bare perusal of the order impugned reveals that the learned Sessions Judge has came to conclusion that commission of offence of rape was made beyond reasonable doubt as the charge was framed on the basis of voluntarily pleading of guilt by the accused before police. It is worth mentioning herein that the record reveals that the present appellant was neither named in the FIR nor implicated by the victim or by the mother of the victim when their statements were recorded under the provision of Section 161 of the Cr.P.C. The present appellant was implicated in the Charge sheet by virtue of his confessional statement before the Police. However, record reveals that no endeavor was made by the Investigating Authority to record such statement under Section 164 of the Cr.P.C. The learned Sessions Judge, while exercising his discretionary power, relied on the alleged confession of the accused appellant made before police but ignored the statement of the Victim and her mother recorded under Section 161 Cr.P.C. The learned trial court while coming to the aforesaid conclusion ought not to have relied upon the statement of guilt made under Section 161 Cr.P.C. while coming to the conclusion that the case is made out beyond reasonable doubt. On this count also the decision impugned is liable to be interfered. 21. While holding the accused guilty, the learned court further based his discretion on the demeanor of the accused, as according to the learned Sessions Judge, the demeanor of the accused shows no sign of regret. Exercise of discretion on the basis of such facts cannot be said to be sound exercise of power under Section 229 of the Cr.P.C. Therefore, the same cannot be accepted and accordingly same needs to be interfered on this count also. 22. The fact also remains that the other accused person has since been acquitted by the learned Sessions Judge vide judgment dtd. 15.12.2015. The ground of such acquittal, firstly is that there were contradictions in the statement of the Victim relating to the accused Yampangrepba and secondly, on the ground that in the medical report, there were no sign of recent sexual assault. Be that as it may, since we are not adjudicating the said judgment of acquittal, we refrain from making any comment. 23. In view of the forgoing decisions and reasons, the judgment and conviction dated 12.06.2014 passed by the learned Sessions Judge, Mokokchung, Nagaland in GR Case No. 154/2013 convicting the appellant herein under Section 376 (2) (f) (i) IPC and sentencing him to undergo RI for 10 (ten) years and to pay a fine of Rs. 1,000/-, in default of which the appellant was undergo RI for 2 (two) months, is set aside and quashed. Accordingly the matter is remanded back to the learned Sessions Judge, Mokokchung for a fresh trial. The trial be completed as expeditiously as possible within an outer limit of six months. 24. The appellant may file an application for bail, which the learned sessions shall consider in its own merit. Accordingly the matter is remanded back to the learned Sessions Judge, Mokokchung for a fresh trial. The trial be completed as expeditiously as possible within an outer limit of six months. 24. The appellant may file an application for bail, which the learned sessions shall consider in its own merit. We also direct the District Legal Services Authority, Mokokchung to provide a legal aid counsel to defend the accused appellant. 25. The registry is directed to send back the LCR forthwith. 26. While parting with the record, we put on record our appreciation of the able assistance rendered by the learned legal aid counsel Mr. Sentiyanger, representing the accused appellant.