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2022 DIGILAW 935 (GAU)

Vanlalnuna S/o. Biakthanga v. State of Mizoram

2022-08-26

MARLI VANKUNG, MICHAEL ZOTHANKHUMA

body2022
JUDGMENT : Heard Mr. T. Lalzekima, learned Amicus Curiae and Ms. Mary L. Khiangte, learned Addl. PP, Mizoram. 2. The appellant/convict has prayed for setting aside the Judgment & Order dated 20.11.2019 passed by the Court of Addl. District & Sessions Judge, Aizawl, by which the appellant has been convicted under Section 302 IPC and sentenced to imprisonment for life with a fine of Rs.3,000/-, i.d. S.I for 3 (three) months. The appellant has also been convicted under Section 14 of the Foreigners Act, 1946 and sentenced to imprisonment for a period of 3 (three) months. The sentences were to run concurrently and the detention period undergone was also to be set off. 3. The facts of the case in brief is that on 07.07.2017, a written FIR was received by the Aizawl Police Station from Sh. K. Lalherliana, PW-1, stating that his employee, the appellant had assaulted his (the appellant’s) wife, Smt. Cheuzakimi, in his farm at Maubawk, Aizawl, due to which the victim succumbed to her injuries on the spot. Aizawl P.S. Case No. 303/2017 dated 07.07.2017 under Section 302 IPC was registered against the appellant. After investigation was conducted and post mortem of the dead body showed that the cause of death was due to head injuries, multiple fractures of ribs, fractures of arm bone and leg bone, Charge-sheet was filed against the appellant. 4. The Charge-sheet was filed in Criminal Trial No. 1460/2017 (S.C No. 180/2017). Charges were framed against the appellant under Section 302 IPC read with Section 14 of the Foreigners Act, 1946 on 13.12.2017, to which the appellant pleaded not guilty. During the trial, 7 (seven) prosecution witnesses were examined. The examination of the appellant under Section 313 CrPC was undertaken on 10.04.2019. The learned Trial Court thereafter passed the impugned Judgment & Order dated 20.11.2019, by which the appellant was sentenced to life imprisonment with a fine of Rs.3,000/-, i.d. S.I for 3 (three) months. The appellant was also convicted and sentenced to 3 (three) months imprisonment under Section 14 of the Foreigners Act, 1946. 5. Mr. T. Lalzekima, learned Amicus Curiae submits that his prayer in the appeal is limited, as there is an eye witness to the crime committed by the appellant. The appellant was also convicted and sentenced to 3 (three) months imprisonment under Section 14 of the Foreigners Act, 1946. 5. Mr. T. Lalzekima, learned Amicus Curiae submits that his prayer in the appeal is limited, as there is an eye witness to the crime committed by the appellant. He submits that the appellant should not have been convicted under Section 302 IPC, as the appellant had been provoked by the fact that his deceased wife had admitted to being unfaithful to the appellant. He accordingly submits that the appellant could have, at best, been convicted under the first Exception to Section 300 IPC. 6. The learned Amicus Curiae also submits that the appellant having stated that he saw his wife with another man in the farm house, while being examined under Section 313 CrPC, the explanation given by the appellant should have been taken into consideration by the learned Trial Court. He submits that the fact that the appellant saw his wife with another man in a farm house and the fact that PW-7 had stated in his evidence that the appellant told him that his wife had been unfaithful to him, clearly proved that the appellant was provoked. The learned Trial Court should have accordingly considered whether the provocation caused to the appellant, would put the appellant’s case within Exception-1 of Section 300 IPC. In support of his submission, the learned Amicus Curiae has relied upon the judgments of the Apex Court in the case of (1) Ashok Debbarma Alias Achak Debbarma Vs. State of Tripura, reported in (2014) 4 SCC 747 , (2) Rajiv Singh Vs. State of Bihar and Another, reported in (2015) 16 SCC 369 and in the case of (3) Dauvaram Nirmalkar Vs. State of Chhattisgarh, Criminal Appeal No. 1124/2022, which was disposed of vide Judgment & Order dated 02.08.2022. 7. Ms. Mary L. Khiangte, learned Addl. PP, on the other hand submits that the evidence on record does not show that there was any sudden provocation made by the deceased wife to the appellant and as such, the defense taken by the learned Amicus Curiae that the death of the deceased occurred due to sudden provocation was not sustainable. The learned Addl. PP, on the other hand submits that the evidence on record does not show that there was any sudden provocation made by the deceased wife to the appellant and as such, the defense taken by the learned Amicus Curiae that the death of the deceased occurred due to sudden provocation was not sustainable. The learned Addl. PP submits that Court should not place reliance on decisions without discussing as to how the factual situation fits in, with the fact situation of the decision on which reliance is placed. In this regard, the learned Addl. PP relies upon the judgment of the Apex Court in Bharat Petroleum Corporation Vs. N.R. Vairamani and Another, reported in (2004) 8 SCC 579 . She also submits that the statement of an accused under Section 313 (4) CrPC is not strictly evidence and the statements/explanations made under the said Section cannot be considered in isolation, but in conjunction with the evidence adduced. In this respect, the learned Addl. PP relies upon the judgment of the Apex Court in the case of Sanatan Naskar & Another Vs. State of West Bengal, reported in (2010) 8 SCC 249 . 8. We have heard the learned counsels for the parties. 9. In the case of Ashok Debbarma (supra), the Apex Court has held that the statement made by an accused under Section 313 CrPC will not be evidence stricto sensu and the accused, of course, shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313 CrPC. But, sub-Section 4 says that answers given by the accused in response to his examination under Section 313 CrPC can be taken into consideration in such an enquiry or trial. The Apex Court further held that in the case of Hate Singh Bhagat Singh Vs. State of Madhya Bharat, reported in AIR 1953 SC 468 , the answers given by the accused under Section 313 CrPC can be used for proving his guilt, as much as the evidence given by the prosecution witnesses. The Apex Court also held that in the case of Narain Singh Vs. State of Punjab, reported in 1964 (1) CRI LJ 730, when the accused confesses to the commission of offence with which he is charged, the Court may rely upon the confession and proceed to convict. 10. The Apex Court also held that in the case of Narain Singh Vs. State of Punjab, reported in 1964 (1) CRI LJ 730, when the accused confesses to the commission of offence with which he is charged, the Court may rely upon the confession and proceed to convict. 10. In the case of Sanatan Naskar (supra), the Apex Court has held that the Courts may rely on a portion of the statement of an accused made under Section 313 (4) CrPC and find him guilty in consideration of the other evidence against him led by the prosecution. However, such statements made under Section 313 (4) CrPC should not be considered in isolation, but in conjunction with the evidence adduced by the prosecution. The Apex Court further held that the statement of an accused made under Section 313 CrPC is not strictly evidence and as such, the same would have to be read in conjunction with other evidence recorded by the learned Trial Court. 11. In the present case, just because the appellant had stated in his examination under Section 313 CrPC that his wife was unfaithful to him, does not mean that the same was a true fact. Assuming the same is true, the further question that would have to be decided is as to whether the said knowledge could have provoked the appellant to the extent that he was deprived of his power of self-control. In that event, the statement made by the appellant under Section 313 CrPC would have to be considered in conjunction with the evidence recorded by the learned Trial Court. 12. In the case of Rajiv Singh (supra), the Apex Court held that suspicion alone cannot take the place of legal proof and that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. It further held that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 13. In the case of Dauvaram Nirmalkar (supra), the Apex Court held that in interpreting Exception 1 to Section 300, the Apex Court in the case of K.M. Nanavati Vs. 13. In the case of Dauvaram Nirmalkar (supra), the Apex Court held that in interpreting Exception 1 to Section 300, the Apex Court in the case of K.M. Nanavati Vs. State of Maharashtra, reported in 1962 Supp.(1) SCR 567, held that the conditions which have to be satisfied for the Exception to be invoked are:- “(a) The deceased must have given provocation to the accused. (b) The provocation must be grave. (c) The provocation must be sudden. (d) The offender, by the reason of the said provocation, should have been deprived of his power of self-control. (e) The offender should have killed the deceased during the continuance of the deprivation of power of self-control and (f) The offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident”. It further held that determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval time, to allow the passion to cool. The Apex Court further held in the above case of Dauvaram Nirmalkar (supra) that the question of loss of self-control by grave and sudden provocation is a question of fact. It also held that the retaliation should be proportionate to the provocation and whether the accused acting as a reasonable man had time to reflect and cool down. It further held that the offender’s reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. 14. A reading of the judgment of the Apex Court in Dauvaram Nirmalkar (supra) clearly shows that the Court has to examine the circumstances from the point of view of a reasonable person, with regard to whether there was such grave and sudden provocation, so as to reasonably conclude that the person placed in such circumstance(s) can temporarily lose control and commit the offence in the proximity to the time of provocation. 15. The evidence of PW-1, 2, 3 & 4 is basically to the effect that they had gone to the farm house and saw the victim lying motionless on the floor of the farm house. 15. The evidence of PW-1, 2, 3 & 4 is basically to the effect that they had gone to the farm house and saw the victim lying motionless on the floor of the farm house. They also saw the seized articles, by which the appellant had assaulted the victim. There were also blood stains in the farm house. 16. The evidence of PW-5, i.e., the Medical Doctor, is to the effect that there were lacerations, contusions, abrasions and fractures on the entire body of the deceased. In the opinion of PW-5, the cause of death was due to Cranio-Cerebral injuries (head injury) associated with multiple fracture of ribs, fractures of left humerus (arm bone) and left tibia and fibula (leg bone). PW-5 exhibited the Post Mortem Examination Report along with his signature. On cross examination, he stated that all the injuries mentioned were caused by blunt objects. PW-5 also stated that there was a possibility of the victim sustaining injury, by falling on a hard object depending on the force. As can be seen from the evidence given by the Doctor, the victim suffered head injury, fracture of the arm bone and the leg bone. Basically, the entire body of the deceased had been broken. 17. The evidence of the eye witness, i.e., PW-7, is to the effect that the appellant had called him to his farm house at around 5:30 a.m on 07.07.2017. When he reached the hut where the appellant and his wife were living, he saw the appellant assaulting his wife with a digging bar/iron rod (thirtiang) and with a wooden log (thingzai bung). PW-7 saw the appellant hitting the victim’s head with the wooden log and though he tried to stop the appellant, he was unable to do the same. He also saw the appellant kick the deceased in various parts of her body, while the victim was lying on the floor. PW-7 also states in his evidence that while he wanted to call for help, he could not do so, as he did not carry his mobile with him. PW-7 then rushed to his farm house to get his mobile and when he went back to the appellant’s house, he saw the victim was already dead and lying motionless on the floor. PW-7 then rushed to his farm house to get his mobile and when he went back to the appellant’s house, he saw the victim was already dead and lying motionless on the floor. The digging bar/iron rod (thirtiang), which the appellant used for hitting the victim, was also lying on the floor and the victim’s hair and blood stains were on it. 18. The above evidence of the respondent No. 7 has not been put to challenge by the appellant and neither is there any dispute, with regard to the fact that the appellant had caused the death of his wife. The only stand taken by the appellant is that he had been provoked into assaulting his wife, due to his wife being unfaithful to him, as had been stated by PW-7 and PW-1 in their evidence. The evidence of PW-7 & PW-1, in their cross examination, is to the effect that the appellant had told them that he became angry when the deceased told him that she was unfaithful to him, as she was having an extra marital affair with another man. The appellant, during his examination under Section 313 CrPC, has also stated that he saw his wife with another man in a farm house. The appellant in his cross examination under Section 313 CrPC has also denied using any digging bar/iron rod (thirtiang) or fire wood to beat his wife, though he had admitted to using a small stool for beating his wife. 19. On perusing the evidence adduced, there is nothing to show that there was any provocation made by the deceased towards the appellant. The evidence of PW-1 & PW-7, which is to the effect that they had been told by the appellant that the deceased was being unfaithful to the appellant does not, in our view, appear to be a sudden provocation, assuming the same to be true. The unfaithfulness of the deceased is also a disputed question of fact and the said stand of the appellant could also be an after-thought, as no evidence to that effect has been made by the appellant during the evidence stage, except in his examination under Section 313 CrPC, where he has stated as follows:- “I do not agree with this. I saw my wife with another man in a farm house. I saw my wife with another man in a farm house. I only beat her three times on her back with a stool as I was enraged. I went to phone my employer and when I got back she was dead”. 20. Nothing has been stated by the appellant as to the date or time when he allegedly saw his wife with another man and in whose farm house he had seen them, or what they had done. There is nothing to show that there was any grave or sudden provocation by the deceased so as to have warranted the horrific and brutal assault on the deceased with a digging bar/iron rod (thirtiang), which resulted in the breaking of the deceased’s cranium, legs and hands. Further, on a perusal of the impugned Judgment & Order dated 20.11.2019, we find that the appellant had not taken any stand that his brutal assault on his deceased wife was due to any grave or sudden provocation, allegedly involving her unfaithfulness to him by having extra marital affair with another man, at the time of sentence hearing. 21. The operative portion of the sentence hearing, which is reflected in paragraph No. 28 of the Judgment & Order dated 20.11.2019 passed in Criminal Trial No. 1460/2017 is reproduced below:- “28. I conduct hearing on question of sentences on 19.11.2019. The accused person stated that he is a very simple man without mother and he was very sorry. He is only with his father and younger sister. His only son has no one to look after him. He is an illiterate and he wants the best for his only son i.e. to grow up with his dad. It was a bonafide mistake and he was not trying to take his wife’s life. The learned counsel for the accused pray for the minimum punishment available. They pray for utmost leniency. The learned Addl. PP stated that the accused was convicted for murder. He can be punished with death, however, if that is not the case, he must be given at least imprisonment for life”. 22. The learned counsel for the accused pray for the minimum punishment available. They pray for utmost leniency. The learned Addl. PP stated that the accused was convicted for murder. He can be punished with death, however, if that is not the case, he must be given at least imprisonment for life”. 22. In view of the fact that there is nothing to prove that there was a grave and sudden provocation given by the deceased, which resulted in the sudden loss of self-control by the appellant, we are of the view that Exception 1 to Section 300 IPC would not be attracted in the present case. Accordingly, in that view of the matter, we do not find any infirmity with the decision of the learned Trial Court in convicting the appellant under Section 302 IPC. The conviction is accordingly upheld. 23. The above being said, we find that the hearing on the question of sentence was held on 19.11.2019, as reflected in paragraph No. 28 of the impugned Judgment & Order dated 20.11.2019, which has been reproduced in the foregoing paragraphs. The impugned Judgment & Order, having been passed on 20.11.2019, there could not have been a hearing on the question of the sentence to be imposed on 19.11.2019, i.e., on a day prior to the conviction of the appellant under Section 302 IPC. 24. In the case of Bhagwani Vs. State of Madhya Pradesh reported in 2022 SCC Online SC 52, the Apex Court has held in paragraph No. 16 of the said judgment that an accused is entitled for a fair trial, which is guaranteed under Article 21 of the Constitution of India. In respect of the order of conviction and sentence being passed on the same day, the object and purpose of Section 235(2) CrPC is that the accused must be given an opportunity to make a representation against the sentence to be imposed upon him. A bifurcated hearing for convicting and sentencing if necessary to provide an effective opportunity to the accused. Paragraph No. 16 of the above judgment is reproduced herein:- “16. It is travesty of justice as the Appellant was not given a fair opportunity to defend himself. This is a classic case indicating the disturbing tendency of Trial Courts adjudicating criminal cases involving rape and murder in haste. Paragraph No. 16 of the above judgment is reproduced herein:- “16. It is travesty of justice as the Appellant was not given a fair opportunity to defend himself. This is a classic case indicating the disturbing tendency of Trial Courts adjudicating criminal cases involving rape and murder in haste. It is trite law that an accused is entitled for a fair trial which is guaranteed under Article 21 of the Constitution of India. In respect of the order of conviction and sentence being passed on the same day, the object and purpose of Section 235 (2) CrPC is that the accused must be given an opportunity to make a representation against the sentence to be imposed on him. A bifurcated hearing for convicting and sentencing is necessary to provide an effective opportunity to the accused. Adequate opportunity to produce relevant material on the question of death sentence shall be provided to the accused by the Trial Court.” 25. Section 235 CrPC states as follows : “235. Judgment of acquittal or conviction.-(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.” 26. Besides the judgment of the Apex Court as quoted above, there has been numerous judgments of this Court and the Apex Court, wherein it has been held that opportunity of hearing, with regard to the sentence to be imposed should be given and normally, the sentence hearing is done on a different date than the date of conviction. In the case of Allauddin Mian & Ors. Sharif Mian Vs. State of Bihar, reported in (1989) 3 SCC 5 , the Apex Court has held that as a general rule, the Trial Courts should after recording the conviction, adjourn the matter to a future date on the question of sentence. 27. In the case of Allauddin Mian & Others Sharif Mian & Another (supra), the Apex Court has held as follows : “10. …..The requirement of hearing the accused is intended to satisfy the rule of natural justice. 27. In the case of Allauddin Mian & Others Sharif Mian & Another (supra), the Apex Court has held as follows : “10. …..The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the court in determining the correct sentence to be imposed the legislature introduced sub-section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality…… In a case of life or death as stated earlier, the presiding officer must show a high decree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this case, without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the court, the court’s decision on the sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has far more serious consequences on the offender and his family members than in the case of a purely administrative decision; a fortiori, therefore, the principle of fair play must apply with greater vigour in the case of the former than the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. Likewise a sentencing decision taken without following the requirements of subsection (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing court must approach the question seriously and must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. We think as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender….” 28. The purpose of adjourning the matter to a future date for having a sentence hearing is to enable the parties to prepare themselves with regard to the sentence to be awarded and the same is in consonance with the principles of natural justice. In the case of Matloob Vs. State (Delhi Administration), 1997 (3) Crimes 98 Delhi, the Delhi High Court has held that by virtue of Section 235(2), conviction and sentence cannot be passed on the same day. 29. In the present case, not only has the conviction of the appellant been done on 20.11.2019, but the sentence has also been imposed on 20.11.2019. The travesity of justice is apparent in paragraph No. 28 of the impugned Judgment & Order dated 20.11.2019 passed by the learned Trial Court, where it has been categorically stated that the hearing on the question of sentence to be imposed was held on 19.11.2019, i.e., prior to the conviction of the appellant. The said procedure followed by the learned Trial Court is a travesity of justice and is in violation of Article 21 of the Constitution of India. 30. In that view of the matter, the sentence imposed upon the appellant is not sustainable. The sentence /punishment imposed upon the appellant is accordingly set aside. 31. The said procedure followed by the learned Trial Court is a travesity of justice and is in violation of Article 21 of the Constitution of India. 30. In that view of the matter, the sentence imposed upon the appellant is not sustainable. The sentence /punishment imposed upon the appellant is accordingly set aside. 31. The case is remanded back to the learned Trial Court to fix the date for hearing, on the quantum of sentence to be imposed upon the appellant. After opportunity of hearing is provided to the appellant, the learned Trial Court shall pass its sentence as it deems fit and proper in the facts and circumstances of the case. The entire exercise should be concluded by the learned Trial Court, within a period of 6 (six) weeks from today. 32. The appeal is accordingly disposed of. 33. Send back the LCR. 34. In appreciation of the assistance rendered by the learned Amicus Curiae, his fee is fixed at Rs.8,500/-, to be paid by the Mizoram State Legal Services Authority (MSLSA).