Meghalaya High Court
Shemphang Ran vs State Of Meghalaya on 9 December, 2014
Equivalent citations: 2015 CRI. L. J. 1002, (2015) 147 ALLINDCAS 607 (MEG) (2014) 5 GAU LT 649, (2014) 5 GAU LT 649
Bench: Uma Nath Singh, T. Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
Crl. Appeal No.1/2012
Shemphang Rani,
S/o Shri. B Narleng,
R/o Umiong village, New Jirang,
Ri Bhoi District, Meghalaya. :::: Accused/Appellant
-Vs-
State of Meghalaya represented by its
Secretary, Ministry of Home (Police),
Government of Meghalaya :::: Respondent
For the Appellant : Mr. N.M. Mansuri, Adv
For the Respondent : Mr. ND Chullai, Sr. PP
Mr. S Sen Gupta, Addl.PP
Crl. Appeal No.2/2012
Shri. Libingstone Mawthoh,
S/o Shri.Warde Mawthoh,
R/o Umiong village, New Jirang,
Ri Bhoi District, Meghalaya. :::: Accused/Appellant
-Vs-
State of Meghalaya represented by its
Secretary, Ministry of Home (Police),
Government of Meghalaya :::: Respondent
For the Appellant : Mr. N.M. Mansuri, Adv
For the Respondent : Mr. ND Chullai, Sr. PP
Mr. S Sen Gupta, Addl.PP
Crl. Appeal No.3/2012
1. Shri. Darsing Narleng,
S/o R. Patho
2. Shri. Armik Narleng
S/o Shri. Dalin Syngkli
3. Shri. Media Narleng,
S/o Shri. Daling Syngkli
Page 1 of 19
4. Shri. Berias Mawthoh,
S/o Boris Syngkli
5. Shri. Komen Narleng,
S/o Shri. B. Wahlang
6. Shri. William Mawthoh,
S/o Bill Syngkli
7. Shri. Belium Sancley
S/o Shri. Goren Sohlwa
All residents of Umiong village, New Jirang,
Ri Bhoi District, Meghalaya :::: Accused/Appellants
-Vs-
State of Meghalaya represented by its
Secretary, Ministry of Home (Police),
Government of Meghalaya :::: Respondent
For the Appellant : Mr. N.M. Mansuri, Adv
For the Respondent : Mr. ND Chullai, Sr. PP
Mr. S Sen Gupta, Addl.PP
Crl. Appeal No.4/2012
Shri. Lukstar Narleng,
S/o Shri. Blowel Wahlang,
R/o Umiong village, New Jirang,
Ri Bhoi District, Meghalaya. :::: Accused/Appellant
-Vs-
State of Meghalaya represented by its
Secretary, Ministry of Home (Police),
Government of Meghalaya :::: Respondent
BEFORE
HON'BLE MR. JUSTICE UMA NATH SINGH, CHIEF JUSTICE (ACTING)
HON'BLE MR. JUSTICE T. NANDAKUMAR SINGH
For the Appellant : Mr. N.M. Mansuri, Adv
For the Respondent : Mr. ND Chullai, Sr. PP
Mr. S Sen Gupta, Addl.PP
Date of hearing : 22.09.2014
Date of Judgment & Order : 09.12.2014
Page 2 of 19
JUDGMENT AND ORDER
(Justice T. Nandakumar Singh)
These four criminal appeals are directed against the judgment
and order dated 10.01.2012 passed by Smti. I. Mawlong, MCS, learned
Additional District Magistrate, Ri Bhoi District, Nongpoh in GR Case
No.128/2000 for convicting the appellants/accused for the offence under
Sections 364/302/34 IPC and sentence order dated 15.12.2011 for sentencing
the appellants/accused maximum sentence of life imprisonment.
2. Heard Mr. N.M. Masuri, learned counsel appearing for the
appellants/accused and Mr. ND Chullai, learned Sr. PP assisted by Mr. S Sen
Gupta, learned PP for the State respondents.
3. Prosecution story as unfolded during the trial, in nutshell, is
recapitulated hereunder. On 11.09.2000, a report was lodged by Smti. Leria
Sancley (PW No.3), wife of the deceased Elias Mawthoh to the Sordar
Shnong, Umiong Jirang that on 11.09.2000, some persons whose identity
were not known to her, came to her house while she was sleeping with her
husband Elias Mawthoh and assaulted her husband and dragged him away to
the unknown place. Though, she made an attempt to trace out the
whereabouts of her husband Elias Mawthoh, she could not trace out her
husband Elias Mawthoh and the assailants. On receipt of the said report, the
Secretary and the Sordar of Umiong Jirang lodged an Ehajar on 12.09.2000 to
the Officer-in-Charge, Police Outpost Patharkhmah and the Officer-in-Charge,
Nongpoh Police Station registered an FIR being Nongpoh PS Case No.86 (9)
2000 under Sections 364/302/34 IPC against the unknown persons on
15.09.2000. In the course of the investigation, the dead body of Elias Mawthoh
(deceased) with multiple injuries was found lying in Umiong River near the
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place called Shlangblei. According to PW 6 Shri. W. Sumer, Investigating
Officer, he came to know that the appellants/accused are the authors of the
crime of committing the murder of (L) Mr. Elias Mawthoh only when the
appellants/accused confessed to him that they jointly murdered Elias Mawthoh
and thereafter, 13 accused persons including the appellants/accused were
arrested. PW 6 Shri. W. Sumer also stated that the confessional statements of
the accused persons were also recorded by the Magistrate under Section 164
Cr.P.C.. After completing the investigation, charge sheet had been filed
against the 13 accused persons including the appellants/accused and they
appeared for the trial of GR Case No.128 of 2000 for the offence under
Sections 364/302/34 IPC in the Court of Smti. I Mawlong, MCS, Additional
District Magistrate, Ri Bhoi District, Nongpoh. The trial court after appreciation
of the evidence had come to the finding that the prosecution had proved the
case of the prosecution only against the 11 accused persons i.e. the present
appellants/accused of (i) Crl. Appeal No.1/2012, (ii) Crl. Appeal No.2/2012, (iii)
Crl. Appeal No.3/2012 and (iv) Crl. Appeal No.4/2012 and another accused
person, that the appellants/accused and another accused person had
murdered the deceased Elias Mawthoh after kidnapping him vide impugned
judgment and order dated 10.01.2012.
4. We have carefully analyzed and re-appreciated the statements
of PWs and the exhibited documents vis-à-vis the impugned judgment and
order dated 10.01.2012. We are not oblivious that this Court being the First
Appellate Court has to discuss and re-appreciate the statement of PWs and
exhibited documents, more particularly, in case we cannot persuade ourselves
to concur the finding of the trial. Regarding this point, reference may be made
to the decision of the Apex Court in Ramakanta Rai v. Madan Rai & Ors:
(2003) 12 SCC 395 wherein the Apex Court held that "when the appellate
court concurs with the views of the trial court necessity for elaborately dealing
Page 4 of 19
with the various aspects may not always be necessary. But when a view
contrary to that of the lower court is expressed, it is imperative that reasons
therefor should be clearly indicated. There is no scope for any departure from
these basic requirements".
5. The prosecution had examined as many as six prosecution
witnesses namely (i) PW 1 Shri. Ledis Narlang, a villager of Umiong village, (ii)
PW 2 Shri. Arwin Syngkli to whom the appellants/accused made a confession
that they have murdered the deceased Elias Mawthoh for the reason that the
deceased was a very bad man, who had been living a bad life, (iii) PW 3 Smti.
Leria Syngkli (wife of deceased), (iv) PW 4 Shri. Tarial Mawthoh, younger
brother of the deceased, (v) Dr. F.A. Ahmed, who performed the postmortem
examination of the dead body of Elias Mawthoh (deceased) and PW 6 Shri. W
Sumer Investigating Officer of Nongpoh Case No.86 (9) of 2000 under
Sections 364/302/34 IPC, who submitted the charge sheet. The learned trial
court basing on the statements of the 3 (three) PWs i.e. PW 2 Arwin Syngkli,
PW 3 Smti. Leria Syngkli (wife of the deceased) and PW 6 Shri. W Sumer
(Investigating Officer) had passed the impugned judgment and order dated
10.01.2012 for convicting the appellants/accused for the offence under
Sections 364/302/34 IPC and imposed sentence to a maximum of life
imprisonment to the appellants/accused vide impugned judgment and order
dated 15.12.2011.
6. PW 1 Shri. Ledis Wahlang stated that he know all the accused
persons i.e. 13 accused persons including the appellants/accused and came
to know that they murdered (L) Mr. Elias Mawthoh about three years ago in
the wintertime when he was at his paddy field only when the
appellants/accused surrendered themselves to the Police. The examination-in-
chief of the PW 1 recorded by the trial court reads as follows:-
Page 5 of 19
"On Oath:
I know all the accused standing in the dock. The accused were
arrested, to my knowledge for murder, about three years ago in
the winter time as far as my information goes the deceased Elias
Mawthoh was killed by the accused when he was in the paddy
field. Only when the accused surrendered themselves to the
police then I came to know that they had committed the offence.
The Dorbar Rangbah informed the Police. I was examined by the
Police. The reason of the murder was because the deceased
was a bad man who used to commit nuisance in the village.
That is all."
PW 1, he is not an eyewitness and his statement is only hearsay;
over and above, there is no material particular as to how he got the
information; his statement is very cryptic. PW 2 Shri. Arwin Syngkli without
mentioning the names and particulars of the accused persons, simply stated
that he know about the incident as the accused persons came to confess to
him that they had committed the offence. The examination-in-chief of the star
witness PW 2 is reproduced in toto:
"On Oath:
I know all the accused persons standing in the dock. The
accused to my knowledge were arrested for the murder of one
Elias Mawthoh October, 2000, date I do not remember in the
pynthor about 2 furlong away from Umiong village. I know about
the incident as the accused came to confess to me about the
deed that they had committed, reason that the deceased was a
very bad man who had been living a bad life. The accused used
to steal all kinds of things like pumpkins, utensils, animals, cattle
also used to keep them at ransom. He was a very bad man and
no one dared to report about him to the police. There was an
incident when electric line was stolen by him and the matter was
reported to the police but who did not take any action against the
deceased. Exhibit 1 is the FIR and Exhibit-1/1 is my signature.
The accused had beaten the deceased and had drowned him.
That is all."
PW 3 Smti. Leria Syngkli wife of the deceased Elias Mawthoh
had identified the accused persons for the first time in the dock. PW 3 had
already stated in her said report dated 12.09.2000 to the Sordar Shnong that
the identity of the accused persons were not known to her. In her examination-
Page 6 of 19
in-chief, she stated that the accused persons came at night to her paddy field
and assaulted her husband Elias Mawthoh and she related about the whole
incident to the headman of the village. The statement of PW 3 is absolutely
lack of material particulars viz., if anybody present at the time of the incident
and was there sufficient light to see the face of the accused persons and
whether the accused persons armed with any dangerous weapon and if they
are armed with, what types of arm. The examination-in-chief of the star
witness PW 3 is reproduced in toto hereunder:-
"On Oath:
I know all the accused persons standing in the dock. The
accused persons are the people involved in the murder of my
husband on 11.09.2000 in the paddy field near the village known
as Umlaper. The accused persons came at night time to my
shed in the paddy field. They assaulted my husband. I was very
much present at that time and witnessed the whole incident. The
matter was reported to the Headman of the village. Then I
reported the matter to the police Patharkhmah along with the
Headman and other elders of the village. The police questioned
me on the matter and I related the whole thing to them. Then, the
police came to the village and arrested the accused persons who
are present and standing in the dock. My husband was accused
of stealing, practicing witch-craft and adultery and that was why
he was murdered."
7. The statement of PW 3 was not corroborated by any witness of
the prosecution, so also, the extra judicial confession or confession of the
accused persons 13 in numbers to the PW 2 were not corroborated by any
prosecution witness. But an attempt had been made by the prosecution to
corroborate the statement of PW 2 about the confessional statements of the
accused persons by the statement of the Police Officer-PW 6 that the accused
persons had voluntarily confessed to him.
8. The trial court, who clearly misunderstood the law relating to
extra judicial confession and as to what are the materials evidence and also
Page 7 of 19
the relevant laws and procedures relating with confessional statement of the
accused person recorded under Section 164 of the Cr.P.C. and test
identification parade of the accused persons, had not correctly appreciated the
statements of the prosecution witnesses and passed the impugned judgment
and order dated 10.01.2012 for convicting the appellants/accused and
acquitting the two on the same set of evidence and also passed the impugned
sentence order dated 15.12.2011 for sentencing the appellants/accused to
suffer imprisonment for life before conviction. The portions of the cryptic
judgment and order dated 10.01.2012, which deal with the appreciation of the
statements of PWs are quoted hereunder:-
"Other Prosecution Witnesses are not material witnesses, except
that of Smti Leria Sankly wife of the deceased. She said: -
"I know all the accused standing in the dock. The
accused persons are the people involved in the
murder of my husband on 11-09-2000 in the paddy
field near the village known as Umlaper. The
accused persons came at night then to my shed in
the paddy field. They assaulted my husband, I was
very much present at that time and witnessed the
whole incident.
In her cross-examination, she repeated that:-
"I saw the accused attacking my husband after which they
tied him up with ropes and pulled him away."
This Prosecution Witness is the only eyewitness whose evidence
could not be shaken.
P.W Shri Ledis Wahlang The accused had voluntarily
confessed their guilt before the
Dorbar at Mawiong. I am also one of
the elders of the Village Dorbar.
P.W Shri Arwin Syngkli I know about the incident as the
accused came to confess to me
about the deed that they had
committed, reason that the deceased
was a very bad man who had been
living a bad life. I was the Sordar then
in 1999 and 2000. The accused used
to steal all kinds of things.
The following two entries made by Dr. F. A. Ahmed in his Post
Mortem Report amply justified the charge made U/S 302 I.P.C.
against the accused. The entries are:-
Page 8 of 19
(i)There is deep cut wound caused by sharp weapon on
chin, left side cheek, in left ear and the left side of the
head. The wounds are antemortem in nature and are
homicidal in nature.
(ii) In my opinion, the deep cut wounds that sustained on
the face and on head causing severe hemorrhages as
well leading to shock then to cardio respiratory failure and
death.
The following accused were examined and made their
statements under the provisions of Section 164 Cr. P.C
Accused Shemphang Rani
"My name is Shemphang Rani and I reside at Umiong
Jirang. I admit that on 11-09 -2000. I took part in beating of one
Shri Elias Mawthoh to death as he is suspected of practicing
witchcraft. He was also a thief and a rapist".
Accused Berias Mawthoh
"Elias Mawthoh was a rapist, thief and wizard, so we
murdered him and threw him to the river"
Accused William Mawthoh
"I am Willliam Mawthoh from Umiong, Jirang, Elias
Mawthoh is a bad man. Whenever he curses it always happen.
He used to rape women young and old and also cuts the electric
wires and carried to his house. Around 10 P.M , 13 of us on that
day went with the intention of killing him and killed him on that
day. That's all Madam."
Accused Armik Nareng
"Elias Mawthoh was a thief, witchcraft and rapist 13 of us
at around 9:30 or 10 P.M we went to pull him out of the house,
beat him and killed him. I then threw his body to the river. That's
all Madam,"
Accused Roles Patho
"Around 10 P.M., we went to Elias Mawthoh's house,
pulled him out of his house, beat him and tied a rope around his
neck and then threw him into the river because he was an evil
person. He raped women, stole things and he is also a wizard.
That's all Madam"
Accused Belium Sanckly
"We went to beat Elias Mawthoh because he was a bad
man, he is too much. He used to rape women, perform witchcraft
and also stole things. We pulled him with a rope which was tied
around his neck and then threw him into the river. That's all
Madam"
Accused Lukstar Narleng
"Elias Mawthoh was a thief, wizard and a rapist. We beat
him and tied a rope around his neck and threw him into the river.
That's all Madam"
Page 9 of 19
Accused Livingstone Mawthoh
"We murdered Elias Mawthoh because he was a rapist, a
thief and a wizard. That's all Madam"
Accused Darsing Narleng
We murdered Elias Mawthoh because he was a wizard, thief and
rapist. That's all Madam"
Accused Media Narleng
"I admit we had murdered Elias Mawthoh because he was
a thief, rapist and a wizard. That's all Madam"
Accused Koman Narleng
"13 of us murdered Elias Mawthoh because he was a
rapist, wizard and thief. We threw his body in the river. That's all
Madam"
The accused with one mind have killed the victim on one
common ground - that he was a thief, a wizard and a rapist and
so their statements are corroborative to each other. The
statements U/S 164 Cr.P.C were reduced to writing by
Magistrates in accordance with the provisions of the Criminal
Procedure Code, the record is admissible in evidence without
further proof. The statements were made in Khasi and recorded
by a Khasi Magistrates then were "read over and accepted
correct" after the accused having been put their marks thereon.
The statements were made at a time when the accused were no
longer in Police custody. No threat, promise or inducement were
made to them. The Magistrates have certified that the
statements were made voluntarily. There is no ambiguity, doubt,
mistake or infirmity requiring the Trail Court to summon the
Magistrates who made the recordings for clarification on any
point. The statements made are clear, simple with no element of
any doubt. They demonstrate the vivid intention of the accused
to kill and without a remorse. They deserve punishment to be
inflicted on each one of them U/S 302 I.P.C.
The incriminating statements made by the accused have
been put to them in terms of the provisions contained in Section
313 Cr.P.C as shown below."
***** ***** *****
9. The solitary statement of PW 3, as stated above, is not
corroborated in material particular by any prosecution witness. The statement
of PW 3 is so cryptic and absolutely lack of material particular. Over and
above, PW 3, who did not know the identity of the accused persons, identified
for the first time when the accused were in the dock. There is absolutely no
Page 10 of 19
material on record and also no statement from the side of the PW 3 that how
many accused persons were present in the dock on the day of recording her
statement. If only because all the accused persons had been identified by the
PW 3 for the first time in the dock, the appellants/accused had been convicted,
then why the other accused persons had been acquitted. The statement of PW
3, which is a cryptic and lack of material particular, cannot be sufficient for
conviction. The learned trial court had completely misunderstood the material
particular of the statement of the witnesses and extent of requirement of the
solitary witness for proving the prosecution case in the case in hand. Such
cryptic solitary statement of PW 3, even by way of hypothesis, cannot be the
ground for conviction under the criminal jurisprudence of our country.
10. Under our criminal jurisprudence, a person has a profound right
not be convicted of an offence which is not established by the evidential
standard of proof beyond reasonable doubt. No doubt, this standard is a high
standard but there is no absolute standard. The Apex Court in Krishnan &
Anr v. State represented by Inspector of Police: (2003) 7 SCC 56 had
observed that what degree of probability amounts to "proof" is an exercise
particular to each case. The concepts of probability, and the degrees of it,
cannot obliviously be expressed in terms of units to be mathematically
enumerated as to how many of such units constitute proof beyond reasonable
doubt. There is an unmistakable subjective element in the evaluation of the
degrees of probability and the quantum of proof. To constitute reasonable
doubt, it must be free from over emotional response, zest for abstract
speculation. Doubt must be actual and substantial doubts as to the guilt of the
accused persons arising from the evidence and/or lack of it, as opposed to
mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or
a merely possible doubt; but a fair doubt based upon reason and common
Page 11 of 19
sense. The Apex Court is of similar view in Ramakant Rai v. Madan Rai &
Ors: (2003) 12 SCC 395 (Paras 24 and 25 of the SCC, p.405)
"24. Doubts would be called reasonable if they are free from a
zest for abstract speculation. Law cannot afford any favourite
other than the truth. To constitute reasonable doubt, it must be
free from an over emotional response. Doubts must be actual
and substantial doubts as to the guilt of the accused persons
arising from the evidence, or from the lack of it, as opposed to
mere vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair doubt
based upon reason and common-sense. It must grow out of the
evidence in the case.
25. The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be mathematically
enumerated as to how many of such units constitute proof
beyond reasonable doubt. There is an unmistakable subjective
element in the evaluation of the degrees of probability and the
quantum of proof. Forensic probability must, in the last analysis,
rest on a robust common sense and, ultimately, on the trained
intuitions of the judge. While the protection given by the criminal
process to the accused persons is not to be eroded, at the same
time, uninformed legitimization of trivialities would make a
mockery of administration of criminal justice. This position was
illuminatingly stated by Venkatachalia, J (as His Lordship then
was) in State of U.P. v. Krishna Gopal: (1988) 5 SCC 302."
.
11. When the uncorroborated solitary statement of PW 3 is not
accepted for establishing the high standard of evidence for proving the case of
the prosecution beyond reasonable doubt, the only evidence left out is extra
judicial confession of PW 2, which is also completely lack of material particular
and not corroborated by any independent witness. The statement of PW 2
cannot be corroborated by the statement of Police Officer-PW 6, who stated
that the accused persons had voluntarily confessed the crime to him. Section
25 of the Indian Evidence Act, 1872 clearly provides that the confession made
to a Police Officer, shall not be proved against a person accused of any
offence. No doubt, extra judicial confession can form the basis of conviction
but by way of abundant precaution, however, may look for some corroboration.
The Apex Court in Gagan Kanojia & Anr v. State of Punjab: (2006) 13 SCC
516 observed that "Extra Judicial Confession, as is well know, can form the
Page 12 of 19
basis of a conviction. By way of abundant caution, however, the court may
look for some corroboration. Extra judicial confession cannot ipso facto be
termed to be tainted. An Extra judicial confession, if made voluntarily and
proved can be relied upon by the courts. (See Sukhwant Singh v. State:
(2003) 8 SCC 90)". The Apex Court in Kishorchand v. State of H.P. reported
in (1991) 1 SCC 286 held that:
"Unambiguous extra judicial confession possesses high
probative value force as it emanates from the person who
committed the crime and is admissible in evidence provided it is
free from suspicion and suggestion of any falsity."
12. The learned trial court had completely misunderstood the
requirement of Section 164 Cr.P.C. for recording the confessional statement
and its evidential value. The learned trial court had relied on the so called
confession statements of the accused persons recorded under Section 164
Cr.P.C., which were not even exhibited by the prosecution. In the course of the
trial, the prosecution did not examine the Magistrate, who recorded the
statements of the accused persons under Section 164 Cr.P.C. as prosecution
witness. The Apex Court in a catena of cases held that Magistrate or Sessions
Judge before whom the accused who is unable to engage the services of a
lawyer on account of poverty or indigence has produced, has an obligation to
inform him that he is entitled to obtain free legal services at the cost of the
State. From the record, it is clear that the appellants/accused had not been
informed of their right to engage the services of a lawyer when they were
produced before the Magistrate for recording their confessional statements.
The Apex Court in Mohammed Ajmal Mohmmad Amir v. Union of India &
Ors: (2012) 9 SCC 1 held that:
"457. The object of the criminal law process is to find out the
truth and not to shield the accused from the consequences of his
wrongdoing. A defence lawyer has to conduct the trial on the
Page 13 of 19
basis of the materials lawfully collected in the course of
investigation. The test to judge the constitutional and legal
acceptability of a confession recorded under Section 164 Cr.P.C.
is not whether the accused would have made the statement had
he been sufficiently scared by the lawyer regarding the
consequences of the confession. The true test is whether or not
the confession is voluntary. If a doubt is created regarding the
voluntariness of the confession, notwithstanding the safeguards
stipulated in Section 164 it has to be trashed; but if a confession
is established as voluntary it must be taken into account, not only
constitutionally and legally but also morally."
13. The learned trial court without any finding regarding the
acceptability of the confessional statements of the accused persons under
Section 164 Cr.P.C. and also without examining the Magistrate, who recorded
the confessional statements of the accused persons, had relied upon the
alleged confessional statements of the appellants/accused which were not
exhibited in the court of the trial for convicting the appellants/accused.
14. The learned trial court put only three stereo type questions to all
the accused persons at the time of recording their statements under Section
313 Cr.P.C. We have given anxious consideration to the statements of the
accused persons recorded perfunctorily by the trial court. The Apex Court in
Lallu Manjhi & Anr v. State of Jharkhand: (2003) 2 SCC 401 held that:
"14. Incidentally, it may also be stated that the manner in which
the Trial Court has recorded the statements of the accused
persons u/s 313 Cr.P.C. is far from satisfactory. The entire
prosecution case running into very many details has been
summed up into just 5 questions asked to each of the accused
persons. It is obligatory on the part of the Trial Court to examine
the accused for the purpose of enabling the accused personally
to explain any circumstances appearing in evidence against him.
If such opportunity is not afforded, the incriminating pieces of
evidence available in the prosecution evidence cannot be relied
on for the purpose of recording the conviction of the accused
persons."
The Apex Court in Naval Kishore Singh v. State of Bihar:
(2004) 7 SCC 502 held that:
Page 14 of 19
"5. Counsel for the appellant pointed out that the Sessions
Court committed serious error in not properly examining the
accused under Section 313 Cr.P.C. Our attention was drawn to
the statement taken from the present appellant. Only three
questions were put to the appellant. The first question was
whether he heard the statement of witnesses and the second
question was that the evidence given by witnesses showed
that he committed the murder of the deceased and whether
he had to say anything in defence. The questioning of the
accused under Section 313 Cr.P.C. was done in the most
unsatisfactory manner. Under Section 313 Cr.P.C. the
accused should have been given opportunity to explain any of
the circumstances appearing in the evidence against him. At
least, the various items of evidence, which had been produced
by the prosecution, should have been put to the accused in the
form of question and he should have been given opportunity
to give his explanation. No such opportunity was given to the
accused in the instant case. We deprecate the practice of
putting the entire evidence against the accused put together
in a single question and giving an opportunity to explain the
same, as the accused may not be in a position to give a
rational and intelligent explanation. The trial judge should have
kept in mind the importance of giving an opportunity to the
accused to explain the adverse circumstances in the evidence
and the Section 313 examination shall not be carried out as an
empty formality. It is only after the entire evidence is unfurled the
accused would be in a position to articulate his defence and to
give explanation to the circumstances appearing in evidence
against him. Such an opportunity being given to the accused is
part of a fair trial and if it is done in slipshod manner, it may
result in imperfect appreciation of evidence. In various
decisions of this Court, the importance of questioning the
accused under Section 313 Cr.P.C. was given due emphasis,
e.g. Rama Shankar Singh v. State of W.B: AIR 1962 SC
1239: (1962) 2 Cri LJ 296, Bhalinder Singh v. State of
Punjab: (1994) 1 SCC 726: 1994 SCC (Cri) 462, State of
Maharashtra v. Sukhdev Singh: (1992) 3 SCC 700: 1992 SCC
(Cri) 705 and Lallu Manjhi v. State of Jharkhand: (2003) 2
SCC 401: 2003 SCC (Cri) 544".
15. The golden thread which runs through the web of administration
of justice and criminal case is that if two views are possible on the evidence
adduced in the case, (i) pointing to the guilt of the accused and (ii) another to
his innocence, the view which is favourable to the accused should be adopted.
The paramount duty of the court is to ensure that miscarriage of justice is
prevented.
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16. The learned trial court had completely misunderstood Section
235 of the Cr.P.C., which reads 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."
It is really shocking that the learned trial court passed the
sentence order dated 15.12.2011 for sentencing the appellants/accused to
serve the sentence for imprisonment for the commission of the offence under
Sections 364/302/34 IPC long before the appellants/accused had been
convicted by the impugned judgment and order dated 10.01.2012 for the
offence under Sections 364/302/34 IPC. The stereo type cryptic order of
sentence dated 15.12.2011 is quoted hereunder:-
"IN THE COURT OF SMTI. I. MAWLONG, MCS,
ADDITIONAL DISTRICT MAGISTRATE,
RI BHOI DISTRICT, NONGPOH.
G.R. Case No.128 of 2000
U/S 364/302/34 IPC
State
-VERSUS-
Shri. Shemphang Rani & 12 Ors
ORDER
15-12-2011 C.R. put up today.
Ld. P.P. present.
Ld. Defence Counsel is present along with accused persons.
Page 16 of 19 Today is fixed for deliberation on the quantum of sentence.
Ld. P.P. observed that the Confession Statements U/S 164 Cr.P.C. of all the accused persons sheds ample light and beyond reasonable doubt of their involvement in the crime. They failed to show any remorse or regret for the act of commission of the heinous felony throughout the proceedings of the trial. Accordingly, he prays the Court to award the maximum punishment of life imprisonment to the accused persons.
Ld. Defence Counsel submits that the conviction is unwarranted. Even if the confession of the accused persons U/S 164 Cr.P.C. is taken cognizance, life imprisonment is too harsh a sentence. Hence prays that the same be commuted to a lesser term.
Given the above, I consider the submission of the Ld. P.P. Accused persons shall serve the maximum sentence of life imprisonment for the commission of the crime U/S 364/302/34 IPC.
Sd/-
Smti. I. Mawlong, MCS, Additional District Magistrate, Ri Bhoi District, Nongpoh."
It is the clearest example that true fact is stranger than fiction inasmuch as, the learned trial court, who is the senior officer passed the sentence order dated 15.12.2011 before the judgment and order dated 10.01.2012 for convicting the appellants/accused for the offence under Sections 364/302/34 IPC. It is very well settled law that in the new code i.e. Code of Criminal Procedure, 1973, Parliament has wisely written into the law a post-conviction stage when the Judge shall "hear the accused on question of sentence and then pass the sentence on him according to law". Section 235 of the Cr.P.C. consists of two parts, first part i.e. pronouncement of judgment for conviction and second part to hear the accused on the question of sentence. In the present case, it is just the reverse, which is not permissible under the law. The Apex Court in Ediga Anamma v. State of Andhra Pradesh: (1974) 4 SCC 443 held that "guilt once established, the punitive dilemma begins. The Page 17 of 19 choice between death and life term has to be made in a situation which is not altogether satisfactory. Modern penology regards crime and criminal as equally material when the right sentence has to be picked out, although in our processual system there is neither comprehensive provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence. However, in the Criminal Procedure Code, 1973 about to come into force, Parliament has wisely written into the law a post-conviction stage when the Judge shall "hear the accused on the question of sentence and then pass sentence on him according to law." (Section 235 and Section 248)".
17. For the foregoing discussions, we are of the considered view that there are reasonable doubts that the appellants/accused, who have the profound right not to be convicted under the offence which is not established by evidential standard of proof beyond reasonable doubt, are authors of the crime and accordingly, the appellants/accused are acquitted from all the charges leveled against them in the present case. In consequence thereof, the impugned sentence order dated 15.12.2011 and the impugned judgment and order dated 10.01.2012 passed by the leaned Additional District Magistrate, Ri Bhoi District, Nongpoh in G.R. Case No.128/2000 under Sections 364/302/34 IPC are hereby set aside and quashed.
18. In the result, the appeals are allowed.
19. The appellants/accused are set at liberty and personal bonds and security bonds of the appellants/accused are discharged. Page 18 of 19
20. Send a copy of this judgment and order to the concerned Additional District Magistrate, Ri Bhoi District, Nongpoh.
JUDGE CHIEF JUSTICE (ACTING)
Lam
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