Jharkhand High Court
Sandeep Kumar @ Sandeep Sao vs The State Of Jharkhand ... Opposite ... on 9 September, 2022
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.357 of 2021
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Sandeep Kumar @ Sandeep Sao ... Petitioner
-Versus-
The State of Jharkhand ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mr. Jitendra Shankar Singh, Advocate
For the State : Mrs. Priya Shrestha, A.P.P
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JUDGMENT
09.09.2022 Heard Mr. Jitendra Shankar Singh, learned counsel for the petitioner and Mrs. Priya Shrestha, learned counsel for the State.
2. The present Criminal Revision Application has been filed on behalf of the petitioner for challenging the judgment of conviction dated 16.03.2021 and order of sentence dated 19.03.2021 passed in POCSO Case No.41 of 2021 arising out of Sadar P.S. Case No.90 of 2020) by Ms. Kashika M. Prasad, the learned Additional Judicial Commissioner-IV-cum-Special Judge (POCSO), Ranchi by which, learned Court below has convicted the petitioner for the offences under Sections 417, 376(2)(n) of the Indian Penal Code and Sections 4/6/8 of the POCSO Act without holding the trial on the ground that the petitioner has pleaded guilty for the charges and has been sentenced him to undergo Rigorous Imprisonment for a period of ten (10) years and pay the fine of Rs.10,000/- and in default of payment of fine, he has further been sentenced to undergo Simple Imprisonment for a period of six (06) months for the offence under Sections 376(2)(n) of the I.P.C and has further been sentenced him to undergo Simple Imprisonment for a period of two (02) years for the offences under Sections 411 of the Indian Penal Code.
The petitioner has further been sentenced to undergo Rigorous Imprisonment for a period of Twenty (20) years each and to pay a fine of Rs.10,000/- each and in default of he has further been directed to 2 undergo Simple Imprisonment for a period of six (06) months each for the offences under Section 4 and Section 6 of the POCSO Act.
However, no separate sentence has been passed for the offence under Section 8 of the POCSO Act in the light of Section 42 of POCSO Act. All the sentences have been directed to run concurrently.
3. It further transpires that no charges was framed under Section 411 Cr.P.C. However, learned Court below has committed the convict- petitioner for the offence under Section 411 of Cr.P.C and sentence him to undergo Simple Imprisonment for a period of two years. It may be typographical error as instead of Section 417 as the learned Court below has mentioned under Section 411 while imposing the sentence.
4. The prosecution case, in brief is that the informant (i.e, the victim girl) is a student of class-VII from Adrash Vidya Mandir, who is aged about 14 years old have been induced and enticed away by the accused namely, Sandeep Kumar @ Sandeep Sao to marry her and on the said pretext, he is continuously having physical relation with her for the last around six months. She further stated that this convict- petitioner was earlier staying in her house as a Tenant for some days but on the date of filing of this case he was staying at Kokar, Sundar Vihar, P.S.-Sadar Ranchi on rent and when she came to know about his present address, then the accused fled away from there.
5. It is submitted by the learned counsel for the petitioner that the impugned judgment is bad in law as well as on facts and is liable to set-aside. It is further submitted that judgment and sentenced passed by the learned Trial Court is perverse and not sustainable in law.
It is further submitted that the procedure adopted by the learned Trial is not in accordance with the procedure laid down by the law and hence the impugned judgment is liable to be set-aside and the case may be remanded back for retrial.
6. It is further submitted that there is no memo of charges is on record duly signed by the accused petitioner and the entire exercise has been done through Video Conference.
3It is further submitted that the convict-petitioner was produced through the Video Conference and as such he was not physically present and therefore, his signature upon the statement recorded under Section 313 Cr.P.C had been taken only after passing the judgment by the Trial Court.
It is further submitted that from the order dated 16.03.2021, it is evident that the petitioner has not been given ample opportunity to understand the questions put to him digitally and the impugned judgment has been passed in hurried manner without giving proper opportunity to the convict-petitioner understand the consequences. It is further submitted that the learned Court below has failed to appreciate that when the prayer has been made on behalf of accused petitioner to discharge him, then, the question of pleading guilty is apparently under some miscommunication and hence the opportunity ought to have been given to the accused petitioner to think over the consequences of his plead guilty.
It is further submitted that the learned Court below has proceeded to convict the petitioner without the proof of age of the Informant-victim girl and the age of the prosecutrix has not been duly proved by the prosecution and therefore, the conviction of the petitioner under Section 4, 6, 8 of the POCSO Act is bad in law. It is submitted that the learned counsel for the petitioner has learnt for the first time on 19.03.2021 that he was convicted and sentenced to undergo imprisonment on 19.03.2021. Thereafter, he had filed a certified copy of the judgment and entire order sheet dated 23.03.2021. Thereafter, the certified copy of the judgment were supplied to him on 05.06.2021 and the petitioner had preferred this Criminal Revision Application.
7. Learned counsel for the petitioner has relied upon the judgments passed by the Hon'ble Madras High Court in the case of M. Ramamoorthy vs. The Inspector of Police reported in Crl.A.No.291 of 2021 and Crl.M.P No.6042 of 2021 dated 03.06.2021 and in the case 4 of Ex-Naik Subhash Chander vs. Union of India as reported in 2008 152 DLT 611; 2008 0 Supreme (Del) 948.
8. It is further submitted that the learned Court below has failed to appreciate that there are catena of judgments wherein it has been held that heinous offences one cannot be convicted merely on the basis of plead guilty under Section 229 Cr.P.C. and the Court must proceed with the evidence to arrive at any definite conclusion and hence, impugned judgment dated 16.03.2021 and sentence dated 19.03.2021 passed by the learned Court below are liable to be set-aside and the matter may be remanded back for retrial of the petitioner in the interest of justice.
9. On the other hand, learned counsel for the State has opposed the prayer of the petitioner and has submitted that the petitioner has himself pleaded guilty and as such, he was rightly convicted and sentenced to undergo the imprisonments on different counts i.e, Rigorous Imprisonment for a period of ten (10) years for the offence under Section 376(2) (n) of the POCSO Act and Rigorous Imprisonment for a period of 20 years for the offence under Section 4 of the POCSO Act and Rigorous Imprisonment for a period of 20 years under Section 6 of the POCSO Act. It is further submitted that in the case of rape the consent of minor victim girl has got no legal evidentiary value. It is further submitted that there is no bar in disposing of the case on the same date by pronouncing the judgment. It is further submitted that the judgments relied upon by the learned counsel for the petitioner are not applicable in the facts and on the circumstances of this case. It is further submitted that the learned Court below committed no illegality while passing the judgment of conviction on various counts as mentioned above. It is further submitted that full opportunity was given to the petitioner to defend himself. It is further submitted that the petitioner was produced through Video Conferencing before the learned Court below at the time of framing of charges and he had shown no complaint at that time 5 and the petitioner had pleaded guilty. Thereafter, the petitioner was examined under Section 313 Cr.P.C on the same day (i.e, on 16.03.2021) and even on that day, the petitioner had raised no grievance (i.e, on 16.03.2021). However, the petitioner has filed this Criminal Revision Application after delay of four months and as such, the petitioner cannot be allowed to reside from his earlier statement of plead guilty and even no grievance was raising at the time of framing of charges under Section 376(2)(n) of the I.P.C and Section 4, 6 and 8 of the POCSO Act and if, there was any problem in the Audio and Video quality, then, he could have requested for deferring the trial and could have been requested on the same day through the concerned officials that he could not heard the judgment after framing of charges and statements of the accused recorded under Section 313 Cr.P.C and thus, this Criminal Revision Application is devoid of any merit and hence, this Criminal Revision Application may be dismissed.
10. Learned counsel for the State has relied upon the judgment passed by the Hon'ble Allahabad High Court as reported in 1994 SCC Online 950.
11. Perused the scanned copies of the L.C.R, supplementary affidavit filed on behalf of the petitioner, impugned judgment of conviction and order of sentence passed by the learned Court below and also considered the submissions of both the sides.
12. It transpires from the record that the F.I.R was lodged by the victim girl against convict-petitioner for offences under Section 417/376 of the I.P.C and Section 8 of the POCSO Act on 23.02.2020.
13. It further transpires that the Sections 4 and 6 of the POCSO Act were also added vide order dated 19.08.2020 passed by the learned Court below.
14. It further transpires that the petitioner was arrested in this case on 01.01.2021.
15. It further transpires from the record that police has submitted charge-sheet under Sections 417, 376 of the I.P.C and also Sections 4, 6 6 and 8 of the POCSO Act on 27.02.2021 against this petitioner. Thereafter, the learned Court below has taken cognizance under Sections 417, 376(2)(n) of the I.P.C and also Sections 4, 6 and 8 of the POCSO Act on 27.02.2021 against the petitoner.
16. It further transpires from the lower court records that although the petitioner was arrested on 01.01.2021 and he was directed to produce on 15.02.2021. However, there is no order-sheet of the learned Court below written on 15.02.2021.
17. It further transpires on 27.02.2021 that the learned Court below has taken cognizance under Section 376(2)(n) of the I.P.C and Section 4, 6 and 8 of the POCSO Act and the case was fixed on 01.03.2021 for supplying of police paper and for hearing on the point of charge.
Thereafter, on 01.03.2021, the petitioner was produced before the learned Court below through the Video Conferencing from the Jail. However, the order-sheet reveals that none had turned for hearing on charges on 01.03.2021 and thereafter, the case was fixed on 16.03.2021 for supplying of police paper and hearing on the point of charge.
18. It further transpires from the order-sheet as well as the order dated 16.03.2021 that the police paper were supplied to the petitioner on 16.03.2021 and the petitioner was heard on the point of framing of charges on the same day i.e, on 16.03.2021 itself.
19. It further transpires that the learned Court below had framed charges under Sections 417 and 376(2)(n) of the I.P.C and Sections 4, 6 and 8 of the POCSO Act on the plead guilty of the petitioner and had passed the order to that effect and recorded the statement of the petitioner under Section 313 Cr.P.C on the same day (i.e, on 16.03.2021). Thereafter, the learned Court below has mentioned in the order-sheet dated 16.03.2021 that he (i.e, the petitioner) is not interested in uttering single word in his defence and as such, he was convicted under Sections 417,376(2)(n) of the I.P.C read with Section 4, 6 and 8 of the POCSO Act.
720. The order-sheet portion of the judgment and sentence dated 16.03.2021 passed by the learned Court below is as follows:-
"Heard both parties on the point of sentence. Convict Sandeep Kumar @ Sandeep Sao is sentenced to undergo (1) Rigorous Imprisonment for 10 (Ten) years and fine of Rs.10,000/- for the offences u/s 376(2)(n) of I.P.C and in default of payment of fine, simple imprisonment of six months. (2) Simple Imprisonment for 2 (Two) years for the offence u/s 411 of I.P.C. (3) Rigorous Imprisonment for 20 (Twenty) years and fine of Rs.10,000/- for the offence u/s 4 of the POCSO Act and in default of payment of fine Simple Imprisonment for six months. (4) Rigorous Imprisonment for 20 (Twenty) years and fine of Rs.10,000/- for the offence u/s 6 of the POCSO Act and in default of payment of fine Simple Imprisonment for six months. (5) As section 8 of POCSO Act is lower offence, hence, no separate sentence has been awarded in the light of Section 42 of POCSO Act.''
21. It further transpires that in the right side of the margin of the order-sheet dated 01.03.2021 the receiving of police paper has been shown for the first time also on 16.03.2021. Thereafter, on 19.03.2021 the accused was sentenced to undergo imprisonment on various counts.
22. At this stage, it will be relevant to quote Sections 228, 229 235, 313, 353 (I) (ii) (iii) (iv) of the Cr.P.C which reads as follows:-
"Section 228:- Framing of charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1 [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
Section 229:- Conviction on plea of guilty.
If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.
Section 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.
8(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 questions of sentence, and then pass sentence on him according to law.
Section 313:- Power to examine the accused.
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section. Section 353:-
(1) The judgment in every trial in any Criminal Court or original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,---
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. (2) Where the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short-hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court.
(3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub-section (1), as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him.
(4) Where the judgment is pronounced in the manner specified in clause (c) of sub-
section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. (5) If the accused is in custody, he shall be brought up to hear the judgment pronounced. (6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted:
9Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.
(7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place. (8) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465.
Section 465:- Finding or sentence when reversible by reason of error, omission or irregularity.
(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation of revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
23. Now coming to the merit of this case, it further transpires from the record that the learned Court below had supplied the police papers to the convict-petitioner on 16.03.2021 and charges were framed on 16.03.2021 (i.e, on the same day) and the convict-petitioner appears to have pleaded guilty (i.e, on the same day).
24. Thereafter, the learned Court below had recorded the statement of the accused convict-petitioner under Section 313 Cr.P.C on 16.03.2021 itself (i.e, on the same day) and thereafter, the learned Court below has convicted the petitioner for the charges under Section 376 (2) (n) and Section 417 of the I.P.C and Section 4, 6 and 8 of the POCSO Act, vide judgment dated 16.03.2021 itself (i.e, on the same day).
25. It further transpires that the statement of the victim girl was recorded under Section 164 Cr.P.C on 25.02.2020 whereas she has stated that she was in touch with the petitioner at the time of going to school and the petitioner was her school friend and the petitioner is said to have taken her to various places and also at his classroom and 10 used to commit sex with her on the pretext of marriage and the victim girl has shown her age about 14 years at the time of giving statement under Section 164 Cr.P.C.
However, from perusal of the record of this case, it further transpires that no document was exhibited during the trial.
Moreover, the Medical Report enclosed with the L.C.R of the victim girl reveals that she was aged about between 15-16 years and no injury was found on her person and no sign of sexual assault was found by the Doctor of Sadar Hospital, Ranchi.
It also appears that the Aaddhar Card of the victim girl shows that her date of birth is 05.06.2005 whereas her I.D of her school of Aadarsh Vidya Mandir shows that her date of birth is 05.07.2005.
26. From perusal of the order sheet, it appears that although the learned Court below had directed to provide the free copy of the to the convict at once at the time of pronouncement of the judgment of conviction and order of sentence dated 19.03.2021. However, the order-sheet reveals that the same were not supplied upon the convict- petitioner even on 19.03.2021.
27. The present Criminal Revision Application has been filed on behalf of the petitioner by enclosing the certified copy of the judgment dated 16.03.2021 and order of sentence dated 19.03.2021 and the requisites were filed on 23.03.2021 and date was fixed for filing of requisites on 09.04.2021 but it is not mentioned as to when but the date of ready and date of delivery is having kept blank.
28. From the supplementary affidavit dated 25.1.2022 filed on behalf of the petitioner, it would appear that the petitioner had filed an Application for supplying copy of the entire order-sheet on 23.03.2021. However, the petitioner had received the certified copy of the said judgment on 15.06.2021 which reveals from averments made in the supplementary affidavit.
29. Although, learned counsel for the petitioner has assailed the impugned judgment on the ground that the petitioner could not heard 11 properly that he has been convicted on the ground of pleading his guilty. However, he was not aware on 14.03.2021 that he has been sentenced to undergo for Rigorous Imprisonment for a period of 20 years each under Section 4 and 6 of the POCSO Act and has been sentenced to undergo Rigorous Imprisonment for a period of 10 years under section 376(2)(n) of the I.P.C and he was not aware. However, learned counsel for the petitioner has submitted that his signature on admitting his guilt and the statement recorded under Section 313 Cr.P.C were taken on 19.03.2021 for the first time against the order dated 16.03.2021.
30. It has been held by the Hon'ble Madras High Court in the case of M. Ramamoorthy vs. The Inspector of Police reported in Crl.A.No.291 of 2021 and Crl.M.P No.6042 of 2021 and paragraph Nos.8, 10 and 11 and 12 are quoted herein below:-
Para 8:-. The Division Bench of this Court in (2016) 4 MLJ (Crl) 378 (cited supra) has held as follows:
14. In the Constitution of India, several provisions have been enshrined for the purpose of ensuring the dignity of the individual and providing for his material, moral and spiritual development.
These provisions would be meaningless and ineffectual unless there is rule of law to invest them with life and force. What is the necessary element of the rule of law is that the law must not be arbitrary and irrational and it must satisfy the test of reasons. Article 21 is the heart of all these provisions which guarantees dignified life and personal liberty. It mandates that no person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by law or in its converse positive form, a person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by a valid law. Unfortunately, the Crl.A.No.291 of 2021 discretion vested in the court under Section 229 of the new Code is in tune with Article 21 of the Constitution of India to ensure a fair trial to an accused. Section 229 of the new Code, of course, makes it mandatory that if the accused pleads guilty, the Court shall record the said plea. If once it is so recorded, the latter part of Section 229 of the new Code makes it undoubtedly clear that in its discretion, the court may convict the accused thereon. How the discretion should be exercised by the court has not been defined or no guidelines have been formulated by the legislature. The exercise of such undefined discretion is always more difficult and uncertain. It is left to the Judge to grope in the dark for himself and in the exercise of his unguided and unfettered discretion decide what reasons may 12 be considered to use his discretion justifying conviction. What may appear to be the reasons justifying for conviction of an accused on the plea of guilty for one judge, may be found either unreasonable orinsufficient to convict him on the plea of guilty, to the another judge. Thus, in the absence of any expected legislative policy guiding the said discretion under Section 229 of the new Code, it is for the judges to be guided by the judge-made laws and by using their judicial prudence.
Crl.A.No.291 of 202115. In our considered view, in this scenario, before acting solely on the plea of guilty, essentially, the court should be fully satisfied that the accused had understood the nature of the charge levelled against him. A common man, more particularly, an illilterate poor man hailing from a remote corner of this country, may not know what the offence of murder in the context of the Indian Penal Code. It is the common man's understanding that killing of a human being by another is a murder. The vast majority of people of this country do not know as to when a homicide amounts to a culpable homicide; when culpable homicide amounts to a murder and when the special exceptions appended to Section 300 of IPC would reduce the offence again into a culpable homicide. Similarly, the accused may not know as to whether his act would fall under anyone of the general exceptions. He may not know whether the death was directly due to the violence caused by him or due to some other natural cause. Whether the offence committed by the accused is a mere culpable homicide or murder requires a deep analysis of the background of the entire occurrence. The accused may not know those backgrounds which actually may make out the difference between culpable homicide not amounting to murder and murder. Going by his common understanding that killing a person is a Crl.A.No.291 of 2021 murder, when he is questioned under Section 228 of the new Code, he may plead guilty. When an accused, without knowing these nuances, pleads, guilty, there is a danger of conviction for him for an offence that he has not committed. Similarly in the matter of sentencing also, vast discretion has been given to the court. For proper exercise of this discretion, the mitigating as well as aggravating circumstances which would guide the court to decide about the proportionate sentence for the offence committed are to be placed before the court. The mitigating circumstances may not be brought on record when the court simply acts upon the plea of guilty. Thus, without judging the proportionate quantum of sentence to be imposed, if disproportionate sentence is imposed upon the accused by the court, it may amount to injustice.
10. In the present case on hand also, the trial Court, based on mere oral submission pleading guilty, has imposed the sentence without any material. Admittedly, the charges are very serious in nature, which will invite punishment upto ten years, and therefore, the trial Court should have exercised thediscretion legally, keeping in mind the rights guaranteed under Article 21 of the Constitution of India. How the 13 discretion should be exercised by the Court has not been defined or no guidelines have been formulated by the legislature. In a grave crime like this, the trial Court, while exercising such discretion, should satisfy itself that the charges are plain unambiguous and understood by the appellant / accused properly. In this regard, in the judgment reported in (2016) 4 MLJ (Crl) 378 (cited supra), it has been held as follows:
20. The Hon'ble Supreme Court in State of Maharashtra v. Sukhdeo Singh, 1992 Crl.L.J.3454 : LNIND 1992 SC 433, has held as follows:
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 Crl.A.No.291 of 2021 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 clean, 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 of guilt. Once these requirements are satisfied, the law permits the Judge trying the case to record a conviction based on the plea of guilt.
11.In view of the above settled principle and also taking note of the submission of the learned counsel for the appellant / accused that the quantum of sentence was not put forth before the appellant / accused, this Court is of the view that the trial Court has mechanically imposed the conviction, and thus, the fair trial procedure has not been followed. When there is a violation of the fair trial contemplated under Article 21 of the Constitution of India, one cannot be deprived of life and personal liberty mechanically. In the above context, the judgment of the trial Court suffers legally and the same is liable to be set aside and the matter has to be remitted back to the trial Court for retrial and for examination of witnesses.
12. In the result, this Criminal Appeal is allowed and the judgment of conviction and sentence passed by the Special Judge for Crl.A.No.291 of 2021 EC/NDPS Act Cases, Salem, in C.C.No.27 of 2019, dated 30.12.2020, is set aside and the matter is remitted back to the trial Court for retrial. The learned trial Judge is directed to examine all the witnesses afresh and conduct a fresh trial after giving opportunity to all the parties concerned and decide the matter on merits and pass appropriate orders."
1431. It further transpires from the impugned judgment passed by the learned Court below that the Court below had taken into consideration at paragraph Nos.2,6,7,8, 49 and 56 of the case diary which is impermissible in law as the statement of the witnesses recorded in case diary under Section 161 Cr.P.C is not admissible, until the witnesses depose before the Court during the course of evidence.
32. It further transpires that the court below has relied upon the statement of the victim girl recorded under section 164 Cr.P.C given before the Child Welfare Committee and also before the learned Judicial Magistrate, 1st Class, Ranchi. Although, the same were neither exhibited, nor marked as an Exhibits.
Therefore, learned Court below has committed grave illegality in relying upon the statement of the victim girl recorded before the C.W.C and the learned Judicial Magistrate, 1st Class, Ranchi as neither the Chairman and Member of C.W.C, nor the learned Judicial Magistrate, before whom statements were recorded under section 164 Cr.P.C of the victim girl, had been examined before the learned Court below.
33. However, learned Court below has stated at paragraph No.8 of the impugned judgment that the convict-petitioner has found guilty for the offence under Sections 417, 376(2)(n) of the I.P.C and Sections 4/6/8 of the POCSO Act and the learned Court below has also observed that the accused/himself (i.e, the convict petitioner) has pleaded his guilt and hence, he has been convicted.
34. It is further evident that while convicting the petitioner that the learned Court below has looked into the materials of the case diary submitted by the police which is illegal and impermissible in law
35. Thus, this is a case of not only serious procedural lacuna on the part of the learned Court below while convicting the petitioner under Section 417/376(2)(n) of the I.P.C and Section 4, 6, and 8 of the POCSO Act but also committed grave error by placing reliance upon inadmissible evidence. Moreover, even the learned court below has not 15 been mentioned and incorporated the word "charges for committing the offence punishable under Section 417/376(2)(n) of the I.P.C and Section 4, 6 , 8 of the POCSO" rather the leanred Court below has directly mentioned Sections 417/376(2)(n) of the I.P.C and Section 4, 6, 8 of the POCSO Act, which is also a lacuna on the part of the learned Court below as the convict-petitioner is held guilty for the charges for committing the offences punishable under the above various sections of the I.P.C and POCSO Act or any other Act but not by directly observing held guilty under Section 417/376(2)(n) of the I.P.C and Section 4/6/8 of the POCSO Act.
36. It further transpires that the learned Court below has not given any finding of her satisfaction that the convict-petitioner was able to understand that he has pleaded guilty before him by the learned Court below.
37. It has been held by Hon'ble Madras High Court in the case of M. Ramamoorthy vs. The Inspector of Police reported in Crl.A.No.291 of 2021 and Crl.M.P No.6042 of 2021.
"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 clean, 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 of guilt. Once these requirements are satisfied, the law permits the Judge trying the case to record a conviction based on the plea of guilt.".
38. It has been held by the Hon'ble High Court of Jharkhand in the case of Jhuba Oraon vs. State of Jharkhand as reported in 2015(4) JLJR 226 and paragraphs Nos.13, 14, 15 and 16 are being quoted which are as follows:-
Para 13:- However, some of the High Courts have gone a step further so far it relates to caution to be taken whereby it has been held that plea of guilty can very well form basis of conviction but before order of conviction is passed on the basis of plea of guilty, the Court must ensure that the accused, who pleads guilty, has been doing so with full knowledge and is 16 also aware of the consequences of his plea. In this regard, we may refer to a case of "Abdul Kader versus Emperor, AIR (34) 1947 Bombay, 345, wherein Stone C.J. At Para 4 & 5 observed as follows:
[[[ "In my opinion the whole of this procedure was irregular. In the first place the appellant having asked the committing Magistrate for legal aid ought never to have been allowed to plead to a capital charge when he was unrepresented by counsel. This is all the more so, because it appears to be the practice of the Sessions Courts of this Province never to accept a plea of guilty to a capital charge, though the authorities on which this proposition is said to rest, viz, "(1906) B Bom. L.R. 240, EmperorV Chinila; and (1917) 19 Bom. L.R. 356: 4 AIR 1917 Bom. 220: 40 I.C. 699, Emperor V. Laxmya Shiddappa" do not lay down that a plea of guilty can never be accepted; but that it is not in accordance with the usual practice to do so. Speaking for myself, I see no reason why, if proper safeguards are taken, such a plea should not be accepted. Such safeguards must include the accused representation by counsel who must be in a position to answer the questions of the Court, with regard to whether the accused knows what he is doing and the consequences of his plea and also a medical report of medical evidence upon him."
"Para 14:-. Thus, we find that it has never been a rule of law that plea of guilty cannot be the basis for conviction, but before acting on the plea of guilty the Court must be satisfied that the person, who pleads guilty, has understood the nature of allegations and is also aware of it consequences. If the Court finds that the accused having understood the nature of allegations and also of its consequence, the Court may proceed to record the conviction, otherwise the Court should proceed to record the evidence as a rule of caution and prudence.
Para 15:- Here, in the instant case, we, after examining the records including the relevant order sheets, do find that the Court before recording the plea of guilty, failed to press in to service the safeguards to make them understand the nature of allegations and also of its consequence and, thereby, the Court, in stead of acting on the plea of guilty, should have proceeded with the trial for recording evidences.17
Para 16:- Under the circumstances, we do find that the trial court committed illegality in recording the order of conviction and sentence on the basis of the plea of guilty and, thereby, the judgment of conviction and order of sentence, passed against the appellant is hereby set aside and the matter is remanded back to the court concerned to proceed with the trial in accordance with law so as to same be concluded within six months from the date of receipt/production of a copy of this judgment."
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39. Moreover, the learned Court below should by way of precaution ought to have given warning or suggestion to the convict-petitioner that his plead guilty would lead to awarding even the maximum sentences up to Rigorous Imprisonment for a period of 10 years and 20 years or for any other period before making plead guilty. Although, there is no provision of Section 228 of the Cr.P.C for giving any such warning.
Moreover, the order sheet dated 16.03.2021 also shows that even the learned Special P.P. had appeared before the Court and police paper of this case has been received by the counsel or some other person on behalf of the accused and the learned counsel had pleaded for discharge of the accused person and the learned Special P.P. has opposed the submission of the defence counsel.
However, learned Court below has rejected the prayer of the discharge and framed charges against the accused convict-petitioner. However, there is no such petition for discharge as is required to be filed under Section 227 of Cr.P.C and once the defence has prayed for discharge of the accused persons then also it cannot be a case of voluntarily pleading guilty as the accused was aware of his defence and as such, the learned defence counsel (as per the order-sheet passed by the learned Court below dated 16.03.2021) had argued the case for discharge of the accused convict-petitioner. Therefore, it is evident that the accused had not himself seen the police paper on 16.03.2021 rather it was given at best to the defence counsel on 16.03.2021 or some other 18 person and in absence of any discharge petition, it appears to be the grave error to record the plea of argument of discharge of the accused person by the learned Court below.
40. The Court cannot proceed merely on oral submission of the defence counsel to discharge the accused persons in absence of any petition for discharge as required to be filed under Section 227 of the Cr.P.C and without service of copy of the same upon the learned Special P.P. Even the order-sheet does not reveal that the petitioner has filed any such Discharge Petition.
Therefore, it is abundantly clear that the learned Court below had acted in very hot haste manner by proceeding with the trial while convicting the convict petitioner for the offences under Section 417/367(2) (n) of the I.P.C and Sections 4, 6 and 8 of the POCSO Act by showing undue haste which is not appreciated by this Court as it amounts to zeoparadise the life of a person without giving him reasonable opportunity to defend his case.
It further transpires that the proceeding of the learned Court below does not show the proper compliance of Section 226 of the Cr.P.C as the Prosecution has to begun its case by describing the charges brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. The learned Court below has framed the charges on its own without opening of the case by the Prosecution at this point.
41. It further transpires that there is no evidence regarding the age of the victim girl that she is a minor. Although, her age is shown aged about 14 years, during her statement recorded under Section 164 Cr.P.C but that will not be conclusive proof of her age. The prosecution was bound to produce at least some credible evidence, in regard to age of the victim girl who has stated that she is a minor and is aged about 14 years, merely, on the basis of her Aadhar Card. It is further not clear as to when the said Aadhar Card was prepared by the victim girl (i.e, after the institution of the case or before the institution of the case).
19Even neither the Birth Certificate showing the date of birth of the victim girl, nor any of her School Certificate nor Admission Certificate were produced before the learned Court below to determine her age. As per the Medical Report, it would appear that the age of the victim girl is more than 14 years and she has been assessed to be between 15- 16 years but the same has not been brought on record legally.
42. In this scenario, before acting solely on the plea of guilty, essentially, the court should be fully satisfied that the accused had understood the nature of the charge levelled against him. A common man, more particularly, a student may not know about the consequences of offence of rape in the context of the Indian Penal Code as well as POCSO Act.
43. When an accused, without knowing these, pleads guilty, there is a danger of conviction for him for an offence. Similarly in the matter of sentencing also, vast discretion has been given to the court. For proper exercise of this discretion, the mitigating as well as aggravating circumstances which would guide the court to decide about the proportionate sentence for the offence committed are to be placed before the court. The mitigating circumstances may not be brought on record when the court simply acts upon the plea of guilty. Thus, without judging the proportionate quantum of sentence to be imposed, if disproportionate sentence is imposed upon the accused by the court, it may amount to injustice.
44. The plea of the accused must, therefore, be clean, unambiguous and unqualified and the Court must be satisfied that the accused 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 of guilty. Once these requirements are satisfied, the law permits the Judge trying the case to record a conviction based on the plea of guilt.
It is further transpires from perusal of the order sheet dated 16.03.2021 that even the police papers were not received by the 20 petitioner rather by someone else and the order sheet showing the supply of police paper to the petitioner does not show his signature rather it reveals that the signature of some other persons and it is not clear as to whether learned counsel for the petitioner had received the police paper or someone else as the signature of the petitioner namely, Sandeep Kumar shown in the order-sheet dated 01.01.2021 and statement recorded under Section 313 Cr.P.C and which is completely different from the order sheet dated 01.01.2021, in which, in the right side of the margine of the order sheet the police paper is said to have received to the convict-petitioner.
45. What to speak of even after recording the statement of the convict-petitioner under Section 313 Cr.P.C, the petitioner was not even brought before the Court at the time of pronouncement of the Judgment on 16.03.2021 and even signature of the convict petitioner was not taken in the margin of the order sheet dated 16.03.2021, by which, the petitioner was convicted for the charges under Sections 417/376 (2) (n) of the I.P.C.
46. Apart from this, it is surprisingly even the learned Court below have been imposing the sentence under Section 417/376 (2) (n) of the I.P.C had not called the petitioner before the Court rather the petitioner was again produced through Video Conferencing and sentence was pronounced through the Video Conferencing and even on that day i.e, on 19.03.2021 a free copy of the impugned judgment was not furnished to the convict petitioner and at the time of pronouncement of sentence by the learned Court below. This shows a very casual and mechanical approach while awarding the sentences against the convict-petitioner.
47. It is further evident that while convict-pettioner was brought before the learned Court below through Video Conferencing for hearing on te point of charges and it was those days of horrible COVID-19 Pandamic period and the cases were being heard through 21 the Video Conferencing system and were being disposed off and particularly bail matters and misceallaneous matter were being taken up and it was difficult to communicate between the accused persons with the respective lawyers with regard to defence and it was also a testing time for working on the Video Conference System. It is well known that on those days and sometimes Audio quality was not found proper and on various times even the Video quality was not proper and it was not sure that on various times as to what is going on but even if, there was visibility and the learned Court below and the accused convict-petitioner were interacting during the course of the trial through Video Conferencing. Therefore, the learned Court below should have taken abundane care as to whether that the convict-petitioner had understood the fact that he had pleaded guilty.
48. The learned Court below had also not mentioned in the format as the statement of the accused persons recorded under Section 313 Cr.PC on 16.03.2021 that the Audio quality and video quality are good and there are no complaint from other side.
49. It further transpires that even the learned Court below has not framed the charges in proper and prescribed format as provided under Section 228 of the Cr.P.C and there is no signature of the petitioner on the said format of charges in which, he has been said to have pleaded guilty on his own.
50. Surprisingly, the learned Court below has merely recorded to have framed charges and plead guilty by the petitioner in the right side of the margin of the statement of the convict-petitioner recorded under Section 313 Cr.P.C.
51. The learned court below has recorded in the format of statement of the accused under Section 313 Cr.P.C in the right side as follows:-
"Through Video Conferencing statement recorded as he pleaded guilty at the stage of framing of charge".22
52. Therefore, it is evident that even except the certificate of the learned Court that the petitioner has pleaded guilty at the stage of framing of charges, and there is no paper as provided with in prescribed format showing the framing of charges against this convict-petitioner under Section 417/376(2)(n) of the I.P.C and Sections 4, 6 and 8 of the POCSO Act. Therefore, it is evident that the learned Court below has committed grave illegality even not taking signature in the prescribed format of framing of charges, in which, this convict-petitioner is said to have pleaded guilty.
53. Even from perusal of the statement of the petitioner recorded under Section 313 Cr.P.C, it would appear that the learned Court below framed the question that the convict-petitioner is said to have committed sexually exploitation of the victim girl who is aged about 14 years on inducing the victim girl and for pleading guilty to which the petitioner is said to have pleaded guilty and put his signature.
However, before recording his statement the learned Court below had no warned the consequences of pleading guilty to the convict-petitioner or had not made him to understand as to what could be the consequences specially in view of the fact that he had already engaged a counsel for filing his "Discharge Petition" on 16.03.2021 itself and the signature of the petitioner was obtained later on the same day without producing him before the Court and this appears to be serious lacuna on the part of the learned Court below.
54. Apart from above, it is evident that the learned Court below has also convicted the petitioner for committing the offence under Section 4, 6 and 8 of the POCSO Act without understanding its implication as to whether charges under Section 4 and 6 of the POCSO Act are made out against this convict-petitioner or not?.
55. Section 3 of the POCSO Act deals with the punishment for penetrative sexual assault and Section 4 of the POCSO Act 23 prescribes its punishment and the learned Court below has not discussed anything as to whether it is a case of penetrative sexual assault upon the victim girl or not. Section 5 of the POCSO Act relates to aggravated penetrative sexual assault committed by the police officer and Section 6 of the POCSO Act prescribed for aggravated penetrative sexual assault.
56. It is further evident that even the learned Court below has not considered as to whether the provision of Section 6 of the POCSO Act is made out against this convict-petitioner.
57. In the light of the statement of the victim girl recorded under Section 164 Cr.P.C, the leraned Court below should have examined as to whether it is a case of penetrative sexual assault and the learned Court below ought to have examined as to whether the case of aggravated penetrative sexual assault is made out or not?
58. At this stage, it is relevant to quote Sections 3, 4, 5 and 6 of the POCSO Act:-
Section 3:- Penetrative Sexual Assault.- A person is said to commit "penetrative sexual assault' If.-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c).............
(d) ............
Section 4 - Punishment for penetrative sexual assault- [(1)] Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than [ten years] but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.
(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.
24Section 5:- Aggravated penetrative sexual assault (a) Whoever, being a police officer, commits penetrative sexual assault on a child-- (i) within the limits of the police station or premises at which he is appointed; or
(ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or
(iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as, a police officer; or
(b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child--
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the forces or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as a member of the security or armed forces; or Section 6:- Punishment for aggravated penetrative sexual assault-
ii) whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death..
59. It is evident from the FIR that it is a case of establishing physical relationship upon the victim girl on the pretext of marriage and hence, learned Court below ought to have considered as to whether the provision of Sections 4 and 6 of the POCSO Act will be applicable or not, on the facts and in the circumstances of this case at the time of framing of charges or even at the time of imposing the sentence and also while framing questions under Section 313 Cr.P.C by the Court against convict-petitioner and the learned Court below completely failed to consider the same. The learned Additional Sessions Judge has merely put forward before him the question that he had committed sexual exploitation upon the victim girl who is aged about 14 years on the pretext of marriage and no question was even framed with regard to penetrative sexual assault and aggravated penetrative sexual assault in the light of provisions of the POCSO Act.
60. In view of the above settled principle and also taking note of the submission of the learned counsel for the convict-petitioner that the quantum of sentence was not put forth before the convict- petitioner, this Court is of the view that the trial Court has 25 mechanically imposed the conviction and sentences and thus, the fair trial procedure has not been followed. When there is a violation of the fair trial contemplated under Article 21 of the Constitution of India, one cannot be deprived of life and personal liberty mechanically. In the above context, the judgment and sentences passed by the trial Court is illegal and the same is liable to be set aside and the matter has to be remitted back to the trial Court for retrial and for examination of witnesses on behalf of the prosecution and also by the defence side.
61. In view of the discussion made above and also in view of law laid down by the Hon'ble Supreme Court, Hon'ble Jharkhand High Court and Hon'ble Madras High Court as mentioned above, the impugned judgment of conviction dated 16.03.2021 and order of sentence dated 19.03.2021 by which the petitioner has been convicted under Section 376(2)(n) and Section 417 of the IPC and Section 4, 6 and 8 of the POCSO Act and has been sentenced to undergo Rigorous Imprisonment for a period of 10 years and to pay a fine of Rs.10000/- for the offence under Section 376(2)(n) and Simple Imprisonment for a period of two (02) years under Section 417 of the I.P. C and Rigorus Imprisonment for a period of 20 years and Rigorous Imprisonment for a period of 20 years respectively and to pay a fine of Rs.10,000/- and Rs.10,000/- respectively for the offences under Section 4 and Section 6 of the POCSO Act passed in POCSO Case No.41 of 2021 arising out of Sadar P.S. Case No.90 of 2020) by Ms. Kashika M. Prasad, the learned Additional Judicial Commissioner-IV-cum-Special Judge (POCSO), Ranchi are set-aside in the interest of justice and the case is remitted back for retrial before the learned Court below.
62. The learned Court below or its Successor Court is directed to further proceed from the stage of framing of charges on 26th September, 2022 and the trial shall proceed from the stage of framing of charges and the learned Court below should also give a reasonable opportunity to the petitioner to engage his counsel of his own choice 26 or if found unable then, he may be provided with a counsel by Legal Aid through the D.L.S.A, Ranchi and the learned Court below shall give him sufficient opportunity to lead his evidence in support of his defence and shall proceed further in accordance with law.
63. Let the judgment and records be sent to the learned Court below at once.
(Sanjay Prasad, J.) Raja-