Ramjatan Bhuiyan vs The State of Jharkhand

This criminal appeal has been directed against the judgment of conviction and order of sentence dated 16.06.2006, passed by the Learned District & Sessions Judge, Latehar, in connection with Sessions Case No. 102 of 2005, corresponding to Chandwa P.S. Case No. 06 of 2005, dated 11.01.2005, G.R. Case No. 19 of 2005, whereby the Learned District & Sessions Judge has held appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life.

The prosecution case, as it appears from the Fradbeyan of Makho Devi wife of Lallu Bhuiyan recorded on 11.01.2005 at about 14.30 hours at village Sasang Bhuia Toli, within P.S. Chandwa, District- Latehar, in brief, is that the informant left home at about 8 a.m. for hammering the stone at Sasang. At about 10 a.m her grand-son aged about 8 years informed that his uncle (elder brother of his father) has been causing assault to his wife by confining her in the room. The informant went to her house and saw her elder son causing assault to his wife. When, she raised alarm, Ramjatan Bhuiyan (appellant) took out his wife Yasoda Devi (Deceased) from the room and threw her on the road. The informant noticed injuries on the persons of Yasoda Devi and after a while she died at the place where she was thrown. The informant happens to be the mother of appellant Ramjatan Bhuiyan. Her Fardbeyan was recorded and a case being Chandwa P.S. Case No. 6 of 2005 under Section 302 of the Indian Penal Code against appellant Ramjatan Bhuiyan was registered.

The police after due investigation submitted charge-sheet and accordingly cognizance for the offence punishable under Section 302 of the I.P.C. was taken. Since the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the case of the sole appellant was committed and it was registered as S.T. No. 102 of 2005.

On 27.07.2005 charge was read over and explained to the appellant in Hindi to which he confessed and admitted his guilt. On being repeatedly asked, he has stated that he has murdered his wife Yasoda Devi. It is apparent that the appellant did not claim for trial and he has admitted his guilt at the time of framing of the charge. The learned Sessions Judge instead of recording statement of accused for holding him guilty has thought it batter to proceed with the trial to know the truth. Accordingly, the case was posted for evidence. Altogether seven witnesses including the informant, the doctor who had conducted postmortem examination on the dead body and the investigating officer who had conducted the investigation have been examined. After the prosecution evidence was closed statement of accused (appellant) under Section 313 of the Cr.P.C. was recorded and he had admitted that he had killed his wife and thrown the dead body on the road. It appears from the record that except doctor Ashok P.W.5, who had conducted the autopsy on the dead body of the Yasoda Devi (Deceased) and Sanjeev P.W.7 the investigating officer, remaining witnesses have not supported the prosecution case. The learned trial Court considering the fact that the accused at the time of framing of charge and also his statement recorded under Section 313 of Cr.P.C. has admitted his guilt and also taking into account statement of P.Ws. 5 and 7 has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code. Hence this appeal from jail.

The appellant has preferred this appeal from jail. Smt. Alpana Verma has been appointed to assist this Court as an Amicus Curie. The appellant has assailed the impugned judgment mainly on the ground that no prosecution witness except, Doctor (P.W.5) and Investigating Officer (P.W.7), has supported the prosecution case. The informant and another material witnesses have not supported the prosecution case. The statement of accused under Section 313 of the Cr.P.C. has not correctly been recorded. Neither the informant nor any other material witnesses has corroborated the prosecution case. The learned Sessions Judge has failed to adopt the correct procedure of law. It was brought on record by P.W.1 that the appellant was suffering from mental disorder during trial and therefore, the trial Court should have proceeded under chapter XXV, Section 329 of Cr.P.C. The opinion of the Court that the appellant was mentally fit during trial is unwarranted because the provision contained under chapter XXV Cr.P.C. suggests to get the accused examined regarding capability of his understanding the charges levelled and the defence which he would take. Without adopting procedure contained in chapter XXV of Cr.P.C., the court itself has held that the appellant was capable of understanding the consequence of the trial and proceeded further. Only on the basis of admission made in the statement recorded under Section 313 of the Cr.P.C., the appellant should not have been held guilty and no sentence was required to be inflicted. The impugned judgment suffers from legality and therefore, it is liable to be set aside.

We have examined the case record, statement of witnesses recorded during the trial and the documents proved and marked exhibits. From perusal of the Fardbeyan of Makho Devi it reveals that the appellant had assaulted his wife and threw her on the road. Due to Injury sustained, Yasoda Devi (wife of the appellant) died. Makho Devi happens to be the mother of the appellant and on the basis of her Fardbeyan, Chandwa P.S. Case No. 06 of 2005 under Section 302 of the I.P.C. against the appellant was registered. The case was committed to the Court of session and the appellant was brought before the trial Court for framing of charges. The learned Sessions Judge has framed charge under Section 302 of the I.P.C. on 27.07.2005. When the charge was read over and explained to the appellant, he confessed his guilt. On the form of charge the learned Sessions Judge has recorded that "he repeatedly stated that he has murdered his wife Yasoda Devi". From perusal of the Clause (b) of Sub-section (1) of Section 228 of Cr.P.C. it reveals that if the accused has committed an offence which is exclusively triable by the Court of Sessions, the Court shall frame in writing a charge against the accused. Sub-section (2) of Section 228 reads as follows:

"(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."

From perusal of Sub-section (2) of Section 228, it appears that the Court is left with two options;

"(i) If the accused pleads guilty the Court shall proceed to follow provision contained under Section 229 of Cr.P.C. which reads as under;

"Conviction on plead of guilty- If the accused pleads guilty, the judge shall record the plea and may, in his discretion, convict him thereon."

So, it is clear that if the accused pleads guilty, the judge shall record the plea and may, in his discretion, convict him thereon. Section 229 of Cr.P.C. gives discretion to Court to convict the accused on the plea of his guilty.

Now coming back to the second option given to the Court. Sub-section (2) Section 228 of the Cr.P.C. which indicates, if the accused did not plead guilty and claims to be tried the Court shall proceed under Section 230 of the Cr.P.C. and shall fix date for the examination of the witnesses. In the case at hand, if the appellants had pleaded guilty and did not claim for trial, the learned Sessions Judge had had an option to convict him after recording the plea as contained under Section 229 of the Court. It is apparent from the case records and the impugned judgment that the learned Sessions Judge, instead of recording the plea and convicting the appellant, proceeded under Section 230 Cr.P.C. and adjourned the case for examination of the witnesses. The steps so taken by the learned Sessions Judge suggests that the Sessions court was not convinced from the guilty pleaded by the appellant and to find out truth proceeded to record evidence. Had the conviction been recorded on plea of his guilty he should have lost his right to prefer any appeal against the findings of the Court as per Section 375 of the Cr.P.C. In that situation, only legality of the sentence can be challenged as provided under Sub-section B of Section 375 of the Cr.P.C. The learned Sessions Judge, instead of adopting the procedure contained under Section 229 of the Cr.P.C., followed the procedure contained under Section 230 of the Code and therefore before recording the order of conviction it was desirable to consider the evidence adduced by the prosecution. It is reiterated that no material witness including informant has supported the prosecution case, nothing incriminating has been brought against the appellant on record. The doctor has proved the postmortem report and the investigating officer has explained the investigation conducted by him. Particularly, these two witnesses are of formal in nature, they did not have personal knowledge of the occurrence. The examination of doctor and the I.O. had simply proved this fact that Yasoda Devi was murdered. The evidence available on record did not prove as to who had murdered Yasoda Devi.

Section 313 of Cr.P.C. empowers the Court to give an opportunity to the accused personally to explain any circumstances appearing in the evidence against him. For better understanding Section 313 of the Cr.P.C. is reproduced hereunder;

"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.]"

The very purpose of recording the statement of the accused under Section 313 of the Cr.P.C. is to make him acquaint with the evidence adduced against him and also to enable him to explain the same personally, if necessary opportunity is also available to him to adduce evidence in his defence.

In the case at hand, no incriminating evidence was adduced by the prosecution against the appellant because all the witnesses, except doctor and I.O., have turned hostile. The facts and circumstances as indicated above and the evidence available on record suggest that prosecution has failed to adduce evidence to prove the guilt of appellant. Therefore, we are of the considered opinion that only on the basis of statement given under Section 313 Cr.P.C. conviction can not be recorded, if the court has not recorded the order of conviction on the plea of guilty under Section 229 of the Cr.P.C. in a case triable by the court of Sessions.

In view of the discussion made above, the impugned judgment of conviction and order of sentence dated 16.06.2006, passed by the Learned District & Sessions Judge, Latehar, in Sessions Case No. 102 of 2005 cannot be sustained and accordingly it is hereby set aside and the appeal is also allowed. Appellant Ramjatan Bhuiyan is acquitted from the charges levelled against him and directed to be released forthwith from jail custody, if not wanted in any other case(s) and for that appropriate direction may be issued, if necessary, by the convicting/successor Court.