Trial stand vitiated if the accused was not given a chance to explain the material against him. : Meghalaya High Court

Diskolan Rani vs . State Of Meghalaya & Anr. on 8 February 2021 High Court of Meghalaya Diskolan Rani vs . State Of Meghalaya & Anr. on 8 February 2021 HIGH COURT OF MEGHALAYA AT SHILLONG Crl. A. No.19 Date of Judgment: 08.02.2021 Diskolan Rani Vs. State of Meghalaya & Anr Hon ble Mr. Justice Ranjit More Judge Hon ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) : Mr. N. Syngkon Adv Ms. L. Phanjom Adv For the Respondent(s) : Mr. N. D. Chullai AAG with Mr. A. Kharwanlang GA Mr. S. Sengupta Addl. Sr. PP Per R. More years Rigorous Imprisonment R.I) and to pay a fine of Rs. 40 000 for a period of 1(one) year 2. The prosecution case in short is as follows: On 10 07 2013 the appellant accused Shri. Diskolan Rani and the victim Shri. Donborlang Rynjah went to work at Umsohlait village. On the same day at night time they returned back to Umwiehsnieh and on reaching Umwiehsnieh village at about 9.00 P.M. the appellant accused Shri. Diskolan Rani) stabbed the victimwith a small pocket knife as a result of which the victim was badly injured. The victim was immediately taken to Umsning CHC for medical treatment. The medical report furnished by Dr. D. Nongrum of Umsning CHC shows that the victim suffered grievous injury caused by sharp weapon and the victim was accordingly referred to Shillong Civil Hospital for further treatment 3. During further investigation it was found that there were three eye witnesses who saw that the victim was attacked by the accused appellant Shri. Diskokan Rani. These witnesses also assisted the victim to get medical treatment. The statements of these three eye witnesses were recorded. The Indian Kanoon Diskolan Rani vs . State Of Meghalaya & Anr. on 8 February 2021 statements of other witnesses were also recorded. During the course of investigation the POwas visited and rough map of the same was drawn 4. During investigation the accused was apprehended while he was travelling to Shillong. On being led by the appellant accused person as per Section 27 of the Evidence Act the weapon of the offence was recovered from his residence. The same was accordingly seized in presence of the witnesses and marked as Exhibit A 5. On the above facts and circumstances after completing the investigation the investigating agency found the prima facie case against the appellant accused and accordingly charge sheet was filed against him for an offence punishable under Section 307 326 of the Indian Penal Code 6. Since the offence under Section 307 326 of the Indian Penal Code was exclusively triable by the Sessions Court the case was committed to the learned Sessions Judge Nongpoh for trial Accordingly learned Sessions Judge framed the charges against the appellant accused for an offence punishable under Section 307 326 of the Indian Penal Code but the accused had pleaded not guilty and claimed to be tried 7. During the trial in order to prove the charge the prosecution examined as many as 13documents while the appellant accused did not adduce any evidence. After the closure of the prosecution witness the appellant was examined under Section 313 of the Cr. P.C wherein the appellant accused denied his involvement in the instant case 8. As stated above after appreciating the evidence on record the learned Sessions Judge concluded that it is proved that the appellant has committed the offence punishable under Section 307 326 of the I. P. C and accordingly sentenced him to suffer Rigorous Imprisonmentfor 10years and in addition to this he was also directed to pay a fine of Rs. 40 000 was examined on 26 09 2017. He submitted that after examination of the P.W. 13no opportunity was given to the appellant to explain inculpatory statement made against him Mr. N. Syngkon learned counsel for the appellant accused further submitted that though knife article A) is shown to have recovered under Section 27 of the Evidence Act both the seizure witnesses have not supported the seizure. In addition to this Mr. N. Syngkon learned counsel for the appellant accused submitted that the knifewas not sent to the Forensic Lab in order Indian Kanoon Diskolan Rani vs . State Of Meghalaya & Anr. on 8 February 2021 to prove that the alleged injuries were inflicted with the said knifeand submitted that by no stretch of imagination it can be said that the alleged injuries suffered by the victim is of grievous hurt caused by Sharp weapon 10. Mr. N. D. Chullai learned AAG at the outset does not dispute the prosecution mainly relied upon the deposition of the eye witnesses. He also fairly stated that the prosecution case does not depend on the circumstantial evidence. He submitted that the version of the eye witnesses namely P.Ws No. 4 5 & 7 supports the fact that the appellant accused inflicted injuries on the victim on the fateful night of 10 07 2013. Mr. N. D. Chullai learned AAG in respect of the evidence of the victim P.W 13) invited our attention to the provisions of Section 311 of Cr. P. C and submitted that the Trial Court can summon material witnesses or examine any person at any stage of inquiry and therefore the examination of P.W 13being before the stage of the judgement it cannot be faulted and therefore his deposition is required to be taken into consideration. Mr. N. D. Chullai learned AAG lastly submitted that there is sufficient evidence against the appellant and therefore he was rightly convicted by the Sessions Court for an offence punishable under Section 326 of the Indian Penal Code 11. Having gone through the evidence on record and having considered the submission of the learned counsels for the respective parties we find merit in the appeal. At the outset we will consider the evidence of the eye witnesses namely P.Ws No.4 5 & 7 The P.W 4 has deposed that on the date of the incident he was returning from his workplace and on reaching at centre Umwiehsnieh he saw two persons were going ahead of him he heard the noise of fighting of some persons. He also heard the voice of calling help. He accordingly along with his friend went to see what was happening. He saw two persons fighting in the dark. P.W 4 further deposed that one person fled away and the other was standing at the POa n d f o u n d t h e v i c t i m w a s i n j u r e d . H e s t r o n g l y s u s p e c t e d t h a t t h e accused appellant has committed the crime. He also deposed that he was not interrogated by the police and only put his signature on the rough map at Ext 2 Indian Kanoon Diskolan Rani vs . State Of Meghalaya & Anr. on 8 February 2021 In cross examination he has deposed that he did not remember the time and date of occurrence of the incident. He has further stated that he was returning from work from Umsohlait to Umwiehsnieh. He has specifically admitted that he was not the eye witness of the instant case. He has also admitted that he was not present at the place of occurrence and he only suspected that accused appellant must have committed the crime 13. P.W 7 has deposed that he did not remember date month and year of the incident. He further stated that when he himself along with Donbor Rynjah D. Ryntong Iohbor Nongkhlaw were coming from the place of work on reaching at their village they were sitting beside one shop. He saw Shri. D. Rynjah and R. Rani were working to the Eastern side of the shop and thereafter they disappeared from his sight. He further stated that after some time he heard the noise calling for help Rap Rap). Then he went near the Place of Occurrence and met Don Rynjah on the road who showed him that he sustained injury in the rib and lower part of the stomach. He has also deposed that he suspected it was R. Rani who attacked Shri. Don Rynjah. He also specifically stated that he was not interrogated by the Police at all. In cross examination he has admitted that he was not the eye witness to the incident in question and he did not know who has committed the offence. He also further stated that he did not know whether the victim person was seriously injured or not 14. From the evidence of P.Ws No. 4 5 & 7 it is abundantly clear that they have specifically admitted that they have not witnessed the incident in question and therefore by no stretch of imagination they can be termed as eye witnesses to the incident and their evidence is of no help to the prosecution. So far as the evidence of P.W 13 is concerned we have already referred that his evidence was recorded subsequent to the statement of the appellant under Section 313 Cr.P.C of the Indian Penal Code. In para 5 of his deposition he has stated that accused invited him for tea to his house. He refused to go to his house but the accused forced him by pulling him towards his house He has further deposed that there was a scuffle between them and the accused stabbed him thrice with a knife on his abdomen. It is true that there is no manner of doubt that prosecution could have examined P.W 13 the victim at any stage of the trial in the light of the provision under Section 311 of the Cr. P. C. The question falls for our consideration is whether the appellant ought to have been given an opportunity to explain the inculpatory statement made by the P.W 13. We are of the considered opinion that it was the duty of the prosecution to re record the statement of the appellant under Section 313 of the Cr. P. C. subsequent to the deposition of the P.W 13. By refusing this opportunity to the appellant the prosecution has committed gross illegality thereby depriving the appellant the opportunity to explain the inculpatory statement made against him. In this regard reference can be made to the decision of the Apex Court in the case of Samsul Haque vs State of Assam(2019 SCC OnLine SC 1093] the relevant paras for our purpose Paras 13 & 22(22) reads as follows: 13. "In the aforesaid context learned Senior Counsel has referred to the judgement of this Court in Sharad Birdichand Sarda v. State of Meharashtra to contend that if the circumstances are not put to the accused in his statement under Section 313 of the Cr P. C. they must be completely excluded from consideration because the accused did not have any chance to explain them. This is stated to be the consistent view of this Court starting from 1953 in the case of Hate Singh Bhagat v. State of Madhya Bharat Indian Kanoon Diskolan Rani vs . State Of Meghalaya & Anr. on 8 February 2021 Learned Senior Counsel also referred to the judgement in Sujit Biswas v. State of Assam for the proposition that the very purpose of examining the accused persons under Section 313 of the Cr. P. C is to meet the requirement of the principles of natural justice i.e. audi alteram partem. The accused thus must be given an opportunity to explain circumstances which are not put to the accused in his examination under Section 313 of the Cr. P. C. cannot be used against him and must be excluded from consideration 222 SCC 819: AIR 1976 SC 2140) while dealing with Section 342 of the Criminal Procedure Code 1898 corresponding to Section 313 of the Code). Non indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a 15. Reading of the above observation makes it abundantly clear that where the accused was not given any chance to explain the material against him then the trial stands vitiated. In the light of the observation of the Apex Court we are of the considered opinion that the evidence of the P.W 13 victim) cannot be considered as no opportunity was given to the accused appellant to explain the inculpatory statements made therein 16. That apart the article A the knife was seized in the presence of P. Ws No. 2 & 11. Both the witnesses have not supported the seizure panchnama at Exhibit 4. The Investigating Officer was examined as P.W 12. In his cross examination he has admitted that the article Exhibit A the knife was not sent for forensic examination because the article Exhibit A did not have the blood stain. The prosecution therefore miserably failed to connect the article A the knife with the alleged injury sustained by the victim. The evidence on record is therefore of no help to the 17. This takes us to consider the last submission of Mr. N. Syngkon learned counsel for the appellant accused that the offence punishable under Section 326 is not proved. Section 326 of I.P.C speaks about voluntarily causing grievous hurt by dangerous weapons or means. The definition of Grievous hurt is given under Section 320 of I. P. C. which reads as follows: 320. Grievous hurt. The following kinds of hurt only are designated as "grievous": Indian Kanoon First. Emasculation Diskolan Rani vs . State Of Meghalaya & Anr. on 8 February 2021 Secondly. Permanent privation of the sight of either eye Thirdly. Permanent privation of the hearing of either ear Fourthly. Privation of any member of joint Fifthly. Destruction or permanent impairing of the powers of any member or joint Sixthly. Permanent disfiguration of the head or face Seventhly. Fracture or dislocation of a bone or tooth Eighthly. Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits In this regard reference must be made to the evidence of the doctordays or the victim was unable to follow the ordinary pursuit. Therefore in this circumstances we are of the clear opinion that the prosecution could not establish the commission of offence under Section 326 of the Indian Penal Code 18. Taking the totality of the facts and circumstances of this case into consideration we are of the considered view that there is no material on record to support the prosecution case that the appellant committed the offence under Section 326 of the Indian Penal Code. The learned Sessions Judge Nongpoh has committed gross error in relying upon the deposition of P.Ws No. 4 5 7 & 13 and terming the P.Ws. No. 4 5 & 7 as eye witnesses. The impugned judgement and order therefore cannot be sustained same is quashed and set aside. The appellant is acquitted. The bail bonds if any shall cancel. The concerned authorities are directed to release the appellant immediately if he is not required in any case 19. Crl. Appeal is accordingly allowed in above terms 20. Registry is directed to return back the lower court case records to the concerned court Judge Judge W. Diengdoh) (R. More Indian Kanoon Diskolan Rani vs . State Of Meghalaya & Anr. on 8 February 2021 Indian Kanoon 

Summary: The purpose is to establish a direct dialogue between the Court and the accused in Section 313 of the Code. It is right and right that the accused be questioned about the matter and given an opportunity of clarifying the matter if an important element of evidence is against the accused and the conviction was to be built on this, was used by Justice Ranjit More and Justice W.Diengdoh of Meghalaya High Court in the matter of Diskolan Rani versus State of Meghalaya[ Crl. A. No.3 of 2019] This order was made for the facts that the appellant-accused Shri. Diskolan Rani and victims Shri went on 10-07-2013 to work in Umsohlait village. Donborlang Rynjah went to work. The appellant-accused stuck the victim with a small pocket-knife that hurt him severely on the same day, at 9:00 p.m. on their way back to the village of Umwiehsnieh and on reaching the village. The victim was taken immediately for medical treatment by Umning CHC. Dr. D. Nongrum from Umsning CHC provided a medical report showing that the victim had been severely injured by heavy weapons and that the victim was therefore referred to Shillong Civil Hospital for further treatment.  Three eye-witnesses saw that the victims were attacked by the accused Shri. Diskolan Rani in a further investigation. They also helped the victim to receive treatment. These witnesses These three eyewitnesses recorded their statements. Other witnesses also recorded their statements. The PO (site) was visited during the investigation and a rough map was drawn of the same. Learned counsel of the state was primarily based upon the filing of eyewitnesses at the outset not contested. He also stated fairly that the proceedings do not depend on factual evidence. He claimed that the eyewitness version P.Ws No. 4, 5 &amp; 7, namely, supported the fact that, in the fateful night of the 10-07-2013, the appellants had inflicted injuries on the victims. Mr N. D. Chullai, who has been learned by the AAG regarding the victim’s evidence (P.W- 13) has requested our attention under Sec. 311 Cr. P. C. At any stage of an investigation, the Trial Court may summit material testimonies or examine any person, and therefore the review of P.W-13 (Victim) may not be misleading before the stage of the decision, and its deposition shall therefore be taken into account. Mr. N.D. Chullai, the AAG learning, finally argued that the appellant had sufficient evidence, so he was found guilty of an offence punishable under section 326 of the Indian penal code by the Sessions Courts. In cross-examination, he has specifically admitted that he has not seen by his own eyes that the appellant-accused attacked the victim and the victim ran away to a little distance and cried for help.  “In the aforesaid context learned Senior Counsel has referred to the judgement of this Court in Sharad Birdichand Sarda v. State of Maharashtra to contend that if the circumstances are not put to the accused in his statement under Section 313 of the Cr. P. C., they must be completely excluded from consideration because the accused did not have any chance to explain them. This has been also stated in the Hate Singh Bhagat v. the State of Madhya Pradesh case since 1953 as the consistent view of this Court.