The Meghalaya HC recently comprising of a bench of Justice Justice Ranjit More & Justice W.Diengdoh stated that circumstances that have not been sent to the defendant in his investigation according to Section 313 of the CrPC cannot and must not be held against him." (Shri. Alphon Khardewsaw Vs. State of Meghalaya.)
Facts of the case
The prosecution case in short is that one night the accused persons namely, Shri. Alphon Khardewsaw (present appellant) and Shri. Siren Marshiangbai of Tiriang had assaulted the deceased namely, U Drikshon Khardewsaw at Rwiang on the PWD main road with a hammer, stones and an iron chain causing multiple fractured wounds on the head of the deceased and as a result, the deceased died on the spot instantaneously. The family members of the deceased on hearing the hue and cry of the deceased rushed to the spot while the accused persons fled away from the spot.
During the investigation, it was found that a prima facie case under Section 302 r/w 34 IPC has well been established against both the accused and Hence a Charge-sheet under Section 302 IPC was filed. The trial of the case started in the year 1992. Meanwhile, it appears from the record that accused No. 2, Shri. Siren Marshiangbai expired in 2006. Thereafter, the defense examined their witnesses, DW-No.1 and DW-No. 2 in the month of September 2006. The learned Judge, District Council Court thereafter, heard the argument of the prosecution and defense and bypassing the impugned order, convicted and sentenced the accused No.1 (present appellant).
Contention of the parties
The learned counsel for the appellant took the court through deposition of witnesses, especially the alleged eyewitnesses, and submitted that there are inherent contradictions. He further submitted that though the prosecution in the Charge-sheet named 13(thirteen) witnesses to establish their case against the appellant, only 8(eight) witnesses were examined. He stated that since the prosecution has not examined the Investigating Officer and the Doctor who conducted the autopsy on the deceased, the contradiction could not be brought on record and Therefore, great prejudice is caused to the appellant/accused. It was also submitted that in the absence of medical evidence of the Doctor, the prosecution failed to prove that the death of the deceased was homicidal. Mr. Gautam further invited the court’s attention to the statement of the appellant/accused under Section 313 CrPC and submitted that same is recorded in a perfunctory manner and thereby great prejudice is caused to the appellant/accused. In above circumstances, he submitted that benefit of doubt has to be given to the appellant and impugned judgment and order may be quashed and set aside.
The learned Sr.PP opposed this appeal vehemently. He submitted that evidence of the eye witnesses, that is, PW-2, PW-3, PW-4 and PW-5 has fully supported the prosecution case as to the occurrence, as such, inspite of the fact that the Doctor and the Investigation Officer could not be examined, the appellant has been rightly tried and sentenced by the court below and no prejudice has been caused to the defense due to non-examination of these witnesses. Mr. K.Khan heavily relied upon the decision of the Apex Court in Dayal Singh (supra) to contend that non-examination of the Doctor in the present case is not fatal to the prosecution case. This decision however is not applicable since in the present case, the prosecution failed to examine not only the Doctor but the Investigating officer as well and non-examination of the Investigating Officer has caused great prejudice to the defense as a contradiction in the evidence of the eye-witnesses could not be brought on record. So far as the statement of the accused under Section 313 CrPC is concerned, he conceded that the same is not recorded in terms of the provision of Section 313 CrPC as interpreted by the Apex Court. However, he submitted that for that purpose, the appeal can be remanded back to the trial court.
Courts observation & Judgment
In the present case, the High Court of Meghalaya examined the appellant/ accused under Section 313 CrPC and stated the following "the examination was not only perfunctory but prosecution also failed to examine the Investigating Officer and the Doctor. On that count also, great prejudice is caused to the appellant/accused. Coupled with this fact, we also must consider the inordinate delay in trial of the appellant/accused. Though the charge-sheet was submitted in the year 1985, appellant/accused was convicted by impugned judgment and order dated 22-02-2018. Thus, the trial remained pending for 33 years."
Further, while rendering its judgment, it stated, "In above circumstances, we are of the view that the appellant/accused could not have been convicted and sentenced by the trial court. Rather, the appellant/accused is entitled to be given the benefit of the doubt. As such, the impugned judgment of conviction and sentence passed by the court below cannot be sustained in the eyes of law and the same is quashed and set aside. The appeal is accordingly allowed. The appellant/accused is directed to be released forthwith if not required in any other case."
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