Nidamon Chullet vs . State Of Meghalaya & Anr
2022 Latest Caselaw 730 Meg

Serial No.07
Regular List

                       HIGH COURT OF MEGHALAYA
                              AT SHILLONG

     Crl.A.No.4/2022 with
     Crl.M.C.No.8/2022
                                                        Date of order: 13.12.2022
     Nidamon Chullet             Vs.          State of Meghalaya & anr
     Coram:
           Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
           Hon'ble Mr. Justice W. Diengdoh, Judge
     Appearance:
     For the Appellant               : Mr. M. Mukherjee, Sr.Adv with
                                       Dr. N. Mozika, Sr.Adv
                                       Mr. A. Bhattacharjee, Adv
                                       Mr. P. Nongbri, Adv
                                       Mr. J. Shylla, Adv
                                       Mr. M.L. Nongpiur, Adv
                                       Ms. S. Rumthao, Adv,
                                       Ms. A. Pradhan, Adv

     For the Respondents             : Mr. N.D. Chullai, AAG with

Mr. S. Sengupta, Addl.PP Mr. R. Gurung, GA

i) Whether approved for reporting in Yes/No Law journals etc.:

ii) Whether approved for publication in press: Yes/No

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral) In course of this appeal, several anomalies have come to the fore

which indicate that the appellant may have been seriously prejudiced in

course of the trial for want of due diligence on the part of the prosecution

and the trial court not being alive to the same.

2. The matter pertains to an incident of February, 2008. Here again,

the exact date of the incident cannot be indicated with any degree of

certainty, on the basis of the material now available. The long and short

of the case is that a gentleman met with an unnatural death and his body

was found one morning in February, 2008 outside the office of the

Deputy Commissioner in Jowai.

3. There appears to a serious confusion even as to the identity of the

FIR-maker. Though PW4, a brother of the deceased, has been examined

and such person claimed to have lodged the first information report which

was marked as Exhibit-2 and also identified his signature which was

marked as Exhibit-2(1), the second investigating officer maintained in

course of his deposition that it was a sister of the deceased who had

lodged the FIR.

4. PW1 and PW2, in course of their deposition at the trial, claimed

to have been eye-witnesses. PW1 indicates the date of the incident to be

February 9, 2008, though PW2 does not indicate any date.

5. In the impugned judgment of conviction of January 19, 2022,

paragraph 7 lists the documents that were exhibited by the prosecution.

The four documents referred to are the FIR of February 10, 2008, a post-

mortem report of February 10, 2008, a seizure-list and an inquest report.

No other documents or papers were exhibited. Yet, the judgment of

conviction copiously refers to the statements rendered by PW1 and PW2,

apparently under Section 164 of the Code of Criminal Procedure, 1973.

6. The appellant claims that no copies of such statements were made

over to the appellant. Indeed, the appellant claims that no documents or

any copies thereof were made over to the appellant in terms of Section

207 of the Code, though the practice here at the relevant time was as per

the old Code of 1898. Remarkably, the trial court records in the judgment

at paragraph 43 that the statement made under Section 164 of the Code

by PW1 had not been exhibited by the prosecution, yet such statement is

set out in full and, in the ultimate analysis, weighs heavily with the judge.

Similarly, paragraph 46 of the impugned judgment notices that the

statement apparently made by PW2 under Section 164 of the Code was

not exhibited by the prosecution; yet the statement is noticed in its

entirety and forms the basis for the conviction.

7. Whatever may have been the practice, the object of the exercise

is to ensure a degree of procedural fairness so that a person may be aware

of what he is charged with and what material is produced against him to

bring home the charges. In the absence of the purported statements

recorded under Section 164 of the Code being exhibited and in the

absence of such statements being made over to the accused, no reliance

thereon could have been placed by the trial court.

8. It would be unwise to divorce the reasoning indicated in arriving

at the finding the impugned judgment of conviction from the impression

that the purported statements under Section 164 of the Code may have

created on the trial judge and as to how the rest of the evidence was seen

by the trial judge in the light of such statements.

9. Further, the examination of the appellant under Section 313 of the

Code leaves a lot to be desired. In course of such examination, it is the

duty of the trial court to explain the material against the accused to the

accused so as to afford the accused an opportunity to explain his conduct

against the backdrop of such material. The trial court's obligation in such

regard is not ministerial or clerical by merely asking the accused to

respond to the deposition of a particular witness even if the entire

deposition is read out. The duty in such regard is to glean out the essence

of any statement or deposition and present it to the accused so that it may

elicit an appropriate response from the accused. In short, the accused

must be made to understand the impact of a statement or the evidence for

the accused to consider whether the same ought to be dealt with or replied

to. For instance, if a particular matter ought to have been within the

special knowledge of the accused, his failure to respond in such regard

may lead to an adverse inference being drawn against him.

10. The manner in which such exercise was conducted in this case

was neither in keeping with the spirit of the provision or in the interest of

justice as far as the accused was concerned.

11. There is also a minor matter about the deposition of PW5. Though

such witnesses had been called by the prosecution to demonstrate the

involvement of the accused persons in the commission of the offences

attributed to them, such witness failed to indicate anything incriminating

against either accused person. However, the witness was not sought to be

declared hostile by the prosecution.

12. Quite alarmingly, and despite PW5 not being declared hostile, the

trial court looked into the statement made by PW5 under Section 164 of

the Code, which had not been exhibited by the prosecution nor any copy

thereof made over to the appellant herein. Quite erroneously, the trial

court accepted the apparent statement recorded under Section 164 of the

Code by PW5 and discarded the deposition of such witness at the trial.

13. On an overall appreciation of the matter, there appear to have

been several anomalies that led to a miscarriage of justice in the appellant

herein either not having due opportunity to deal with certain statements

or not being explained the purports of the other material against him.

14. Accordingly, the impugned judgment of conviction and the

consequent sentence dated January 19, 2022 stand set aside to the extent

they concern the appellant herein. So that neither the prosecution nor the

appellant herein are prejudiced, the greater details of the matter have not

been gone into. A retrial is called for, from the stage of framing of charges

upon all documents to be relied upon by the prosecution against the

appellant herein to be made over to the appellant within a period of a

fortnight from date.

15. Since the matter is of the year of 2008, a tentative schedule is

drawn up for the conduct of the trial which should be adhered to. Within

a fortnight from date, as indicated above, all papers and documents to be

relied upon by the prosecution against the appellant should be made over

to the appellant upon duly recording the same. The charges be framed

afresh against the appellant within a week of the receipt of such papers.

The trial will commence within a week thereafter and within two weeks

of the commencement of the trial, the oral evidence of original PW1 and

original PW2 should be completed. Upon the completion of recording of

the evidence of such witnesses, the appellant herein will be entitled to be

released on bail on such conditions as the trial court may deem

appropriate.

16. The trial court will endeavour to complete the trial within eight

weeks after the completion of recording of the evidence of PW1 and

PW2. The appellant will not be entitled to seek any adjournment and the

prosecution should make every endeavour to be represented on the dates

set by the trial court and the trial court may take up the matter on a daily

basis so as to adhere to the schedule indicated herein.

17. The observations here, which were necessary for the purpose of

remanding the matter for a fresh trial, will not prejudice either the

prosecution or the appellant herein in course of the fresh trial.

18. Crl.A.No.4 of 2022 along with Crl.M.C.No.8 of 2022 are

disposed of.

19. The lower court records which are available in this Court should

be returned to the trial court by December 15, 2022. This order be brought

to the notice of the concerned trial court immediately.

         (W. Diengdoh)                                (Sanjib Banerjee)
             Judge                                      Chief Justice
Meghalaya
13.12.2022
"Lam DR-PS"