Rabin Rai vs State Of Sikkim
2023 Latest Caselaw 70 Sikkim

           THE HIGH COURT OF SIKKIM : GANGTOK
                             (Criminal Appellate Jurisdiction)
                            Dated : 21st September, 2023
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 SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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                                       Crl. A. No.15 of 2022
              Appellant                :       Rabin Rai

                                                     versus

              Respondent               :       State of Sikkim

                      Appeal under Section 374(2) of the
                       Code of Criminal Procedure, 1973
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       Appearance
            Mr. N. Rai, Senior Advocate (Legal Aid Counsel) for the
            Appellant.
            Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
            Sunwar, Assistant Public Prosecutor for the State-Respondent.
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                                  JUDGMENT

Meenakshi Madan Rai, J.

1. By its Judgment dated 29-03-2022, in Sessions Trial

Case No.02 of 2021 (State of Sikkim vs. Rabin Rai), the Court of the

Learned Sessions Judge, West Sikkim, at Gyalshing, convicted the

Appellant under Section 304 Part II of the Indian Penal Code, 1860

(hereinafter, the "IPC"). He was sentenced to undergo rigorous

imprisonment for a period of five years and to pay a fine of ₹

20,000/- (Rupees twenty thousand) only. The sentence of fine bore

a default clause of imprisonment. Aggrieved, the Appellant/Accused

now assails the Judgment of Conviction and the Order on Sentence.

2. The First Information Report (for short, "FIR"), Exhibit

1, was lodged by P.W.1, the younger brother of the deceased,

informing that on the night of 07-09-2020, the deceased was

brutally assaulted by the Appellant/Accused sans reason. In the

morning her children found her in a state of unconsciousness with

Rabin Rai vs. State of Sikkim

injuries on her body. She was taken to the Soreng Hospital, where

her condition deteriorated, hence the prayer for justice. Based on

Exhibit 1, the Police Station registered a case against the Appellant

under Section 325 IPC, on 08-09-2020, which was investigated into

by P.W.16, the Investigating Officer (I.O.). On completion of the

investigation, Charge-Sheet was submitted under Sections 325 and

304 IPC against the Appellant.

3. The Prosecution case is that the Appellant and the

victim were married in the year 2001-2002. The Appellant was a

taxi driver, while the victim owned a grocery store. The victim had

two daughters from her previous marriage and one son from the

Appellant. On 07-09-2020 at around 1230 hours, the Appellant

along with his friends P.Ws 2, 4, 5 and 6 went on a picnic by the

river side where they partook of alcohol. From there, at around

1730 hours they proceeded to a hotel at Sombaria where they

again had alcohol. Later, in the evening they parted ways to return

to their respective homes. When the Appellant reached home an

argument broke out between him and his wife, during which the

Appellant assaulted the victim with slaps and blows, bruising her

face and body and causing her to fall on the floor. Thereafter, he

went to sleep. The next morning, on 08-09-2020, he took his taxi

and went to work scant realising that the victim was unconscious.

At around 08.30 a.m., when P.W.8, their son returned home after

opening the shop, he saw his mother had bruises on her face and

body and informed his sister P.W.7, who after a while sought help

from P.W.2, the Appellant's friend. At around 09.30 a.m., both

P.W.7 and P.W.8 tried to wake their mother, in vain. Thereafter,

they called their father over the phone, who came home later in

the afternoon with medicines but returned to his work. Meanwhile,

Rabin Rai vs. State of Sikkim

P.W.7 went to her maternal uncle and informed him of the incident.

At around 03.00 p.m., the Appellant came home and evacuated the

victim to the Health Centre at Soreng with the help of P.W.2. The

victim was referred to the Central Referral Hospital (CRH), Manipal,

Gangtok. On 08-11-2020, the victim succumbed to her injuries at

the Health Centre, Soreng after having been in a persistent

vegetative state from 08-09-2020.

4. Before this Court, Learned Senior Counsel for the

Appellant advanced the argument that the Appellant was only

guilty of the offence of hurt and not of culpable homicide as the

victim had passed away two months after the incident. That,

Exhibit 8, the Medical Report of the victim is revelatory of the fact

that the victim had sustained only grievous injuries, duly confirmed

by P.W.11, the Doctor who had examined her immediately after the

alleged incident. The Appellant's Medical Report, Exhibit 11 does

not reveal any injuries on his body that point to a free fight

between the Appellant and his wife. Exhibit 16, communication

addressed by the I.O. to the Learned Judicial Magistrate on 09-11-

2020 reveals that Section 304 IPC was added to the Charge against

the Appellant only on the death of the victim on 08-11-2020. That

the Appellant, cannot be foisted with a Charge under Section 304

IPC when he was not responsible for the victim's death. The

evidence of P.W.2 stating that the Appellant's children had told him

that their mother had been beaten by their father, is an improved

statement which is not found in his statement under Section 161

Code of Criminal Procedure, 1973 (hereinafter, the "Cr.P.C"). The

evidence of P.W.7, the victim's daughter also reveals that when she

took the keys for the shop from their parent's room she saw her

mother asleep on the bed and did not disturb her. She did not

Rabin Rai vs. State of Sikkim

notice anything untoward nor did she mention that she had seen

injuries on her mother's face or body. P.W.3, the Chief Medico

Legal Consultant, who conducted the autopsy on the body of the

deceased on 08-11-2020 vide Exhibit 5, failed to mention the cause

of death of the victim, hence there is no conclusive proof that her

death was caused by the injuries. P.W.8, the son of the victim also

noticed that his mother was sleeping when he entered his parents

room, it was only when he entered the room for the second time

that he saw blood on her hands and her mouth. In such a

circumstance the Appellant cannot be held responsible for the

injuries. Besides, as he is a child witness his evidence needs

corroboration. This submission was fortified by relying on State of

U.P. vs. Ashok Dixit and Another . That, P.W.11, Dr. Bijaya Subba

has clearly admitted under cross-examination that the injuries

sustained by the deceased could have been sustained during a fall

on a rough surface.

(i) It was further contended that the Learned Trial Court

failed to take into consideration the responses of the Appellant

made on his examination under Section 313 Cr.P.C. That, in

response to questions no.12, 13, 21, 24 and 52, he has

categorically claimed his innocence. Contending that the Section

313 Cr.P.C. statement of the Appellant is not in compliance of the

procedure prescribed which has thereby caused prejudice to the

Appellant, Learned Senior Counsel garnered succour from the

decision of this Court in State of Sikkim vs. Suren Rai2. That, the

Division Bench of this Court held therein that Section 313 of the

Cr.P.C. is an important section of the Cr.P.C. which requires the

(2000) 3 SCC 70

SLR (2018) SIKKIM 629

Rabin Rai vs. State of Sikkim

Court to put questions to the Accused to enable him to "personally"

explain any of the circumstances appearing in evidence against

him. The statement is not to be taken on oath and the answers

given by the Appellant may be taken into consideration in such

enquiry or trial and put in evidence for or against him in any other

enquiry into, or trial. It was also specified that every material

circumstance must be questioned separately providing fair, proper

and sufficient opportunity to the Accused to explain the

circumstances appearing against him. Moreover, the questions are

required to be short and each new incriminating fact must be

separately put to the Accused. These guidelines having been

flouted by the Learned Trial Court as several questions have been

rolled into one question making it difficult for the Appellant to

comprehend the meaning of the question. Reliance was also

placed on Sanatan Naskar and Another vs. State of West Bengal3, on

this point and it was urged that the judgment specifically lays down

that, all incriminating evidence must be put to the Accused so as to

provide him with an opportunity to explain incriminating

circumstances appearing against him. He must also be permitted

to put forward his own version or reasons. It was observed that

Section 313(4) Cr.P.C. explicitly provided that the answers given

by the Accused may be taken into consideration in such enquiry or

trial. That, as the case is one of circumstantial evidence, it is a

settled position of law that the Appellant can be penalized only if

the Prosecution is able to prove beyond a reasonable doubt that

the chain of events and circumstances point definitely towards the

involvement and guilt of the Accused. On this aspect reliance was

(2010) 8 SCC 249

Rabin Rai vs. State of Sikkim

placed on Vijay Shankar vs. State of Haryana4. That, in the instant

case the Prosecution has not even been able to establish that the

Appellant had inflicted the injuries on the deceased. That, even if

the Court is inclined to observe that the Appellant is the

perpetrator, the offence would be only of grievous hurt under

Section 325 of the IPC and not under Section 304 of the IPC. To

buttress this submission, reliance was placed on Rupinder Singh

Sandhu vs. State of Punjab and Others . That, where there are two

views in a matter, the view in favour of the Accused is to be taken

by the Court as held by the Supreme Court in State of Uttar Pradesh

vs. Nandu Vishwakarma and Others . Hence, the conviction and

sentence against the Appellant be set aside and the Appellant be

acquitted of the offence. Should the Court not be inclined to acquit

him then he be convicted only under Section 325 of the IPC.

5. Learned Additional Public Prosecutor stridently

opposing the contentions canvassed by Learned Senior Counsel for

the Appellant, sought to convince this Court that the evidence of

P.W.7 unerringly points to the guilt of the Appellant, who after

failing to wake her mother, called the Appellant on his phone. He

responded by telling her that the whole night the victim had

irritated him which points to him being the perpetrator of the

offence. The evidence of P.W.7 links the offence to the Appellant

also for the reason that she had seen him in the morning of 08-09-

2020 between 07.30 to 08.00 a.m. at their home and she along

with her brother P.W.8, saw him get into his taxi and drive towards

the bazar. P.W.8, the son had seen the Appellant and his mother

asleep in their bed room at around 07.30 a.m., when he returned

(2015) 12 SCC 644

AIR 2018 SC 2395

(2009) 14 SCC 501

Rabin Rai vs. State of Sikkim

home after helping his sister open the grocery shop. The

statements of P.Ws 7 and 8 in this context have not been

demolished under cross-examination. Besides, P.Ws 2, 4, 5 and 6,

the persons with whom the Appellant had spent the evening have

stated that they all went to their respective homes as did the

Appellant, thereby lending credence to the evidence of P.W.7 and

P.W.8 regarding the presence of the Appellant in his home on the

night of the incident. The evidence thus furnished also established

that the Appellant had spent the night with the victim in their

home. P.W.14, Dr. Pranav Rai, of Central Referral Hospital,

Manipal, Gangtok has on examination of the victim revealed the

gravity of the injuries on her. He has given the entire history of

how on 09-09-2020 on examining the victim he had found her

unconscious which necessitated a brain surgery post which she was

placed on ventilator support. That, she never recovered from the

condition of unconsciousness. It was urged that the victim's death

two months after the injuries were inflicted was a clear indication

that the cause of death was due to the injuries inflicted by the

Appellant. That, the I.O. under cross-examination deposed that

noises emanating from their parents room could not be heard by

P.Ws 7 and 8, their room being located at a distance from their

parents room. In fact, a practical test was also conducted by the

I.O. during investigation as revealed in his cross-examination,

which conclusively proved that P.Ws 7 and 8 could not hear any

sounds from their parents room. The burden of proof set on the

Prosecution has been clearly satisfied. Hence, the Judgment of the

Learned Trial Court requires no interference.

6. Before delving into the merits of the case, I am of the

considered opinion that this Court ought to first consider and

Rabin Rai vs. State of Sikkim

discuss the object and purpose of Section 313 of the Cr.P.C. A

Division Bench of this Court in Suren Rai (supra) in Paragraph 90

held as follows;

"90. Section 313 Cr.P.C is an important section of the Code of Criminal Procedure. Section 313 Cr.P.C requires the Court to put questions to the accused for the purpose of enabling the accused "personally" to explain any circumstances appearing in the evidence against him. The section enables a direct interaction between the Court and the accused for the sole purpose of allowing the accused to provide his explanation to each and every incriminating circumstance appearing in the evidence. The statement is not to be taken on oath which is prohibited under sub-section (3) thereof. The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. The answers, however, given by the accused may be taken into consideration in such enquiry or trial, and put in evidence for or against him in any other enquiry into, or trial for, any other offence which such answers may tend to show that he had committed. Under Section 313 Cr.P.C the accused has a duty to furnish explanation in his statement regarding any incriminating material that has been produced against him. It is not sufficient compliance with the section to generally ask the accused what he has to say after having heard the prosecution evidence. Every material circumstance must be questioned separately. Providing fair, proper and sufficient opportunity to the accused to explain the circumstances appearing against him should be the whole object of the Court in compliance with Section 313 Cr.P.C. The Court must be particularly sensitive when the accused is ignorant or illiterate and may not understand the language of Court. The questions must be simple and understandable even to an illiterate and ignorant of the law. Preferably the Court should avoid using legal language and keep the questions simple especially while dealing with people who are uneducated, illiterate, ignorant or simple. The question should be short and each new incriminating fact must be separately put to the accused. If the accused is unable to understand the language of the Court, the Court must translate the question in the language understood by the accused. It is obligatory on the accused while being examined to furnish explanation with respect to incriminating circumstances against him and the Court is duty bound to note such explanation even in a case of circumstantial evidence. Section 313 Cr.P.C. was enacted for the benefit of the accused."

Rabin Rai vs. State of Sikkim

(i) The Supreme Court in Nagraj vs. State represented by

Inspector of Police, Salem Town, Tamil Nadu has held that;

"15. In the context of this aspect of the law it has been held by this Court in Parsuram Pandey v. State of Bihar [(2004) 13 SCC 189 : 2005 SCC (Cri) 113] that Section 313 CrPC is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused, its corollary being to benefit the court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Asraf Ali v. State of Assam [(2008) 16 SCC 328 : (2010) 4 SCC (Cri) 278].

................................................................."

(ii) In Sanatan Naskar (supra), at Paragraphs 21, 22 and 23

it was held that;

"21. The answers by an accused under Section 313 CrPC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 CrPC is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by the judgments which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 CrPC.

22. As already noticed, the object of recording the statement of the accused under Section 313 CrPC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and, besides ensuring the compliance therewith, the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or, in the alternative, to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-

(2015) 4 SCC 739

Rabin Rai vs. State of Sikkim

examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders as may be called for in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.

23. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) CrPC explicitly provide that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution."

(iii) The scope and object of Section 313 of the Cr.P.C.

have been elucidated with clarity in the above judgments. The

examination of an Accused under Section 313 Cr.P.C. is not a mere

formality and is intended mainly for the benefit of the Accused. It

is also to assist the Court in arriving at the truth of the matter. As

far back as in 1951 [See Tara Singh vs. The State, AIR (38) 1951 SC 441],

it was observed that the correct method of performing the duty

under Section 342 Cr.P.C. (now Section 313 Cr.P.C.) is not to ask

generally if the Accused has anything to say about the Charges or

the evidence against him but to place before him separately, one

Rabin Rai vs. State of Sikkim

by one, in short sentences all the vital and salient parts of the

evidence appearing against him in the simplest possible language

so that he can realise what things he has got to explain.

(iv) It may relevantly be pointed out here that sub-section

(5) inserted in Section 313 Cr.P.C. by the Act of 2009, enables the

Learned Trial Court Judge to take the assistance of the Public

Prosecutor and the Defence Counsel, for preparing the questions

under Section 313 Cr.P.C, which are to be scrutinised by the

Learned Trial Court Judge and adopted with or without

modifications. Filing of written statement by the Accused to the

questions put by him suffices to comply with the said provision of

law.

(v) On careful perusal and consideration of the questions

put to the Appellant under Section 313 Cr.P.C., it is evident that

the sentences framed for examining the Appellant are in

paragraphs, with three four questions rolled into one single

question. It can reasonably be presumed that the questions were

incomprehensible to the Appellant. Besides, the answer to every

such question has not been recorded by the Learned Trial Court.

Not only would the elaborate questions confound the Appellant but

it would also cause him serious prejudice.

7. In the said circumstances, the matter is remanded back

to the Court of the Learned Sessions Judge, West Sikkim, at

Gyalshing, for re-trial, from the stage of examination of the

Appellant under Section 313 of the Cr.P.C., in terms of the

guidelines put forth by the Supreme Court in the catena of cases

referred to and by this Court in Suren Rai (supra), bearing in mind

the object and purpose of the provision.

Rabin Rai vs. State of Sikkim

8. The entire exercise, as ordered above, is to be

completed within a month from today.

9. The case be restored to its original number in the File

of the Learned Trial Court.

10. Criminal Appeal stands disposed of accordingly.

11. Copy of this Judgment be forwarded to the Learned

Trial Court immediately for information and compliance, along with

its records.

( Meenakshi Madan Rai ) Judge 21-09-2023

Approved for reporting : Yes

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