Shri Anen B. Marak vs State of Meghalaya and others

At the request and with the consent of the learned counsel for the parties, this appeal is taken up for final disposal at this stage itself.

This appeal under Rule 6 of the High Court of Meghalaya (Jurisdiction over the District Council Court) Rules, 2014 read with Section 374 (2)

of the Code of Criminal Procedure [''CrPC''] is directed against the judgment and orders dated 17.08.2017 and 17.11.2017 as passed by the

learned Judge, District Council Court, Garo Hills Autonomous District Council, Tura in Sessions Case No.25 of 2015 whereby, the appellant has

been convicted of the offence under Sections 302/34 Indian Penal Code [''IPC''] on the basis of him having allegedly pleaded guilty; and has been

sentenced to life imprisonment.

After having heard the learned counsel for parties and having perused the material placed on record, we are unable to find any justification in the

orders impugned and the only appropriate course appears to be of setting aside the same and restoring the matter relating to the appellant for re-

trial along with the trial of the co-accused.

Shorn of unnecessary details, the relevant factual background aspects of the matter are that on 21.10.2013, Laskar of Damal Asim Village

Court lodged an FIR before the Officer-in-Charge, Daddenggre Police Station stating, inter alia, that on 19.10.2013 at about 7:30 PM, one

Sairam A. Sangma molested a girl who was taking bath in a nearby stream; the girl managed to escape and ran through the residence of the

appellant/accused; and then, the appellant along with the co-accused persons hurriedly took a dao (local knife) and tried to chase the said Sairam

A. Sangma, who was hiding in a bush and who suddenly attacked the appellant whereupon, the appellant gave blows with dao that resulted in the

death of Sairam A. Sangma. On this report, Daddenggre Police Case No.16 (10) of 2013 was registered that was subsequently registered as GR

Case No.35 of 2013. After investigation, charge sheet was filed against the appellant as also the co-accused persons for the offence under

Sections 302/34 IPC. The parties being of Garo Scheduled Tribe, the matter was taken up for trial by the Judge, District Council Court, Garo

Hills Autonomous District Council, Tura. At the time of framing of charge, the appellant purportedly pleaded guilty; though the two co-accused

persons pleaded not guilty.

The learned Judge, District Council Court recorded in the order dated 23.06.2017 that the appellant pleaded guilty ''for three times when asked

by the Court''. The relevant part of order dated 23.06.2017 reads as under:-

In the above premises, charge is framed against the accused persons namely, 1. Shri Anen B. Marak, 2. Shri Willen B. Marak and 3. Shri

Dambak Marak, U/S 302/34 IPC.

The content of charge is explained to accused persons to which the accused Shri Anen B. Marak pleaded guilty (for three times when asked by

the Court) other accused Shri Willen B. Marak and Shri Dambak Marak, they pleaded not guilty.

Thereafter, the learned Judge proceeded to pass the order of conviction on 17.08.2017 against the appellant while placing the co-accused persons

to trial. The impugned order dated 17.08.2017 reads as under:-

Date:-17-08-2017

ORDER

All the accused persons are present with Learned Defence Counsel. Learned Additional Public Prosecutor is present.

Learned Additional Public Prosecutor submitted that since the accused Anen B. Marak has pleaded guilty at the time of framing of

charges. The accused Anen B. Marak may be convicted u/s 302/34 IPC and Prosecuting Inspector may be directed to take the

accused Anen B. Marak into custody immediately.

Learned Defence Counsel has submitted that the accused Anen B. Marak did not understand the question put to him. So he has

pleaded guilty. The accused Anen B. Marak may be allowed to face fair trial in the instant case because offence was committed in his

defence in the instant case.

Considering the submission of learned Additional Public Prosecutor the accused Anen B. Marak is convicted u/s 302/34 IPC. So,

Prosecuting Inspector GHADC is directed to take accused Anen B. Marak into custody.

The matter regarding the quantum of punishment of accused Anen B. Marak will be taken up at next date.

Regarding the accused Willen B. Marak and Dambak Marak the trial will proceed on next date.

Issue summons complaint Polmonsing A. Sangma to appear before this Court.

Send the copy of this order to the Superintendent of Police, West Garo Hills Tura, the Superintendent of District Jail, West Garo

Hills, Tura and person concern for necessary action.

Fix 13-10-2017 for evidence.

Thereafter, the learned Judge pronounced the sentence on 17.11.2017 and awarded life imprisonment to the appellant.

Questioning the orders aforesaid, learned counsel for the appellant has strenuously argued that the learned Judge, District Council Court did not

record the plea of guilt in precise terms while framing the charge; that even charge was not framed with specific facts and specific ingredients of

offences; and that the learned Judge, District Council Court even failed to consider that the appellant, coming from a Garo village background, had

not been able to understand the questions and implications. Even otherwise, according to the learned counsel, the case at hand is directly covered

by the exceptions enumerated in Sections 100 and 300 of the IPC and hence, conviction for offence under Section 302 could not have been

recorded on the so-called pleading guilty. The learned counsel has, inter alia, referred to the decision of the Hon''ble Supreme Court in State of

Maharashtra v. Sukhdev Singh & Anr: (1992) 3 SCC 700 and of the Hon''ble Gauhati High Court in the cases of Hussain Ali (MD.) v. State of

Assam: 1998 (2) GLT 291 and State of Mizoram v. Ramengmawia: 2006 (1) GLT 762. Learned PP has duly supported the orders impugned.

Having examined the matter in its entirety, this Court is unable to endorse the procedure adopted by the learned Judge, District Council Court in

this matter.

In the order dated 23.06.2017, the learned Judge took note of the submissions of the Public Prosecutor and of the defence counsel and then,

observed that the Investigating Officer had charge-sheeted the accused for offence under Sections 302/34 IPC and as per the postmortem report,

there were multiple chopped marks on the body of the deceased. After these observations, the learned Judge concluded that there were sufficient

ingredients to frame the charge against all the accused persons and then, referred to the decision of this Court to the effect that the Court is not

required to examine the truthfulness of evidence at the stage of framing of charge. Thereafter, the learned Judge only stated that charge was framed

and the appellant pleaded guilty though the co-accused pleaded not guilty.

When the appellant was sought to be convicted on his so-called pleading guilty, it was pointed out to the learned Judge that the appellant did

not understand the question put to him and that he be allowed to face the trial because the alleged offence was committed in self-defence. The

learned Judge did not say anything as regards such submissions of the defence counsel and only on the submissions of the Additional Public

Prosecutor proceeded to order the conviction of the appellant under Sections 302/34 IPC.

It is rather strange to notice that the accused/appellant was convicted for the offence under Sections 302/34 IPC though the other two accused

persons were put to trial. It is difficult to find as to how Section 34 IPC was at all invoked solely against the appellant at the given stage? This

apart, the fundamental aspect of the matter remains that the charge-sheet has been filed for the offence under Section 302 IPC and on conviction

for such an offence, the minimum sentence is of life imprisonment. In such a matter and looking to the overall circumstances of the case, it cannot

be said that the appellant had no defence whatsoever to offer; merely on the so-called pleading guilty, the conviction could not have been recorded

for the offence of murder under Section 302 IPC.

For a Judge to act on any pleading of guilt by the accused is not a matter of formality as seems to have been assumed by the learned Judge,

District Council Court in this matter. A great deal of circumspection and caution is required and it is not the law that as soon as an accused

purportedly pleads guilty, the Judge would only proceed to convict him. The Hon''ble Supreme Court has explained the law relating to the plea of

guilt of the accused in the case of Sukhdev Singh (supra) in the following:-

..... Where the Judge frames the charge, the charge so framed has to be read over and explained to the accused and the accused

is required to be asked whether he pleads guilty of the offence charged or claims to the tried. Section 229 next provides that if the

accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this

provision shows that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the

accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before

accepting and acting on the plea the judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The

plea of the accused must, therefore, be clear, unambiguous and unqualified and the court must be satisfied that he has understood the

nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and

acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying the case to record a conviction

based on the plea of guilt. If, however, the accused does not plead guilty or the Learned Judge does not act on his plea he must fix a

date for the examination of the witnesses i.e. the trial of the case. There is nothing in this Chapter which prevents the accused from

pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts on that plea he must administer the

same caution unto himself."" .....

It is also trite that ordinarily, in a matter relating to serious offence, the Courts prefer not to act on plea of guilt, as observed by the Gauhati

High Court in the case of Hussain Ali (MD.) (supra) in the following:-

..... As is well known, as a matter of practice Judges prefer not to act on plea of guilt in murder cases lest the evidence may disclose that the facts

proved do not in law constitute offence charged, but some lesser offence. .....

The aforesaid position of law was further explained in the case of Ramengmawia''s (supra) in the following:-

(23). From a careful reading of what has been observed and held in Sukhdeo Singh (supra), it is abundantly clear that in law, there is

no absolute bar, on the part of the Court of sessions, to convict an accused on his plea of guilty; but before the conviction of the

accused is based entirely on his plea of guilt, the court must take care to ensure that the plea of the accused is voluntary, clear,

unambiguous and unqualified, that the accused understands the nature of the allegations made against him and admits them and that

the accused admits all such facts, which are necessary and essential to constitute the offence.

(24) What further logically follows is that the Court must also be satisfied that the facts placed before it in support of the plea of guilt

are in themselves sufficient to sustain the offence charged with. In other words, the Court must have before it all such facts, which are

essential to constitute the offence and such facts must be admitted by the accused before the plea of guilt of the accused is acted upon

or conviction is based thereon.

In the present case, the fact that the plea of self-defence is available to the apellant is rather inherent in the very statement of the case in the

charge-sheet. We are not commenting on the merits but are clearly of the view that the present one had not been a case where conviction could

have been ordered without proper trial. Unfortunately, the learned trial Judge appears to have assumed that on the accused pleading guilty, nothing

at all was required to be examined and conviction was to follow as a matter of course. The entire approach being from an altogether wrong angle,

we have no option but to set aside the orders impugned.

It has been informed that the appellant was otherwise on bail but was taken into custody pursuant to the order dated 17.08.2017 whereas, the

other co-accused persons continue to remain on bail and the matter has been fixed for prosecution evidence on 09.02.2018. The said order dated

17.08.2017 and consequential order of sentence being not approved, we find no reason that the appellant be continued in detention; rather on the

facts and in the circumstances of the case, it appears just and proper to extend the liberty of bail to the appellant for the purpose of facing trial in

Sessions Case No.25 of 2015 in the Court of Judge, District Council Court, Garo Hills Autonomous District Council, Tura.

Accordingly and in view of the above, this appeal is allowed; the impugned orders dated 17.08.2017 and 17.11.2017 are set aside; and the

appellant is ordered to be released on bail on his furnishing a personal bond in the sum of Rs.20,000/- with two sureties in the sum of Rs.10,000/-

each to the satisfaction of the learned Judge, District Council Court, Tura with the usual condition of his undertaking to remain personally present in

the Court during trial and not to interfere with the evidence related with the case in any manner.

The learned Judge, District Council Court shall specifically frame the charges in relation to the appellant with reference to the requirements of

Chapter XVII of CrPC before proceeding further in the matter.

Crl.M.C. No.23 of 2017 also stands disposed of.