AMITAVA ROY, J. - (1.) THE present appeal witnesses a challenge to the judgment and order dated 29.12.08 passed by the learned Addl. District and Sessions Judge, Aizawl Judicial District, Aizawl convicting the accused appellant under Sections 302/376/384 of the Indian Penal Code ( hereinafter referred to as 'IPC') and sentencing him to suffer imprisonment for life and also rigorous imprisonment for 7 years and 2 years respectively for these offences. THE sentences, however, have been ordered to run concurrently.
(2.) WE have heard Mr. AR Malhotra, learned Amicus Curiae for the appellant and Mr. N. Sailo, learned Addl. Advocate General, Mizoram for the State. On an FIR lodged by one Lalthanzauva on 21.12.2004 with the Officer-in-Charge, Aizawl Police Station informing that in the evening of that day, he along with her elder sister Dr Lalthanpuii having found the door of the house of their grand mother, Rothangkhumi, aged about 76 years, ajar went inside and found her lying dead on her bed. Having noticed some injuries on her body they sensed some foul play and therefore, solicited action. On the basis of the FIR, Aizawl Police Station Case No. 764/04 under Sections 302/376/384/449 was registered and on completion of the investigation, charge sheet was laid against the accused appellant. He thereafter was charged by the learned trial court under Sections 302/376/384/449 IPC. The accused appellant having denied the charge, trial followed. At the trial, the prosecution examined as many as 15 witnesses including the Doctor who had performed the post mortem examination of the deceased and the Investigating Officer. The witnesses, who proved reports on pathological and forensic tests, were also examined in support of the charge. On the completion of the evidence of the prosecution witnesses, the accused appellant was examined under Section 313 Cr.P.C. In course of investigation, according to the prosecution, his confessional statement had been recorded. The accused appellant, while denying the charge as well as the incriminating materials laid before him, also retracted from the confession contending that he had been tortured to make the same. The accused appellant also examined himself along with other four witnesses in his defence. The learned trial court, however, on the basis of the evidence on record, convicted and sentenced the accused appellant as above.
(3.) THE learned Amicus Curiae has argued that the purported confessional statement is visibly not in compliance with the mandatory requirements of Section 164 Cr.P.C. and in absence of any eye witnesses of any alleged incident, the conviction of the accused appellant is unsustainable in law. He pleaded in particular that not only the accused appellant had not been accorded sufficient time to reflect, no memorandum, as compulsorily required under Section 164(4) of the Cr.P.C. having been recorded, the so called confessional statement is non-est in the eye of law. Drawing the attention to the impugned judgment, Mr. Malhotra, has urged that though the learned trial court convicted the accused appellant by relying on the confessional statement the oral testimony of PW 1, PW 2, PW 10, PW 11, PW 12, PW 13, PW 15 and PW 16 as well as the documents proved by them, it omitted to confront him with all incriminating materials appearing against him but acted upon the same. On this aspect of the failure of the learned trial court to put all the incriminating circumstances to the accused appellant, the learned Amicus Curiae has urged that such lapse has vitiated the impugned judgment and order more particularly in the background of the earlier decision rendered in the Criminal Reference No.2/2006, rendered by this court on 27.2.2007. As in spite of the clear direction contained in this order passed by this court, the learned trial court failed to act in compliance with the requirement under Section 313 of the Cr.P.C. the impugned judgment and order is liable to be set aside on that count alone, he contended. THE learned Amicus Curiae emphasised that not only there subsists a confusion with regard to the actual date of death of the deceased there being no evidence whatsoever in support of the charge of rape and extortion, the conviction of the accused appellant on these counts also is clearly illegal. Mr. Malhotra, to buttress his argument, has placed a decision of this court in 2009 (3) GLT 899 : Sarjan Boro Vs. State of Assam. THE learned Addl. Advocate General has sought to save the confessional statement by pleading that the memorandum as contemplated under Section 164 (4) Cr.P.C. had, in fact, been recorded by the learned Magistrate, and thus the mere omission on his part to sign the same, does not render the whole exercise null and void. As the learned Magistrate has otherwise complied with the provision of Section 164 (4) of the Cr.P.C. with perfection, the confessional statement, in the facts and circumstances of the case, ought not to be ignored, he insisted. While fairly admitting that the learned trial court ought to have laid before the accused appellant all the incriminating circumstances appearing against him in evidence, Mr. Sailo, has urged upon this court, if deemed fit and proper, to remand the matter for a fresh examination of the accused appellant under Section 313 Cr.P.C. He however, submitted in the alternative that even if the other materials on record are excluded from consideration, his conviction can be based on his confessional statement alone. Before analyzing the arguments advanced, it would be apt to very briefly sum up the evidence on record.;