SHRI SANIL KUMAR Vs. THE STATE

JUDGEMENT

(1.) This is an appeal against conviction. The accused has carried this appeal under section 374(2) of the Code of Criminal Procedure, 1973 against a judgment of conviction dated October 30, 2017 passed by the Learned Session Judge, Andaman and Nicobar Islands, Port Blair in Session Case No 07 of 2016 {Session trial No 7 (02) of 2016} convicting the accused under Section 302 of the Indian Penal Code and also sentence passed on October 31, 2017 sentencing the accused to suffer the rigorous imprisonment for life and to pay of fine of Rs 50,000/- and in default to suffer a further rigorous imprisonment for 3 more years for an offence under Section 302 of the Indian Penal Code in accordance in section 35 (2) of the Code of Criminal Procedure, 1973 with provision of payment of compensation as well.

(2.) Substantial questions of law arise for consideration in this appeal. The first is how are the words "reason to believe" mentioned in section 328(1) of the Code of Criminal Procedure, 1973 (referred to hereafter as "the Code") to be construed. The second is what is the effect on the sessions trial of a case committed to the Court of Sessions where the mandatory procedure of Section 328 of the Code is violated. The third is, does it vitiate the trial and the conviction reached on merits/evidence? The fourth is what is the effect of either the Chief Judicial Magistrate at the stage of committal or the court of sessions at the time of trial and conviction, relying upon a confessional statement under Section 164 of the Code, which has admittedly been taken on oath by the Magistrate concerned? Does this violate Article 20(3) of the Constitution of India? What is its effect on the ultimate decision of the case? Mr. Kabir, Learned Advocate appearing as counsel for the accused (referred hereafter as the appellant) has, made the above submissions on the basis of facts on record which cannot be disputed. He has further made submissions on merits, on the basis of the evidence and that according to the well-established precedents the guilt of the Appellant could not be proved beyond reasonable doubt. He also submits that the record would show that the appellant never got a reasonable chance to defend himself and the Courtappointed Legal Aid Counsel did not point out facts which glared on the record to the Court/Magistrate below which would have immediately prevented the learned Magistrate from committing the mentally unsound accused for trial by the court of sessions. Mr. Kabir, further submitted in the alternative and without recording any concession, that in the event, the court is not with him, the court may find the accused guilty of the lesser charge of culpable homicide not amounting murder and direct that the imprisonment that the appellant has already suffered be treated to have been served by the appellant from the minimum possible sentence that the court can award for the lesser charge.

(3.) Mr. Mondal, Learned Public Prosecutor and Government Pleader, however, strenuously submits that every opportunity of being heard was given to the appellant as required by law and that the appellant has from the beginning admitted and confessed guilt, has himself told his relatives who were examined that he had killed his wife in a fit of anger during a quarrel relating to property and that the confessional statement was only one of the many pieces of evidence which the learned Sessions Court had considered. That apart, he submits that though the case is based on circumstantial evidence, this is a situation where the accused husband was the last person to have seen the deceased alive, there had been a quarrel by them over property and prior attempts to strangle the wife, and therefore the guilt of the accused had been proved beyond reasonable doubt.