PARBASHU BARMAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) I have had the benefit of going through the draft judgment prepared by my brother, K.J. Sengupta, J. I am in full agreement with the conclusion reached and the order proposed in that judgment. At the same time, I would like to add a few words of my own.

(2.) I fully agree with my learned brother that there is no direct evidence on the record to prove the charge framed against the appellant under Section 302 of the Indian Penal Code. Circumstantial evidence also does not form a complete chain to support the sole hypothesis that the appellant is guilty of the crime with which he has been charged. Therefore, the only point for consideration is whether the plea of guilty recorded by the learned Trial Court can be the basis for holding the appellant guilty of the charge of murder. My learned brother already narrated in details the facts of the case. Factual narration need not, therefore, be made over again by me. It would be sufficient to mention that the charge of murder was framed by the learned Trial Court twice. Firstly, it was framed on 6th July, 1987. After the charge was read out and explained to the appellant, the latter stated in Bengali I have killedT. The learned defence counsel was not present at that time. However, soon after the plea of guilty was recorded, the defence counsel appeared and raised objection against the framing of charge in his absence. Subsequently, the learned Counsel retired firm the case. Thereafter, charge was again framed on 12th April, 1989. At that time, the appellant submitted that he committed the murder under the state of insane condition. He was also asked whether he pleaded guilty to the charge, to which he pleaded not guilty and claimed to be tried. Thus on 12th April, 1989, he did not admit all the ingredients of the offence of murder and specifically pleaded not guilty to the charge, whereas on the earlier date, that is, on 6th July, 1987, he had pleaded guilty but that was done by him in the absence of his counsel. However, the fact remains that the appellant was not convicted on the plea of Tguilty. After a charge is framed under Clause (b) of sub-section (1) of Section 228 of the Code of Criminal Procedure, 1973, the same is required by sub-section (2) to be read and explained to the accused and the accused is to be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 provides that if the accused pleads guilty, the Judge that record the plea and may, in his discretion, convict him thereon. Thus conviction does not follow automatically when an accused pleads guilty to the charge framed against him. It is for the Judge to accept the plea of guilty and convict him thereon or not to accept the same and try him for the offence with which he has been charged. The discretion to accept the plea of guilty should be exercised along well established legal principles. Bat where the plea of guilty is accepted, it operates as waiver of the accuseds right to question the legality of his conviction made on such a plea. However, where the plea of guilty is not accepted by the Court, the prosecution has got to prove all the constituents of the offence and the mere plea of guilty cannot take the place of proof by the prosecution. As observed in Shyama Charan Bhathuar and Others v. Emperor, a plea of guilty is not a confession such as is dealt with in the Indian Evidence Act in respect of relevance or irrelevance. It is a statement which, if accepted by the Court, amounts to a waiver on the part of the accused of trial in which alone a confession might be utilised in evidence. The view I am taking also gets support from Abdul Kader Allarakhta v. Emperor, Haobyam Chaoyaina Singh v. Hetsnam Mangi Singh and Others and New Gaginaya Goods Marl and Another v. State. I am, therefore, of the view that an accused cannot be held guilty on the basis of his plea of guilty, where his plea has not been accepted by the Court.

(3.) In the result, the appeal is allowed the order of conviction and sentence against the appellant is set aside the appellant is acquitted of the offence of murder under Section 302 I.P.C., and it is directed that he be released from custody, forthwith, unless required in connection with any other case. Sengupta, J. - In this appeal the appellant convict has impugned the judgment and order sentencing him to undergo life imprisonment and also to pay a fine of Rs. 2.000/- in default rigorous imprisonment for two years more. The appellant was arraigned for trial for the charges of committing murder of his wife under Section 302 of the Indian Penal Code.