Crl. A. No. 16 of 2016. Case: Prakash Subba Vs State of Sikkim. Sikkim High Court

Case NumberCrl. A. No. 16 of 2016
CounselFor Appellant: Bhaskar Raj Pradhan, Sr. Advocate, Tempo Gyatso Bhutia, Tshering Palmoo Bhutia, Sonam Chuden Bhutia and Dichen Wangdi Lachungpa, Advocates and For Respondents: Karma Thinlay, Addl. Public Prosecutor, Santosh K. Chettri and Pollin Rai, Asstt. Public Prosecutors
JudgesS.K. Agnihotri, C.J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 161, 162, 173, 174, 313; Indian Evidence Act, 1872 - Sections 105, 106, 17, 21, 25, 26, 27, 60; Indian Penal Code 1860, (IPC) - Sections 100, 101, 102, 143, 148, 149, 218, 302, 304, 324, 326, 34, 96, 97, 98, 99, 104, 105, 106
Judgement DateMarch 14, 2017
CourtSikkim High Court


S.K. Agnihotri, C.J.

  1. The instant appeal is directed against the conviction of the appellant/convict under provisions of Section 304 Part I IPC and sentencing to seven years rigorous imprisonment and a fine of Rs. 5,000/-. In default of payment of fine, the appellant/convict is to further undergo three months simple imprisonment.

  2. The trial Court, on appreciation and consideration of evidences adduced by the parties and other circumstantial evidences, held that on 29.06.2014, around 2135 hours, the appellant/convict Prakash Subba assaulted the deceased Yogesh Subba on the neck with a Khukuri (M.O. IV) inflicting fatal injuries without premeditation and on sudden provocation, in heat of passion and fit of anger, which resulted into death of the deceased. It is further held that the appellant/convict was fully aware that hitting the deceased with such a weapon even without any motive or intention will cause death of a person and as such the deceased, who happened to be his son was killed by the appellant/convict, who had no intention to do it. Fatal injuries sustained by assault on the neck of the deceased were the cause of his death. Resultantly, the convict was held guilty under the aforestated provisions and sentenced accordingly.

  3. Mr. Bhaskar Raj Pradhan, learned Senior Counsel appearing for the appellant/convict, would contend that the appellant has been held guilty without proving the case by the prosecution. The prosecution has failed to establish its case even by way of circumstantial evidence. The trial Court has proceeded to convict the appellant/convict relying upon inadmissible evidences. There was a lack of proper investigation as it was done on tampered records to establish the guilt of the appellant/convict. The appellant/convict was wrongly convicted under Section 304 Part I IPC. The entire judgment is based on such evidences, which are not admissible in the teeth of legal provisions under Sections 25, 26 and 27 and Section 60 of the Indian Evidence Act, 1872 read with Section 162 of the Code of Criminal Procedure, 1973.

  4. Elaborating the above contentions, learned Senior Counsel would contend that the trial Court has mainly relied upon the statements of Krishna Prasad Ghimiray (PW-4) who witnessed the disclosure statement made by the appellant/convict to the police on 30.06.2014 at around 13:20 hours. Deepak Das (PW-5) was also a witness to the disclosure statement made by the appellant/convict and Karma Doma Bhutia (PW-19) was the Investigating Officer. It is further urged that the disclosure made by the appellant/convict before the police was held as 'extra judicial confession', contrary to the provisions of Sections 25 and 26 of the Evidence Act. In support of his contention, learned Senior Counsel relied on decisions of the Supreme Court in State (NCT of Delhi) vs. Navjot Sandhu alias Afsal Guru (2005) 11 SCC 600 and Indra Dalai vs. State of Haryana (2015) 11 SCC 31.

  5. It is next contended that relying on the said purported disclosure statement made on 30.06.2014, at 13:20 hrs. the prosecution has stated the fact that Khukuri was recovered in pursuance thereof, when the Investigating Officer had already showed the said Khukuri to Dr. O.T. Lepcha (PW-12) beforehand, as is evident from the Autopsy Report (Exhibit-18) conducted between 11.30 a.m. to 12.30 p.m. on the same day, much prior to recording of alleged disclosure statement (Exhibit-8). This fact is contrary to the well settled principles of law, as ex posited by the Supreme Court in Vijender Vs. State of Delhi (1997) 6 SCC 171 and Indra Dalai (supra). Further, reliance on the statements of the disclosure statement witnesses is also hit by the provisions of Sections 25 and 26 of the Evidence Act and as such is inadmissible in evidence. Learned Senior Counsel further refers to and relies on the observations of the Supreme Court in Mohamed Inayatullah vs. The State of Maharashtra (1976) 1 SCC 828, Suhnder Pal Jain vs. Delhi Administration (1993) Supp (3) SCC 681, and Mustkeem alias Sirajudeen vs. State of Rajasthan (2011) 11 SCC 724.

  6. It is further contended that the learned trial Court had accepted the prosecution evidence as it is on the basis of investigation report and without finding out the fact independently, relying solely on the police report submitted under provisions of Section 173 Cr.P.C. to hold the appellant/convict guilty which is erroneous. The finding of the trial Court is not supported by legal evidence.

  7. Learned Senior Counsel would next contend that the so called eye witnesses are not coherent as Vickey Chettri (PW-18) who allegedly stated in his Sec. 161 Cr.P.C. statement that he had seen the appellant/convict making first attack on the deceased, but in his statement before the trial Court he stated that he did not see the appellant/convict assaulting the deceased with a Khukuri. Ratna Tamang (PW-10) wife of the deceased and daughter-in-law of the appellant/convict, being an interested witness, could not be relied on without there being a corroborative statement from other witnesses. Mr. Pradhan would further contend that it is a cardinal principle of criminal jurisprudence that if two views are possible, the view favourable to the accused should be adopted. In support of his contention, the learned senior counsel relies on the decisions of the Supreme Court in Kashiram and others vs. State of M.P. (2002) 1 SCC 71 and State of Rajasthan vs. Raja Ram (2003) 8 SCC 180.

  8. Submitting that the human blood was not found in Khukuri, as per the RFSL expert, it is further stated that though the blood allegedly found on the body of the appellant/convict, was examined, but the appellant/convict was not medically examined. Thus, the conclusion that the presence of human blood on the body of the accused as an evidence to support the case of the prosecution is against the basic principles of criminal jurisprudence. Discovery of alleged Khukuri cannot be described to be the result of the disclosure statement made by the appellant/convict as is evident that the same was shown to the Doctor, much before disclosure statement was recorded. The trial Court has further held that the presence of Khukuri in the house is a common practice in the State. It cannot be held that Khukuri belonged either to the accused or to the victim. It is further contended that alternatively without prejudice as the trial Court has held that there was no premeditation or motive to kill the victim and the victim was killed on a spur of moment, to save himself from squeeze of the neck by the deceased in a situation where the convict was strangulated which might led to death of the convict, the convict in private defence gave the Khukuri blow on the body of the deceased and as such the appellant is entitled to the benefit of private defence. Private defence falls within the parameter of Section 96 of the IPC, wherein the alleged offence committed by the convict is no offence in the eyes of law.

  9. Per contra, Mr. Karma Thinlay, learned Additional Public Prosecutor appearing for the prosecution-State, would contend that after a scuffle between the appellant/convict and deceased, the appellant/convict went to his room upstairs. After a while, the deceased again rushed to the room of appellant/convict and there was a noise of scuffle and fighting which led to death of the deceased. When the other members of the family went to the room, it was found that the deceased was lying in a pool of blood on account of injuries on the neck which led to the conclusion that the appellant/convict was the person who has committed the offence. While going to the room of appellant/convict, the passage was found locked by the deceased, thereafter the deceased was found in a pool of blood as stated by the family members. There is a little confusion in respect of witnesses statements. It is not the case of the appellant/convict that a third person was involved in committing the assault on the deceased. In respect of the blood stain found on the body of the appellant/convict, it is stated that since no cut injury was noticed in the body of the appellant/convict, further examination was not done. That the forensic examination report, Exhibit-19, clearly gives a positive finding that the same was human blood group of 'A'. The deceased's blood group was also 'A'. The weapon of offence was recovered at the instance of appellant under Section 27 of the Indian Evidence Act. It is further submitted that it is for the accused to dispel the burden under Section 106 of the Evidence Act, when there were only two occupants in the room, where the deceased was found bleeding profusely due to fatal injuries on the neck, by the family members - witnesses. It was, therefore, incumbent upon the appellant to have tendered some explanation in order to avoid any suspicion. The appellant/convict did not give explanation but made a statement of having committed offence before the police. Thus, the appellant/convict did not fully discharge the burden as contemplated under the provisions of Section 106 of the Evidence Act. Section 106 of the Evidence Act stipulates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The convict failed to give any explanation except making bald denial in its Section 313 Cr.P.C. statement. Thus, considering all circumstantial evidence and lack of explanation on the part of the convict, it was rightly held that the convict has assaulted the deceased which resulted into his death. To support his contention, learned Addl. Public Prosecutor has relied on K.H. Shekarappa and others vs. State of Karnataka (2009) 17 SCC 1, Prithipal Singh and others vs. State of Punjab and another (2012) 1 SCC 10 and Gajanan Dashrath Kharate vs. State of Maharashtra (2016) 4 SCC 604.

  10. Mr. Karma Thinlay, learned Addl. Public Prosecutor, would further contend that the medical report supports the cause of...

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