RAJESH RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal arises from the judgment and order by the learned Sessions Judge, South and West dated 26-10-1999, convicting the accused/appellant under Section 302, IPC for murdering his wife, Manju Rai and sentencing him to life imprisonment and also a fine of Rs. 10,000.00 and in default of payment of fine, to undergo further imprisonment of six months.

(2.) Manju Rai was the wife of the appellant, Rajesh Rai. The incident took place between 21-9-1992 and 22-9-1992. Rajesh Rai was at that time posted as Bramch Manager in Rabtentse Branch of the State Bank of Sikkim. Manju Rai was posted as Cashier in the Gyalzing Branch of the same bank. The prosecution case is that on 22-9-1992 at 1045 hours, a telephonic message was received at Gyalzing Police Station from Shri Tenzing Bhutia, Branch of Gyalzing Branch stating that the wife of Rajesh Rai, Branch Manager , Rabtenste Branch had died due to consumption of poison. Thereupon , Shri P.M. Rai (PW 16), Officer-in-charge of the Police Station along with his party proceeded to the place of occurrence. General Diary entry No. 244 was recorded to that effect . Next Generaly Diary entry No. 245 recorded on the same date at 3 p.m. states that while on way to the place of occurrence , at the Gyalzing Out Post, constable Bom Bahadur Rai handed over to him a complaint given and signed by Rajesh Rai. The complaint is reproduced in the General Diary entry and is to the effect that on 21-9-1992, Rajesh Rai and his wife Manju Rai got a little quarrel which resulted in the beating of each other on the evening of 3 pm. on that date.The complaint further stated that thereafter , the wife started drinking and both of them got into a hot discussion which upset both of them and he came to know in the morning of 22-9-1992 that she had taken poison, as she started vomiting with bad smell and that he had never excepted such a thing to happen. The General Diary entry further states that this complaint was taken into possession by the Officer-in-charge and then he proceeded towards the place of occurrence. On reaching the place of occurrence, dead body of Manju Rai was found. A rough sketch of the place of occurrence, was prepared, photographs were taken from different angles, inquest on the dead body was conducted and then, the dead body was fowarded to Gyalzing hospital for autopsy. During inquest, multiple injuries were found all over the body including head region. The wearing apparels of the deceased Manju Rai were seized in the presence of the witnesses. Since some injuries were found on the body of Rajesh Rai also, he was forwarded for examination and medical opinion to the Gyalzing hospital . The requisite articles were seized from the house of Rajesh Rai in the presence of respectable witnesses. The next entry is No. 246 of the same date i.e. 22-9-1992 recorded at 1500 hours to the effect that on the basis of the complaint report submitted by Rajesh Rai by General Diary entry No. 245, U.D. Case No. 10(9)92 dated 22-9-1992 under Section 174, Cr.P.C. was registered and taken up for investigation. This is followed by entry No. 247 recorded on the same date, that is, 22-9-1992 at 1600 hours to the effect that on detailed enquiry of Gyalzing Police Station U.P. Case No. 10(9)92 dated 22-9-1992, it was revealed that on 21-9-1992 Rajesh Rai, husband of the deceased Manju Rai, had quarreled with his wife from the very morning of 21-9-1992 and Rajesh Rai had physcially assaulted his wife, Manju Rai, with danda which resulted in the death of his wife due to multiple injuries in head regions. The danda was also recovered from the place of occurrence. The entry further records that there being a prima faice case made out against Rajesh Rai under Section 302, IPC, a case under that section was registered as case No. 30(9)92 under Section 302, IPC dated 22-9-1992 suo motu for further investigation. The next General Diary entry is of the same date recorded at 1630 hrs to the effect that Rajesh Rai was arrested and kept under police custody for detailed interrogation. Suo motu FIR by the Officer-in-Charge , Gyalzing Police Station addressed to the District Magistrate , West District, Rabtentse is exhibit P-9 and the formal FIR recorded on the basis is exhibit P10. A charge under Section 302, IPC was framed against the appellant during the course of the trial. A supplementary charge sheet was also filed on 17-9-1996 when the Investigating Officer received the CFSL and serological reports. The experts opined that the test for consumption of poison was found to be negative in the viscera and blood stains in the exhibits were found those of human blood.

(3.) On 22-11-1999, learned counsel for the appellant submitted that though, according to the prosecution case, the appellant had made a report to the Officer-in-Charge, Gyalzing Police Out Post that his wife, Manju Rai, had died by consuming poison that report was not on the record which made the case of the prosecution doubtful. We took note of the fact that the Investigating Officer, Shri P.M. Rai had deposed as PW 16 that the report of Rajesh Rai was produced before the trial Court along with the charge sheet. However, the same was not available on record. The learned Public Prosecutor requested for sometime to enquire as to the whereabouts of that record and then the matter was listed on 24-11-1999. On 24-11-1999, the learned Public Prosecutor submitted that the document could not be found despite search having been made in the Court of the learned Judicial Magistrate, though the General Diary was available. We, therefore, directed the learned Sessions Judge, South and West to record evidence on this aspect of the matter. Accordingly, the learned Sessions Judge brought on record the General Diary entries which we have already referred to, along with some other entries which were not referred before us during arguments. The learned Sesisons Judge also recorded the evidence of S.I. Shri S.K. Pradhan who was at the relevant time the second Officer-in-Charge at the Gyalzing Police Station to prove the General Diary entries.Shri P.M. Rai, the Investigating Officer, could not be examined subsequent to our aforesaid direction as he is presently at Cosovo on U.N. Peace Keeping Mission. Shri S.K. Pradhan has deposed that while writing the diary, carbon is placed between the two pages and the original is sent to the concerned Superintendent of Police, while the copy is retained at the Police Station for the purpose of record. Further, he has stated that the original of the General Diary entries may be lying with the concerned Superintendent of Police..