PEMA DUKPA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) THE two accused-appellants, Pema Dukpa and Pemba Bhutia, have been convicted by the learned Sessions Judge for committing the murder of one D. S. Rai and also for causing disappearance of evidence of the offence by removing his dead body with the intention of screening themselves from legal punishment. For the offence of murder, the accused Pema Dukpa has been sentenced to death and the other accused Pemba Bhutia has been sentenced to imprisonment for life while for the offence of causing disappearance of evidence, they have been sentenced to four years' and three years' rigorous imprisonment respectively. The accused have come up in appeal before us while the learned Sessions Judge has also, as he must, submitted the proceedings to this Court under Section 374, Code of Criminal Procedure, After going through the records and hearing the learned Counsel for the appellants and the learned Advocate-General appearing for the State, we are satisfied that we must allow the appeal, set aside the judgment, annul the conviction and acquit both the accused. I would briefly narrate the facts and discuss the evidence before proceeding to state the reasons for my decision.

(2.) THE accused Pema Dukpa and his step-son the accused Pemba Bhutia, both Butchers, by occupation, used to reside at Deorali, Gangtok, in the house of Pema Dukpa where the deceased D. S. Rail also used to reside as a tenant. Pemba Bhutia was married to Shova Rai, PW 1, only 10/12 days prior to the alleged occurrence which took place on 2-12-1978. On that date in the evening at about Gp. in both the. accused persons, Doma Sherpani who is the wife of Pema Dukpa and mother of Pemba Bhutia, the deceased D. S. Rai and two other cotenants being Raj Kumar and Padam Dorjee were present in the room of the accused Pemba Bhutia and PW 1 Shova Rai who is the newly married wife of accused Pemba Bhutia was present in the kitchen adjoining that room. After a bottle of Rum brought by Pemba Bhutia was consumed by all present in the room, a quarrel ensued between the two accused on one side and the deceased D. S. Rai over and about the newly-wed wife Shova Rai, PW 1, but the tenant Raj Kumar intervened and separated them and thereafter both Raj Kumar and the other tenant Padam Dorjee left the place. The quarrel again ensued in the course of which both the accused assaulted the deceased with fist-blows and finally the accused Pema Dukpa gave a blow of Ramphok (dagger) on the head of the deceased whereupon he fell down dead. Both the accused then removed the dead body of the deceased in a gunny bag and threw it in a Jhora below Deoral. Thereafter both the accused returned to that room and wiped away the bloodstains with a piece of cloth and tried to burn that cloth-piece which, however, remained half-burnt and was recovered subsequently. They threw away their blood-stained clothes in the jungle. The dead body of the deceased D. S. Rai was found in the morning on 3-12-1978 by one student of the locality who inform fid a Constable of the Deorali Out Post who in turn informed the Head Constable-in-Charge who finally informed the Gangtok Police Station and a Sub Inspector rushed to the spot and held the Inquest on the dead body. The Officer-in charge of the Gangtok Police Station lodged a suo motu F. I. R. , arrested, both the accused persons, started the investigation and on completion thereof submitted charge-sheet against both the accused,

(3.) IT is the case of the prosecution that the wife Shova Rai, PW 1, could and did witness the entire occurrence from the adjoining kitchen and she has in fact deposed in details about the occurrence including the quarrel, the assault following including the final and fatal one, the removal of the dead body in a gunny-bag, the wiping of the bloodstains by piece of cloth and attempt to burn the same and the throwing away of the bloodstained wearing clothes. If this witness can be believed, the prosecution case would stand established. If not, the prosecution shall fail. But considering her evidence as a whole in the light of surrounding circumstances and in the context of other materials on record, I feel that the evidence of this sole eyewitness, on whom hangs the entire prosecution case, cannot be relied on, not for her being the solitary witness to the alleged occurrence, as urged by the learned Counsel for the appellants, but for other weighty reasons.