DILIP DARJEE Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal is directed against the Judgment and Order passed by the learned Sessions Judge (East and North), Gangtok in Criminal Case No. 17 of 1998 convicting the appellant under Section 302, IPC for causing the death of Jaggi Maya Darjee and under Section 382, IPC for committing theft of her personal belongings after having made preparation for causing her death. The appellant was sentenced to undergo imprisonment for life and also to pay fine of Rs. 5,000.00 and in default to undergo further rigorous imprisonment for six months for the offence under Section 302, IPC and for rigorous imprisonment for a period of three years with fine of Rs. 2,000.00 and in default of payment of fine to undergo further rigorous imprisonment for four months for the offence under Section 382, IPC. Both the substantive sentences were directed to run concurrently.

(2.) The deceased, Jaggi Maya Darjee, was the resident of Sama Sivik, Lingdum Busty under the Sadar Police Station, East Sikkim. Prosecution case is that her neighbour, Bir Bahadur Subba P.W. 5, living at a distance of 200 ft. from her house, noticed foul smell coming from her house, whereof he informed Tulsi Ram Chapagai P.W. 3. On the advice of Tulshi Ram Chapagai, Bir Bahadur Subba informed the Panchayat. The Panchayat asked him to find out the relatives of the deceased. Then Bir Bahadur Subba located Jit Bahadur Darjee P.W. 4, who is the uncle of the appellant. The appellant is the brother of the deceased. Then, all went to the house of the deceased, but the house was found locked from inside. Then they decided to report the matter to the Police. Thereafter, the door of the house was broken open and dead body of the deceased was found in highly decomposed condition. Thereupon, U. D. Case No. 34(7), 98 was registered by the Sadar Police Station, Gangtok under Section 174 of the Code of Criminal Procedure, and was endorsed to S. I., J. N. Sharma P.W. 10, for investigation on 28/07/1998. S. I. J. N. Sharma proceeded to the place of the occurrence at Sama Sivik, Lingdum Busty. He found the deceased lying on a bed. He conducted inquest on the body of the deceased. As the body was highly decomposed, no external injury could be detected. The inquest report is Exhibit P-3. About a month thereafter, the appellant came to Chandra Ram Sharma P.W. 12 to ask him to sell on his behalf one nose ring (bulaki). The witness, Chandra Ram Sharma, recognised the same as belonging to the deceased, Jaggi Maya Darjee and enquired as to where from he had obtained the same. The appellant replied that he had got it from one Ghuirey and Ghuirey and one other person had killed Jaggi Maya Darjee. Suspicion arose in the mind of Chandra Ram Sharma. Thereafter, he along with other co-villagers produced the appellant before the Sadar Thana along with the said nose ring and also one wrist watch which were seized by the Police under the seizure memo Exhibit P-6. Thereupon, a written complaint was lodged by S. I. J. N. Sharma P.W. 10 to the O/C, Sadar Police Station which is Exhibit P-4. A case under Section 302, IPC was thereupon registered against the appellant, Ram Bahadur Darjee, Ghuirey and one unknown person and was endorsed to S. I. D. T. Simick P.W. 15 for interrogation. During the course of investigation, the appellant made a statement before the I.O. in the presence of witnesses. That statement except for the part which is inadmissible in evidence under Section 25 of the Evidence Act, is to the effect that he had removed the deceased's gold ear-rings from her cars, Rs. 800.00 from her waist band and also nose ring and wrapped the two ear-rings in a paper and hid the same in a cliff, near river Dhaingray, and the said gold ear-rings were in the same place and the same could be found on going there. That statement was signed by the I.O.D.T. Simick in the presence of Chandra Ram Sharma P.W. 12, Mrs. Lalita Rai P.W. 6 and Hari Prasad Sharma P.W. 1. The statement was also signed by the appellant on 28/08/1998. The accused took out the pair of marwaries (ear-rings) from the stoney area of Dhaingray Khola (jhora)'s cliff by the side of Sama Sivik Road leading to Rankey, in the presence of the witnesses Chandra Ram Sharma PW-12 and Mrs. Lalita Rai PW-6. After the completion of the investigation, S. I. D.T. Simick filed chargesheet against the appellant under Sections 302 and 382, IPC for committing murder of Jaggi Maya Darjee and committing theft of her personal belongings after making preparation for causing her death. The learned Sessions Judge charged the appellant under Section 302 for having caused the murder of Jaggi Maya Darjee between 20th and 23/07/1998 and under Section 382 for having committed the theft of one Bulaki (nose ring), one pair of Marwaries (ear-rings) and one wrist watch from the possession of Jaggi Maya Darjee, after having made preparation for causing her death by strangulation. During the trial, 15 witnesses including the I.O. were examined. One of the witnesses, Dr. K.B. Gurung (PW13) is the Medico Legal Specialist at the S.T.N.M. Hospital, Gangtok. He conducted the medico legal autopsy on the body of the deceased on 28/07/1998. The body was in advanced statge of putrefication. The witness deposed that the body was highly dcomposed. He gave the approximate time of death as three or four days prior to his examination. At the same time, he admitted that it was possible that the death had occurred one month earlier. He stated that even if the death had occurred one month earlier, the time of death is mentioned in such reports as only three or four days. He could not give the cause of the death. He could also not say whether the death might have occurred on account of sucide or strangulation.

(3.) The case rests entirely on circumstantial evidence. The only circumstance on which the prosecution relies upon is that the accused was found in possession of the belongings of the deceased, Jaggi Maya Darjee. Chandra Ram Sharma PW-12, is a former Panchayat member of Lingdum Gram Panchayat. He has deposed that the appellant brought one nose ring belonging to the deceased to him to sell the same. The witness recognised the same as belonging to the deceased, as the deceased had purchased the same at the time of her marriage and as he had helped her in making the purchase. According to his evidence, the deceasd and also her family members used to seek his assistance in making purchases of the gold ornaments. The witness has further deposed that on his enquiry as to wherefrom he had obtained the bulaki Exhibit (vi), the appellant replied that he had got the same from one Ghuirey and Ghuirey had also given him (the appellant) one wrist watch. Thereupon, the witness told the appellant that the nose ring belonged to Jaggi Maya Darjee. Then the appellant replied that Jaggi Maya Darjee had been killed by Ghuirey and one other person. Thereupon, he took the appellant to the Police Station where the nose ring and wrist watch were seized by the Police under seizure memo P-6. He also stated that the appellant made a disclosure statement marked Exhibit P-1 to the effect that the two ear-rings could be found on going to the place of hiding and thereafter the ear-rings Exhibits 1 and 2 were seized in his presence vide seizure memo Exhibit P-7. The other seizure memo witness Mrs. Lalita Rai (PW-6) has admitted her signature on Exhibit P1. At the same time, she stated that she did not notice the Police reducing the statement of appellant to writing, though the appellant had stated before the Police that he had hidden the ear-rings in a cave. She stated that the place where the accused took out the ear-rings is on the road side. She has also proved her signature on Exhibit P-1. One other witness regarding the disclosure statement and the recovery of marwaries made by the appellant is Hari Prasad Sharma PW-1. He deposed that the marwaries were recovered by the Police in his presence from one green plastic from a cliff but the disclosure statement Exhibit P-1 was signed by him on the next day of the recovery. Reference may also be made to the evidence of Samsher Lepcha PW-7, who has deposed that about six to seven days prior to the discovery of the dead body of the deceased, who was the sister of the appellant, he saw the appellant going towards the deceased's house and the appellant told him that he was going to his sister's house.