MANI KUMAR THAPA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal filed by Mani Kumar Thapa, is directed against the judgment of the learned Special Judge, Human Rights, South and West District, Sikkim, in Criminal (Human Rights) Case No. 6 of 1996 passed on 21/12/1999, holding, accused Rolland Christopher Chhetri, who was a Deputy Superintendent of Police and Sub Divisional Police Officer of West Sikkim, since deceased, and Mani Kumar Thapa, who was a Sub-Inspector of Police, Special Branch, Sikkim Police (hereinafter referred to as the appellant), guilty of the offence punishable under Ss. 364/302/201 of Indian Penal Code (in short IPC) read with S. 34 of IPC for committing the abduction and murder of one Dharma Dutta Sharma. During trial of the case, Rolland Christopher Chhetri expired on 9/10/1995 and the case against him abated and, therefore, no order of conviction and sentence was passed against him. The appellant was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000.00 (Rupees five thousand) only and in default of payment of fine to undergo further rigorous imprisonment for six months under S. 364 of IPC, to undergo imprisonment for life and to pay a fine of Rs. 10,000.00 (Rupees ten thousand) only and in default to pay fine to undergo further imprisonment for one year under S. 302 of IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000.00 (Rupees five thousand) only and in default to pay the fine to undergo further rigorous imprisonment for six months under S. 201 of IPC. The learned Special Judge held that all these substantive sentences of imprisonment shall run concurrently and the period spent in jail by the accused, as under-trial prisoner shall be set off against the term of imprisonment imposed on him, and fine, if realised, be paid to the children, if any, of the deceased Dharma Dutta Sharma.

(2.) The prosecution case as made out in the charge sheet (Ext. P. 20) was that the Officer Incharge, Naya Bazar Police Station, West Sikkim, came to learn from reliable source, that on 12/02/1988 at about 16-05 hrs, one Dharma Dutta Sharma of Timberbong Busty was found abducted by the accused Rolland Christopher Chhetri, accused No. 1 (in short accused Rolland) and the appellant, and on the way to Naya Bazar. Dharma Dutta Sharma was murdered at Zoom Busty and after murdering him the dead body was disposed of on the other side of the river under Bijanbari Police Station, Darjeeling District, West Bengal. The aforesaid Officer Incharge, Sub-Inspector Lawang Dhondup Bhutia, P.W. 47 registered a suo motu FIR Exhibit P-18 on 20/02/1988 under S. 364/302/201/34, IPC, against accused Rolland and the appellant vide Naya Bazar Police Station case No. 6(2)88. Initially, investigation of the case was taken up by P.W. 47, who examined a few witnesses and recorded their statements under S. 161 of Code of Criminal Procedure 1898 (in short Cr. P.C.). Subsequently, a team of Police Officers comprising of Shri R. K. Pradhan, S.P., CID, PW. 43, Shri Luktook Gyatso, Dy. S.P., CID, P.W. 48, Shri K. B. Gurung, Inspector, CID P.W. 45, Shri Mingma Bhutia, Inspector, Sadar P. S. Gangtok, P.W. 44, S.I. Nedup Bhutia of Crime Branch P.W. 46 was constituted, under orders of the Director General of Police, Government of Sikkim and investigation was taken up by the team of officers and during investigation they examined all the remaining witnesses and it transpired that Dharma Dutta Sharma of Timberbong Busty had left for the office of the Sub-Divisional Magistrate, Soreng on 12/02/1988 at about 11.00 a.m. to submit Panchayat election nomination form and since then he did never come back. One Madav Prasad Dahal, P.W. 4 of Timberbong Busty put his signature on the nomination form as witness on the request of Dharma Dutta Sharma at Bhamsey Danra and Dharma Dutta Sharma accompanies by P.W. 4 came to the office of the Sub-Divisional Magistrate, Soreng for filing nomination paper. When P.W. 4 and Dharma Dutta Sharma reached the office of the Sub-Divisional Magistrate, the District Collector, West District, who was the Returning Officer, was not there. However, the District Collector came to the office at about 3.00 p.m. and when Dharma Dutta Sharma wanted to file his nomination paper, the District Collector declined to accept the same on the ground that it was presented beyond scheduled time. Then Dharma Dutta Sharma and P.W. 4 returned back in a jeep bearing No. SKM 865. On the same day, i.e. on 12/02/1988, at about 15-45 hrs while K. K. Pradhan, constable in the Special Branch, Sikkim Police P.W. 5 was returning from Sub-Divisional Magistrate's office, Soreng, he met accused Rolland and the appellant at Soreng Bazar. Accused Rolland enquired from P.W. 5 as to whether he had seen Dharma Dutta Sharma anywhere. The accused Rolland also asked P.W. 5 whether he knew the house of Dharma Dutta Sharma and he replied in the affirmative. P.W. 5 accompanied accused Rolland and appellant in the Gypsy SKM 999, official vehicle attached to the accused Rolland, in order to identify the house of Dharma Dutta Sharma came towards Timberbong Busty to show the house of deceased Dharma Dutta Sharma. On the way to Timberbong, on reaching the office of the State Bank of Sikkim, Soreng Branch, Soreng, P.W. 5, accused Rolland and the appellant met Yamu Kumar Gurung alias Maggi, P.W. 11 and R.B. Gurung, P.W. 12, both employees of the State Bank of Sikkim. Accused Rolland who was driving the vehicle Gypsy SKM 999, the official vehicle attached to him, stopped the vehicle and the appellant enquired from these P.W. 11 and P.W. 12 as to whether they had seen the victim Dharma Dutta Sharma anywhere. Both of them pleaded their ignorance. P.W. 12 returned home, as it was about to rain. P.W. 11 took lift in the said vehicle SKM 999 and came with them up to Timberbong. The accused Rolland asked P.W. 5 as to whether he knew the house of Chhatraman Subba, P.W. 3 and he pointed out the house of P.W. 3. In the meantime, the driver of jeep SKM 865 (taxi) Pratap Lama, P.W. 13 reached the spot and the accused Rolland stopped the jeep SKM 865 and asked P.W. 13 whether he had seen Dharma Dutta Sharma anywhere. P.W. 13 replied that Dharma Dutta Sharma had come from Soreng in his jeep upto Tiberbong on the same day and then went towards his house. Accused Rolland directed P.W. 5 to accompany P.W. 3 and to bring the victim Dharma Dutta Sharma from his house and they met Dharma Dutta Sharma on the way in the house of Kedar Nath Sharma, P.W. 37. They saw victim Dharma Dutta Sharma talking with three other persons namely K. P. Sharma, P.W. 6, P. L. Sharma, P.W. 9 and Rudra Prasad Sharma, P.W. 8 in the varandha of P.W. 37 Dharma Dutta Sharma was called by P.W. 3, on the ground that he was wanted by accused Rolland who was the Deputy Superintendent of Police. The victim accompanies by P.W. 3 and P.W. 5 reached the place where accused Rolland and the appellant were standing with the Gypsy SKM 999. Accused Rolland directed the victim to get into the gypsy for interrogation. The victim obliged accused Rolland by carrying out his orders. P.W. 3 was present when accused and the appellant took the victim Dharma Dutta Sharma in the vehicle SKM 999. P.W. 5 and victim Dharma Dutta Sharma sat on the back seat. P.W. 5, the victim, accused Rolland and appellant came to Soreng and at Soreng Bazar, accused Rolland asked P.W. 5 where he should drop P.W. 5. P.W. 5 got down in the Soreng Bazar. The accused Rolland and the appellant with the victim Dharma Dutta Sharma in the Gypsy SKM 999 proceeded to the checkpost at Ramam. Constable Nak Tshering Lepcha, P.W. 15, was on duty at Ramam checkpost. Accused Rolland and the appellant crossed the checkpost and proceeded towards Singhla side in the Darjeeling District, West Bengal. After sometime the accused Rolland and the appellant drove back the vehicle through the checkpost. While proceeding further the accused Rolland instructed Head Constable Budhiman Tamang, P.W. 22 at Ramam checkpost not to allow entry to Naya Bazar to any injured person if he was coming from West Bengal side across the bridge for medical treatment. On 13/02/1988, Damber Singh Subba, a CPIM leader of Singhla, Darjeeling, on getting information that a dead body was lying below the road at Kerabari near forest quarters proceeded to see the dead body who found the dead body to be of a male person lying below the road near the forest quarters. Along with his party men, the said Damber Singh Subba proceeded to Ramam checkpost. P.W. 15 informed him about the visit of accused Rolland and appellant on the night of 12/02/1988 to the checkpost and that from there they proceeded towards West Bengal side and returned. On the request of Damber Singh Subba, P.W. 22 informed the accused Rolland that he was required to meet Damber Singh Subba. The accused Rolland and P.W. 22 arrived at Ramam checkpost and after some altercation agreed to go to Kerabari and to see the dead body. The accused Rolland and P.W. 22 accompanied by Damber Singh Subba proceeded to the place where the dead body was lying and they saw the dead body. One Kamal Prasad Shah, P.W. 36 of Naya Bazar also reached the spot at that time. On 12/02/1988 one Man Bahadur Mukhia had seen a Gypsy vehicle being washed by one gentleman below the Gamon Bridge at Naya Bazar. On the following day when the accused Rolland was called by said Damber Singh Subba at Ramam checkpost, the said Man Bahadur Mukhia recognized the accused Rolland to be the same person who was washing one Gypsy vehicle below Gamon bridge at Naya Bazar on 12/02/1988. Meanwhile a group of people gheroed the accused Rolland as they suspected him to be the cause of the said death. Damber Singh Subba along with his followers rescued the accused Rolland from the mob and took him inside the house of one Kazi Lohagan of Kerabari. The accused Rolland gave a written statement to Damber Singh Subba giving his own version of the existence of the dead body at the place. The said written statement was handed over to the Investigating Officer of this case. On 13/02/1988 at about 14-30 hours the accused Rolland returned from Kerabari to Naya Bazar. On 16/02/1988 at about 7.00 a.m. the accused Rolland visited Sub-Inspector S. K. Baniya, P.W. 10 at Jorethang and asked him to accompany him to Forest Bungalow at Naya Bazar. Both the accused Rolland and P.W. 10 were at Dak Bungalow at 9.00 a.m. Damber Singh Subba, a leader of CPM met the accused Rolland and they held consultations inside the bathroom for sometime. P.W. 10 asked the accused Rolland about the dead body. Accused Rolland informed him that the dead body was that of the deceased Dharma Dutta Sharma. The appellant accompanied the accused Rolland on 12/02/1988 and was found with the accused Rolland till they returned to Ramam checkpost after crossing the checkpost at Ramam. The appellant was a Sub-Inspector of Special Branch in-Charge of the area. The appellant accompanied the accused Rolland and assisted the accused Rolland in abducting the deceased and also in the murder of the deceased. On 13/02/1988 the appellant met P.W. 5 and told him as to what had happened after P.W. 5 got down from the Gypsy on 12/02/1988 at Soreng. On 14/02/1988 the appellant met P.W. 36 and took him to the other side of the Ramam bridge and when P.W. 36 narrated the incident of gheraoing the accused Rolland to appellant and the appellant told P.W. 36 that he along with accused Rolland chased one smuggler from Nepal on 12/02/1988 and that while escaping he died and on the same night they removed the dead body on the other side of the bridge in West Bengal. At the side of dead body during the course of search one hawai chappal (Exhibit P-11), one tobacco container (Exhibit P-11) and one identity card (Exhibit P-11) were found and seized. The chappal was identified by one Purna Bahadur Chetti, P.W. 2 to be the one, which was worn by the victim at the time he left his house. The tobacco container was identified by Mrs. Mandhodara Sharma, P.W. 1, wife of the victim to be that of the victim. The identity card contained the name of the victim. Also the West Bengal Police during the course of their investigation recovered a letter Exhibit P-1, which was identified to be true by G. Targain, P.W. 20, Assistant Engineer, Power Department, Jorethang, South Sikkim. The General Diary of Ramam Checkpost dated 12/02/1988 Exhibit P-9(c) mentioning about the crossing of the checkpost by the accused Rolland and the appellant in Gypsy SKM 999 was found to be obliterated and when deciphered by the expert it read as "Singhla Taraf Gayo" (went towards Singla). The entry in the General Diary was made in the handwriting of P.W. 22. Therefore, his handwriting was sent for comparison with the handwriting appearing in the General Diary dated 12/02/1988. According to the opinion of the handwriting expert, Exhibit P-7(a), the two handwritings tallied with each other. The undertaking letter Exhibit P-12 gtiven by the accused Rolland to Damber Singh Subba on 13/02/1988 at Kerabari was sent to Government Examiner of Questioned Documents at Calcutta for comparison with the specimen handwriting of accused Rolland. The expert opinion Exhibit P-7 was that the two handwritings tallied with each other. The hair strands seized from Gypsy SKM 999 was identified to be of human origin on expert examination. Thus as per the Investigating Officer both the accused Rolland and the appellant had abducted the deceased Dharma Dutta Sharma and murdered him and screened the evidence available in proof of murder and as such both the accused persons were charged under Ss. 364/302/301/34 of IPC.

(3.) On the basis of the facts disclosed in the charge-sheet and the statements recorded and other materials collected during the investigation, the Ld. Sessions Judge, Sikkim at Gangtok after hearing arguments of the ld. Counsel for the parties on charge and having found materials to proceed against the accused Rolland and the appellant, framed charges under Ss. 302/364/201, IPC read with S. 34, IPC against them on the 15/09/1988.