BUDDHILALL SUBBA MILAN SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal is from the Judgment and Order by the learned Sessions Judge (S&W) whereby, the appellant Buddhilall Subba alias Milan Subba was convicted under sections 302 and 380 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000.00 (Rupees ten thousand) and in default of payment to undergo further imprisonment for a period of six months for the offence under Section 302 IPC and to undergo imprisonment for four years and to pay a fine of Rs. 5,000.00 (Rupees five thousand) and in default of payment of fine to undergo further imprisonment for three months for the offence under section 380 Indian Penal Code. Both the substantive sentences of imprisonment were directed to run concurrently. It was further ordered that if fine imposed is realized, the same be paid to Smt. Jasmaya Mukhia, wife of the deceased.

(2.) The offence took place on 20/9/1997, a Saturday, on which day Gorey Mukhia died under unusual circumstances. The appellant Buddhilall Subba was working as a domestic servant in the house of the deceased and had been employed only about five months prior to the date of the occurrence. Prosecution case is that on 20/9/1997, which was Hat Day of Reshi Bazaar, the deceased who resided-at lower Karthok firstly left his residence at about 7 a.m. for Rishi Bazaar to sell tobacco. At that time, the deceased was wearing a pair of rubber shoes, long underwear, a shirt and was carrying tobacco in a jute gunny bag. In the gunny bag, he was also carrying a weighing scale and measuring weights. He was also carrying an umbrella and a walking stick. He used to keep his money, in a box, which was kept in the kitchen. He used to carry the key to the box tied to a string around his waist. Shortly after the departure of the deceased, the appellant also left towards the direction in which the deceased had gone under the pretext that he was going to get fodder for the cattle. He carried a sickle in his hand and wrapped a rope for carrying the fodder around his waist. At that time, the appellant was wearing a pair of old worn out slippers. The appellant returned back home after an unusual delay, at about 12 noon but without bringing any fodder or little fodder. He was looking nervous and restless when he came back. He was not wearing his slippers. Niru Mukhia (PW-8), the daughter-in-law of the, deceased enquired as to where he had kept his slippers, whereupon, he (the appellant) replied that the slippers were broken and. therefore, he had thrown them away. He looked restless the whole day and even at night time. During the night he stole a sum of Rs, 15,000.00 (fifteen thousand) from the box, which was kept in the kitchen. The appellant woke up earlyT which was quite unusual and got ready saying that he had to go to Legship to get his passport size photographs. The family members insisted that he should not go to Legship that day as there was no one else to look after the cattle but he insisted on going to Legship and did not come back thereafter. As the deceased did not return by Tuesday, the 23rd of September, 1997, Jasmaya Mukhia (PW-4), the widow of the deceased, sent her third son Gopilall Mukhia to look for him but he came back in the afternoon saying that he did not find the deceased. She then apprehended that some mishap might have taken place and asked her sons Gopilall and Ganesh and a few villagers to go in search of her husband between the footpath and its adjoining areas till Rishi. At a place called Mukthaney Khola on way to Legship, the group found, the belongings of his father like the bag of tobacco, umbrella, shoes, stick etc. Thereafter, Gopilall Mukhia went to the Kaluk Police Station and made a verbal complaint on 24/9/1997 at 1.30 hrs vide G.D. entry No. 222 to the effect that the deceased Gorey Mukhia was found lying dead in the bottom of Mukthaney Khola, Najur Barfock Block, West Sikkim in the evening of 23/9/1997. Thereupon. a Kaluk Police Station U.D. case No. 12(9)97 dated 24/9/1997 was registered under section 174 Cr.P.C. for investigation. The investigation was taken up by Sub-Inspector, Ambika Subba, P.W-20 who was in charge of the Kaluk Police Station. She found on 24/9/1997 the body of the deceased in the bottom of Mukthaney Khola. The dead body was found disfigured with head injuries and injuries on the mouth and teeth. It was lying about 80 feet below the village road of lower Karthok. Under the dead body, she found one HMT Kohinoor wrist, watch belonging to the deceased and one slipper of the right leg of the appellant. They were so identified by Gopilall Mukhia (PW-1), the son of the deceased. These articles were seized vide seizure memo exhibit P-3 witnessed by Gopal Chettri PW-11 and Kumar Subba PW-2. The Investigating Officer also found just below the village road the following articles:

(3.) After collecting information, seizing certain articles and recording some evidence, S-I- Ambika Subba made a complaint to the Judicial Magistrate, Gyalzing, District West Sikkim giving the details of what she had done, inter alia, stating that Kaluk Police Station Case No. 22(9)97 dated 24/9/1997 had been registered against the appellant Buddhilall Subba under section 302/380 IPC. The complaint dated 24/9/1997 is exhibit P-16 and the formal FIR is exhibit P-17. Post Mortem was conducted by Dr. Bikash Pradhan PW-16 who proved his report exhibit P-7, According to him, he detected the following injuries: