MONA HANG SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This Appeal is directed against the judgment and sentence dated 20-8-2010 in S.T. Case No. 17 of 2007 passed by the learned Sessions Judge, South and West Sikkim at Namchi, by which the accused-appellant has been convicted under Section 302 of the Indian Penal Code (in short 'IPC') and sentenced to undergo imprisonment for life and pay a fine of Rs. 5,000/-.

(2.) Brief facts of the prosecution case is that on 13-7-2007 a written report was received from L/NK 881850 Tara Bir Subedi of Sombaria P. S. at about 2124 hours stating that the appellant informed him on his mobile that he assaulted one Mahesh Subba with a Khukuri with the intention to kill him and that he wanted to surrender before the police. When he rushed to the house of the appellant he found him on the road in front of his house and, on being asked he directed him to Tin Dharey Kholsa, east of the house of the appellant. Upon reaching there he found the body of the victim lying in the ditch with multiple cut injuries. On evacuation of the victim to Sombaria P.H.C. the victim was declared dead on arrival by the Doctor present. P.S. Case No. 7(07)07 dated 13-7-2007 under Section 302, IPC was registered against the accused-appellant and investigation taken up. On completion of the investigation it was revealed that the deceased Mahesh Subba had been harassing the accused-appellant in the past and extorting money from him. Deceased was related to the accused-appellant from his grandfather's side and were good friends in the past but the accused-appellant had been avoiding him due to his wayward behaviour. That victim had the reputation of a mischief monger and was a nuisance in the locality indulging in harassing his uncles and cousins whenever intoxicated. In the past, cases were registered against him for offences under Sections 488/ 385/147/149/427/354/323, IPC. He was also caught with the explosive materials during the election of the year 2004 and arrested under Soreng P. S. Case No. 27(04)2004 dated 26-4-2004 under Section 5 of the Explosive Substances Act, 1908. He was also associated with some political parties. In the morning of 13-7-2007, the accused-appellant had accompained the Upadhakshya, West Zilla Panchayat, Ms. Chandra Maya Subba, to Soreng to participate in the Bhanu Jayanti Celebration there and returned late in the evening on being given a lift by the Zilla Adhakshaya and was dropped at Daramdin Bazar along with one Smt. Surmit Subba and one Tulshi Subba. At Daramdin Bazar, the accused-appellant went to the market to buy some medicines but, finding the shop closed, he proceeded to his house alone. On the way he met the victim who apparently was under the influence of alcohol who caught the accused-appellant by the collar of his shirt and demanded money from him but he managed to free himself and flee from the spot. On reaching his room he left his mobile on the table and went downstairs to the kitchen adjacent to the main house. When he was serving his food he heard the victim climbing up to his room and leave after a while. The accused-appellant sensing something amiss went upstairs to check and found his mobile missing from the table. He went to his brother, Doma Hang Subba, living next to his house and narrated the episode to him requesting him to come along. When he called his mobile number from another mobile he found it switched off. The accused-appellant brother, Doma Hang Subba, met the deceased nearby on the new road with another person named Bikey Subba and asked to him to return the mobile phone of the accused-appellant but the victim refused and rather threatened him. By then the accused-appellant also arrived at the place and managed to get the mobile back from the victim on payment of Rs. 100/- after which they all dispersed to their respective residence. After sometime, the victim again returned to the house of the accused-appellant and called out to him and while doing so he was breaking windowpanes of the house and banging on the door abusing the appellant. Apprehensive that the door might be broken, the accused-appellant called out to the deceased and pleaded that he be allowed him to live in peace. As soon as door was opened the deceased was found standing at the door with knife in his hand with which he struck the accused-appellant who while taking evasive measures slit his right hand and started bleeding. The deceased then went out of the house shouting using foul language. The accused Rup Hang Subba, related to the deceased as his uncle, scolded the deceased for using such foul language and then went to the house of accused Rajesh Subba to call him. When accused Rajesh Subba did not respond the accused went back to the place where the deceased was. After a while, when the accused Rajesh Subba came to the spot on hearing noises, he saw Rup Hang Subba assaulting the deceased. When he tried to intervene the deceased challenged him also and started assaulting him with kicks and blows. As a result, the victim fell into the ditch of Tin Dharey Kholsa. In the meantime, the accused Doma Hang Subba and Ram Bahadur Subba, also came to the spot and joined them in assaulting the deceased with stick and blows. After a while accused-appellant came armed with a 'Bomfok' from his house and jumped into the ditch and struck the deceased repeatedly with the 'Bamfok' causing multiple deep cuts on the heads, legs, lower back of the victim resulting in the death of the deceased. Thereafter, the accused-appellant went back to his house leaving the murder weapon next to the toilet and called up LJ NK Tara Bir Subedi through his mobile and reported of the incident.

(3.) As per the post-mortem report, the cause of the death of the deceased was due to multiple injuries with laceration of brain caused by sharp edged heavy weapon homicidal in nature. Charge-sheet was accordingly filed against the appellant and others under Section 302/34, IPC. During the trial, the other accused persons were discharged, there being no evidence against them. Upon enquiry and trial, the learned Trial Court found the appellant guilty under Section 302, IPC and accordingly convicted and sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/- by the impugned judgment.