SAGAR SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The only question for determination in this Appeal is whether the offence committed by the Appellant-Accused (hereinafter the "Appellant") is murder, as defined under Sec. 300 of the Indian Penal Code, 1860 (for short, the "IPC"), or whether it would fall under the Exceptions carved out under the said provision of law, whereby the offence would be one under Sec. 304 of the IPC, thereby entailing a lesser degree of penalty.

(2.) In his arguments, Learned Counsel for the Appellant contended that the Prosecution case was one of premeditated murder by the Appellant but, in fact, the offence was committed on the spur of the moment on a grave and sudden provocation given by the deceased consequent upon which the offence was committed. While walking this Court through the evidence of the Prosecution Witnesses, more especially that of P.Ws.1, 9, 12, 15 and 16, it was urged that although P.Ws.15 and 16 were minor children and alleged eye-witnesses to the offence, however, the evidence of P.W.15 reveals that he saw the Appellant draw out a khukuri (sharp edged weapon) but did not witness the assault, whereas P.W.16 stated that she had seen both the Appellant and the deceased having some discussion near the shop of P.W.12. She does not speak of the Appellant having drawn out the khukuri. There is thus an anomaly in the evidence of these two Witnesses who were together. P.W.12, the Shopkeeper in front of whose shop the alleged offence took place, did not lodge any Complaint while P.W.9, the wife of P.W.12 and the mother of P.W.6, is the only Witness who informed her son P.W.6 after hearing a commotion outside their Shop and on seeing one boy lying in front of their Shop however P.W.6 also did not lodge an FIR. The antecedents of the Appellant were known to P.W.1 as the Appellant used to work in the house of P.W.7, the father of P.Ws.1 and 2. Evidently, there was no animosity between the deceased and the Appellant as can be culled out from the evidence of P.Ws.1, 2 and 7. That, P.W.3 the father of the deceased, did not witness the incident and was only informed of it by his niece, one Leela Subba who is not even a Witness in the instant matter, thereby raising doubts about the authenticity of the evidence of P.W.3. That, as both the deceased and the Appellant were in a drunken condition, it was essentially a drunken brawl and on sudden provocation, the Appellant struck the deceased fatally. Hence, the offence committed by him would be under the ambit of Sec. 304 of the IPC and not under Sec. 300 thereof. To buttress his submissions, Learned Counsel placed reliance on Surinder Singh vs. State of Punjab 1989 Supp (2) SCC 21.

(3.) Repudiating the arguments of Learned Counsel for the Appellant, Learned Public Prosecutor contended that P.W.12 had clearly seen the assault, while P.Ws.15 and 16 the minor children have both seen the Appellant and the deceased together and both have witnessed them having a discussion. That, P.W.17 the Medico Legal Consultant who examined the body of the deceased, found six ante mortem injuries, as detailed in Exhibit 10, the Medico Legal Autopsy Report pertaining to the Appellant. It thus stands to reason that the deceased being unarmed, was assaulted by the Appellant leading to his death. No grave and sudden provocation has been established by the Appellant and hence the offence falls under all Clauses of Sec. 300 of the IPC. That, none of the Exceptions carved out in Sec. 300 of the IPC, are attracted for the wanton act committed by the Appellant. Conceding that it may not have been a premeditated murder, Learned Public Prosecutor urged that it was undoubtedly committed with the knowledge and intention of causing murder and well within the parameters of the offence defined under Sec. 300 of the IPC, hence, the Appeal deserves a dismissal.