SANTOSH KUMAR PANDEY Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant was convicted of the offences under Sections 302/201 of the Indian Penal Code, 1860 (for short, 'IPC') in Sessions Trial Case No.13 of 2018, vide Judgment dated 25-09- 2019 and sentenced to undergo -

(2.) Impugning both, the Judgment and Order on Sentence, Learned Counsel for the Appellant advanced the contentions that the Learned Trial Court erred in convicting the Appellant as the Prosecution had failed to establish its case beyond reasonable doubt, instead the Court shifted the burden to the Appellant against the mandate of law. That, the alleged weapon of offence M.O.I, was not recovered from the rented room of the Appellant, but from an open, unoccupied and accessible adjacent room, sans disclosure statement of the Appellant. P.W.6 and P.W.8 who were present during recovery of M.O.I by the Police and P.W.10 and P.W.12 the witnesses to the seizure of M.O.I. gave no evidence to establish that M.O.I was the weapon of offence. P.W.15 and P.W.17, the Investigating Officer (I.O.) in the Unnatural Death (UD) Case and in the instant Case respectively, concluded that the burn injuries on the deceased was caused by M.O.I but furnished no proof on this aspect. This allegation was also categorically belied by the RFSL Report, Exhibit 28, which the P.W.17 identified and admitted that as per Exhibit 28 human skin or foreign particles were not found on M.O.I. That, the RFSL Expert was not examined as a Prosecution witness and the Medico Legal Consultant, P.W.14 failed to reveal his professional experience in his evidence. He found cigarette burns on the body of the deceased in addition to the injuries allegedly caused by M.O.I, but no investigation regarding the cigarette burns was carried out. The cause of death said to have been by vasovagal shock was not linked to the Appellant by any cogent evidence, neither his intention nor motive proved. Finger prints were not lifted by the I.O. from the place of occurrence or from M.O.I to inculpate the Appellant. That, P.W.15, the Complainant in the instant case, had conducted the inquest along with P.W.13 the Sub-Divisional Magistrate in the U.D. Case and also a large part of the investigation in the instant case, hence being both the Complainant and the I.O., his investigation is unfair and biased. Besides, the original complaint lodged by P.W.1 on the basis of which the UD Case was registered at the Singtam P.S. was not made a part of the records of this case, rendering the Prosecution case suspect from its inception. Hence, both the impugned Judgment and Order on Sentence deserve to be set aside and the Appellant set at liberty.

(3.) Per contra, Learned Public Prosecutor while supporting the conclusion arrived at by the Learned Trial Court submitted that the circumstantial evidence on record unerringly points to the guilt of the Appellant. That, P.W.15 was in fact the I.O. in Singtam P.S. U.D. Case No.10 of 2018, dated 25-04-2018 and not in the instant case and the FIR lodged in the UD Case by P.W.1 is of no relevance to this case as an independent investigation under Section 174 of the Cr.P.C. was carried out by P.W.15 in that matter. That, the 11 (eleven) burn injuries found on the body of the victim has been opined by P.W.14 to have been caused by M.O.I and the recovery of the article in the room adjacent to the Appellant's tenanted room fortifies the Prosecution case. That, the death of the victim was not on account of electrocution as falsely claimed by the Appellant but was the result of the injuries inflicted by him upon the deceased by M.O.I. The motive of the Appellant is writ large in the Section 164 Cr.P.C. statement of P.W.6 which supports the Prosecution case. Hence, the Judgment of the Learned Trial Court be upheld and the Appeal be dismissed.