PREM KUMAR RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Appellant, Prem Kumar Rai, and two other accused persons, namely, Dawa Tshering Tamang and Arun Kumar Subba were convicted by the learned Sessions Judge, South and West Sikkim at Namchi under Section 302 read with Section 34 of the Indian Penal Code and each of them was sentenced to undergo impris onment for life and to pay a fine of Rs. 5,000 and in default of payment of fine to undergo further imprisonment for three months. Only one of them, namely, P. K. Rai who is referred in the judgment as accused No. 3, has filed this appeal.

(2.) Accused No. 1, Dawa Tshering Tamang, is the nephew of Dhan Bahadur Tamang, PW-1. Prosecution case, in brief, is that on 15-11-1999 all the three accused persons came to the house of Dhan Bahadur Tamang at about 7.30 p.m. After some time, the deceased Bhim Bahadur Manger also came there. The accused had some hot discussion with accused Nos. 2 and 3, namely, Arun Kumar Subba and Prem Kumar Rai on some pecuniary matter. Thereafter, all the three accused persons went out of the house of Dhan Bahadur Tamang but the deceased continued to remain there. After about 10 minutes, all the three accused persons again came to the house of Dhan Bahadur Tamang, PW-1 and again had hot discussion with the deceased. Then all the three accused persons again went out of the house of Dhan Bahadur Tamang, PW-1. After about 15 minutes thereof, the deceased also left the house of Dhan Bahadur Tamang, PW-1. Thereafter, the deceased, Bhim Bahadur Mangar went to the house of Lallmaya Tamang, PW-2 and asked her for a lamp. Accordingly, her nephew, Pradip Tamang, PW-5 prepared one bottle lamp and gave the same to the deceased at about 8 p.m. After fifteen minutes thereof, Pradip Tamang, PW-5 heard the deceased groaning. Then, Pradip Tamang, PW-5 asked Lallmaya Tamang, PW-2 to call the two teachers who were their neighbours. Accordingly, she called the two teachers, namely Pemba Sherpa, PW-12 and D. B. Chettri, PW-13. They all went to the spot and the teachers PW-12 and PW-13, seeing the deceased lying in the ginger field, told them that the matter was very serious and should be reported to the police. Then one of the teachers, namely, D. B. Chettri, PW-13 went to the house of Chumla who had a telephone in order to inform the police. The other teacher Shri Pemba Sherpa PW-12 remained at the place of the occurrence. The telephone call was made by Chumla. Chumla has not entered the witness box. Within one hour police from Barmiok out post reached the spot. Thereafter, the victim was admitted in Singtam Hospital. On the next day, that is, 16-11-99 he was admitted in the STNM Hospital, Gangtok where he died on 17-11-99 at 10.35 a.m. The post-mortem on the body of the deceased was conducted by Dr. K. B. Gurung, PW-28 who gave his opinion that the death had occurred on account of the injuries produced by blunt force. A written complaint of the incident was made by Phul Maya Magar PW-7, wife of the deceased, on 17-11-1999. That complaint is exhibit P-1 and is to the effect that all the three accused persons had assaulted the deceased on 15-11-1999 evening resulting in the death of the deceased. On the basis of the complaint, formal FIR, Exhibit P-l6 was recorded by Temi Police Station under Sections 302/34, IPC. Before the complaint, Exhibit P-l had been lodged by Phul Maya Magar, ASI, Sangay Bhutia, PW-18 who was the Incharge of the Barmiok out post had visited the place of occurrence on 15-11-1999 at about 8.30 or 9 p.m., after receiving the telephone message and found that the victim was lying in a ginger field in an unconscious condition, bleeding profusely and not being in a state to speak out. He collected one slipper and one cycle chain on the spot. Cycle chain is said to be belonging to accused No. 1, Dawa Tshering Tamang, and the slipper is said to be belonging to accused No. 2 Arun Kumar Subba. Nothing belonging to accused No. 3, the appellant, was found on the spot. The witness Sangay Bhutia, PW-18 and others removed the victim to Singtam Hospital from where he was removed on 16-11 -99 to STNM Hospital. After the formal FIR was lodged, further investigation was conducted by S.I., L.M. Pradhan, PW-29. During the course of the investigation, he seized the cycle chain and also the chappal from ASI Sangay Bhutia, PW-18.

(3.) Shri A. Moulik, counsel for the appellant has submitted that there is no evidence on record to connect the appellant with the crime and therefore, the appellant is entitled to acquittal.