NER TSHERING LEPCHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) In this Appeal the Appellants seek to assail the impugned judgment of the Learned Sessions Judge, South and West Sikkim at Namchi dated 28-02-2005 in Sessions Trial Case No.4 of 2004 by which they stand convicted for the offence under Sections 302/34 and 380/34 of the Indian Penal Code (in short IPC ).

(2.) The case of the prosecution so much that is relevant for the purpose of this Appeal is that on 26-11- 2002 at about 0815 hours the Gyalshing Police Station received a complaint from one Sonam Wangda Bhutia, P.W.4, of Chojo Busty, Khecheperi, West Sikkim, stating that at about 0530 hours of the same day P.W.5, Ms. Nikhit Lepcha alias Kali, aged about 9 years and P.W.20, Master Sam Tshering Lepcha alias Aching Lepcha, aged about 7 years, informed him that in the night of 25-11- 2002 the Appellants had stabbed to death the deceased, Chokee Bhutia, aged about 65 years in the store room of her house where millet was stocked and had fled after committing the theft of huge amount of her money and varying kinds of gold and silver ornaments. The Gyalshing P.S. Case No.30(11)02 dated 26-11-2002 under Sections 457/302/392/34 IPC was registered against the Appellants and the case taken up for investigation.

(3.) Investigation of the case revealed that the Appellants were familiar with the deceased Chokee Bhutia and her family and used to visit her house frequently. On 25-11-2002, the Appellants having decided to kill her and rob her of her wealth, borrowed a knife from one Sam Tshering Lepcha, P.W.20, from the house of P.W.15, Godup Lepcha where a puja was being performed. They then went to the house of the deceased and found her threshing millet along with her two minor foster children, Nikhit Lepcha, P.W.5 and P.W.20, Sam Tshering Lepcha, in her store room near the kitchen. Being familiar to the family they pretended to join them and help in threshing the millet. After consuming the drink offered by the deceased, the Appellants who were on their feet all the time, then got into action. When the deceased rose and turned to collect more unthreshed millet the Appellant No.2, Nimzang Lepcha caught hold of the deceased by her arms from behind restraining her from moving and the Appellant No.1, Ner Tshering Lepcha pulled out the knife from its sheath tied in the waist of Appellant No.2 and stabbed her on the neck of the deceased. The deceased struggled to set herself free but, was unable to do so and ultimately fell dead on the pile of millet. They then assaulted the minor children and entered the room of the deceased, stole her money and gold ornaments and fled.