SATAR GURUNG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) On a First Information Report, Exhibit 1, being lodged before the Temi Police Station, South Sikkim, on 18/10/2017, by P.W.1, against the Appellant herein, investigation was taken up after registration of Temi PS FIR Case under Ss. 326/307 of the Indian Penal Code, 1860 (for short "IPC"). On completion of investigation, Charge-Sheet was submitted against the Appellant, Satar Gurung (Accused No.1), one Suman Subba (Accused No.2) and one Dil Bahadur Gurung alias Diwash Gurung (Accused No.3), under Ss. 302/34 of the IPC. The Learned Trial Court on taking cognizance of the matter framed Charges against the above-named persons under Ss. 302/34 of the IPC for which they individually entered a plea of "not guilty". The Prosecution examined thirty-four witnesses to prove its case against the accused persons. On closure of Prosecution evidence, the accused persons were examined under Sec. 313 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."). On consideration of the entire evidence on record, the Learned Trial Court convicted the Appellant Satar Gurung (Accused No.1) under Sec. 304 Part II of the IPC, but acquitted him of the offence under Ss. 302 read with Sec. 34 of the IPC, while Suman Subba (Accused No.2) and Dil Bahadur Gurung alias Diwas Gurung (Accused No.3) were acquitted of the charges under Ss. 302 read with Sec. 34 of the IPC, vide the impugned Judgment dtd. 24/2/2021, in Sessions Trial Case No.01 of 2018. The Appellant (Accused No.1) vide the impugned Order on Sentence, dtd. 24/2/2021, was sentenced to undergo simple imprisonment for a term of ten years under Sec. 304 Part II of the IPC and to pay a fine of Rs.10,000.00 (Rupees ten thousand) only, with a default clause of imprisonment. Aggrieved thereof, the Appellant assails the Judgment and Order on Sentence before this Court.

(2.) (i). Learned Senior Counsel for the Appellant contended that the Appellant in fact ought to have been acquitted of the offence along with other accused persons and that, in the alternative, the offence if found to have been committed by him would be one under Sec. 324 of the IPC and not under Sec. 304 Part II of the IPC as erroneously concluded by the Learned Trial Court. That, P.Ws 9, 14, 23 the Doctors who examined the wound on the victim each gave a different size of the injuries found on the person of the deceased, leading to doubts regarding the injuries. That, the observation of the Learned Trial Court in Paragraph 60 of the impugned Judgment is perverse as P.W.1 has not given any evidence to the effect that she had seen her deceased brother bleeding profusely and that he disclosed in her presence and in the presence of the witnesses that he was stabbed by the Appellant. The Learned Trial Court also observed in Paragraph 77 of the Judgment that the key chain knife was not the weapon of offence and arrived at the finding that a sudden fight had ensued between the deceased and the Appellant. Consequently, there was no intention or knowledge but the Appellant has been foisted with the offence under Sec. 304 Part II of the IPC.

(3.) Learned Public Prosecutor per contra conceded that the other two accused persons who faced trial were in fact persons who were at the place of occurrence and had witnessed the incident and were not party to the offence and hence their rightful acquittal. The evidence of P.W.2 with regard to the incident has remained resolute and he is a truthful witness. He placed reliance on Rakesh and Another v. State of Uttar Pradesh and Another 2021 7 SCC 188. That, P.W.31 has supported the evidence of P.W.2 while the seizure of the weapon of offence M.O.XIV has been proved by the Prosecution. That, conviction can be based on the testimony of a sole witness as held by the Hon'ble Supreme Court in Edward v. Inspector of Police, Aandimadam Police Station 2015 11 SCC 222, in the instant case it was not only one witness but P.W.2 and P.W.3 who witnessed the incident and their evidence fortifies the Prosecution case. The Learned Trial Court has in the impugned Judgement given consideration to all the relevant facts and circumstances and then correctly convicted the Appellant of the offence under Sec. 304 Part II of the IPC, therefore, no requirement arises to interfere with the findings of the Learned Trial Court and the Appeal be dismissed.