DAL BAHADUR Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal is directed against the Judgment and order dated 30/8/2002 by the learned Sessions Judge. (East & North) Sikkim in criminal case No. 24 of 1994, where by the appellant Dal Bahadur Tamang alias Dhalay was convicted for the offence under Section 304 part II of the Indian Penal Code and sentenced to rigorous imprisonment for three years with a fine of Rs. 1000/- and in failure of payment of fine to undergo further rigorous imprisonment for one month.

(2.) Shri learned Sharma learned counsel for the appellant has submitted that there is nothing on record to show that the injuries suffered by the deceased Tikaram Tamang were caused by the appellant and also that the injuries which the deceased received were such as were likely to cause death. According to the learned counsel, the appellant caused only simple injuries and. at best the injuries inflicted upon the deceased could amount to grievous hurt. He has further submitted that the deceased himself had initiated the night and the appellant was only a victim of circumstances and he did not commit any offence. Shri N.B. Khatiwada, the learned public prosecutor, has on the other hand tried to support the judgment of the learned trial court.

(3.) After perusing the record and hearing the learned counsel for the parties we find that there is no reliable evidence to show that the injuries inflicted on the person of the deceased were all caused by the appellant. The incident occurred on 4/11/1988 and the deceased died in the S.T.N.M. Hospital on 8/12/1988. Post Mortem was conducted on the body of the deceased by Dr. S.T.Basi on 8/12/1988. Dr. S.T.Basi could not be examined to prove his post mortem examination report Ex. P.3 since as per the evidence of the Investigating Officer. Shri K.K. Gurung PW-7. Dr. S.T. Basi had left the, STNM Hospital 5/6 years back and his whereabouts were not known to anybody. The post mortem report was proved by Dr. S.D. Shamm PW-6 who was the Senior Medico Legal Specialist attached to the STNM Hospital and he had counter-signed the report after satisfyhing himself that the Medical Officer had come to a correct conclusion as to the cause of death. As per the medical report the following injuries were found on the body of the deceased: