CHINGBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Appellant was convicted of the offences under Sec. 307/323/448 of the Indian Penal Code, 1860 (hereinafter, the 'IPC') and sentenced to undergo seven years rigorous imprisonment and to pay a fine of ?5,000/-(Rupees five thousand) only, under Sec. 307 of the IPC with a default clause of imprisonment, six months simple imprisonment under Sec. 323 of the IPC and six months simple imprisonment under Sec. 448 of the IPC. The sentences were ordered to run concurrently, setting off the period of imprisonment already undergone by the Appellant. Aggrieved thereof, he is before this Court assailing the Judgment, dtd. 29/9/2021, in Sessions Trial Case No.05 of 2019 and Order on Sentence, dtd. 30/9/2021, of the Court of the Learned Sessions Judge, Special Division - I, East Sikkim, at Gangtok.

(2.) The Prosecution narrative is that Exhibit 1, the First Information Report (for short, the 'FIR'), was lodged by P.W.1, Dr. N. Topden Bhutia posted at the Primary Health Centre (for short, the 'PHC'), Rangpo, before the Rangpo Police Station, on 14/11/2018, at 2220 hours. The victim was brought to him on the same night at around 09.40 p.m. with laceration on the left side of his face extending upto his ear, the neck region and over his scalp, allegedly inflicted by a sharp object. Investigation by P.W.16, the Investigating Officer (for short, the 'I.O.') of the case, revealed that the victim had performed local healing rituals on the wife of the Appellant but her condition deteriorated. Enraged, the Appellant held the victim responsible for her condition and assaulted him with a 'khukuri', M.O.I. Charge-sheet was accordingly submitted against the Appellant under Ss. 307/323/448 of the IPC. The Learned Trial Court framed charge against the Appellant under the above Ss. of law to which he entered a plea of 'not guilty' and claimed trial. The Prosecution examined sixteen witnesses, on closure thereof, the Appellant was examined under Sec. 313 of the Code of Criminal Procedure, 1973 (hereinafter, the 'Cr.P.C'), to enable him to explain the incriminating circumstances appearing against him in the evidence. Thereafter, the final arguments were heard and on consideration of all materials by the Learned Trial Court, the impugned Judgment and Order on Sentence were pronounced.

(3.) Learned Legal Aid Counsel for the Appellant put forth multipronged arguments viz; in the first instance the identification of the accused is not established, as neither the victim P.W.11 nor his wife P.W.12 saw him on the night of the assault. That, the cross-examination of the victim indicates that he was coerced by the Police to identify the Appellant as the assailant, in the teeth of his clear admission that he could not identify the person who had assaulted him. That, the victim's wife P.W.12 has also conceded in her evidence that the attack occurred during the night time and as she has a vision problem with her right eye she could not see properly. She has deposed that the attack was abrupt and she could not switch on the lights, therefore she did not see the assailant's face. That, although she claims to have identified the Appellant on recognising his voice, no forensic tests for voice recognition were performed during the investigation to verify this contention. It was also her unequivocal evidence that four to five persons had accompanied and attacked the victim on the relevant night but investigation failed to identify or arrest the said persons, rendering her evidence doubtful. P.W.5, 6 and 7 who helped evacuate the victim to the hospital did not witness the incident nor could they identify the Appellant as the assailant.