SONAM SHERPA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) this appeal is directed against the judgment and order dated 24-8-2001 by the learned sessions judge, south and west sikkim at namchi, whereby, the appellant was convicted under section 302 of the indian penal code for having caused the death of khichung bhutia on 9-4-2000 at about 9 p.m. and sentencing him to imprisonment for life and also to pay a sum of rs. 5,000/- and in default of payment of fine to undergo further imprisonment for three months.

(2.) during trial, evidence of ten prosecution witnesses including the investigating officer was recorded by the learned sessions judge. Thereafter, statement of the appellant was recorded under section 313 of the code of criminal procedure. In appeal, it was found on 24-6-2002 that some of the incriminating circumstances appearing in the evidence had not been put to the appellant by the learned sessions judge. Therefore, an opportunity was granted to him to explain those circumstances. Accordingly, a further statement under section 313 of the code of criminal procedure was recorded by this court on 25-6-2002.

(3.) the deceased khichung bhutia was the elder brother of pern tshering bhutia pw-1. Pern tshering bhutia had two houses. 'The new house was used for the purpose of residence and the old house for the purpose of keeping cattle. As per the evidence of pem tshering bhutia (p.w. 1) he had been known to the appellant since childhood. But, subsequently, it appears, they lost contact. In the year 1998 the appellant was involved in a ginger theft case and had no place to stay. He was roaming in the jungle. Pem tshering bhutia p.w. 1, took pity on him and kept him in the old house to look after the cattle. On 10-4-2000, nimkit bhutia p.w. 2 the wife of p.w.1, went as usual to her old house in the morning for milching cows. Dil kumar subba p.w. 4 who had earlier been a tenant under p.w. 1 and p.w. 2 accompanied her to the old house. On reaching the old house, nimkit bhutia, p.w. 2 found the door of the house open and that the cattle feed had not been prepared. The room was dark and so she slightly opened the window and in the light through the window, she found the deceased lying in a pool of blood. She also saw the accused sleeping nearby. Thereupon, she sent dil kumar subba p.w. 4 to call her husband. Accordingly, subba informed pern tshering bhutia, p.w. 1 that his elder brother khichung bhutia was lying in a pool of blood in the old house. Thereupon, pem tshering bhutia informed the namchi police station over telephone. He also asked dit kumar subba p.w. 4 to call head constable dazom bhutia p.w. 5 who was related to p.w. 1. After sometime, h/c dazom bhutia p.w. 5 came to the new house of pem tshering bhutia and then both went to the spot. P.w. 1 peeped through the window and saw the deceased lying in a pool of blood and not moving at all. He suspected that since the deceased was a heavy drunkard he could have sustained injuries by falling on the ground and, therefore, he went around the area so as to find out whether the deceased had fallen anywhere, but he could not find any blood stain anywhere around the area. Thereupon, he asked the appellant as to whether he and the deceased had quarrelled in the night, whereupon the appellant told him that he had not quarrelled but the deceased himself had come groaning in the middle of the night. Then p.w. 1 suspected that it was the appellant who had committed the murder of his deceased brother. Thereafter, he came down to his new house and again rang up the police requesting the police to come to the spot at the earliest. The police came and started investigation. Fir ext. P-6 was recorded under section 302 of indian penal code at the namchi police station on 10-4-2000 at 0720 hrs. On the basis of the telephonic information stating, inter alia, that a telephone call had been received from pem tshering bhutia p.w. 1 on 10-4-2000 at 6.30 a.m. to the effect that some unknown person had laid his brother at his old house in a pool of blood. Investigation was conducted by p.i., t.d. kazi p.w. 10 who was incharge of the namchi police station. On receipt of the information he proceeded to the place of occurrence and drew up a rough sketch of the place of occurrence. Exhibit p-7 is the rough sketch map of the site. He also conducted inquest on the body of the deceased and then sent the body of the deceased for postmortem examination. Post-mortem was conducted by dr. K. B. Gurung p.w. 9 who was the medico legal specialist at the stnm hospital, gangtok. Autopsy report prepared by him is exhibit p-5. He started conducting the autopsy on 11-4-2000 at 10.00 a.m. and concluded it at 11.45 a.m. he found the following injuries on the body of the deceased :