STATE OF SIKKIM Vs. SANGEETA SUBBA

JUDGEMENT

(1.) This government appeal is directed against the judgment dated 20/3/2004 passed by the Sessions Judge, South & West at Namchi, in Sessions Trial Case No. 2 of 2004, acquitting the respondent of the charge under section 302, IPC.

(2.) Counsel for the respondent raised two preliminary objections, (i) the appeal was filed beyond the period of limitation and (ii) that the Additional Public Prosecutor is not competent to file the appeal. Shri Pradhan, learned Public Prosecutor submitted that on the day (20/3/2004) the judgment was pronounced, the prosecution applied for certified copy of the judgment which was made ready on 1/4/2004. Since the appellant is entitled to the benefit of time requisite for obtaining certified copy, the period of limitation of 90 days ran from 1/4/2004 and expired on 28/6/2004 and the leave to appeal was presented on 7/7/2004 and thus there was a delay of only 8 days. The delay is unintentional and because of heavy work in the office the leave to appeal could not be filed within time. On considering the facts and circumstances, we are inclined to condone the delay. We order accordingly. Regarding the second objection, the learned Public Prosecutor stated that the state government in Law Department letter No. 274/LD/2004 dated 26.6.2004 instructed him to file leave to appeal against the impugned judgment of acquittal. Pursuant to the said instructions he who has been appointed as Public Prosecutor for the High Court has filed the leave to appeal. Sub-section (1) of Section 378 Cr.P.C. lays down that the state government may direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal passed by any court other than the High Court. Pursuant to the governments direction as indicated above, the appeal having been presented by the Public Prosecutor, we do not find any flaw in the matter. Accordingly the preliminary objections are overruled.

(3.) Respondent was placed on trial to face charge under section 302 IPC on the allegation that she committed murder of her husband in the early hours of 31/12/2001 at village Lungchuk. The case of the prosecution is that the respondent and her husband Phagu Singh Subba (hereinafter referred to as the deceased) were residing with their two minor children in village Lungchuk. The deceased was a habitual drunkard and under the influence of alcohol, he used to pick up quarrel with the residents of the locality without any justification. The appellant and the deceased were found often quarrelling with each other but no one in the locality intervened as it was their personal matter. In the previous night i.e. on 30/12/2001 at about 7.30 pm their two daughters came to the house of PW-20 Dhan Maya Subba (sister of the deceased) and reported that their parents were quarrelling. PW-20 accordingly made the two children sleep in her house. On 31/12/2001 around 4 am, PW-17 Nar Bahadur Subba (paternal uncle of the deceased) heard PW-2 Bal Bahadur Subba shouting that quarrel was going on in the house of the deceased. Hearing the shouting PW-17 Nar Bahadur went to the house of one C.D. Subba to report to the police at Sombaria over telephone about the quarrel. As he could not contact the police over telephone he requested his friend PW-1 P.K. Subba who resides near the police station to intimate about the incident to Sombaria Police Station. PW-17 after thus talking to PW-1 returned from the house of C.D. Subba. On the way he met PW-18 Jit Bahadur Subba and PW-19 Kamal Subba who had also heard about the quarrel that had taken place in the house of the deceased. Accordingly, all the three went to the house of the deceased and found the respondent sitting outside the house on the parapet. The door was found open and they saw a man lying prostrated on the floor of the house. Thereafter PW 17 again came to the house of C.D. Subba and contacted his friend PW-1 P.K. Subba over telephone and requested him to inform the police that they had found the deceased lying dead. On the basis of above information received from PW-17, PW-1 P.K. Subba lodged the FIR at Sombaria Police Station. On the strength of the FIR police took up investigation and after its completion, charge sheeted the respondent under section 302 IPC leading to her acquittal.