DAWA TSHERING TAMANG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal filed on behalf of Dawa Tshering Tamang and Arun Kumar Subba is directed against the judgment and order dated 24-8-2001 passed by the learned Sessions Judge (South & West) Sikkim at Namchi in Criminal Case No. 2 of 2000 convicting them under Section 302/ 34, IPC and sentencing each to undergo RI. for life and to pay a fine of Rs. 5000/- with a defaulting clause of imprisonment. It may be noted that the appellants and Prem Kumar Rai (hereinafter referred to as the accused No. 3) were tried together in the aforesaid trail and each of them was convicted under Section 302/34 IPC by the impugned judgment dated 24-8-2001. The said accused No. 3 filed Criminal Appeal No. 17 of 2000 in this Court challenging his conviction and sentence passed in the case. This Court by judgment dated 4-6-2002 set aside his conviction and sentence under Section 302/34, IPC and acquitted him of the charges.

(2.) The case of the prosecution is that, appellant No. 1 is a resident of 11th mile Tokal Bermiok in South Sikkim. Appellant No. 2 who hails from Nepal had come to Sikkim 5 to 6 years ago of the year of occurrence and he had been going around sawing timber. In the year of occurrence, the appellant No.2 brought accused No. 3 from Nepal to assist him in sawing timber. On 15-11-1999, at about 7.30 p.m., the appellants and accused No. 3 came to the house of Dhan Bahadur Tamang (PW 1) in village Bermiok 11th Mile and took tea. After some time, Bhim Mangar (hereinafter referred to as the deceased) came and had heated discussion with the appellants and accused No.3 over payment of lease amount to the landlord for cultivation of ginger. Thereafter, the appellants as well as accused No. 3. left PW1's house. After about 10 to 15 minutes, they all came again and had discussions with the deceased. After some time they all left the place leaving the deceased in the house of PW 1 . The deceased also left PW 1's house later after they departed. In the same evening at 11.00 p.m. Lallmaya Tamang (PW2) (sister of PW 1) and Kalpana (PW 8) (daughter of the deceased) came and informed PW 1 that the deceased had been assaulted by someone and he had been lying in the ginger field of PW 2. They requested PW 1 to go the spot and see the injured, but he declined to go on health ground.The police however arrived at the spot and took the deceased to Singtam hospital in the same night. He was later referred to STNM hospital, Gangtok where He succumbed to injuries on 17-11-1999.

(3.) The prosecution examined as many as 29 witnesses to bring home the charge against the appellants under Section 302/ 34, IPC.