SHAKTIMAN RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The victim, a man aged about forty-six years, a Government employee, was found lying on a cornfield, in Zeel, West Sikkim, at around 08.00 a.m., on 12/4/2021, in a critical condition with signs of brutal assault on his person. He held the Appellant responsible for the assault, which allegedly occurred on the night of 11/4/2021. On the morning of 13/4/2021, he succumbed to his injuries in the hospital. The First Information Report (FIR) Exhibit 2 was lodged on 12/4/2021, by PW-2 before the Kaluk PS, informing that his brother was assaulted near the Church, at Zeel, West Sikkim, at around 06.30 p.m. on 11-042021 by the Appellant. FIR No.05 of 2021, dtd. 12/4/2021 was registered against the Appellant, under Sec. 307 of the Indian Penal Code, 1860 (hereinafter, the 'IPC'), which was converted to Sec. 302 IPC, on the death of the victim. The Court of the Learned Sessions Judge, West Sikkim, at Gyalshing, on examining the Prosecution witnesses and relying largely on the alleged dying declaration of the deceased, by the impugned Judgment, dtd. 29/6/2022, convicted the Appellant of the offence under Sec. 302 of the IPC and sentenced him to undergo imprisonment for life, with fine of ? 20,000/-(Rupees twenty thousand) only, and a default clause of imprisonment, in Sessions Trial Case No.05 of 2021 (State of Sikkim vs. Shaktiman Rai), on 29/6/2022.

(2.) On investigation, it transpired that PW-6 the landlord of the house where the deceased was residing, informed his neighbor PW-5 Sumitra Rai, on the morning of 12/4/2021, that the victim had not returned home the previous night, therefore he intended to search for him. He requested her to tend to his cattle in the meanwhile. For that purpose, when PW-5 came walking towards the house of PW-6, she saw the deceased lying naked on the cornfield of PW-6. She called out to PW-6, who reached the place and saw the deceased. PW-6 carried the deceased who was smelling of alcohol, to his room and on his enquiry from the deceased about his absence from home the night before and the reason for his condition, the deceased told him that he had been physically assaulted by the Appellant. PW-6 then informed PW-7 Chandra Lall Limboo, the cousin of the deceased about the incident, who in turn informed his sons PW-3 Suresh Limboo and PW-4 Rikesh Limboo. PWs 3 and 6 also informed PW-2, the Complainant, the younger brother of the deceased. The deceased as per PW-2 was taken to the District Hospital, Namchi, South District, the same morning by him, accompanied by his sisters, PW-3 and one Indra Bahadur Subba, where, on the morning of 1304-2021, he succumbed to his injuries. The deceased told PW-4 that the Appellant with whom he used to drink, had assaulted him.

(3.) Before this Court, the arguments put forth by Learned Counsel for the Appellant was that the Prosecution was relying on the evidence of PWs 2, 3, 4 and 7 who are the family members of the deceased as well of PW-6 his landlord but the evidence of the Prosecution witnesses do not corroborate each other. As per PW-2, the deceased told him at the hospital that, he was assaulted by the Appellant, near the Church, when he was returning home and that PWs 3, 4, 6 and another villager were present when such statement was made to PW-2. But as per PW-3 he spoke telephonically with the deceased on the morning of 12/4/2021 who merely told him that there was a fight. PW-3 requested PW-4 his brother to look up the deceased but PW-3 nowhere stated that PWs 2, 4, 6 and a villager were present when PW-3 was at the hospital. PW-4 also did not support the evidence of PW-2. As per PW-4, he met the injured deceased in his house, where the deceased told him that the Appellant had assaulted him. PW-4 did not mention his presence at the hospital. Contrary to the evidence of PW-2, PW-6 also made no mention of being present at the hospital with PWs 2, 3 and 4. PW-3 in fact in his Sec. 161 Cr.P.C. statement appears to be unaware of the Appellant being the assailant, and such statement was made by him for the first time in the Court. As per PW-4 the deceased pointed towards the direction of the house of the Appellant but no investigation regarding such direction was made, neither did the Investigating Officer (IO), PW-10 investigate the statement of PW-6 that the Appellant lived forty minutes away from his house. PW-5 was the first person to have seen the deceased on the cornfield but her deposition nowhere reveals that the deceased named the Appellant as the assailant. That, had the Appellant been the assailant there would undoubtedly have been injuries on his person, but the medical examination reveals no injuries on him neither has the Prosecution established the motive of the Appellant to commit the crime. That, the Learned Trial Court concluded that the statement of the deceased made to the PWs 2, 3, 4 and 6 was a dying declaration and convicted the Appellant without any evidence to link the offence to the Appellant, who thereby deserves an acquittal. Hence, the impugned Judgment and Order on Sentence be set aside.