DHAN BAHADUR TAMANG Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal is directed against the judgment dated 14th September, 1984 of the learned Sessions Judge, Sikkim convicting the appellant Dhan Bahadur Tamang alias Laurey alias Ghoptey under Section 302 I.P.C. for causing the murder of Rinzing Sherpa on 3rd November, 1982 at about 7.30 p.m. near the cowshed of the deceased at Selape tanke and sentencing him to rigorous imprisonment for life and also to pay a fine of Rs. 500/- and in default to pay fine, to suffer rigorous imprisonment for two years with the direction that if the fine was not paid, the sentence imprisonment in default of payment of fine would run concurrently with the sentence of imprisonment for life.

(2.) Accused and the deceased Rinzing Sherpa used to reside at Selape Tanke. Both had cows and used to sell milk Prosecution case, as disclosed at the trial, is that on 3rd November, 1982 in the morning the old cowherd of the deceased left his services and he brought a new one in that evening. The new cowherd was asked to sleep in the cowshed. His younger brother Phurba Sherpa, P.W. 1, went at about 7.30 p.m. towards the cowshed to give a blanket to the new cowherd and while going, be found the accused near the cow-shed. Seeing him, Phurba Sherpa called his younger brother shouting Kazi Kazi. Hearing his shouts, the elder brother Rinzing Sherpa, the deceased came. Then the accused pushed a spear on to the chest of Rinzing Sherpa. Phurba Sherpa pulled out the spear on being asked by Rinzing Sherpa to do so and threw the spear on the spot and shouted Manchi Mareyo, Manchi Mareyo. Then the accused fled away from the place of occurrence downwards the Press. Hearing the shouts, several persons came up on the scene. The first one to arrive was his aunt Pemba Sharpani, P.W. 2. Other persons, who came to the place of occurrence are his sister Lakpa Dema. P.W. 4, and mother, Yangshe Sberpaiji, P.W. 5. Thereafter Phurba Sherpa went to the India Press to ring up the police and informed the police about the incident. Than, the injured was taken to the S.T.N.M. hospital. There, Dr. C.K. Subba, P.W. 12, examined the injured and found the injured under shock. The injured was found to have blood stains all over his body and be was taken to the Operation Theatre. There, his treatment started immediately. Since the doctor found the wounds to be serious, blood transfusion was given. The doctor asked the victim in the presence of the Superintendent of the Hospital, Dr. H. Leacha, P.W. 13 as to how he had got the injuries. The injured told him at about 9.45 p.m. that he had been stabbed by one Ghoptey Tamag at about 7 p.m. on that very date. That statement, Ext. P-3, was recorded by Dr. C.K. Subba in his own handwriting and was also signed by him. According to the evidence of the Doctor, the injured was in a fit state to make the statement. The next morning at about 2.45 a.m. the injured died. Post Mortem examination was conducted by Dr. C.K. Subba at about 10.15 a.m. vide Ext. P-S. According to the evidence of the doctor, following injuries were found on the body of the deceased: 1 Penetrating incised wound on left fourth intercostal space slightly outside midclavicular line 21/2 inch X 1/2 inch lung deep. 2. Similar wound on the back at the level of T-7 slightly on the left of midline.

(3.) The left third and fourth ribs along midclavicular line had been completely sliced up. Incised wound over the corresponding part of the pleura. There was a lacerated wound along the lower border of upper and adjoining upper border of the lower lobe. Heart was intact, empty. The left pleural space contained huge amount of fluid blood and partly clotted blood. The doctor opined that the death was caused due to shock caused by profused intra thoracic haemorrhage and the injuries could be caused by a weapon like the spear, Ext. P. 1. 3. While the injured was being taken to the hospital, Sub-Inspector of Police, K.B. Gurung P.W. 1, who was attached to the Sadar Police Station, Gangtok and who had received the telephonic message from Phurba Sherpa from Government of India Press, met him on the way. He gave evidence to the effect that he bad entered this information in the G.D. and had informed the O.C./S.I., R.B. Pradnan about it before rushing to the spot. He stated that on enquiry, the victim told him that he had been assaulted by one Laurey Tamang, accused. He further stated that he sent the injured to the hospital and went in search of Laurey Tamang whom he did not find at his residence and so he posted some constables there. Head constable Deo Kumar Pradhan, P.W. 9, and constable Loden Tshering, P.W. 10, have given evidence that they had gone to effect the arrest of the accused on 4th November but in the day he could not be found and so they kept a watch on the house of the accused and waited for him in ambush and then the same night when the accused came, the latter tried to run away seeing them, but they overpowered him and effected his arrest.