MINGMA LEPCHA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The learned Additional Sessions Judge has convicted the accused under Section 304, Indian Penal Code and has sentenced him to 4 years rigorous imprisonment. But having heard Mr. K. Bhutia, the learned counsel for the appellant and the learned Advocate-General appearing for the State, I am satisfied that on the evidence on the record, the case would not attract the provisions of Section 304 or even Section 325.

(2.) The prosecution case is that the accused-appellant, a Government Jeep Driver, having been annoyed with the deceased, an employee of a road-side tea-stall, on account of the latter making some delay in serving the tea and also spilling over some tea on the body of the accused while serving the same, gave him blows and also a kick as a result of which the deceased fell down on the ground and became restless. The accused then himself took the deceased to the hospital in his jeep for necessary medical treatment, but the latter ultimately died in the hospital.

(3.) As is not unusual, there are some discrepancies, though not vital, as to the number and nature of blows hurled by the accused, whether one or two slaps, whether a fist-blow in addition or at all; but it may be noted that the accused himself, in his statement under Section 342, far from denying the assaults, has, with unusual fairness, stated more than once that he gave the deceased one slap and one kick, but no other blow at all. The slap or slaps, according to P.Ws., were on the face, but as to the kick, the P.Ws. would put it as being hurled at the lower portion of the victim's body, while the accused in his statement has stated the same to have been hurled on the right calf of the deceased. The right calf being obviously a lower portionT of the body, there should be no difficulty in accepting the version of the accused as the kick having been hurled on the right calf. In fact, in view of the straightforward manner in which the accused has admitted the hurling of blows and the discrepancies, however slight, as to the number and nature thereof in the evidence of the P.Ws., it would be safer to accept the version of the accused that he gave one slap on the face and one kick on the right calf of the deceased.