SURJAY BDR DARJEE Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The present appeirises out of the judgment and order passed . by the learned Court of session judge : convicting the appellant herein and sentenceing him to imprisonment for life and to pay a fine of Rs 10,000/ in default to undergo further imprisonment for 6 (six) months under Ss. 302/34. I P.C. The facts of the case, briefly stated arc as follows ; The present appellant was working as canteen hoy In Namthang Branch of the State Dank of' India in South Sikkim in the year 2003, At the relevant time, only four persons including the appellant were working in the said Branch oJ the Bank. The other three persons manning the Branch were, the deceased-Shri Dhan Bahadur Diyali, who was the Branch Manager, one Sanjay Kumar Singh who was the Assistant, CAT (Cash Accounts and Typist) and one Shri Prasant Sarkar. the main accused who was Sweeper cum-General Attendant. It was usual for all the staff members to continue their work till 7.00 p.m. i.e. even alter normal working hours of the Bank. On the fateful day i.e. on 10 2 2003 also all of them worked over time after the dosing of the Bank at 2 O clock. On that day. Sanjay Kumar Singh, assistant (C. A, ) left the Bank at around 18.00 hrs. after completing his work. After he left Prasant Sarkar the main accused sent away the appellant to the nearby shop to buy 1 Kg. of flour for him by giving him Rs, 10/- so as to ensure that he and the deceased were left alone in the Bank premises. Thus when the appellant left, the said Prasant Sarkar quietly closed Ihe door from inside and seizing the opportunity picked up the iron rod which was already cut to size and kept concealed underneath the Almira and struck the deceased on the head at a time when he was deeply engrossed in his work. The repeated blows knocked down the deceased flat on his back and he lay there unconsciousness. However, before the deceased succumbed to the injuries the appellant returned back from the shop. On his return ihe said Prasant Sarkar allowed him to enter and as he bolted the door from inside he asked the appellant to help him to finish off the deceased lying unconscious and half dead on the floor then, offering him a share of two lakhs with simultaneous threat that he will meet the same fate as the Bank Manager if he did not oblige The appellant then joined hands with the main accused under such inducement and threat. Then both of then suargulated the deceased to death by tying split bamboo strings (choya) around his neck and Lightening if. When the deceased was dead they dragged the deadbody In another adjoining roon: and teft the same there. After accomplishing tlie Job the said Prasant Sarkar took out keys of the main vault from the pocket of the deceased and opening the strong vault room with the said keys removed all the cash amounting to Rs, 7.00 lakh approximately and concealed in different places.

(2.) On completion of the investigation a common charge-sheet was filed against both the accused and both of them were put on trial for charges under Section -'302/392/34. IPC. Both accused pleaded not guilty to thc charges. The matter was thcn posted for recording prosecution evidence. However before prosecution evidence commenced the present appellant expressed a desire to become an approver and on the application made by the prosecution the Ld. Sessions Judge tendered him pardon on condition that he will make full and true disclosure of all that he knew about (he crime in question. The lender oi pardon was accepted by the appellant and his statement was recorded. However after his statement was recorded the Ld. Public Prosecutor applied in withdrawal ol Ihc pardon granted to the appellant on the ground that he failed to disclose any material facts and circumstances implicating the other accused person involved in Ihc cast1. The Ld. Court vide Order dated 30-9-2003 withdrew me pardon granted to the appellant and directed a separate trial to be held in respect of him by splitting up the S. T. Case No, 6 of 2003. The separate trial so split up and registered against the appellant was numbered as S. T. Case No. 12 of 2004 and trial was commenced. Vide order dated 22-12-2003 passed In the said case after the commencement of the separate trial the Ld, Court observed that charges had already been framed against the accused before the case was split up and accordingly directed the prosecution to adduce its evidence and accordingly evidence was produced and recorded On completion of the trial the Ld. Court found the appellant guilty of the original offence and accordingly convicted and sentenced him to life imprisonment and to pay a sum of Rs, 10,000/- as already narrated above.

(3.) At the hearing Shri B. Sharma the Ld. Legal Aid Counsel belore addressing his arguments on merits of the case, raised a pre liminary objection that the trial was vitiated on account of non-compliance of the provisions of Section 308. Cr P. C. on the part of the Court below and as such the matter was liable to be remanded back for fresh trial, Since the- point raised was pertinent both sides were heard on the preliminary point.