URGEN SHERPA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) This appeal is directed against the judgment dated 6th April, 1985 of the learned Additional Sessions Judge, Sikkim convicting the appellant Urgen Sherpa under section 304 IPC, and sentencing him to undergo rigorous imprisonment for seven years for having caused the death of his wife, Shrimati Pema Sherpani.

(2.) The prosecution case, in brief, as disclosed at the trial, is that on 17th December, 1982 the victim Shrimati Perna Sherpani, wife of the appellant, who had gone to attend the death ceremony of a neighbour, came back home at Rongli Bazaar late in the evening when her mother-in-law Shrimati Chokey Lhamu accused her that she had gone in search of another husband, since she did not like the appellant and then both the mother-in-law and the appellant made up their mind to kill her. At that time Pema Sherpani was breast-feeding her infant child. The appellant snatched the child from her and hurled on her a burning lamp to set her terylene saree ablaze. Unable to bear the pain due to burn injuries, the victim Pema Sherpani started screaming, which attracted a number of persons to the house. She was then removed to Rongli Primary Health Centre. B. B. Sherpa (P.W. 9) Assistant Sub-Inspector who was attached to Rhenock P.S., was at that time staying at his own house at Rongli and came to know from the people that the appellant had set fire to his wife, as a result of which she had sustained burn injuries and that she was being taken to the hospital. On hearing about this incident, he went to the Police out-post where he was told that the Incharge out-post and other officers had already gone to the house of the accused. Then, he went to the house of the appellant but did not find any person there. Then he came back to the Police O.P., and contacted S. I. Dakal, (P.W. 12) then Officer-in-charge of Rhenock Police Station through R. T. set and informed him about the incident. The Officer-in-charge asked him to stay at the police O.P., and to wait for him. After some time, S.I. Dakal came to Rongli Police O.P., and both of them proceeded to Rongli P.H.C., to find the victim lying on the bed with burn injuries all over her body and that she could speak in a low voice. Then, S.I. Dakal asked the victim as to how she came to sustain the burn injuries on her body, whereupon the latter answered that her husband, the appellant had set her on fire by hurling a kerosene lamp on her. Her dying declaration was recorded in the hand of B. B. Sherpa, (P.W. 9) at the dictation of the 0. C. Dakal. Doctor in-charge of the P.H.C. was on leave and, therefore, the compounder Dhan Bahadur Khaling gave the victim first aid. Thereafter, on the advice of the compounder, Dhan Bahadur Khaling, the victim was taken to Pakyong Hospital for treatment the same night, where she expired the next day, that is, on 18th December, 1982. O.C. Dakal conducted the inquest on the body of the victim vide Ext. P-S. Post mortem was conducted by Dr. T. K. Das, (P.W. 10) who was the Medical Officer in Singtam Government Hospital. According to his report (Ext. P. 2) and evidence, death was caused by severe fluid and electrolyte imbalance causing Cardio-respiratory failure due to severe burn (90%). S.I. Dakal registered a case under section 302 I.P.C. against the accused suo motu, vide F.I.R. (Ext. P. 6) wherein, the date and time of occurrence was given as 17.12.82 at 19.10 hrs., and the date and time of the report as 17.12.82 at 22.10 hrs. S.I. Dakal himself investigated into the case and submitted a charge sheet against the appellant under section 302 I.P.C.

(3.) The appellant faced the charge under section 302 I.P.C. before the learned trial court. Prosecution relied mainly on the dying declaration of the victim, in order to prove its case. The learned trial Court held that the dying declaration recorded by B. B. Sherpa at the dictation of S. I. Dakal was true and voluntary and was sufficient for convicting the appellant; but at the same time, observed that the offence had been committed by the appellant without pre-meditation on a sudden caustic comment passed by his mother on his wife and, therefore, the case was not covered within the ambit of any of the four clauses of Section 300 I.P.C., even though the appellant knew it very well that by causing such bodily injury on his wife he was likely to cause her death. He further observed that from the facts and circumstances of the case, it could be safely said that the accused had done the act with the knowledge that it was likely to cause death. With these observations, the learned Additional Sessions Judge recorded his opinion that the case safely fell under the second clause of Section 304 Indian Penal Code.