STATE OF SIKKIM Vs. KAMAL SUBBA

JUDGEMENT

(1.) Dissatisfied with the Judgment of acquittal, the State/Appellant (hereinafter the "Appellant") is before this Court praying that the impugned Judgment dated 30.06.2017 of the learned Sessions Judge, East at Gangtok in Sessions Trial Case No. 28 of 2015 (State vs. Kamal Subba), be set aside. The learned trial Court had acquitted the Respondent/Accused (hereinafter the "accused") of the charge under Section 304 of the Indian Penal Code, 1860 (hereinafter the "IPC").

(2.) Forwarding his arguments for the State, Learned Additional Public Prosecutor would submit that the evidence of P.W.1 Dhan Kumari Rai, wife of the deceased Bhakta Bahadur Rai, reveals that the accused had in fact two days prior to the date of the incident gone to the house of the deceased and threatened to kill him. It was also in her evidence that the accused used to quarrel and fight with her husband often. That, the investigation of P.W.14, S.I. Tshering D. Bhutia, the Investigating Officer (for short "I.O.") clearly indicates that a scuffle had ensued between the accused and the deceased en route to their house on which the accused had pushed the deceased off the road into the culvert below resulting in his death. That, the evidence of P.W.9, Police Inspector, Sonam Wangdi Bhutia, was duly supported by the evidence of P.W.8, Assistant Sub Inspector, C.D. Subba and P.W.14, I.O. concluding that the accused was responsible for the death of the deceased. That, the evidence of P.W.12, Raj Bahadur Subba and P.W.13, Dhan Maya Subba, who are husband and wife, reveals that the accused had helped them plough their field for paddy cultivation on the relevant day. That, in the evening the deceased and accused came to the residence of P.W.12 where they shared food and some alcohol. Thereafter both the deceased and the accused left his residence together on the relevant night. P.W.13 has supported the evidence of P.W.12. The next morning the body of the deceased was discovered at the "kholcha" (culvert). That, the "last seen theory" comes into play here as P.W.12 and P.W.13 have both deposed that the accused and the deceased left their house together. That, the Statement of the accused under Section 164 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") reveals that he was responsible for the death of the deceased. Relying on the provisions of Section 106 of the Indian Evidence Act, 1872 (for short "Evidence Act") it was contended that the burden of proving his whereabouts at the relevant time as per this provision lies on the accused which he has failed to discharge, hence the matter ought not to have ended in an acquittal. That, in view of the arguments put forth, the Judgment of acquittal be set aside.

(3.) Learned Counsel for the accused would submit that the Appellant in the first instance has failed to prove its case beyond a reasonable doubt. No proof whatsoever emanates from the evidence of the Prosecution Witnesses that the accused was responsible for the death of the deceased. That, reliance on the evidence of P.W.8 serves no purpose as it is his conclusion based on investigation done by him after the U.D. Case was endorsed to him but the conclusion has been arrived at without any proof whatsoever.