.-,- lF` THE HIGIll COURT OF SIKKIM = GANGTOK CRIMINAL APPEAL NO. 1 0F 2005 (Arising out of the judgment passed by Shri 8. C. Sharma, Sessions Judge, South & West, Namchi in Sessions Trial Case No.18 of 2004) Yogesh Karki (Chettri), S/o Late Tika Ram Karki, R/o Malbasay Busty, P.S. Soreng, West Sikkim. (at present Rongyek Jail) .... „ Appellant Versus State of Sikkim, Through the Chief Secretary, Government of Sikkim, Gangtok, East Sikkim ...... Respondent . Fortheappellant : Mr. N. Rai, Legal Aid Counsel assisted by Ms. Jyoti Kharka, Advocate. Fortherespondent: Mr. J. a. Pradhan, Public Prosecutor assisted by Mr, Karma Thinley, Additional Public Prosecutor. plRESENT: TI]E IIONrBLE MR. ]\esTTCE tt. a SIIIIGH, a± ]\k5mcE {ACTrmlG} Ti+E t]ONu3LE MFL ]usTlcE iL F.. SUBB. ]i]EreE last date Of t\earing : 2Znd Augustr 2005. DJITE OF ]uDGME\l.T -. Gl" SEEITEHBER; 2005. I ± E2 £ H I NI A. P. Subbar I- This appeal is directed against the judgment and order dated 30th September, 2004 passed by the leamed Sessions Judge, South & West at Namchi convicting the EEEEE accused-appellant under section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/-. 2. The facts of the case as set out in the prosecut:ion story brings to light a sad and shocking incident of a son (accused-appellant) killing his own father (deceased) jn a small village called. `Malbasay' jn West Sikkim. The backdrop against which the whole tragic episode took place is as follows:- The deceased Tika Ram Karki was a resident of a small village in West Sjkkim called `Malbasay'. He was born and brought up in the same village and was living there with his family. He had married three wives and at the relevant time he had twelve sons and three daughters. All the sons and daughters, except the accused-appellant Yogesh Karki, the youngest of the sons from Smt. Bal Kumari Karki, the second wife of the deceased, had been married. The deceased owned two plots of land - one dry field measuring 2.2180 hectares at Malbasay Busty and one paddy field measuring .5560 hectares at Sunta]ey Busty. While the dry field was partitioned amongst the twelve sons, the paddy field was retained by the deceased and his two surviving wives as "jiwani land" for their maintenance ir 1 a? .-.1.. during their life time. However, sometime jn the month of January, 2003 the deceased sold away the ``].iwani land" to one Saran Sjngh Chett:ri (P.W.7) of the same vjJJage for Rs.2,02,000/-. Out of this consideration money, the deceased had already received an advance payment of Rs.1,72,000/- from the purchaser and the sale deed executed between them was going to be registered on lst October, 2003 in the Office of the SDM, Soreng. Since the deceased had not given any share to his second wife Smt. Bal Kumari Karki, from the advance money so received by him she had filed an objection against the registration of the sale deed through the local Panchayat. The accused- appellant was bitterly disappointed at the exclusion of his mother Smt. Bal Kumari Karki from her share of the sale proceeds of the ``jiwanj land" and was contemplating ways and means to stop the registration of the sale deed. The only course of action he came to decide finally, to stop the impending registration of the sale deed was to eliminate his father before the date fixed for registration of the sale deed. The accused-appellant got such oppoil:unity when the deceased in I:he eariy momjng of 28th September, 2003 left for the house of the Blacksmith Kharga Bahadur at Mangsari Tarpu for the pLirpose of tempering and sharpening cutting weapons. Thus when his father left for wJ, 0© .--s 6 the place of the BIacksmith at Mangsari Tarpu, he followed him and kept waiting at a place called "Halley Khola" at Mangsari for his father to return. When the deceased reached that place at around 1440 hrs. on his way back from the Blacksmith's place the accused-appellant joined him and both of them headed for their house in Malbasay taking a short cut roilte. When they passed Bhu Khola one Ms. Rojeela Tamang (P.W.2) and Mani Kumar Rai (P.W, 11) who were washing their vehicle saw the deceased and the accused-appellant proceeding towards their residence along the short-cut route. According to them, the accused-appellant was carrying one naked khukuri in his hand. Some 15-20 minutes after they passed, the accused-appel]ant hurriedly rushed back along the same route, and on reaching the place where P.W. 2 and P.W. 11 were still busy washing their vehicle, he (accused- appellant) blurted out to them that he had finished off his father and since they were the only persons who had earlier seen him passing through that route with his father, they should not divulge the matter to anybody, and if they did so, they will face dire consequences. Thereafter, he headed for his house. On reaching home at around 1600 hrs., the accused-appellant told his mother that he had "brought peace to everybody" and saying so, ir •\+ he left for another village called "Tarethang Busty" in East Sikkim on the pretext of visiting his relatives and friends there. It is the case of the prosecution that, on reaching a secluded place some distance away from the place where P.Ws 2 and 11 saw them, the accused-appellant seized the opportunity and struck the deceased on the neck with the khukuri from behind nearly severing the head of the deceased from his trunk and thereby causing his death instantly on the spot. Thus it was after he perpetrated the crime that he rushed back to the P.Ws 2 and 11 and divulging to them as to what he had done threatened them not to divulge the same to anybody. 3. On 30th September, 2003 at around 1145 hrs., a written complaint (Ext.I) joint:Iy signed by Tek Bahadur Karki (P.W.5), Nar Bahadur Karki (P.W.12) and Hem Kumar Karki (P.W.13), all sons of the deceased, stating that their father Tika Ram Karki was found lying dead near Bhu Khola and they suspected that he had been slaughtered with a sharp cutting weapon, was received at the Soreng Police Station. Oh the basis of this written complaint, Soreng P.S. case no.03(9)03 dated 30th September, 2003 under section 302 IPC against unknown person was registered and investigation was taken lip. In ir .i es the course of the investigation, the I.0. visited the place of occurrence at Bhu Khola where the dead body of the deceased was found lying in a tilting position, resting on the right. The dead body had two deep injuries on the throat nearly severing the head from the trunk. A naked khukuri measuring approximately 21" with handle stained with dry blood was found lying near the dead body. One small bag and an umbrella were also found lying on the spot. Inquest of the dead body was conducted and the dead body was sent to the Namchi hospital for autopsy. The khukuri with dry blood stains on the handle, the umbrella and the small bag which were found at the place of occiirrence were seized in presence of two witnesses. It came to light during the investigation, that the deceased was a resident of Malbasay where he was living with his family since his birth. He had gone to the house of one Blacksmith at Tarpu for tempering/sharpening one khukuri and one Kunzo (a kind of hammer with a pointed end) in the early morning of 28th September, 2003 and had failed to return home. Therefore, the sons of the deceased had .been seiLching for him from 3oth September, 2003 and in course of such search they had come upon the dead body of the deceased at Bhu Khola. It also came to light that the accused-appellant, namely, L- ..i OS Yogesh Karki was found missing from home since 28th September, 2003 afternoon. On receipt of this information, the police deployed source to trace him out. Secret information was received to the effect that the said Yogesh Karki had visited his house at Malbasay in the evening of lst October, 2003. On receipt of the secret source information, a police team rushed to the house of the accused and nabbed him. On seeing the police, the accused-appellant voluntarily confessed that he had killed his father at a place called "Pairaney jungle" near Bhu Khola on 28th September, 2003 with a khukuri and leaving the d.ead body and the weapon of offence at the scene of crime he had proceeded to Tarethang Busty, East Sikkim. This disclosure was made by the accused-appellant in his house in the presence of his mother Smt. Bal Kumar Karki (P.W.3) and one Lal Bahadur Bhandari (P.W.14). After the confession was made, the accused-appellant was arrested on the spot and taken into custody. 4. Having found pr/.rna fac/-e case under section 302 IPC against the accused-appellant for causing the death of his father intentionally with a khukuri, the I.0. submitted charge sheet under section 302 IPC against him for his trial according to law. •`i` o© On the case being committed to the Court of learned Sessions Judge, South & West, Namchi, the learned Sessions Judge heard the parties on charge and having found sufficient material, framed charge against the accused-appellant under section 302 IPC and placed the accused-appellant on trial. 6. The plea of the accused-appellant at the trial was one of denial. 7. To bring home the charge against the accused- appellant, the prosecution examined as many as 18 witnesses. After hearing the prosecution and the defence, the learned Sessions Judge came to the conclusion that the circumstantial evidence produced by the prosecution was sufficient to prove the guilt of the accused-appellant for the commission of the alleged crime and accordingly convicted him under section 302 IPC and sentenced him to life imprisonment and to pay a fine of Rs.10,000/-, 8. Being aggrieved by the aforesaid order of conviction and sentence passed by the learned Sessions Judge, South & West, Namchi the accused-appellant has come up in the present appeal. 9. Mr. N. Rai, learned legal aid counsel assisted by Ms. Jyoti Kharka, learned counsel for the accused- appellant and Mr. J. 8. Pradhan, learned Public Prosecutor L, •.i 6 assisted by Mr. Karma Thinley, learned Additional Public Prosecutor for the State-respondent were heard. 10. Mr. N. Rai, learned legal aid counsel for the accused-appellant submitted that the prosecution case is based on circumst:antial evidence and the circumstances proved in the case are not such as to point only to the guilt of the accused-appellant. It is his specific submission t:hat the evidence of P.Ws 1, 2, 11 and 14 which have been relied on by the proseciition as proving the extra-].udicial confession made to them by the accused-appellant are inadmissible in evidence. According to him, the evidence of P.Ws 1 and 14 cannot be taken into account as the confession made to them by the accused-appellant was in presence of the police officer. As regards evidence of P.Ws 2 and 11, the submission of Mr. Rai is that, the evidence fails to pass the test of reproduction of exact words spoken to by the accused-appellant. The submission of the learned Public Prosecutor, on the other hand, is that, though the prosecution case was based on circumstantial evidence, each and every of the relevant circilmstances has been proved by the prosecution by cogent evidence thereby making a complete chain of circumstances which only point to the guilt of the accused-appellant. Even though objection with regard to admissibility of the evidence of •L •dy& e® 10 P.Ws 1 and 14 was not seriously contested, so far as the evidence of P.Ws 2 and 11 are concerned, the submission of the learned Public Prosecutor was that, they are reliable witnesses having no motive to implicate the accused- appellant and, as such, the statement given by them is reliable and can be acted upon even though they do not reproduce the exact words spoken to by the accused- appellant in his extra-judicial confession. 11. In order to appreciate the contentions raised by the parties, it is. necessary, in the first place, to notice the facts which have been found by the learned trial Court as having been proved by the materials on record and as forming a complete chain of circumstances so as to lead to the only conclusion that the accused-appellant alone would be responsible for the commission of the alleged crime. The following are the circumstances relied on by the learned trial Court - (i) the circumstance of last seen together; (ii) recovery and identification of the weapon of offence; (iii) medical report supporting the case of the prosecution; (iv) conduct of the accdsed after the incident; (v) extra-judicial confession made by the accused to several witnesses; and ±i=. 69 11 (vi) lastly, the motive of the crime. 12. A perusal of the materials on record would go to show that the evidence on the record is sufficient to establish all the above circumstances. The evidence of Ms. Rojeela Tamang (P.W.2) and Mani Kumar Rai (P.W.11) establish the circumstances of the accused-respondent and the deceased being last seen together. They have clearly stated that when they were washing their vehicle on 28th September, 2003 at around 2/3 p.in. in the afternoon, they saw the deceased and the accused-appellant passing through the place and proceeding towards Malbasay busty taking the short-cut roilte. The evidence of these witnesses in this regard, has not been controverted so as to make it unworthy of reliance. Therefore, the evidence of these two witnesses can be taken as sufficient to establish the circumstances of last seen together. 13. With regard to the recovery and the identification of the weapon of offence, Kharga Bahadur Gazmere (P.W.17) who is the Blacksmith who had tempered and sharpened the khukuri exhibit MO-1 identified the same from the handle which he had made from a special kind of wood called "kharkar wood". lie has clearly stated that after tampering and sharpening the weapon and fitting the new wooden handle to the khukuri L i:ts. 12 he had handed over the same to the deceased on the relevant day. The evidence of Tek Bahadur Karki (P.W.5) who is one of the sons of the deceased, Tej Bahadur Bhandari (P.W.15) a co-villager of the deceased, Kiran Chettri (P.W.16) another co-villager and that of the Investigating Officer (P.W.18) go to prove the recovery of the khukuri exhibit MO-1 from "Paireney near Bhu Khola" the place where the dead body of the deceased was found lying. The evidence of these witnesses are sufficient to prove the identification and f%covery of the weapon of offence. 14. As regards the medical report, the evidence of the medical officer, Dr. K. a. Gurung (P.W.9) goes to show that the nature of the injury found in the dead body of the deceased were of such nature as to show that they were caused by heavy sharp cutting weapon. The medical officer opined that the injuries found on the person of the deceased could be produced by weapon like the khukuri exhibit MO-1. The evidence of the medical officer, therefore, shows that the nature of injuries found on the dead body of the deceased could be produced by the weapon of offence recovered from the place of occurrence. The medical report, therefore, supports the theory put forward by the prosecution. uE= ©® 13 15. The next: circumstance relates to the conduct of the accused-appellant immediately fo]]owing the incident. Ms. Rojeela Tamang (P.W.2) and Mani Kumar Rai (P.W.11) saw the accused-appellant in a nervous and disturbed state of mind when he came rushing down and blurted out to them that he had killed his father and this should not be divulged to anyone and if they did so they will face dire consequences. The evidence on record clearly establishes that after committing the crime the accused-appellant left his home and became untraceable for sometime. It was only on the basis of a secret information that was received by the police that he could be arrested from his house. It was Lal Bahadur Bhandari (P.W.14) who passed on the secret information to the police about the arrival of the accused-appellant in his house on lst October, 2003. The evidence of Dhanpati Bhattarai (P.W.6) shows that he had met the accused-appellant at Mamring, Pakyong, East Sikkim where he had absconded after the incident. Thus, the evidence of these witnesses makes it amply clear that, immediately after the incident, the accused-appellant fled away from the place of occurrence and from the locality, making himself untraceable and unreachable for some days, until he was arrested by the police on the basis of ir j* c,€ 14 the secret information collected by the sources deployed by them. 16. The next piece of evidence relates to the extra- I.udicial confession made by the accused-appellant soon after committing the crime. As per the prosecution story, the accused-appellant made the confessional statement to four persons, namely, Rojeela Tamang (P.W.2), Mani Kumar Rai (P.W.11), Lal Bahadur Bhandari (P.W.14), Baldeep Tamang (P.W.1). All these P.Ws have stated t:hat the accused-appellant made his confessional statement to them and in their presence. While Rojeela Tamang (P.W.2) and Mani Kumar Rai (P.W.11) have stated that the accused-appe[[ant made his confessional statement to them soon after the commission of crime, the other P.Ws namely, Baldeep Tamang (P.W.1) and Lal Bahadur Bhandari (P.W.14) have stated that the accused-appellant made his confessional statement to them in presence of the police- 17. In view of the above objection raised regarding the admissibility of the evidence of P.Ws 1, 2, 11 and 14 a closer examination of the evidence of these witnesses is called for. Even though the question of non-admissibility of evidence of P.W.1 and P.W.14 raised by the defence has uE= '+.. S. 15 not been seriously contested by the learned Public Prosecutor on account of the same having been made in presence of the police, the contention of the learned Public Proseciitor with regard to the evidence of P.Ws 2 and 11 is that the same stands on a different footing and as such, it was admissible. We may, therefore, take up the evidence of the two witnesses, namely, P.Ws 1 and 14 for discussion at the first instance. Baldeep Tamang (P.W.1) is a co-villager. He was Called by the police to Soreng Police Station on 2nd October, 2003 at about 8 a.in. On reaching the police station, he was informed by the Prosecuting Inspector that the accused-appell.ant was arrested by the police for murdering his father, the deceased. Thereafter, when he asked the accused-appellant as to why he killed his own father in presence of the police, the accused-appellant confessed to him that he killed his father as because he had sold out "jiwani land" to one Poudyal without the consent of his mother and her children including him. Lal Bahadur Bhandari (P.W.14) is another witness who was present in the house of the deceased when the accused-appellant made his confessional statement. According to him, when he led the police to the house of the accused-appellant to arrest him, the accused-appellant illEI ul` .\, 16 told the police that he was about to come to the Police Station on his own. On being asked by the police as to why he wanted to come to the Police Station, he told the police that he had killed his father on the previous Sunday at a place called "Paireney near Bhu Khola". When the police again asked him as to why he had killed his father, he replied that the deceased who was his father had done some injustice to him. Thereafter, the accused-appellant himself brought out a rope and offered the same to police telling them that they may take him to the Police Station. Thereafter, he was taken to the Police Station. 18. It is clear from the statement of the above two witnesses that the police was admittedly present when the accused-appellant made the confessional statement. It is needless to say that it is settled law that a confession made by an accused-appellant to the police or to a private person in presence of Police personnel is inadmissible in evidence. Therefore, the learned Public Prosecutor was right in not seriously contesting the submission of Mr. N. Rai in this regard. Accordingly, the evidence of P.Ws 1 and 14 must be rejected as inadmissible in evidence. 19. We may now take up the evidence of the other two witnesses, namely, P.Ws 2 and 11. As contended by. the leamed Public Prosecutor, the evidence of these P.Ws N,L- a. 17 stands on a different footing. It will be clear from a perusal of the statements made by them that when the accused-appellant made the alleged confessional statement to them, no police personnel was present. Ms. Ro].eela Tamang (P.W.2) stated that on 28th September, 2003, she had accompanied his cousin Mani Kumar Rai (P.W.11) to the river for washing his vehicle. When they were washing the vehicle in the afternoon the accused-appellant and one old man happened to pass through the place. While so passing, ttiey came near them and the accused-appellant even had a talk with her. Besides, the accused-appellant also shook hands with Mani Kumar Rai (P.W.11) before they resumed their onward journey uphill. While the old man was walking ahead the accused-appellant who had a naked khukuri in his hand was following him. After about 20 minutes of their passing through the place, the accused-appellant reappeared at the same place looking disturbed and blurted out to them that he had killed his father. He also commanded that the incident was not to be disclosed to anybody and if they divulged they would face dire consequences. AI the relevant time, she noticed some blood stains on his clothings. After this the accused-appellant headed towards the road leading to Jorethang. RI= `-I-. a. 18 20. Mani Kumar Rai who is the cousin of Rojeela Tamang (P.W.2) was examined as P.W.11, He stated that he had gone to Bhu Khola one day to wash his vehicle at about 2/3 p,in. taking along with him Rojeela Tamang (P.W.2) to take her help for washing the vehicle. While washing the vehicle, the accused-appellant and one old man passed through the place from Mangsari side and proceeded uphill taking the route towards Malbasay. As they passed through, the accused-appellant spoke to him just enquiring whether they were washing the vehicle. At that time he noticed that: the accused-appellant was carrying a naked khukuri in his hand, besides the one he was carrying in the sheath tied around his waist. After about 15-20 minutes of their passing through the place the accused-appellant suddenly came rushing down to the same place in a nervous state and blurted out to them that fie had killed his father and. was thus rushing down. He also said that as they were the two persons who had seen him and his father proceeding uphill together he was warning them not to divulge the same to anybody. After saying so, he headed for the road leading to Jorethang. He then hurriedly finished washing his vehicle and returned home with P.W.2. dr 3L o. 19 21. Both these witnesses have been cross- examined at length by the defence. P.W.2 in her cross- examination has denied the suggestion made to her by the defence that her statement regarding what the accused- appellant had told them was not true. In the reply she sidled "it is nat tr\Ie that the accusedrdppellaat did nat tell ils abo.It tt\e Encidet\t of killing his father by I.im. It is also not tr.Ie tt\at the accused-appellatit did not threaten us that if we disclose the facts to others we would lnect dire consequences after comi-ng ovf from jaf/". The other relevant statement made by her in the cr:oss-examination is as follows:- "It Es