::Tl - E1 i.`l-`J _.__i_ _ __ _ THE HIGH COURT 0F SIKKIM : GANGTOK C Crl. A. No.2 of 2006 2. For Appellants : For Respondent •Raju Chettri, •S/o Late Dil Bahadur Chettri, R/o Dull Kaman, Dar].eeling, West Bengal Puran Rai, S/o Narshing Rai, R/o Bermiok Kaman, Darjeeling, West Bengal (Both at present kongyek Jail) versus St:ate of Sikkim Through the Chief Secretary, Government of Sikkim, Gangtok, East Sikkim. •.... Appellants ..... Respondent Mr. N. Rai, Legal Aid Counsel with Ms. Jyoti Kharka, Advocate. Mr. J. 8. Pradhan, Public Prosecutor, Mr. Karma Thinlay, Additional .Public Prosecutor and Mr. Santosh Kumar Chettri, Assistant Public Prosecutor. PRESENT : HON'BLE MR. JUSTICE A. H. SA.IKIA, CHIEF JUSTICE. HON'BLE MR. JuSTICE S. P. WANGDI, JUDGE. Last date of hearing : 26-08-2009 DATE OF JUDGMENT = 16-09-2009 I I E2 £ M E E! I Wanadi, J. This appeal is directed against the judgment of the Learned Sessions Judge, Special Division-I dated 30.03.2004, .y.- _-±t=± r¥_ a passed in Sessions Trial Case No.4 of 2004, by which the appellants were convict:ed under Sections 302/348,380/341 IPC and sentenced to undergo R.I. for life and to pay fine of Rs.2000/- u/S 302/134 IPC and R.I. for seven years and to a fine of Rs.1000/-u/S 380 IPC against the appellants, directing that sentences shall run concurrently. 2. Substance of the prosecut:ion case is that, in the wee hours of 11.11.2003, at about 4.00 A.M., a patrol party consisting of C/1180 Man Bahadur Chettri and Home Guard Indra Kumar Chettri, saw the appellants near Krishi Bhawan at Tadong, proceeding downhill on foot with bags. Finding their movement to be suspicious, they accost:ed them and when questioned, the appellants were unable to give reasonable answers. Upon their search at the Tadong O.P. where they were taken by the patrol part:y, the appellants were found Carrying gold ornaments and cash, thereby strengthening their suspicion of the appellants having committed some offence. On being informed telephonically by the I/C Tadong O.P., the Duty Officer from Gangtok Sadar Police Station, proceeded to the O.P. and brought the appellants to the Gangtok Sadar P.S. for necessary inquiries. At the Police Station, on being questioned, they revealed that they were the employees of Sikkim Hotel situated near S.N.T. Bus Terminus, Gangtok and that they had committed murder of the owner of the hotel and her daughter. On such informat:ion, t:he police led by P.M. Rai, Officer- in-Charge, Sadar Police Station went to the hotel to conduct preliminary inquiries accompanied by the appellants. Finding the hotel locked from outside they called for the local residents and the building caretaker. On their arrival, the police entered the room of the lady owner of t:he hotel, after breaking the lock open in their presence, and found the floor and the door of the toilet which was found bolted from outside covered with blood stains. On opening t:he toilet door, they found a lady above 40 years of age lying dead in a pool of blood with multiple cut in].uries on her throat, head, hands and face. Another room which was found locked was opened with a key in a bunch found ].ust outside that room and upon entering it which was found to be the 11/ room, an old lady aged about 70 years was also found dead in a pool of blood with similar injuries. The rooms were found ransacked and in a disarray. The police thereafter suo-moto registered Sadar P.S. Case No.138(11)03 dated 11.11.2003 u/Ss. 302/380/341 IPC against the appellants and endorsed it to the I.0. for investigation. 3. As a part of the investigation, the Investigating Officer visited the place of occurrence where necessary photographs were taken, rough sket:ch map of the place of occurrence was drawn and the available witnesses acquainted with the fact:s and circumstances of t:he case examined and their statements recorded u/S 161 Cr.P.C. Statements u/S 27 Evidence Act, 1872 of both the accused persons were recorded on the basis of which weapons of offence consisting of two `chedos' (sharp edged heavy cutting knives used in kitchens for cutting meat) and wearing apparels of both t:he accused persons seized from t:he scene of crime. Inquest of the dead bodies u/S 174 Cr.P.C. of both the victims was conducted in •q\_ presence of witnesses after its necessary identification whereafter the bodies were forwarded to the S.T.N.M. Hospital for post- mortem examination where the wearing apparels, hair and blood samples of the victims were seized in presence of witnesses and sent to CFSL, Kolkata, for its analysis and opinion. 4. Investigation carried out in the case revealed that on 11.11.2003 at about 3.30 a.in. the appellants were intercepted at Tadong, below Krishi Bhavan by a patrol party when they were found walking in a suspicious manner carrying bags and going downhill towards Tadong. On being questioned, the appellants were unable to give satisfactory explanation of their movement in such odd hours of the morning. When they were searched at the Tadong O.P., some gold ornaments and a large amount of cash were found in their possession prompting t:he I/C Tadong O.P. to inform the Gangtok Sadar P.S. where they were later taken for interrogation. Investigation further revealed that in the evening of 10.11.2003, approximately between 4.30 p.in. and 5.00 p.in. the appellants hatched a plan to commit murder of the two ladies, namely, Shoukyi, the mother, and Tsetenkyi, the daughter, under whom they were working as servants, after dinner that night and loot them of their gold ornaments and cash. At about 9.00 p.in. after having dinner, when the two ladies retired in their TV room to watch programmes on the TV, the appellants also went to their beds in the room ad].acent and ].ust outside the room of the two 'e \...,, ladies. At about 9.15 p.in. when the daughter, Tsetenkyi, came out of the 11/ room t:o go to the toilet, t:he appellant No.1, namely, Ra].u K.C. Chettri, hit her on her head, throat and hands with a heavy `chedo' repeatedly, and slit her throat with a small sized `chedo'. On hearing her daughter's scream, the mother Shoukyi, came out of the room when she also was hit with t:he heavy `chedo' repeatedly on her hands and feet. When the accused persons found t:he daughter still alive, they caught hold of her by her hair and slit her throat also. The unconscious mother also faced the same fat:e of her throat being slit by the appellants. After having murdered the daughter, the appellants pushed the daughter back in the toilet and bolted its door from outside. The appellants, knowing that the victim ladies had in their possession gold ornaments and cash, ransacked all the rooms in its search and committed theft of cash amounting to Rs.30,000/-and gold ornaments weighing about 20 `tolas' and left the place from the main door and proceeded towards Siliguri via Tadong, when they were intercepted by the patrol party and brought to t:he police st:ation. 6, In the aforesaid premises, t:he Investigating Officer found that a prima facie case u/Ss. 302/380/34 IPC was made out against the appellants. The medical report received from the STNM Hospital further strengthened the case against t:he accused/appellants as it. was found that in respect of the deceased mother, t:he cause of the haemorrhage on account of which she ha`d died was due to the incised wound on the neck caused by the sharp edged heavy cutting weapon and that the injuries were ante c\,i mortem sufficient to cause cleat:h in the ordinary course of nature. In the case of the deceased daughter also, it was opined by the doctor that the cause of her death was due to multiple incised wounds on the neck caused by a sharp edged heavy cutting weapon and that the injuries were ante mortem sufficient to cause death in the ordinary course of nature. Charge-sheet was accordingly filed against the appellants for their trial for committing murder of the two ladies, namely, Shoukyi, aged about 70 years and her daughter, Tsetenkyi, aged about 40 years with the intention to commit theft of cash and gold ornaments from their residence and for having committed theft in furtherance of t:heir common intention. Charge was framed by the learned Sessions Judge, East and, North Sikkim at Gangtok, u/Ss. 302/34 IPC and 380/34 IPC against t:he accused persons, against which they pleaded not guilty and claimed to be t:ried. It is pertinent to note t:hat during the course of the trial, additional charge sheet u/S. 173(8) Cr.P.C. to bring on record the report of CFSL, Kolkata was filed by the I.0. As per the report, the blood stains found on the weapons, i.e., small and big `chedos', the wearing apparels of the deceased and the accused persons were confirmed as being human blood. The learned Sessions Judge, after the trial, in consideration of the materials on record, the evidence and upon hearing the Counsels on behalf of the appellants and the learned Public Prosecutor, convicted the appellants and sent:enced them to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/- for the offences u/S. 302/34 IPC and rigorous •-.._\!.! imprisonment for 7 years and fine of Rs.1000/-for the offence u/S. 380 IPC against both the appellants directing that the sentences should run concurrently by her ].udgment dated 30.03.2006. By this appeal, t:he appellants seek to set aside that judgment which shall hereafter be referred to as the impugned judgment for convenience. 8` Before this Court, Mr, N. Rai, learned Advocate, appearing on behalf of t:he appellants, submitted that the basis of the entire prosecution case was the alleged disclosure st:atement, which is not valid in t:he eye of law, since as per him, it was extracted by the police through the use of third decree method and, therefore, one of the essential requirements of a disclosure statement of it being voluntary was found lacking. It was submitted that t:he use of third degree by the police was established by the medical report as the medical officer when examining the appellant No.1, Raju Chettri, found ``abrasion on the wrist (flox) size 1/2 cm x 1/2 cm approximately and on the rt:. forearm upper, size 2 cm x 1/2 cm approximately''. As per the learned Counsel those injuries were sustained by the appellant No.1, Raju Chettri, when he was under police custody and that the prosecution had failed to explain as to how such in].uries could be sustained by the appellant while being under their custody and that in fact those in].uries got inflicted on him by the police when he refused to sign on the disclosure statements and some other blank papers when asked to do so by them. As per Mr. Rai, the disclosure statements of the two persons being identical both in language and grammar, serious `\`)\, doubt arises as regards its authenticity. The disclosure stat:ements which appear to be more like a confessional statement cannot be held to be valid. In support of his submission, Mr. Rai has relied upon the following decisions:- (i) Paulose & Others vs. State of Kerala reported •ir\ 1990 CRI. L. J. 100 (8); (ii) Jogendra Nath & Others v. State of Assam reported .ir\ 1977 CRI. L. J. 1309 (Gau.); (iii) Anter Singh v. State of Rajasthan reported .in AIR 2004 SC 2865 (paragraphs 11 to 18); (iv) Md. Miayatullah v. State of Maharashtra reported in AJR 1976 SC 483 (paragraphs 11, 14 and 17); (v) Salim Akhtar @ Mota v. State of u.P. reported in 2003 CRJ i. J. 2302 (paragraphs 8 to 10); and (vi) Babu Das v. State of M.P. rer]orted .in 2003 Cri-.I,J. 2356 (SCJ (paragraph 4). 9. It was next contended on behalf of the appellants that the ornaments that were said to have been seized from the appellants were not proved t:o be so by the wit:nesses and, therefore, the ornaments produced in Court during t:he trial could not have been linked with the appellants. The I.0. admittedly did not put identification marks on the seized articles during the investigation, which makes the identification of those articles in Court doubt:ful. It was submitted that even if the recovery of the ornaments was held to be valid, it could only be a proof of a case u/S. 380 and not u/S. 302 IPC. Mr. Rai in support of this contention referred to and relied upon the case of Wagappa i:`-` Dondipa Kalal v. State of Karnataka reported .in AIP` 1980 (SC) 1753. ]0. It was next contended that the CFSL report being defective in law could not have been relied upon, in as much as it was not sent by the Director or the Deputy Director or the Assistant Director of the Forensic Science Laboratory as required u/S 293(e) Cr.P.C. which provides that it is only a report that is sent by such authorities t:hat do not require t:o be proved and that in all other cases reports have to be proved through the examiner. In the present case, as the CFSL report was proved by the Investigating Officer and not by the examiner, it would not be admissible in law and would amount only to be a hearsay evidence. It was further submitted that the CFSL report could not link t:he appellants with the crime as the report was not conclusive due to the degraded condition of the blood samples and that the only conclusion that the examiner could arrive at was that the samples were confirmed as being human blood. It was further submitted that the messenger who was sent to reach the exhibits to the CFSL, Kolkata was also not examined. ]], Taking support of the ].udgment in the matter of Hardyal & Prem v . State of Rajasthan reported .in AIR 1991 SC 269, it was submitted that the CFSL report should clearly indicat:e that the blood stains tally with the blood of the deceased and that this fact necessarily needs to be proved. This not being done, the CFSL report loses its evidentiary value. `\:....., 10 12. Referring to the evidence of PWs 6 and 7, who are the witnesses to the seizure of material Exhibits consisting of the gold ornaments, cash and other articles like rum bottle, yashika camera, walkman and walkman radio, etc., exhibited as MO IV (collectively), MO V, MO VI, MO VII, MO VIII, MO IX, MO X, MO XI, MO XII, MO XIV and MO XVI, it was submitt:ed that their credibility was doubtful as their statements in Court and the one given by them when the search and seizure were made, suffered from inherent contradiction. This as per the learned Counsel is obvious from the seizure memos exhibits Plo and Pll which indicates the time of seizure as 6.25 a.in. and 6.10 a.in. while in the deposition, PW6 has stated it to be 6.30 a.in. and by PW7 as 6.00 a.in. to 6.30 a.in. respectively. Such difference of time, as per the learned Counsel, amounts to material cont:radictions in the evidence of the two wit:nesses and, therefore, deserves to be re].ected. 13. It was then contended t:hat the evidence adduced on behalf of the prosecution no doubt casts a strong suspicion on the appellants having committed the offence, but lacks the necessary proof of such commission. It was submitted that suspicion, however grave it may be, cannot take the place of legal proof. Mr. R`a.i rel.led upon the cases oF State of Punjab vs. BhE.fan Singh & Others reported .ir` AIR 1975 SC 258 anc] the case oF Ashish Bathen vs. St:ate of M.P. reFiorted .in 2002 CRI. L. I. 4676 (SC) which lay down the proposition of law. 11 ]4. It was then submitted that the prosecution has failed to establish t:he essential requirements prescribed under the law for cases purely based on circumstantial evidence like the instant one. In the first instance it was submitt:ed that the facts which should const:it:ute a chain leading to the only hypothesis of the appellants having committed the offence are not established. As per the learned Counsel, the following facts vital for the prosecution have not been proved: - (i) The iron rod used for breaking open the lock on the front door had not been produced and proved; ImE The keys to the lock of the main door ought to have been recovered from the appellants if the story of the prosecution t:hat the appellants put the lock from outside after commission of the offence is to be believed to be true. The fact that: this was not done in the case casts a serious doubt in the prosecution case of the door of the hotel being locked from outside. (iii) The I.0. did not take finger prints from t:he weapon of offence. (iv) The house owner of the building was not examined and not even cited as a witness at all by the prosecution. _T\_`,, 12 (v) PW9 being a friend of the deceased person is an interested wit:ness and, therefore, his evidence cannot be believed. (vi) The fact that PWs 9, 10, 11 and 15 did not recognise the appellant No.1, Ra].u Chettri, casts doubt in the prosecution case against him. (vii) The two bags containing the gold ornaments and cash and seized from the appellants were never produced during the trial and exhibited. 15. It was further contended that when we consider the evidence of PWs 9,10,11 and 15, the involvement of the appellant No.2, Puran Rai, in the commission of the offence becomes doubtful. As per t:he learned Counsel, the statement of PW9 has to be viewed with a great deal of circumspection as she was a close family friend and, therefore, a partisan witness. Secondly, when the witness said ``it is true that I cannot say for cert:ain whether the accused persons standing in the dock were still working in Sikkim Hotel as I had seen them two days prior to the incident only'', the prosecutions story that the appellants were the servants working in t:he house of the deceased persons also becomes doubtful. It was contended that the stat:ement of PW10 to the effect that ``It was t:here that I saw the accused Puran Rai working inside the kitchen. I do not know the other accused standing in the dock" and also that of PWll when he said ``It is t:rue that I have seen the accused, Puran Rai, outside the hotel and also inside the hotel. It is true that I have never seen the accused, Raju Chett:ri" makes it .`.``\,...,., 13 abundantly clear that the involvement of the appellant No.2 in t:he commission of t:he offence is not at all established. This fact stands clearly established by the statement of PW15 also, when he made the following st:atement:- ``On 10.11.2003 at around 2.00/2.30 p.in. I saw the accused, Puran Rai in front of Sikkim Hotel. I do not know the name of younger accused (Chota Ladka)." ±6. For the aforesaid reasons, it was submitted t:hat the impugned judgment deserve to be set aside. 17. Supporting the case of the prosecution and the soundness of the impugned judgment, Mr. J. 8. Pradhan, learned Public Prosecutor and also the Additional Advocate General, submitted that the prosecution had been able to establish the guilt of the appellants beyond all reasonable doubts by satisfying the parameters prescribed for proof of a case solely depending on circumstantial evidence. As per the learned Public Prosecutor, it has been fully established that:- (a) (b) ifi The appellants on 11.11.2003 at about 3.30 a.in. were apprehended while walking down towards Ranipool on the National Highway near Krishi Bhawan by PW1, constable, Man Bahadur Chettri and PW2, Home Guard, Indra Kumar Chettri when they were on patrol duty; That they were carrying a bag each which is proved by PW1, PW2 whose statements were a \..'., (c) (d) (e) (f) 14 corroborated by PW4, H. 8. Pradhan, ASI Sadar Police Station, on night duty at the relevant time; That the bags contained gold ornaments and cash as revealed from the evidence of PW1, PW2, PW3 and PW4. The appellants revealed the fact about the commission of them having murdered the victims in their place of residence and the theft of ornaments, cash and other articles - PWs. 1, 2, 3, 4 and PWs. 12 and 13. The appellants had made the disclosure statement u/S. 27 of the Evidence Act, ext. XVI and ext. XVII on the basis of which the weapons of offence ext:. XIX and ext. XX and blood soaked wearing apparels of the appellants, exts. XXI, XXIV, XXV and XXVI were seized on being led and shown by the police from the place of occurrence. This fact has been proved by the evidence of PW12, Lobzang Tenzing, and PW13, Tshering Dorjee Bhutia who were the witnesses at the time when the disclosure statements were made by the appellants and also by the I.0. PW18 who took down the disclosure statements. On the basis of the statement given by the appellants, the police led by PW3, P. M. Rai, .OC Sadar PS., had made a preliminary enquiry at the place of occurrence and upon entering the residential quarters after breaking open the outside lock, blood stains were found on the floor and on the toilet door. They also found the dead body of a female aged about 40 years lying on the floor of the toilet with severe cut injuries on 15 (9) (h) " <'T.-.-..-, her throat and that of an old lady aged about 70 years lying on the floor also wit:h severe injuries on her feet with a pool of blood flowing from the dead body, and thereafter, the PW3, P. M. Rai, OC., Sadar P.S. drew up FIR, ext. 1 suo motu and cases registered against t:he appellants. These facts have been proved by PW3, P. M. Rai, OC Sadar P.S. whose statement stands corroborated by PW8, Pema Wangda Bhutia. Inquest was conducted by the I.0. PW18, PI D. M. Subba which has been corroborated by PW8, Pema Wangda Bhutia. The victim died on account of haemorrhage due t:o incised wound on the neck caused by sharp edged heavy cutting weapon and that the injury was ante mortem. After the post mortem, the 10 handed over the dead bodies to PW8, Pema Wangda Bhutia vide exhibits XII and XIII. These facts have been proved by the evidence of the medico legal expert Dr. S. D. Sharma, PW3 0C Sadar P.S., P. M. Rai and PW8, Pema Wangda Bhutia. At the STNM Hospital morgue, the police seized ext. MO XXXII - gold earings of t:he deceased, Shoukyi, MO XXXIII - white purple coloured check cotton nighty and ext. MO XXXIV - a piece of cloth soaked with blood of deceased, Shoukyi, in a plastic container. PW17 Suresh Babu, Assistant Director, CFSL, Kolkata vide Ext. XX opined that t:he hair sample found in two Chedo/Bamphok (ext.M.O. No.XIX and XX) and sample collected from t:he deceased (k) 16 Tsetenkyi ext. 18 were consistent with human hair and found to be similar with each other. As such these prove that the convict appellant had used M.O. XIX and XX. PW17 also identified ext.XXII serology examination report as per his evidence all the ext:s. M.O.Nos. XXI, XXII, XXIII and XXIV tested positive for blood. The appellants were the employees of the deceased persons. This fact has been proved by PW9, Lakpa Doma Bhutia, PW10, Ashok Gurung and PWll, Sambu Chettri. (in) The appellants in their statements made u/S 313 Cr.P.C. bluntly denied all circumstances put to them and failed to give any explanation or lead any evidence to explain the circumstances appearing against them. ]8. Each of the aforesaid circumstances have been proved beyond all reasonable doubt and those circumstances have formed a chain leading to the only hypothesis that the accused are guilty of the offence of the murder of the deceased, Shoukyi and Tsetenkyi, in the night of 10.11.2003 in furt:herance of their common intention to commit those offences. ]9. It