Fe` TIE IHGH CouRT oF slKKnA : GANGTOK Crl. A. No.02 of 2007 In the matter of an appHcation for appeal under Section 374 (2) read with Section 376 fry) and read with Section 380 of the Code of Criminal Procedure, 1973 and in the matter of 1. Buddha Tamang, S/o Late Karma Bahadur Tamang, R/o Middle Sichey, P.O. & P.S. Gangtok, East Sikkim. 2. Sunder chettri, S/o Late Kumar Chettri, R/o Middle Sichey, P.O. & P.S. Gangtok, East Sikkin. 3. Bijay Rai, S/o Late Birdhoj Rat, R/o Middle Sichey, P.O. & P.S. Gangtok, East Sikkin. 4. Mano]. Gurung, S/o Shri Y. 8. Gurung, R/o Middle Sichey, P.O. & P.S. Gangtok, East Sikkin. 5. Mohan Thatal, S/o Shri Bhola Thatal, R/o Lasho Busty, Tashiding, West Sikkim (All are at present Rongyek Jail) ..... Convicts/ Appeuants versus State of Sikkim ..... Respondent For Convicts-Appellants: Mr. N. Rai, Legal Aid Counsel with Mr. K. 8. Chettri and Ms. Jyoti Tharka, Advocates. F`or Respondent Mr. J. 8. Pradhan, Public Prosecutor and Mr. Karma 'Thinlay, Additional P\iblic Prosecutor. PRESENT : THE HON'BLE MR JUSTICE A. N. RAY, CHIEF JUSTICE. THE HON'BLE MR. JUSTICE A. P. SUBBA, JUDGE. Last date of hearing : 16th June, 2008 DATES OF JUDGMENT : 16, 17, 19th June, 2008 & 25th July, 2008 JUDGMENT The Court: This is an appeal from a judgment and sentence passed by the learned District and Sessions Judge Dr. Lepcha of East and North Sikkim. There were 5 accused in the case and all have been sentenced on the basis of charges filed under Sections 304, 201 and Section 34 of the IPC. The deceased was one Rajen Tamang, who, according to prosecution case, was killed by the accused on the night of or about 24th November 2003 which was also the birthday of one of the accused, Mohan Thatal. He was born on 24.11.1978 and is now in jail pursuant to events that transpired exactly 25 years after his birth. The leamed Judge has dealt with the prosecution evidence in detail but the part of the prosecution evidence mainly relied upon by him, is as follows. His own birthday party was arranged by the accused Mohan Thatal to be held at his brother's flat at Sichey in the evening of the 24th of November 2003. All the five accused went there with the deceased in a jeep, a government vehicle, which was driven by Mohan Thatal. On the way to the flat the party had bought and consumed a case of beer and, along with them was also one Sabita Pradhan. It is enough to remark that Sabita Pradhan had no problem or hesitation about being with five/seven men alone and she was not surprised by this circumstance. The seventh one was P.W. 9, mentioned later. After the deceased was `removed', five were left. The wife of the deceased Rajen Tamang, namely I,eela Subba, who also gave evidence, said that in the morning of the 24th Rajen Tamang had gone out, telling her that he was going fishing. * However, Tamang not havi]ig returned on the 24th or ill tlic t`:`rl.y liours of Ill(. '25''1, I,ccla went out in search (`or liim aiicl in the pi-ocess met one Suman Gajlner. This Suman Gajmer did not give evidence, but according to Leela, Suman gave her the identity of the owner or the vehicle which was being driven by Thatal and also said that he had seen Rajen Tamang the day before with Thatal in the vehicle along with s()mc other Sichcy Busty boys. The flat of Mohan Thatal is in Sichey. When Leela went in search of the vehicle, it so happened that Thatal was also there and according to Leela she was informed by him that Tamang had gone away the night before, leaving Thatal, for the purpose or fishing. The 25tl` also passed without the whereabouts of Tamang beitig found out. Before \ve pass on to the 26th, we mention here, in regard to the important factor of "last seen togcttier", that the 9'1` prosecution witness namely, Tashi Nt)rl)u I,cpcha, lias given positive evidence •i that on night of the 24th of November, he had been with Rajen Tamang, the deceased, the Sichey Busty boys and Sabita Pradhan. It is his further evidence that they parted company near the building, which has in it the flat of Thatal's brother. He said that he had seen Sabita Pradhan go up the building with Mohan Thatal and that he (very fortunately for him) had an altercation with Bijay Rai, also one of the accused, and therefore had left the scene at that time. On the 26th Rajen Tamang was still missing as on the day before. So Leela Subba went and filed a missing report in the Sadar Police Station in Gangtok. According to the police they "raised a hue and cry" and also informed the other Police Stations. Although this was done, 26th November 2003 also passed without any discovery being made. Then on the 27th, according to the prosecution, Mohan Thatal came to the Sadar Police Station around 2.45 in the afternoon, and led the Thanedar, •-t i.e., the O.C. to a place in Rani Khola where the dead body of Rajen Tamang was found. This is the most important part of the prosecution case and therefore one has to dwell on it a little more than in regard to the other facts. According to the O.C. Thatal went to the place where the dead body was lying along with the police photographer, who came to give evidence as PW 2 and also with the brother of Rajen Tamang. The recovery report (exhibit 10) was prepared and signed by two witnesses of the locality. Rajen Tamang's brother did not come to give evidence. None of the two witnesses who signed the recovery report came to give evidence. These were commented upon heavily by Mr. N. Rai, learned counsel appearing for the accused. Although he made a lot of comments about non production of witnesses, and incidentally, Sabita Pradhan did not also give evidence, this was not an argument made at all in the lower Court. Neither is it said in the memorandum of appeal that the Sessions Judge should have considered it on his 1 •S ® own, although nobody on behalf of the accused emphasized it before him. Be that as it may, the police version is that after recovery of the dead body the team returned to the police station around 7.30 p.in. and thereafter Mohan Thatal was arrested and also 1, 2, 3,4 ,..... the four other accused were also taken into custody on the same night; the last two were arrested late at night at 11.30 PM. Accused Nos.1 and 3 were not in fact arrested but surrendered to the police. We can only say that after Mohan Thatal went to the P.S. , everything became very easy for them. The Thanedar proceeded in a way of his own. He did not photograph Mohan Thatal at any place. He did not, before proceeding to recover the body of Tamang, obtain any First Information Report of Mohan Thatal and naturally therefore he did not get anything signed by Mohan Thatal at that time. Thus he proceeded upon infomation received to commence what can only be termed as a police investigation on its own. Consistently with this view, he came back and on recovery of the dead body of Tamang made a report to the C.J.M. under Section 157 of the Code of Criminal Procedure. However, in that report he put the heading "F`irst Information Report". This has caused a lot of confusion and arguments were made about the investigation being tainted, but this is no real problem if the First Inforlnation Report, although so marked is treated as a wrong marking by the Thanedar and is treated simply as a step in the process of investigation. The place where the body of Tamang was recovered is quite a few kilometre away from the place where the flat of Thatal's brother is situated. Thatal's brother incidentally is,, a Forest Officer and a Government Officer. The jeep was a Government vehicle not for use of Mohan Thatal himself but for use by Thatal's brother. The place of recovery was thus sufficiently far away from where the deceased was last seen together with the accused. F`rom the circumstances it cannot but be said that it is not as `open' a place as all that like a table top, because on the 25th a nobody found Tamang there, nor on the 26th, even when the missing report was filed with the police, nor during the first half of the 27th before Thatal came to identify the body and the place where it was lying. It is true that the body was lying in the open under the sky, there are houses nearby and fishermen are also around, but none found the body for 3 days. The Teesta river stretches long to Sikkim, and in three or four kilometres of river stretch, a body might even come to rot in some places without anybody knowing, as is shown by this case itself. The identification of the body was also made by Tamang's brother, but Tamang's brother never came to the box himself. In the investigation report sent to the Magistrate which is exhibit 1, and wrongly marked First Information Report, there are "fanciful" statements made by the Thanedar about what Mohan Thatal told hin. This word "fanciful" has to be used by a Judge in India, in these circumstances because we are now both Judge and Jury, or at least in the trial + 10 Court we are. What was stated by Mohan Thatal would be called a confession and would be excluded by virtue of Section 24 of the Indian Evidence Act, which need not be set out here. If we are to act properly in accordance with law, we have to tell ourselves again and again that these writings which are inadmissible in evidence are fanciful writings by the pohce officer. It neither incriminates the accused nor does it falsify the police case. It is something fanciful written and because the police are more concerned with investigation and crime prevention, no Court can blame them for placing more importance upon these primary activities to be performed by them, instead of continually and at every stage thinking what the Evidence Act says or permits; that is basically a lawyer's ].ob and if the police substantially lmow and follow it and do not misuse their power no blame can be attached to them. Of course, what is Tanciful' might come to prove at trial in the whole or in part; that is neither here nor there. The writing is still fanciful, but the value of proof aliunde is in no manner diminished by it. ® 11 On the 28th of November, the autopsy was performed. On the basis thereof the Doctor, who gave evidence, reported that the death had taken place 2 to 3 days before the autopsy. Arguments were made that 2 to 3 days before the 28th would bring it to the 25th and not to the 24th when allegedly Rajan Tamang went missing. We do not think that this fine discussion of one day is significant in these circumstances, where the Doctor himself predicted roughness by indicating 2 to 3 days, and no exact timing. On the 27th evening, before sending the F.I.R.' to the C.J.M., as per the seizure memo which is exhibit 2 the police also performed the important task at around 5.30 in the evening of recovering a quilt and a white quilt cover from Thatal's flat. These contained comparatively small marks suspected to be blood stains. The seizure memo is quite clear about the place of recovery i.e., from within Thatal's flat but two witnesses, who were P.W. 3 and P.W. 4, of the same building, said in their examination in chief or in their cross- 12 examination that the seizure took place "in front of the building" or "outside the building premises". The police case is that the quilt and the quilt cover were seized and sent for forensic examination. No reasonable reading of the evidence can permit these two statements by P.W. 3 and P.W. 4 to mean or even suggest the abswedity that the police recovered from the street a quilt and a quilt cover and sent those away for forensic examination. P.W. 3 and P.W. 4 are not law graduates (although incidentally Mohan Thatal is). Nobody clearly asked them whether they meant by seizure the picking up of the articles from where those were lying, or whether they meant by seizure the carrying away of those articles finally in the police vehicle. These answers of P.W. 3 and P.W. 4 do not cause any reasonable doubt to be cast on the police case that the recovery was made from Thatal's flat itself. For blood examination, three samples were sent; one was the blood sample of Sabita Pradhan which was found to be of Group 8, the other was a blood sample of the law graduate Mohan Thatal, the test on which was found to be inconclusive; and the + 13 third was the blood from the recovered dead body which was found to be of Group A. The stains on the quilt and on the quilt cover were blood stains of group A. Manik Kumar Majumdar, who was the testing analyst stated in his report that the quilt cover blood stain is of human blood, but he said that he is unable to distinguish between human and animal blood, and that it is quite difricult to do so. He also said that the Rh factor was not tested. He deposed that the stains were over small areas. It is just that he found the blood stains to be of group A and the blood of the deceased to be also of group A and he found that his test on Mohan Thatal blood was inconclusive, and so inconclusive as not to give him any indication even about the blood group of it. This is indeed unsatisfactory, but no emphasis was placed on this before the learned District and Sessions Judge. The circumstance of the deceased's blood being of group A, and the blood stains also being of group A was found to be a sufficiently strong link in the chain of circumstantial evidence. We cannot discount * 14 arguments of counsel who proceeds on instructions. To do so would be to put abstract theory over actual practicalities, and to do this is never advisable in any Court of Law. Several things might leave the Court of appeal a little surprised, but the Court of appeal should be used to suppressing surprise, as the long run of any trial is a practical affair, and there will always be gaps in the handling of the case on both sides. The appeal Court should rather go about the job of making the best of what it can, out of the usually large chunk of material available to it. 'Itwo other important things have to be considered here. These also concern inadmissible evidence. In the investigating officers' report made under Section 173 of the Cr. P.C there is a detailed fanciful story of how exactly Rajen Tamang got killed. It is to be taken as a story only, because otherwise it will be inadmissible confession under Section 162 of that Code, and even the source of the fanciful whting is not very clearly specified there. ® 15 The investigating ofricer came as the last witness of the prosecution being PW 17. The nerct interesting thing is about Sabita Pradhan. She gave her statement before the investigating officer which was duly recorded under Section 161, but it is not even included in the paper-book because she did not come into the box. Out of our own curiosity we asked what the fanciful statement of Sabita Pradhan was and we were told something. We do not wish to repeat in the judgment of the appellate Court any fanciful statements or mere stories. What we do however wish to record is that prosecution never thought it fit to ask the last prosecution witness i.e., the investigating officer, whether he knew the whereabouts of Sabita Pradhan on the days he was giving his evidence. Equally remarkably, the defence did not poke him either in this regard. No point was raised, as we have already said, about Sabita's absence from the box in the lower Court, in the arguments made before it. * 16 The autopsy report also makes it clear, and this is clear admissible evidence, that the death occurred due to head injury and the injury was ante-mortem. The appellants made a case before us that Tamang went fishing and might have fallen down and killed himself. A head injury could wen result in that way and the dead body was found on the river bed at Rani Khola (Rani Khola is actually quite a large area spread over the kilometres and Khola means river) and the river bed almost everywhere in Sikkim has steep and quite high cliffs nearby. The defence emphasize very heavily on the going for fishing story. They mention about the deceased's wife herself admitting that Rajan Tamang wanting to go for fishing and telling her so. They also said that P.W. 9 himself, who laid the main foundation of the last seen together evidence, clearly stated that at about 10.30 at night the deceased said that he wanted to go fishing and after he went inside the government jeep to recover his fishing tackle, he was not seen any more by P.W. 9 17 because by that time he had happily had his altercation and waked away from the problematic Scene. All this was added to somewhat by Mohan Thatal himself, which is quite unusual for an Indian accused, Mohan Thatal going to the box and giving evidence. When he was making the 313 answers and he was asked about Rajan Tamang he clearly said that he did not know but, from the witness box he made for the first time a case that Tamang had walked away from him at Sichey sometime at 10.30 at night for the purpose of fishing. He denied that the parting took place near the flat. Mohan Thatal made a further case, but this time not for the first time from the box, because he had said this in his 313 examination also, that he had never gone to the police station to inform about the body at all on 27.11.2003. It is perhaps to emphasize this crucial point, that he had to go to the box. ®t 18 The very foundation of the prosecution case is the inforlnation given by Mohan Thatal and the place where the body was found at his instance and not at the instance of anybody else. Of course fanciful statements in the so called first inforlnation report cannot be taken into account by us, but it has to be emphasized, and emphasized again, that Mohan Thatal's case was not that he had merely chanced upon the body at Rani Khola and thus he had come to the police station. What Mohan Thatal did, according to police was that he identified the location of the dead body of Rajan Tamang because he knew about it and would give no details about how or why he knew where the body was; he would give no clue to how he came to know the location of the body. Once the inadmissible confession is ruled out the solid admissible evidence as per Section 27 is this, that Mohan Thatal knew about the missing person's dead body and 3 to 4 days after the death came, and led the until then searching police, to the exact location near the river bed where the missing * 19 body was lying all this time. And he would say nothing about how he got to know all this. On this basis the leaned judge has found all the five accused guilty, but not of murder, as the learned judge has quite correctly opined that murder motive and premeditation were singularly absent in this case. He has proceeded, as he had to, on the basis of circumstantial evidence. F`ive circumstances were considered by him which the leamed PP also submitted as the foundation of the prosecution case. Those five circumstances are set out below: - "I.d. P.P. submitted that from the above stated Prosecution evidence following circumstances emerge pointing guilt of the • accused persons: (i) That the deceased was last seen together with the accused persons; (ii) That on the basis of the information given by accused Mohan Thatal the dead body of deceased Ra].en Tamang was recovered from Rani Khola; (iii) That the quilt containing blood stain matching the blood of deceased was recovered from the possession of accused Mohan Thatal; (iv) That post Mortem report revealed that the deceased died due to ante-mortem head injuries; ® EI 20 (v) That the death of the deceased had occurred 2 to 3 days before the date of Post Mortem held on 28.11.2003." The case of defence was primarily that Mohan Thatal never surrendered before the O.C. Sadar Police Station. Three other factors were also emphasized by the defence in the lower Court and in the words of Dr. Lepcha the defence submission was basically as follows: "Ld. Counsel submitted that the accused Mohan Thatal never surrendered before the O/C Sadar P.S. and he did not inform the Police that he along with co-accused persons murdered deceased Pussay on the night of 24.11.2003 and disposed of the dead body at Rani Khola on the night of 25.11.2003. He submitted that on the night of 24.11.2003 the deceased after coming back to Sichey from Ranka got down from the vehicle in front of the residence of accused Mohan Thatal and then left the place collecting Fishing equipments saying that he is going for fishing. Iud. Counsel next submitted that the prosecution has falsely implicated the accused persons in this case which can be seen from the following circumstances: - (a) That investigation was apparently started prior to the recording and registration of the F.I.R. That the alleged recovery of the dead body of Pussay @ Ra].en Tamang at Rani Khola and conducting inquest over the dead body ought to have fomed part of investigation but the Police had not registered F.I.R. on the basis of alleged information allegedly given by accused Mohan Thatal. ® il 21 (b) That no where in the charge sheet has it been stated that dead body of the deceased was recovered at the instance of the accused Mohan Thatal nor any witness stated so in the evidence. He also submitted that if the dead body was recovered at the instance of accused Mohan Thatal then why in the photograph the accused is not seen? (c) That alleged statement of confession given by the accused Mohan Thatal to the Officer-in-charge, Sadar P.S., P.M. Rai is not admissible in view of Section 25 or even 26 of the Indian Evidence Act." The learned Judge on a consideration of the five circumstances and the defence arguments has found the accused to be guilty. About Mohan Thatal, he has made one unfortunate erroneous statement in paragraph 21 in his judgment that the accused persons did not choose to examine anybody in their defence, but the inaccuracy is of no importance, because he has considered in paragraph 26 the evidence given by Mohan Thatal. This is what he said about the cumulative effect of the five circumstances and the case made by Mohan Thatal. "26. Cumulatively considered the above stated facts and circumstances this Court finds that the deceased died due to ante mortem injuries inflicted by the accused // > 22 persons on the intervening night of 24.11.2003 to 25.11.2003. Even after