THE HIGH COURT OF SIKKIM = GANGTOK GOVERNMENT APPEAL NO. 2 0F 2003 (Arising: out of the judgment passed by Shri 8. C. Sharma.i, Sessions Judge, South & West, Namchi in Criminal Case No.3 of 2000) State of Sikkim '''''' Appellant versus Milan Kumar Diyali, S/o Ranjit Singh Diyali, R/o Near Food Preservation Factory, Singtam, East Sikkim. Simon Biswakarma, S/o Deepak Biswakarma, R/o Sumsing Tea Garden, Dist. Jalpaiguri, West Bengal. „„„ Accusedr-Respondrenfs Forappellant : Mr. J. a. Pradhan, Public Prosecutor. For respondent no.1 : Mr. A. Moulik, Senior Advocate assisted by Mr. N. G. Sherpa, Advocate. For respondent no,2: Mr. N, Rai, Advocate assisted by Ms. Jyoti Kharka, Advocate. PRESENTE THE HON'BLE MF{. JUSTICE N. S. SINGH, CI]IEF JuSTICE (ACTING). TI]E HON'BLE` MR, JUSTICE A. P. SuBBA, JUDGE. Last da±€_of healring : 8±h June, 2005. wL- DATE OF JUDGMENt : 9'h August, 2005. I ± J2 g M I H I A. P. Subba, I. This Government Appeal is directed against the judgment dated 30th July, 2002 passed by the leamed Sessions Judge, South and West at Namchi in Criminal _--- 'e.S ir Case no.3 of 2000 acquitting the accused, Milan Kumar Diyali and Simon Biswakarma of the charges under sections 302/201/34 IPC. 2. The case of the prosecution, in brief, is that in September, 1999 one Sonam Bhutia had taken seven Oxygen Cylinders from the firm ``Tripti Steel Traders" located at 3rd Mile, Sevoke Road, Siliguri which deals in scrap business and is owned by one Sanjay Agarwal to Yuksom, West Sikkim. While taking the gas eylinders, the said Sonam Bhutia had also taken along with him one gas cutter boy who works for hire for the purpose of cutting scrap materials. Some days after they left, San].ay Agarwal the proprietor of the firm got information that the said gas cutter boy was arr:ested by the police and had been detained in Yuksom Police out-post, West Sikkim. On receiving the information, the said San].ay Agarwal deputed the deceased Binod Diyali who was employed as Manager in his firm to go to Yuksom to look into the matter. The deceased accordingly left for Yuksom and returned back to Si[iguri on the very next day bringing along with him the gas cutter. boy after securing his release from the police out-post. Some time thereafter Pintu Agarwal (P.W.7), brother of the proprietor San].ay Agarwal again deputed the deceased Binod Diyali to go to `o¥- Yuksom, West Sikkim for the purpose of securing release of gas cylinders which were seized by Yuksom Police and giving him an amount of Rs.10,000/- to meet necessary expenses for the purpose. The deceased accordingly left Siliguri for Yuksom on 16th November, 1999 in ].eep bearing no.WB-73/5354 hired by him from one Promod Kamti of Si[iguri. The said jeep was driven by one Simon Biswakarma, the accused no,2. This time the+deceased failed to return back to Siliguri for several days.- When there was no news of him for a number of days his wife, Mrs. Monu Diyali (P.W.5) was apprehensive of his safety and started search for him. On 9th December, 1999, she lodged a missing report with Gyalshing Poli'ce Station. Onoreceipt of the missing report, the concerned Officer-in-Charge of Gyalshing Police Station conducted a preliminary enquiry and registered P,S. Case no.76(12)99 dated 12th December, 1999 under section 365 IPC and took up investigation. Before he could make any headway in the investigation, the case was transferred to Crime Branch, CID, Gangtok for further investigation. Consequently, the` Dy. S.P., CID, Gangtok took over charge of further investigation on 18th December, 1999, iv\'..- oS After taking over the charge of investigation, the Dy. S.P. CID conducted a thorough interrogation of Simon Biswakarma, accused no.2 and other available witnesses, The interrogation so conducted by him revealed that the deceased was shot dead by the accused no.1 with the revolver on the way to Sakbari on 17th November, 1999 and the accused no,2 had concealed the revolver, in the bed room of his friend Babloo Choudhury at Asram Para, Siliguri. On indiscreet interrogation the said Simon Biswiakarma, accused no.2 state-d that he will be able to show the place and recover the said weapon from the place where he had concealed. Accordingly, the I.0. proceeded to Siliguri taking along with him the accused Simon Biswakarma. With.the help of local police at Siliguri, the I.0. conducted search of the bed room of the said Babloo Choudhury on 20th December, 1999. During the search operation, the accused Simon Biswakarma took out a revolver bearing no.-A 31673 Webly and Scot from inside a sound box kept in the bed room of one Babloo Choudhury. The I.0. then. seized the revolver duly preparing a seizure memo. The dead body of the deceased was later recovered from the bank of Teesta river at a place below Hanuman Mandir on 31A National Highway on 24th December, 1999, + Og- u= The dead body was identified by the relatives of the deceased from the wearing apparels. After the inquest was conducted by the police from Kalimpong Police Station, the dead body was sent to the Department of Forensic and State Medicine, North Bengal Medical Hospital where post-mortem examination was conducted by one Dr. Shyamal Lahiri (P.W.19). On the basis of the materials collected in course of the investigation, the case which was originally registered under section 365 IPC. was converted into a case of murder and further investigation was carried on. The investigation revealed that on 16th November, 1999, the said ].eep bearing no. WB-73/5354 had crossed Melli Check Post which is a border between Sikkim and West Bengal at 1320 hours and had proceeded towards Jorethang. The investigation further revealed that on the.same day in the night, the deceased Binod Diyali reached Yuksom Check Post in the same jeep accompanied by one 8. Tshering Bhutia (P.W.21), P. 8. Rai (P.W.20), Saran Kr. Tamang, I/C Reshi out-post (P.W.25),. Krishna Bdr. Chettri, I/C Legship out-post (P.W.11). The.deceased had taken the persons accompanying him for assistance in securing release of the seized gas cylinders from the accused no.1 who was the I/C at Yuksom Police out-post at the relevant ir time. However, the deceased and his party failed to get the release of the gas cylinders that evening. The accused no.1 told the deceased to come on the next day saying that he will release the cylinders and will also avail of the same transport for going to his house as he was proceeding on leave, As told by the accused no,1, the deceased again reported at Yuksom Police out-post on the next day, i,e,, 17th November, 1999, On that day, the accused no.1, Milan7Kumar Diyali and the accused no.2 driver Simon Biswakarma were last seen together with the deceased Binod Diyali at Legship in a jeep proceeding towards Jorethang. 3. After completing the investigation, the I.O. filed charge-sheet against both the accused-respondents under sections 302/201/34 IPC for their trial. On committal of the case to the Court of Sessions, the Iearned Sessions Judge (South & West) having found sufficient material framed charges against both the accused-respondents under sections 302/201/34 IPC. 4. The accused-respondents did not plead guilty and claimed trial. 5. The learned trial Court on going through the materials on record and on hearing the submissions made by the Public Prosecutor as well as the defence counsel 0% C)¥- came to the conclusion that several links were missing from the chain of circumst:ances and as such, the circumstantial evidence fell short of proving the charge against the accused-respondents. It was observed that the theory of last seen together put forward by the prosecution was vague and there was no satisfactory explanation as to how the accused-respondents can be connected with the crime. Accordingly, the learned Court was of the view that,the circumstantial evidence on which the prosecution case was based was too shaky, suspicious and fragile to furnish a sound foundation for conviction of the accused persons and acquitted both of them. Aggrieved by this order of acquittal, the Government has come up in the present appeal. 6. Mr. J. a. Pradhan, learned Public Prosecutor for the appellant. Mr. A. Moulik, Senior counsel assisted by Mr. N. G. Sherpa, learned counsel for the respondent no.1 and Mr. N. Rai assisted by Ms. Jyoti Kharka, learned counsel for the respondent no.2 were heard. 7. Admittedly, there.is no eye-witness to the occurrence and as such, the case of the prosecution is based on circumstantial evidence. It was the submission of the learned Public Prosecutor appearing before this Court in this appeal that the learned trial Court had failed L E]EEi ir to appreciate the prosecution evidence in the proper perspective and thereby arrived at wrong conclusion that the prosecution evidence is too shaky, suspicious and fragile to furnish the sound foundation for conviction of the accused-respondents. In support of his submission, the learned Public Prosecutor contended that if the learned trial Court had meticulously examined the depositions of P.Ws. 1, 7, 8, 9, 10, 11, 14, 17, 19, 32, 35 and 40 and also of the P.Ws. 4i 21, 22, 24 to 29 and 37 who had turned hostile, the ]eamed trial Court would have found that the facts proved by these witnesses provides a complete chain for sustaining the charge against the accused-respondents. The learned counsel for the defence, on the other hand, supported the impugned judgment and order and submitted that the same did not suffer from any illegality and no interference of this Court was called for, 8. In order to appreciate the above contention raised by the learned Public Prosecutor it would be necessary to closely examine the depositions of the witnesses named by him. P.W.1 is Tika Ram Gurung. He is a police constable who was on duty at Melli check post, South Sikkim on the relevant day. He has stated that on 16th November, 1999 he was on duty at Melli check post. At about 1320 hrs. a commander jeep bearing registration no.WB-73/5354 passed through the said check post. .According to him, there was only one passenger besides the driver and the vehicle was said to be coming from Kalimpong. P.W.7 is one Pintu Agarwal, the brother of one San]..ay Agarwal who is the proprietor of the firm "Tripti Steel Traders" located at 3rd Mile, Sevoke Road, Siliguri, He stated that on 16th November, 1999 he deputed the deceased, Milan Kumar Diyali to go to Yuksom, West Sikkim to collect the gas cylinders which they had sent there earlier and also giving him Rs.10,000/- to meet necessary expenses for the purpose. However, the deceased failed to return in time. For about a week, they were not worried because it-was a part of his duty to go out and remain out of station for days together in connection with his duties. When the deceased failed to return for a period exceeding one week they got worried and started making enquiries as to the means of transport he availed of at the time of departure. The enquiry so made by hipr revealed that the deceased had hired the vehicle bearing. registration no.wiB-73/5354 belonging to one Promod Kamti. The said vehicle was driven by Simon Biswakarma, accused no.2. On cQming to know about such particulars, he de.puted Suresh Verman (P.W.6) on RIE= 10 0¥ 26th and 27th November, 1999 to find out the whereabouts of the said vehicle and to get the driver of the vehicle to him. On lst December, 1999, he filed a missing report in respect of the deceased with Bhakti Nagar Police Station at Siliguri and on 9th December, 1999 he also filed a similar missing report with Gyalshing Police Station, West Sikkim. Thereafter on 16th December, 1999 one Ashok Kumar Kamti (P.W,10), son of the owner of the vehicle Promod Kamti brought the accused no.2 to his place and informed him that he was the person who had driven the vehicle on the day when the deceased had left for Yuksom. When he asked the accused no.2 about the whereabouts of the deceased the accused no.2 told him that the deceased was no more as he was shot dead by the accused no.1 on 17th November, 1999 and his dead body was thrown into the river Teesta.and he himself managed to escape with great difficulty. According to him one Anil Khati (P.W. 8) who is a relation of the deceased was present with him when the accused no.2 made the above statement to him. On hearing this, Anil Khati (P.W.8) volunteered to get some more relatives and to proceed -to Gyalshing taking the accused no.2 with them. The said Anil Khati was examined as P.W.8. He . deposed that on 16th November, 1999 the accused no,2 ir 11 oT¥ who had come to "Tripti Steel Traders" on being sent by the owner of the vehicle in question informed them that the accused no.1 shot dead the deceased on way to Sakbari and the dead body was thrown into river Teesta at Likhu Bhir, On su.ch disclosure statement made by the accused no.2, they proceeded to Gyalshing on the same day and conducted search for the dead body of the deceased. Ultimately, on 24th December,1999 they found the skeletal remains.of the dead body of the deceased at the 'bank of river Teesta. at a place near Hanuman Mandir between Teesta and Siliguri. They could recognise the skeletal remains to be that of the deceased from his wearing apparels. On finding the skeletal remains of the deceased, they informed Kalimpong and Gyalshing Police Stations in the same evening. On the next day, i.e., 25th December, 1999, the Kalimpong police came and conducted the inquest and prepared the inquest report on which his signature was obtained as a witness. Thereafter, the skeletal remains of the dead body was sent to the Department of Forensic and State Medicine, North Bengal Medical Hospital for post-mortem .examination. . P.W. 10, Ashok Kumar Kamti is the owner of the jeep bearing registration no. WB-73/5354 standing recorded in the name of his father Promod Kamti. According to him, ir iH 12 on 16th November, 1999 the deceased came to his shop and asked for his vehicle for two days on hire to go to . Gyalshing, West Sikkim. Since his father was a-way in Bihar at that time and his driver Govind was also on leave due to ailment of his wife, he engaged Simon Biswakarma, accused no.2 to drive the vehicle for a period of two days. The fare was fixed @ Rs.800/- per day. Accordingly, on 16th November, 1999 the deceased left for Gyalshing in the said vehicle at about 11 a.in./12 noon. The vehicle returned on the next day, i.e„ 17th November, 1999 at about 10/10.30 p.in. and the accused no.2 who was engaged to drive the vehicle handed over the vehicle along with a sum of Rs.1600/-. Thereafter, one Bed Babu from the office where the deceased was working came and enquired as to when the vehicle had returned from Sikkim. He informed that the vehicle which had left for Sikkim on 16th November, 1999 had returned back on 17th November, 1999 at about 10/10.30 p.in. The said person requested him to send the person who had driven the vehicle on that day to the office of the said Bed Babu. Accordingly, wh€n he happened to meet the accused no.2 who had driven the vehicle after about 15 days he took him along with him to the office of Bed Babu. When Bed Babu asked the accused no.2 about the whereabouts of be,, 0€ 13 the deceased the accused .no.2 informed him that the deceased died out of gun shot injury inflicted by one officer of Sikkim Police on their way back and the dead body was thrown into the river Teesta. P.W. 11, ASI K. a. Chettri deposed that on 16th November, 1999 at about 8 p.in. one 8. Tshering Bhutia (P.W. 21) and his friend P. 8, Rai alias Gorkhey (P.W. 20) and ASI Saran Kumar Tamang (P.W.25), I/C Reshi out- post ].oined him in .Bury hotel at Legship when he was having some beer. At that time, the said 8. Tshering told him that some scrap materials belonging to the deceased were seized by I/C Yuksom out-post and they need his help for securing the release of the same. Accordingly, he accompanied them and reached Yuksom at about 10.15 p.in. in a white hard top commander jeep, After reaching Yuksom, he along with a. Tshering, ASI Saran Kumar Tamang, Gorkhey proceeded to the house of the accused no.1, Milan Kumar Diyali, the then I/C of Yuksom out-post while the deceased Binod Diyali and his driver stayed back in the jeep. At the residence of accused .no.1 they had some whisky and beer which was carried by 8. Tshering and at about 1/1,30 a.in..on the following day, i.e„ 17th November, 1999 they all returned to Legship and dispersed to their respective houses. At about 2/3 p,in. illEE 14 the same afternoon he again went to the said Bury hotel for a cup of tea. When he was having his tea in the said hotel the deceased Binod Diyali and accused no.1 came into the room and had a glass of beer each. Thereafter they left the hotel. While leaving the accused no.1 told that he had taken 15 days leave and he was in a hurry and saying so they proceeded. towards Jorethang side. P.W. 14 is Writer Constable Deo Narayan Rai.. According to him, the accused no.1 had taken leave for a period of 15 days with effect from 15th November, 1999. While proceeding on leave the accused no.1 handed over the charge to him duly making G.D. entry in the out-post, however, the accused no.1 being unwell stayed back at Yuksom till 17th November, 1999 and on that day he left in the white commander .jeep bearing West Bengal registration number. P.W.32 is one Damber Bdr. Khatiwara, a constable posted in the Ammunition branch at Pangthang S.A.P. Headquarter at the relevant time. His duties in the office were to receive and issue ammunitions on the direction of the Commanding Officer of the S.A.P. and Battalion Quarter Master of S.A.P. On 15th September, 1999 his in- charge Naik Sonam Tashi Subba attached to the said office issued 12 rounds .38" ammunitions to A.S.I. Mil.an Kumar ir ir 15 Diyali, the accused no.1 who was then I/C of Yuksom out- post for his personal use under I.R. no.289 and the same was received by the accused no.1 himself. P.W. 35, Rajdeep Darnal is an electrician by profession who lives near the house of Babloo Choudhury at Ashram Para, Siliguri and who was present there when the weapon of offence was seized. Accordingly to him, on 20th December, 1999 the accused no.2 who had come there along with Sikkim Police told the police that he can take. out the revolver from the room of Babloo Choudhury. At the relevant time Babloo Choudhury and his elder brother Ashok Chowdury were not present in the residence. In the meantime, Punam Choudhury (P.W. 37), wife of Ashok Choudhury came down from upper floor and opened the room of Babloo Choudhury as required by the police. When the room was opened the accused no.2 went inside the room and took out the revolver from inside the sound box (speaker) and the same was seized by the police in his presence and in presence of one Philip Orchard (P.W.9) under seizure .memo Exhibit P-5. P.W. 40, N. P. Waghmare is the Senior Scientific Officer (Ballistics) C,F,S.L., Calcutta. He deposed that on 14th February, 2000 he had received one wooden box (sealed) per messenger from the Senior Superintendent of c)a 16 Police, Crime Branch, CID, Gangtok in connection w.ith case no.76(12)99 dated 12th December, 1999, P,S, Gyalshing, West Sikkim under section 365 IPC. The said wooden box was sealed with the impression of a seal corresponding with seal impression forwarded to their office separately. The said sealed wooden box contained one regular hand gun (revolver) bearing serial no.A-31673 (Webly made in England). After conducting necessary examination, he found that the hand gun marked Exhibit No.A is a fire arm being a regular .380" caliber revolver and was in normal working condition and it was capable of chambering and firing .380" caliber regular cartridge. It was also found on a chemical examination of the barrel of the revolver that the said revolver was fired before it was received in the laboratory. However, it was not possible to ascertain the exact time of last firing. P.W. 17 is Naik Santa Bir Darnal. He stated that he was posted in the Armed Section as in-charge at Pangthang Armed Police Headquarter. On 15th September, 1999, he issued one arm, namely, Revolver Webly and Scot of .38" caliber to the accused no.1 under the instruction of his superior officer. P.W. 19 is Dr. Shyamal Kumar Lahiri who was posted as Associate Professor, Forensic and State Medicine ir 17 Department, North Bengal Medical College, District Dar].eeling. At the relevant time on 25th December, 1999 a dead body was received at NBMC Morgue referred by Kalimpong Police Station vide their U.D. case no.84/99 dated 25th December, 1999 and he performed post- mortem examination over the said dead body. According to him, the dead body was a highly decomposed and was said to be of one Binod Diyali, male 27 years, brought and identified by HG J. Thapa and HG J. Bhutia of Kalimpong Polite Station. On examination of the dead body he found the following injuries:- "1. Evidence of fracture of nasal bones with punched in appearance at the side of ent:ry with short margins of the outer wall of bones of the nose and bevelling the margins of inner table - wound of entry of gun shot wound. Evidence of sutural fracture of temporal bone on right side with red colour at margins. Both injuries show sings of vital reaction. No Other injury either external or internal could be detected even on careful examination and dissection." Further, the witness deposed that the dead body being highly decomposed was .almost reduced to skeleton and he noted the following features in addition to the above injuries:- "Scalp missing. Skull as noted. Vertebrae postmortem separation. Membrance missing. Brain and spinal cord missing. Chest was missing, Ribs cartilages prese'nt. Postmortem 18 oa separation, Pleurae missing. Larynx and trachoea missing hyonid bone intact. Right and left lungs small mass present. Pericardium, heart, vessels missing. Abdomen walls missing. Perteneum, mouth pharynx, oesophagus, stomach all missing. Intestines soft, fleshy mass. Lever, spleen, kidneys, bladder, organs of generation soft fleshy mass. Injury as noted. Fracture as noted. Sample of clotted blood, portion of soft tissues sent to Forensic Science Laboratory through local police," On the basis of the above finding, the following opinion was given:- "Deat:h was due to the effects of gun shot in].ury described above antemortem and homicidal in nature. This postmortem report is prepared by me and it bears my signature. Exhibit P-8 is the postmortem report and exhibit P-8/a is my signature. Exhibit P-9 is the challan under which the dead body was sent by Kalimpong Police Station to the NBMC." P.W. 9 is Philip Orchard who is a resident of Ashram Para, Siliguri where he lives in a rented house belonging to Babloo Chowdury. According to him, on 20th December, 1999 at about 8.30 p.in. Sikkim Police and Police personnel from Bhakti Nagar Police Station, Siliguri came to the residence of Ashok Choudhury, brother of Babloo Choudhury. At that time, the residence of Babloo Choudhury was locked up but in the meantime, Mrs. Punam Choudhury, wife of Ashok Choudhury came and opened the lock. Thereafter, the police made a search in the house and in course of the search the culprit himself took out the revolver from inside the sound box and illE= \ 19 handed over the same to the police. The revolver was seized by the police in his presence and he singed the seizure memo as an