+ `!. \ \ •..'.t IN THE HIGH COURT OF SIKKIM ORDER SHEET Criminal Appeal NO. 17 Ofiey 2003 .....„sjan:Saayi`.fsdr)ha.................,.J*klrdJRijA.ppexha` Versus State o£ Slldclm \ .I, -+ Respondent Serial No. of Order 1.27 11,20 Order with Signature beard S]nrl N. Ral. learned Ccunsel for the appellant. Adult, Issue notice. Call for the lcwer coutt records. Theret shall pe 8tayjof realisation 9f fine till the disposal of t.he appeal. Paper book may be prepared within 6 Weeks. Put up for fixing date of hearitig immediately after preparation of paper bcokj #h, "K'RE) e thief Justlc® .2oo3 27.1r.2oo3 Office Note as to aaf:L®:n(i3:a:i Jut Luky Njrd Outr 1gr-,,-0 EiiiEE Eg -7 _>|L ``--` .I `xp.-I -Ttfa - __-. --`3r=.-. `* • }i.L THE HIGH COURT OF SIKKIM : GANGTOK cRmHIIAL AppEAL No. 17 oF 2oo3 In the matter of an appeal against conviction. San].ay Subba, S/o I,ate Hem Subba, R/o Below State LJail Rongyek, P.S. Gangtok, East Sikfro (At present in Rongyek Jail) .... Appenant VERSUS State of Sikkin For the appellant : Forrespondent : .... Respondent Shri N. Rai, Advocate. Shri J. 8. Pradhan, Additional Public Proseoutor assisted by Shri Karma Thinly, Government Advocate. pRESEINr.. Tlm HONIBIB s5Iml uusITCB R. EL plwTRA, clmF liJsqlcB. Tlm HONBIE slml ousancB N. s:uR*IAMA\NI slliraH, JitJREE. Date of judgment: 9th March, 2004. JUDGMENT R. K PA This appeal is directed against the judgment and order dated 22nd October, 2003 passed by the Sessions Judge (Special Division -11), Silddm at Gangtok in Criminal Case No. 5 of 2002 by which the appellant stands convicted under section 302 IPC and sentenced to undergo imprisonment for Ire and to pay a fine of Rs.5,000/- (Rupees five thousand) with defaulting clause of imprisonment. 2. The prosecution case is as follows : On 16th September, 2001, there was a football match pr between Decheling and Rongneck (Junior) teams at Chongey School ground. The match was won ty Rongneck (Junior) team. After the match, there was some scuffle betweeri the teams in which the accused Dawa Tamang (since acquitted under section 232 Cr.P.C.) was assaulted try some members of Decheling team and the matter was settled at the intervention of the appellant. On the date of occurrence (18th September, 2001) the juvenile acoused Vikl.am and Binoy while returning to their house after the school, were assaulted by some boys of Decheling. On hearing this, the appellant who is the brother of the aforesaid j.uveniles came to Decheling along with accused Dawa Tamang (as already noted acquitted under section 232 Cr.P.C.) with a view to discuss and settle the mis-understanding among the boys. On reaching Decheling, the appellant searched the boys who had assaulted his two brothers. In the meantime, Sangay Paljor Bhutia (hereinafter refeITed to as the deceased) along with some other bays came for discussion with the appellant and there ensued hot discussions which later resulted in a scuffle. Ifuring the scuffle, the appellant stabbed the deceased with a lmife and fled away towards Rongrieck. The victim was immediately taken to STNM hospital ty his relatives but he succumbed to his injuries on the way to the hospital. 3. It may be noted that the appellant and accused pr Dawa Tamang (since acquitted under section 232 Cr.P.C.) along with Vikeam and Binoy were sent up for trial. Since Vikeam and Binoy were juveniles, their case was made over to the Juvenile Justice Court. As such, the appellant and accused Dawa Tarnang (since acquitted under section 232 Cr.P.C.) stood their trial. 4. In order to bring home the charge against the appellant, the prosecution examined as many as 20 witnesses out of whom PWs 2, 3 and 4 were the eye- witnesses to the occurrence. P`V 16 is the doctor who conducted the post-mortem examination of the dead body of the deceased. 5. The plea of the appellant was one of denial. 6. The learned sessions Judge relying on the ocular evidence of PWs 2, 3 and 4 held the appellant guilty under section 302 IPC and sentenced him as mentioned above. 7. It is not in dispute that the deceased had holnicidal death. The doctor PW16 who conducted the autopsy on the dead body of the deceased found the following ante-mortem injuries: - 1. Spindle shaped incised penetrating wound 3.5 x 1 cm. cavity deep placed obliquely over the left side of chest in the mid axillary line in the loth inter costal space with blood oozing out from the wound. The track moving upwards and medially causing incised through and through perforation of the lower lobe of the left lung and causing incised perforation of the pericardium and left ventrical measuring 3 x 1 cm. 2. Incised wound 3 x 1.5 x 5 cms. obliquely placed over the left hip. 3. Contused laceration 3 x.5 cms. scalp deep over the left occipital region of the scalp with bleeding. 4. Contused abrasion 3 x 1 cms. over the left knee. 5. Contused abrasion 3 x 2 cms. 1 cm. below injny No.2. According to the doctor, the cause of death was internal haemorrhage following incised ante-mortem penetrating injury of the chest, lungs and heart produced by a sharp-edged cutting weapon. He further opined that the injuries were sufficient in the ordinary course of nature to cause death. 8. In view of the clear, categorical and clinching evidence of eye-witnesses (PWs 2, 3 and 4) corroborated by the evidence of the doctor, Shri Rai, learned counsel for the appellant rightly and fairly did not dispute that it was the appellant who did cause the death of the deceased by inflicting the stab injury. He however submitted that the offence committed by the appeuant would come within the purview of section 304 part 11 IPC. 9. Before disoussing the evidence of PWs 2, 3 and 4, pr the evidence of PW7 may be taken note of. He stated that appellant was a student of Enchey Secondary School at the relevant time whereas he (PW7) himself was a student of Rongney School. He further stated that he knew the other accused Dawa Tamang because they used to play football together for Decheling team and Chongey team respectively. ]0. Ift us now proceed to exalnine the evidence of the eye-witnesses of PWs 2, 3 and 4. PW2 stated that he returned to his village Decheling from Gangtok at about 4.30 p.in. on the day of the incidence. After sometine, the appellant and his friends came to his house being armed with iron rods and khukuries. He took them out of his house to the road. At that time, the appellant quarrelled with him. In the meantime, the deceased came. Thereafter a fight took place amongst them and during that fight the appellant stabbed the deceased with a knife and fled away. In his cross-examination, he stated that the mother of the appellant had already come to his house to complain that his (PW2's) younger brother Bikash (PW7) had earlier assaulted the younger brother of the appellant. In his evidence, PW2 candidly admitted that the appellant did not assault or abuse him. PW3 is the cousin of the deceased. He stated that in the evening of the day of ocourrence he saw the appellant along with six to seven persons roaming around in Decheling. He saw the appellant threatening PW2 and he intervened and tried to separate them. In the meantime, the deceased arrived at the spot and enquired as to what was happening. At this moment, the appellant becalne angry and was about to hit the deceased with a rod but he prevented him from doing so. Thereafter the appellant took out a dagger and stabbed the deceased in the abdomen and ran away. In his cross-examination, it was brought out that the appellant was a student of Class X in Enchey Secondary School. He further stated that when he tried to separate the appellant from PW2, the former (appellant) told him that the brother of PW2 had beaten his younger brother. He also stated that when he reached the spot and separated the appellant from PW2, only verbal duel was going on between them. pr PW4 is the brother of the deceased. He stated that on the date of occurrence at about 5.30 p.in. when he came out his house he saw the appellant fighting with the deceased. He stated that he saw the deceased Sving a slap to the appellant. He also saw the appellant hitting the deceased with iron rod on his hand. In course of the fighting that took place, the appellant took out a knife from his socks and stabbed on the abdomen of the deceased with it. In the cross-examination, he admitted that he did not know as to pr why the appellant and the deceased were fighting. In his cross-examination, he stated that the deceased gave slaps, kicks and blows to the appellant as a result of which the appellant fell down on the ground. I I. FTom the aforesaid analysis of evidence of pws 2, 3 and 4, it may be seen that the appellant had gone to Decheling busty to settle the score with PW2 because earlier his younger brother was beaten by the brother of PW2. There is nothing on record to suggest that the appellant had any previous enmity with the deceased. When hot discussion was going on between the appellant and PW2, the deceased arrived at the spot and enquired as to what was going on and there ensued sudden fight amongst them. At this moment the appellant took out the lmife and with it inflicted one blow on the abdomen of the deceased. The appellant did so without pre-meditation in a sudden fight in the heat of passion following sudden quarrel. It was all at the spur of the moment. Taldng into consideration the totality of the circumstances, we are inclined to hold that the instant case falls under exception 4 to section 300 IPC. The appellant had no intention to cause the death of the deceased. He had also no intention to cause such bodily injury as was likely to cause death. It cannot however be disputed that the act of the appellant resulting in the injuries to the deceased was done with the knowledge that it was likely to cause his death. The offence accordingly would fall under section 304 part 11 IPC. 12. For the reasons mentioned above, we convert the conviction of the appellant from 302 IPC to one under section 304 part 11 IPC. Ends of justice would be met if he is sentenced to undergo rigorous imprisonment for five years. The appellant will be entitled to the benefits of set-off as provided under section 428 Cr.P.C. We order accordingly. Z3. The appeal is allowed in part. R.K.tr Chiof JhLsdee 09.03.2004 I agree. IV.:#T= Judge 09.Oa.2004-