The court cannot doubt oral deposition made by natural witnesses who were present during the scene of the crime: High Court of Sikkim

THE HIGH COURT OF SIKKIM : GANGTOK Criminal Appellate Jurisdiction) SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN JUDGE Crl. A. No. 020 Sudeep Rai Aged about 23 years Son of Kalu Singh Rai Resident of Segeng Busty Mangalbaria West Sikkim. Presently at Central Prisons Rongyek. ….. Appellant State of Sikkim ….. Respondent Appeal under section 374(2) of the Code of Criminal Procedure 1973. Ms Tshering Palmoo Bhutia Advocate for the Appellant. Mr. S.K. Chettri Additional Public Prosecutor Respondent. the State Date of hearing : 08.03.2021 and 11.03.2021 Date of judgment: 05.04.2021 JUDGMENT Bhaskar Raj Pradhan J. The appellant convicted by the learned Sessions Judge West Sikkim at Gyalshing under section 304 II of the Indian Penal Code 1860 seeks to challenge both the judgment of conviction and order on 2 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim sentence dated 23.09.2019 in Sessions Trial Case No. 07 of 2018 the Supreme Court noted its earlier judgment in State of U.P. vs. Dr. Ravindra Prakash Mittal4 in which it was held “11. ............. that the essential ingredients to prove guilt of an accused by circumstantial evidence are: the circumstances from which the conclusion is drawn should be fully proved the circumstances should be conclusive in nature all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence the circumstances should to a moral certainty exclude the possibility of guilt of any person other than the accused.” In Umakant supra) the Supreme Court held interalia that the burden of proof in criminal law is beyond all reasonable doubt and if the views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other towards his innocence the view which is favourable to the accused should be adopted. The judgment of this Court in Binod Pradhan which dealt with an allegation of rape is not found relevant. 17 SCC 20 27 SCC 405 3SCC online Sik 227 43 SCC 300 4 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim The learned Additional Public Prosecutor on the other hand submits that the learned Sessions Judge had rightly the appellant. He pointed out the various circumstances taken note of by the learned sessions Judge in paragraph 36 of the impugned judgment and submitted that each of these circumstances were proved beyond reasonable doubt and they form an unbroken chain of circumstances leading to the only hypothesis that it is the appellant and the appellant alone who is guilty for the offence. The FIR dated 11.09.2018 was lodged by Sandeep Rai PW 4) alleging that his brother Randip Rai was hit on the head by the youngest brother the appellant using a hammer and that he had been admitted to the Mangalbaria hospital. It was also asserted that his brother Randip Rai was hit on the varandah of his house at around 7:00 p.m. As per the prosecution Randip Rai succumbed to his injuries on 12.09.2018. The investigation was conducted by Police Inspector Bimal Gurung Investigating Officer) who on the closure of the investigation filed the charge sheet dated 14.11.2018 alleging that an offence under section 302 IPC had been made out. On 28.12.2018 the learned Sessions Judge framed a charge against the appellant under section 302 IPC. The appellant pleaded not guilty and claimed trial. During the trial the prosecution examined 16 witnesses. The appellant was examined under section 313 of the 5 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim Code of Criminal Procedure 1973 on 12.08.2019. He denied the allegations. In his defence he stated that it is true that he and his deceased brother had an argument that night. However as the deceased came to assault him he had run away from home. He asserted that he had not assaulted the deceased. Sandeep Rai identified the appellant as his younger brother. He deposed that on 11.09.2018 both the appellant and the deceased had gone to Mangalbaria bazaar and consumed alcohol. At around 5:00 p.m. the appellant returned home while the deceased at around 7:00 p.m. According to Sandeep Rai the appellant and the deceased had quarrelled with each other at around 7:30 to 8:00 p.m. When he went to the courtyard of their house he saw the deceased lying on the ground with cut injuries on his head. He also noticed blood on the head of the deceased. He deposed that the appellant was not at the place of occurrence when he saw the deceased lying on the courtyard. He along with the villagers evacuated the deceased to the Mangalbaria PHC. On the following day the deceased succumbed to his injuries. During cross examination Sandeep Rai admitted that the deceased and the appellant shared cordial relationship with each other. He also admitted that on the relevant day the deceased and the appellant had gone to Mangalbaria bazaar and when they returned they were intoxicated. He further admitted that he had 6 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim heard discussions between the appellant and the deceased when he was inside his room and that he had not seen the appellant assaulting the deceased. Chandrakala Chettri PW 3) also appellant as her brother in law and deposed that even the deceased was her brother in law. According to her on 11.09.2018 at around 7:30 p.m. when they were watching television she heard a discussion between the appellant and the deceased. After some time she heard some noises and saw the deceased lying on the ground in a pool of blood. She noticed that there was some wound on his head. According to her the appellant was not there. The same evening the deceased succumbed to his injuries. During cross examination she admitted that the deceased and the appellant shared a cordial relation prior to the incident. At the relevant time there was no electricity and as such it was very dark and that she had not witnessed the incident. Lalita Manger identified the appellant as her co villager. According to her on 11.09.2018 at around 7:00 p.m. the appellant came to her house and told her that he had hit someone six times with his fist and thereafter left. During cross examination she admitted that she did not know anything about the case. 7 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim Ramesh Rai identified the appellant as his cousin. He deposed that on 11.09.2018 at around 7:30 to 8:00 p.m. the appellant came to their house and told them that he had assaulted the deceased with his fist on his head. According to Ramesh Rai he took the appellant to Mangalbaria Outpost and handed him over to L Nk Jas Man Subbaadmitted that he was not an eyewitness to that incident. L Nk Jas Man Subba identified the appellant in court. He received information from the Mangalbaria Primary Health Centre stating that one assaulted patient was admitted there. He along with another officer went there and saw Randip Rai and noticed that he had three four wounds on his head. According to L Nk Jas Man Subba he asked Randip Rai as to who had assaulted him to which he had replied that it was the appellant who had done so with the weapon. He also inquired and found out that the appellant was hiding in the house of Ramesh Raito bring the appellant to Mangalbaria Outpost. Thereafter the appellant was taken to Nayabazaar Police Station. In cross examination he admitted that when he met Randip Rai at the PHC he was fine and could converse properly. He also admitted 8 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim that when he inquired from Randip Rai that if any weapon was used he did not say anything to him. Sub Inspector Pranay Chettri deposed that on 13.09.2018 he had seized the clothes of the deceased as well as the blood sample at the STNM Hospital vide seizure memo Exhibit 6). He identified the material objects i.e the white vest M.O.II) and black pantwas the seizure witness to seizure memo who identified his signature thereon. According to him the police had seized the white vest and black pant at STNM Hospital Gangtok. During cross examination he admitted that the seizure memo had not been read over to him. Dr. Uma Adhikari PW 13) had examined deceased on 11.09.2018 when he was brought to the emergency department at around 8:00 p.m. with a history of fall. She had noticed cut injuries on the forehead. The deceased had a history of alcohol intake. Dr Uma Adhikari also volunteered to state that when the deceased was brought to the PHC she was given the history that he had fallen and accordingly attended to him. Thereafter around 11:30 p.m. she was telephonically informed by the sister on duty that the condition of the deceased had deteriorated. When she went to see the deceased she found 9 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim that he was quite serious and therefore she made arrangements for a referral to a higher centre at Gangtok. As there were no escort available for the deceased at that time he was to be taken the next morning. However at 4:00 a.m. the Doctor in charge was informed that the deceased had succumbed to his injuries. During her cross examination she admitted that the deceased was brought to the PHC by the parties and was not forwarded by the police. She also admitted that no Medical Legal Case was forwarded when the deceased was brought to the hospital. She admitted that the patient was walking by himself and that he did not tell her that he was hit by a hammer. Dhan Kumar Tamang and Bishnu Manger PW 7) are witnesses to the recording of the statement of the appellant under Section 27 of the Indian Evidence Act 1872 Exhibit 3). Both of identified Exhibit 3 and signatures thereon. They deposed that after the recording of the statement they accompanied the police team and the appellant to the place of occurrence where the appellant took out one hammer from the bushes which was concealed by him. According to them the hammer was seized vide seizure Exhibit 4). During cross examination Dhan Kumar Tamang admitted that the police had already recorded Exhibit 3 when he reached the Nayabazar Police Station. Bishnu Manger admitted that the police had already recorded 10 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim Exhibit 3 when he reached the Mangalbaria Police Outpost. Dhan Kumar Tamang admitted that after he had affixed his signature in the seizure memo they went to the place of occurrence and recovered the hammer from the place of occurrence. Exhibit 3 is undated. The learned Sessions Judge noted these glaring inconsistencies caused by the depositions of Dhan Kumar Tamang and Bishnu Mangar PW 7) and concluded that it would not be safe to rely upon the purported disclosure statement or the seizure memo Exhibit 4). Milan Raiand Binod Raiare witnesses to the seizure of one stone with blood stains weighing 2 kgsblack plastic with blood stainsand one piece of cloth with blood stainson 13.09.2018 from Sandeep Raias well as the material objects. During cross examination Milan Raiadmitted that the contents of the seizure memo was not read over to him. Binod Rai PW 10) admitted during cross examination that the material objects were common objects and easily available and that he had not affixed his signature on the material objects. The inquest was conducted by the Investigating Officer on 12.09.2018 in the presence of Man Bdr. Rai PW 8). The Investigating Officer deposed that he had 11 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim conducted the inquest and prepared the inquest reportin which he had mentioned the details of the injuries seen on the dead body of the deceased. Man Bdr. Raideposed that the police had taken the body of the deceased to Gangtok Hospital for post mortem. According to him the police had prepared the inquest report in which he had affixed his signature. He also deposed that at the Gangtok Hospital police had seized one blood stained white vest and black pants with blood stains of the deceased vide seizure memo was not read over to him. Dr. O.T. Lepcha the Chief Medico Legal Consultant at the STNM Hospital Gangtok conducted the post mortem examination of the deceased on 13.09.2018 along with one Dr. Karma Mingur and prepared the autopsy report and noted the following: “On examination I found the following: 1. Rigor mortis was present post mortem staining was present faintly over the back and was fixed. There was presence of cyanosis with pallor. Ante mortem injuries: 1. There was multiple abraded laceration over the different areas of the scalp. 2. lacerated injury2.8x1.5 3. Grazed lacerated woundfracture 2.5cm diameter over the occipital bone. 7. Fissure fracture extending from the left parietal eminence to the left temporal bone measuring 10 8. Fissure the parietal eminence upto the external protuberance over the back of skull measuring 16 cms. fracture extending Head and neck: 1. The scalp showed widespread scalp haematoma with bilateral temporal haematoma. There was presence of subdural haematoma 4x3x2 cms placed lobe. There was diffuse subarchnoid haemorrage with features of intra cerebral haemorrage. the occipital 1. Both the lungs were congested and oedematous. 2. The stomach contained around 800 ml of digested food with fluidopined that the approximate time since death was more than 24 hours and the cause of death to the best of his knowledge and belief was due to intra cranial haemorrhage as a result of fractured skull due to multiple blunt force injury homicidal in nature. Prem Kumar Sharma a Junior Scientific Officer Biology Department posted at RFSL Saramsa deposed that on 03.10.2018 their Department received one sealed cloth containing blood sample of the deceased one black plastic pouch with reddish stainsone big stone weighing 2 kgswith reddish stainone hammerone small green and white coloured piece of cloth with reddish stain small green and white piece of cloth and the big stone weighing 2 kgs which tested positive for blood group „AB‟ which was the blood group of the deceased. However no blood could be detected on the hammerOn 11.09.2018 the deceased and the accused go to the market and return home in the evening in a state of intoxication b) both the brothers are under the influence of alcohol and they begin quarrelling soon after c) the elder brother PW 4 and his wife PW 3 are in their room in the same house at the time and hear the two younger brothers quarrelling. PW 4 even advises them to stop quarrelling d) following the quarrel PW 4 and his wife PW 3 go out to look only to find the deceased brother lying in a pool of blood with head injuries in the courtyard of the house e) the accused is nowhere to be seen f) the injured deceased is taken to Mangalbaria PHC by PW4 and others g) the same night immediately thereafteraccused flees to the house of PW 5 Lalita Mangar and tells her he “hit six times to somebody with his fist” after which the accused leaves h) the accused then goes to the house of PW 2 Ramesh Rai and informs PW 2 that he has hit the deceased on his head i) around 08:30pm PW 1 receives information about the patient being admitted at the PHC. PW 1 goes to the PHC and finds deceased Randip Rai admitted with “3 4 wounds on his head” 14 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim j) PW 1 asks Randip Rai who inflicted the injury on him. PW 1 says Randip Rai replied “his own youngest brother Sudeep Rai the accused assaulted him with a weapon” k) PW 1 comes to know accused is in the house of PW2 and instructs him to bring accused to the police out post l) PW 2 then takes the accused to the Mangalbaria Out Post and hands him over to PW 1 m) accused is taken to Nayabazar Police station where PW 2 says the accused “stated to the Police that he assaulted the deceased with a hammerThe deceased succumbs to his injuries in the early hours of 12.09.2018 at the Mangalbaria P.H.C. o) Accused is unable to explain how the deceased brother came to sustain the injuries when they were quarrelling or why he failed to come to the assistance of his injured brother or even why he was missing from the house at the time soon after the quarrel p) On 13.09.2018 a hammer is recovered by the police from the bushes near the PO at Segeng West Sikkim in the presence of PW 6 and 7 q) The autopsy by PW 15 reveals the death was caused due to intra cranial hemorrhage as a result of fractured skull due to multiple blunt force injury.” The identity of the appellant and the deceased are proved. They were brothers. Their brother Sandeep Raiand sister in law Chandrakala Chettri identified the appellant in court. Even Ramesh Rai identified the Sandeep Rai established that on 11.09.2018 the deceased and the appellant had gone to the Mangalbaria bazaar and returned home in the evening in a state of intoxication. Sandeep Rai and Chandrakala Chettri deposed that they were in the house at the relevant time when they heard the deceased and the appellant quarrel with each 15 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim other. Their depositions established the presence of the appellant in the house at the relevant time when the deceased was assaulted. When Chandrakala Chettri and Sandeep Rai PW 4) went to the corridor courtyard of their house they saw the deceased lying on the ground in a pool of blood. Both of them noticed that the appellant was not there. Sandeep Rai along with the villagers evacuated the deceased to the Mangalbaria PHC. The appellant thereafter went to Lalita Mangar‟shouse and told her that he had hit somebody on his head six times with his fist. Immediately thereafter the appellant went to his cousin Ramesh Rai‟s house and told them that he had assaulted the deceased with his fist on his head. The Mangalbaria PHC gave information to L Nk Jasman Subba from the Mangalbaria Police Outpost that one patient who had been assaulted was admitted to the Mangalbaria PHC. He visited the PHC and found the deceased had been admitted with three four wounds on his head. He asked the deceased about the assault. The deceased told him that he had been assaulted by the appellant with a weapon. Ramesh Raithereafter took the appellant to Mangalbaria Police Outpost and handed him over to L Nk Jasman Subba who took him to Nayabazaar Police Station where he was arrested. The above facts stand proved. It has been held so by the learned Sessions Judge who had also correctly discarded the 16 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim evidence relating the disclosure statement Exhibit 3) purportedly recorded under section 27 of the Indian Evidence Act 1872. The oral depositions have been made by natural witnesses who were present during the relevant time. Their evidence cannot be doubted except for the fact that the prosecution had not been able to prove that the hammerwas the weapon of offence. The chain of circumstances proved by the prosecution as enumerated above does lead to the inevitable conclusion that it was the appellant and the appellant alone who had committed the offence. There is no manner of doubt that it could have been done by anybody else. The learned Sessions Judge has convicted and sentenced the appellant under section 304 II IPC which reads as under: “304. Punisghment for culpable homicide not amounting to murder. Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death Or with imprisonment of either description for a term which may extend to ten years or with fine or with both if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. Part II: Punishment Imprisonment for 10 years or fine or both Cognizable Non bailable Triable by Court of Session Non compoundable.” To make out an offence punishable under section 304 II IPC the prosecution is required to prove the death of a 17 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim person and such death was caused by the act of the accused and further that he knew that such act of his was likely to cause death. Sandeep Raithe brother of the deceased and Chandrakala Chettrihis sister in law Man Bahadur Rai PW 8) who took the body of the deceased to Gangtok Hospital for post mortem along with the police Dr. Uma Adhikariwho attended to the deceased at the Mangalbaria PHC Dr. O.T. Lepchawho conducted the post mortem examination of the deceased on 13.09.2018 and the Investigating Officerwho conducted the autopsy of the deceased all established his death. The prosecution evidence as discussed above also establishes that such death was caused by the act of the appellant. The ante mortem injuries noted by Dr. O.T. Lepcha PW 15) in his post mortem reportleads to the only hypothesis that the appellant knew that such act of his which caused multiple injuries on the head of the deceased was likely to cause his death. Dr. O.T. Lepcha‟s opinion that the cause of death was due to intra cranial haemorrhage as a result of fractured skull due to multiple blunt force injury and it was homicidal in nature is convincing and backed by the post mortem examination. The punishment prescribed for the offence under section 304 II IPC is imprisonment for ten years or fine or both. 18 Crl. A. No. 020 Sudeep Rai vs. State of Sikkim The learned Sessions Judge has sentenced the appellant to undergo simple imprisonment for a term of seven years and pay a fine of Rs.10 000 which is found perfectly justifiable in the facts of the present case. Resultantly the appeal fails and is dismissed. The judgment of conviction and order on sentence passed by the learned Sessions Judge in Sessions Trial Case No. 018 both dated 23.09.2019 are upheld. The direction for simple imprisonment in default of payment of fine is also upheld. The compensation awarded to the father of the deceased under section 357 Cr.P.C. is maintained. The records of the learned Trial Court be sent back. Certified copy of this judgment be sent to the learned Trial Court and a copy also be furnished free of charge to the appellant. Approved for reporting: Yes No Internet : Yes No Bhaskar Raj Pradhan ) Judge 

Summary: Natural witnesses who were present at the time of the relevant events gave oral depositions. Except for the fact that the defense had not been able to prove the weapon of offence, their testimony cannot be questioned. This auspicious judgment was passed by The High Court Sikkim in the case Sudeep Rai vs. State of Sikkim [Crl. A. No. 01 of 2020] of by Honourable Justice Bhaskar Raj Pradhan. The FIR was lodged by Sandeep Rai alleging that Randip Rai was hit on the head by his brother, the appellant, using a hammer and that he had been admitted to the Mangalbaria hospital. It was also asserted that he was hit on the verandah of his house. As per the prosecution, Randip Rai succumbed to his injuries. The investigation was conducted by the Police Inspector, who, on the closure of the investigation filed the charge-sheet dated alleging that an offence under section 302 IPC had been made out. The learned counsel for the appellant submits that there are no eyewitnesses in the present case and therefore, it is a case based on circumstantial evidence. Further, it was submitted that the circumstantial evidence has not been proved in the manner required and there are broken links in the chain of circumstances. The learned counsel on the other hand submits that the learned Sessions Judge had rightly convicted the appellant. He pointed out the various circumstances taken note of by the learned Sessions Judge in the impugned judgment and submitted that each of these circumstances was proved beyond reasonable doubt and they form an unbroken chain of circumstances leading to the only hypothesis that it is the appellant and the appellant alone who is guilty of the offence. The court relied on The Supreme Court Judgment State of U.P. vs. Dr Ravindra Prakash Mittal wherein, it was held that “the essential ingredients to prove the guilt of an accused by circumstantial evidence are: (a) the circumstances from which the conclusion is drawn should be fully proved; (b) the circumstances should be conclusive in nature; (c) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (d) the circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused.”