Satar Gurung v. State of Sikkim

Judgment

#1. On a First Information Report, Exhibit 1, being lodged before the Temi Police Station, South Sikkim, on 18-10-2017, by P.W.1, against the Appellant herein, investigation was taken up after registration of Temi PS FIR Case under Sections 326/307 of the Indian Penal Code, 1860 (for short ―IPC‖). On completion of investigation, Charge-Sheet was submitted against the Appellant, Satar Gurung (Accused No.1), one Suman Subba (Accused No.2) and one Dil Bahadur Gurung alias Diwash Gurung (Accused No.3), under Sections 302/34 of the IPC. The Learned Trial Court on taking cognizance of the matter framed Charges against the above- named persons under Sections 302/34 of the IPC for which they individually entered a plea of ―not guilty‖.

The Prosecution examined thirty-four witnesses to prove its case against the Crl.A. No.05 of 2021 2 Satar Gurung vs. State of Sikkim accused persons. On closure of Prosecution evidence, the accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, ―Cr.P.C.‖). On consideration of the entire evidence on record, the Learned Trial Court convicted the Appellant Satar Gurung (Accused No.1) under Section 304 Part II of the IPC, but acquitted him of the offence under Sections 302 read with Section 34 of the IPC, while Suman Subba (Accused No.2) and Dil Bahadur Gurung alias Diwas Gurung (Accused No.3) were acquitted of the charges under Sections 302 read with Section 34 of the IPC, vide the impugned Judgment dated 24-02-2021, in Sessions Trial Case No.01 of 2018.

The Appellant (Accused No.1) vide the impugned Order on Sentence, dated 24-02-2021, was sentenced to undergo simple imprisonment for a term of ten years under Section 304 Part II of the IPC and to pay a fine of Rs.10,000/- (Rupees ten thousand) only, with a default clause of imprisonment. Aggrieved thereof, the Appellant assails the Judgment and Order on Sentence before this Court. 2(i). Learned Senior Counsel for the Appellant contended that the Appellant in fact ought to have been acquitted of the offence along with other accused persons and that, in the alternative, the offence if found to have been committed by him would be one under Section 324 of the IPC and not under Section 304 Part II of the IPC as erroneously concluded by the Learned Trial Court.

That, P.Ws 9, 14, 23 the Doctors who examined the wound on the victim each gave a different size of the injuries found on the person of the deceased, leading to doubts regarding the injuries. That, the observation of the Learned Trial Court in

Paragraph 60 of the impugned Judgment is perverse as P.W.1 has Crl.A. No.05 of 2021 3 Satar Gurung vs. State of Sikkim not given any evidence to the effect that she had seen her deceased brother bleeding profusely and that he disclosed in her presence and in the presence of the witnesses that he was stabbed by the Appellant. The Learned Trial Court also observed in Paragraph 77 of the Judgment that the key chain knife was not the weapon of offence and arrived at the finding that a sudden fight had ensued between the deceased and the Appellant. Consequently, there was no intention or knowledge but the Appellant has been foisted with the offence under Section 304 Part II of the IPC. (ii) That, the Learned Trial Court placed reliance on the Section 164 of the Cr.P.C. statement of P.W.2 which is not legally tenable as there is a discrepancy in his statement with that of his deposition in the Court. That, in fact the incident occurred on account of the aggression of the deceased himself, as deposed by P.W.2, an eye-witness to the incident. P.W.3 has also in his cross- examination stated that he did not see the Appellant assaulting the deceased. That, P.W.19 had recorded the alleged statement of the deceased in his mobile phone, but no Certificate under Section 65B of the Indian Evidence Act, 1872 (hereinafter, ―Evidence Act‖), was furnished by the Prosecution and hence, the electronic evidence is inadmissible, consequently the evidence of P.W.19 with regard to the video recording on his mobile phone cannot be relied on. P.W.14, the Doctor who conducted the autopsy admitted that the weapon of offence was not produced before her at the time of the autopsy. She further deposed that the death of the deceased was due to the combined effect of Peritonitis and Pneumonia which was confirmed by her in cross-examination but the Prosecution did not Crl.A. No.05 of 2021 4 Satar Gurung vs. State of Sikkim seek to recross-examine the witness to decimate this evidence. P.W.32 the Scientist at CFSL, Kolkata, opined that the cut marks (CC1 and CC2) on M.O.XV (T-shirt of the victim) could not have been caused by a key chain knife, like M.O. XIV, hence it is evident that the deceased did not die as a result of the alleged stab injuries said to have been caused by M.O.XIV. That, no single witness had seen the Appellant actually stabbing the deceased. That, despite the observation of the Learned Trial Court that it was unsafe to hold that the key chain knife, M.O.XIV was the weapon of offence in view of the evidence of P.W.32, yet the Court proceeded to wrongly convict the Appellant under Section 304 Part II of the IPC. The fact that the Appellant was not the aggressor was not considered by the Learned Trial Court when it is an established principle of law that when two views are possible the one favourable to the convict/Appellant has to be accepted. To buttress his submissions, reliance was placed on Yogendra Morarji vs. State of Gujarat1; Deoka and Others vs. State of Maharashtra2; Ghansham Dasharath Waghmare vs. The State of Maharashtra3; Mihir Gope Etc. vs. State of Jharkhand4; Ramesh alias Dapinder Singh vs. State of Himachal Pradesh5 and Jasdeep Singh alias Jassu vs. State of Punjab6. Hence, the impugned Judgment be set aside and the Appellant be acquitted of the offences or in the alternative he be convicted under Section 324 of the IPC.

#3. Learned Public Prosecutor per contra conceded that the other two accused persons who faced trial were in fact persons who