THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED : 16th April, 2021
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DIVISION BENCH: THE HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CHIEF JUSTICE
THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.05 of 2020
Appellant : Lalit Rai
versus
Respondent : State of Sikkim
Appeal under Section 374(2)
of the Code of Criminal Procedure, 1973
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Appearance
Mr. Jorgay Namka, Legal Aid Counsel for the Appellant.
Mr. S.K. Chettri, Additional Public Prosecutor for the
Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. This Appeal questions the Judgment and Order on
Sentence, both dated 26.12.2019, of the Learned Sessions
Judge, West Sikkim at Gyalshing, in Sessions Trial Case No.03 of
2017 (State of Sikkim vs. Lalit Rai), by which the Appellant was
convicted for the charge under Section 302 of the Indian Penal
Code, 1860 (for short, "IPC") and sentenced to undergo Rigorous
Imprisonment for life and to pay a fine of Rs.10,000/- (Rupees
ten thousand) with a default clause of imprisonment.
2. Before dealing with the merits of the Appeal, we may
briefly advert to the Prosecution case for clarity. Exhibit 1, the
First Information Report (for short, "FIR") dated 23.01.2017, Crl.A. No.05 of 2020 2 Lalit Rai vs. State of Sikkim
was lodged by P.W.1, Panchayat of Megyong, West Sikkim,
informing that at around 4 p.m., he received telephonic
information from P.W.5 stating that one Lalit Rai (Appellant) had
murdered his wife. That, P.W.1, accompanied by his friends,
visited the Place of Occurrence (for short, "P.O.") at Gaucharan,
Amaley, Saagbari, Megyong, West Sikkim and found the body of
the Appellant‟s wife with multiple cut injuries on her person,
caused by a sharp edged weapon. The Appellant had absconded
from the P.O. On the basis of Exhibit 1, FIR bearing No.04/2017,
dated 23.01.2017, was registered against the Appellant under
Section 302 IPC by Kaluk Police Station. The investigation
revealed that the deceased was earlier married to one Krishna
Bahadur Gurung and had three children from the said wedlock.
She later developed relations with the Appellant who was also
from the same neighbourhood and living with his aged parents.
In the month of June, 2016, Krishna Bahadur Gurung caught the
Appellant and the deceased in a compromising position upon
which he asked his wife to leave his home. The Appellant took
the deceased as his wife and constructed a separate house
where he lived with her but the deceased often used to taunt the
Appellant due to their financial problems and wished to return to
her former husband. The Appellant thus became insecure and
suspected her of having an extra marital affair. On the relevant
day, both the Appellant and the victim had gone to the "dhara"
(water source) to fetch water. The Appellant had carried a
backpack with documents and a torch light as well as a "khukuri"
(sharp edged weapon) in its scabbard. On reaching the P.O., Crl.A. No.05 of 2020 3 Lalit Rai vs. State of Sikkim
they met P.Ws.2, 3 and 4. The Appellant spoke to P.W.3 who,
upon questioning, remarked that she liked the deceased who
often gave her sweets. An altercation broke out between the
Appellant and the deceased as to how the deceased had
obtained the sweets to give P.W.3 as the Appellant had not given
such articles to the deceased. In a fit of rage, the Appellant
assaulted the deceased with the "khukuri" he was carrying,
which proved to be fatal. On completion of investigation,
Charge-Sheet came to be filed against the Appellant under
Section 302 of the IPC before the Court of the Learned Chief
Judicial Magistrate, West Sikkim at Gyalshing which was
committed to the Court of Sessions. The Learned Sessions Court
framed Charge against the Appellant under Section 302 of the
IPC. On his plea of "not guilty," twenty Prosecution Witnesses
were examined, on closure thereof, the Statement of the
Appellant under Section 313 of the Code of Criminal Procedure,
1973, was recorded in which he denied any involvement in the
offence. On due consideration of the evidence and materials
furnished, the Learned Trial Court convicted and sentenced the
Appellant as aforestated.
3. Before this Court, the arguments advanced by
Learned Counsel for the Appellant was that the case was one of
circumstantial evidence as P.Ws.2, 3 and 4, who were alleged to
be eye witnesses by the Prosecution had, in fact, not witnessed
the alleged incident. P.W.2, as per her evidence, only heard the
sound of the Appellant assaulting his wife but did not witness it.
P.W.3 was a six year old minor whose evidence merits no Crl.A. No.05 of 2020 4 Lalit Rai vs. State of Sikkim
consideration apart from which, she failed to support the
Prosecution case. P.W.4 had hearing and speech impediment
making her evidence suspicious and unreliable. P.Ws.13 and 14
both failed to fortify the Prosecution case regarding the
disclosure made by the Appellant. The Report of the Central
Forensic Science Laboratory (for short, "CFSL"), Kolkata, Exhibit
17, is of no assistance to the Prosecution case as the weapon of
offence did not contain the blood stains of the deceased. There
were only four injuries on the body of the deceased which were
insufficient in the ordinary course of nature, to cause her death.
The Prosecution also failed to establish any motive for the
offence or to prove its case beyond a reasonable doubt. Hence,
the impugned Judgment and Order on Sentence be set aside and
the Appellant be acquitted of the Charge. To buttress his
submissions, Learned Counsel placed reliance on the decisions of
the Hon‟ble Supreme Court in Shivaji Chintappa Patil vs. State of
Maharashtra1 and Stalin vs. State, Represented by the Inspector of
Police2.
4. Learned Additional Public Prosecutor, repudiating the
contentions of Learned Counsel for the Appellant, submitted that
the Prosecution has indeed proved its case beyond a reasonable
doubt, as established by the evidence of P.Ws.2, 3 and 4 who
witnessed the incident. P.W.2 clearly stated she saw the
Appellant had suddenly assaulted his wife with an object that he
was carrying. The evidence of P.W.3 also reveals that she had
gone to the "dhara" and saw the Appellant killing his wife. That,
1 2021 SCC OnLine SC 158 2 (2020) 9 SCC 524 Crl.A. No.05 of 2020 5 Lalit Rai vs. State of Sikkim
P.W.4 despite her physical challenges, was able to state that the
Appellant was carrying a bag and was with his wife in the field
where he killed her with a "khukuri" MO VIII. That, the evidence
of all three witnesses have not been decimated in cross-
examination. P.W.5 also deposed that on the same day, the
Appellant arrived at his courtyard and shouted that he had killed
his wife and threatened to kill the wife of P.W.5 as well. That,
the Appellant in his Statement under Section 27 of the Indian
Evidence Act, 1872 (for short, "Evidence Act") revealed that he
could disclose the location where he had thrown the "khukuri."
That, the Statement was recorded by the Investigating Officer
(for short, "I.O.") in the presence of two witnesses viz. P.Ws.13
and 14, who have testified as much. MO VIII was recovered from
the place as disclosed by the Appellant. That, the CFSL Report,
Exhibit 17, indicates that human blood was detected on MO VIII
which was of female human origin, duly buttressed by the
evidence of P.W.17 who examined the articles thus establishing
that MO VIII was the weapon of offence which fatally injured the
victim. That, MO X the black Jacket and MO XI the black Track
Pants, the wearing apparels of the Appellant were seized from
his possession in the presence of P.Ws.15 and 16 as
substantiated by Exhibit 16, the Seizure Memo. That, as per
P.W.17, blood found on MO VIII was of female human origin.
Although the Appellant claims that he had no motive to kill the
deceased and that there were no eye witnesses to the incident,
he has failed to explain the circumstance as to how the blood of
the deceased, as supported by Exhibit 17, was found on MO VIII, Crl.A. No.05 of 2020 6 Lalit Rai vs. State of Sikkim
MO X and MO XI. That, the Post Mortem Report of the deceased,
Exhibit 5, which was prepared by P.W.8, the Medico Legal
Consultant of STNM Hospital, Gangtok on 25.01.2017, reveals
that there were multiple injuries on the person of the deceased
which was the cause of her death, having been inflicted by a
sharp heavy weapon. To fortify his submissions, reliance was
placed on Thaman Kumar vs. State of Union Territory of Chandigarh 3,
Virsa Singh vs. State of Punjab4, Polamuri Chandra Sekhararao alias
Chinna alias Babji vs. State of Andhra Pradesh 5, V.D. Chavan vs.
Sambaji and Chandrabai (Smt.) and Others6, Gurdip Singh vs. The
State of Punjab7, Paramjit and Another vs. State of Haryana8 and Raja
alias Rajinder vs. State of Haryana9. That, the Prosecution has
proved its case beyond a reasonable doubt and the impugned
Judgment and Order on Sentence requires no interference.
Hence the Appeal be dismissed.
5. Learned Counsel for the parties were heard in
extenso and due consideration accorded to their submissions.
The evidence and documents on record have been meticulously
examined and the impugned Judgment and citations made at the
Bar perused. It is thus appropriate to assess whether the
Judgment of conviction and Order on Sentence of the Learned
Trial Court were justified.
6. Section 300 of the IPC deals with the offence of
murder which carves out five Exceptions to the offence and
3 (2003) 6 SCC 380 4 AIR 1958 SC 465 5 (2012) SCC 706 6 (2006) 9 SCC 210 7 (1971) 3 SCC 425 8 (1996) 11 SCC 143 9 (2015) 11 SCC 43 Crl.A. No.05 of 2020 7 Lalit Rai vs. State of Sikkim
explains when culpable homicide is not murder. Learned Counsel
for the Appellant has placed reliance on Stalin vs. State (supra).
The Accused/Appellant therein was accused of the death of the
victim on account of a single knife blow inflicted by him. It was
contended that Section 302 of the IPC would not be attracted
and the case would fall under Section 304 Part II of the IPC. The
Hon‟ble Supreme Court, after hearing the matter, dealt with
Exception 4 to Section 300 of the IPC, which provides that
culpable homicide is not murder if it is committed without
premeditation, in a sudden fight, in the heat of passion, upon a
sudden quarrel and without the offender having taken undue
advantage and not having acted in a cruel or unusual manner. It
was concluded that the case would fall under Section 304 Part I
of the IPC and not Section 304 Part II of the IPC. It is not the
argument of the Appellant herein that his case falls within the
parameters of Exception 4 to Section 300 of the IPC, hence this
ratio is of no assistance to him. Learned Counsel had also
garnered strength from the ratiocination in Shivaji Chintappa Patil
(supra). In the said case, the Hon‟ble Supreme Court was dealing
with a matter in which the High Court of Judicature at Bombay
had dismissed the Appeal of the Appellant and maintained the
conviction of sentence passed by the Learned Additional
Sessions Judge for the offence under Section 302 of the IPC. The
matter therein pertained to circumstantial evidence. The Hon‟ble
Supreme Court, after examining the evidence on record, was of
the considered opinion that the chain of events which were to be
so interwoven to each other leading to no other conclusion than Crl.A. No.05 of 2020 8 Lalit Rai vs. State of Sikkim
the guilt of the accused, as required in cases of circumstantial
evidence, was missing and the Prosecution even failed even to
prove a single incriminating circumstance beyond a reasonable
doubt. This ratio also lends no succour to the Appellant‟s case for
the reason that the instant matter does not pertain to
circumstantial evidence. P.W.2, in her testimony, has
categorically stated that at the relevant time, she was collecting
water at the village "dhara" when she saw the accused and his
wife nearby. As she was walking, she heard a sound "chaak" and
when she looked, she "saw" the accused had suddenly assaulted
his wife with an object he was carrying. This evidence withstood
cross-examination. P.W.3, although six years old, was found to
be a competent witness, the Learned Trial Court having
questioned her prior to recording her evidence and concluded
that she gave rational answers to the questions put to her. She
also deposed that she had witnessed the Appellant killing his
wife. Her cross-examination did not decimate her evidence-in-
chief. P.W.4 was the third eye witness to the incident and
although speech and hearing impaired, she deposed that she
had seen the Appellant with his wife on the field and that the
Appellant killed his wife with a "khukuri."
7. The evidence of P.Ws.13 and 14 discloses their
presence at the time when the Statement of the Appellant under
Section 27 of the Evidence Act, Exhibit 14, was recorded by the
I.O. P.W.18. They identified their signatures as Exhibit 14 (a)
and Exhibit 14 (b) respectively, on Exhibit 14. On the disclosure
made by the Appellant, recovery and seizure of the weapon of Crl.A. No.05 of 2020 9 Lalit Rai vs. State of Sikkim
offence MO VIII, was made by the I.O. in the presence of the
two witnesses vide Exhibit 15, the Seizure Memo. P.W.13 also
identified his signature on the scabbard of MO VIII.
Consequently, no error emanates in Exhibit 14 as recorded by
the I.O. and recovery of MO VIII.
8. P.W.17 was the Examiner-cum-Reporting Officer of
CFSL, MHA, Government of India. She examined MO VIII, MO X,
MO XI, MO XII, MO XIII T-shirt, MO XIV Pyjama, MO XV
Brassiere, MO XVI Slacks, MO XVII, MO XVIII blood sample and
Soil samples MO XXI and MO XXII. According to this witness,
human blood could be detected on the Material Objects
enumerated hereinabove. She also found that the blood on MO
VIII, MO X, MO XII and MO XXI were of female human origin
due to the presence of „XX‟ peaks in amelogenin (sex
determination marker). The blood sample of the deceased MO
XVIII matched with the genetic profile recovered from the
human blood stains present on MO X and MO XI. Thus, it is
evident from Exhibit 17 and the evidence of P.W.17 that the
blood of the deceased not only matched the blood stains on MO
X and MO XI, articles of clothing of the Appellant but also on MO
VIII the weapon of offence. No explanation was forthcoming
from the Appellant as to how the blood of the deceased was
found on his wearing apparels and MO VIII, neither did the
Appellant take recourse to the provisions of Section 106 of the
Evidence Act.
9. The evidence of P.W.8, Medico Legal Consultant,
STNM Hospital is to the effect that the body of the deceased was Crl.A. No.05 of 2020 10 Lalit Rai vs. State of Sikkim
forwarded for autopsy on 24.01.2017 at 4.30 p.m. Autopsy was
conducted by him on 25.01.2017 at 10 a.m. to 11.30 a.m. The
body was found with multiple injuries near "pani dhara." The
following findings were inter alia recorded by P.W.8 in his
Report, Exhibit 5;
"Antemortem Injuries:
1. Amputation of left index finger of the hand.
2. Incised wound (red, bleeding) measuring 3.8 X 1.3 cm over lateral extensor aspect of left forearm.
3. Multiple linear abrasion over an area of 18X5 cm, at the lateral extensor surface of left forearm.
4. Incised chop would (8X4X2.8 cm) over the front of face involving the bridge of nose, left and right cheek.
5. Linear incised wound (8X0.5 cm) situated just below the right angle of mandible extending from the midline to the right side of neck.
6. Incised injury (4X1.2X0.8 cm) situated 2 cm below injury 5 nos.
7. Incised chop injury with underlying fracture of frontal skull bone involving right-eyebrow.
The injury measuring 7X2 cm with underlying comminuted fracture of parietotemporal bone (right)
8. Stellate shaped wound incised injury 5X1.6Xbone over the occiput
9. Chop wound 18 X 5.5 X bone placed over the back of the neck at the level of C-7. Spine with tailing of the would (sic) measuring 4 cm placed even the right side, just below the right ear. The injury involves the skin, cervical vertebrae, spinal cord, muscle and arteries (Vertebrae).
10. Chop injury (8X1.8 cm X 3 cm) extending from left side of mid mandible and extending posteriorly till the hairline posteriorly and involves the lower lobe of ear which has been cut off.
Head and neck :- Subdural haematoma 6X4X2 cm over the right parietotempral region. Diffuse Sub- Arachnoid haemorrhage present.
.......................................................................
Crl.A. No.05 of 2020 11
Lalit Rai vs. State of Sikkim
The Opinion as to the approximate time since death was 12 - 24 hrs and the cause of death, to the best of my knowledge and belief was due to multiple injuries associated with 85-90% transaction of the spinal cord, as a result of sharp heavy weapon homicidal in nature. ..."
His evidence establishes that multiple injuries were inflicted on
the deceased by a sharp heavy weapon which resulted in her
death. In other words, it emanates that the injuries that were
sustained by the deceased, were sufficient in the ordinary course
of nature to cause her death. The ocular evidence of P.Ws.2, 3
and 4 are found trustworthy and credible and finds due
corroboration in the medical evidence and Exhibit 17.
10. In Virsa Singh supra, the Hon‟ble Supreme Court,
speaking through Vivian Bose, J., held inter alia as follows;
"(12) To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly".;
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
(13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will Crl.A. No.05 of 2020 12 Lalit Rai vs. State of Sikkim
be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."
The observations of the Hon‟ble Supreme Court supra squarely
apply to the facts and circumstances in the instant matter.
11. The evidence of the eye witnesses are consistent and
unwavering. They actually witnessed the Appellant assaulting the
deceased. Their evidence categorically establishes that the
Appellant was the perpetrator of the offence, being armed with
MO VIII with which he assaulted the deceased. It cannot be said
in these circumstances that he did not intend to inflict the
injuries on the deceased which were sufficient in the ordinary
course of nature to cause her death. The act complained of
clearly does not fall within the ambit of the Exceptions carved
out in Section 300 of the IPC.
12. It may relevantly be noted here that in a case of
direct evidence, "motive" is irrelevant whereas in a case of
circumstantial evidence, motive may indeed be an important link
which completes the chain of circumstances. Besides, motive not
being an explicit requirement as per the provisions of the Indian
Penal Code, failure to attribute motive cannot be fatal to the
Prosecution case where eye witness account exists. Resultant,
the argument of Learned Counsel for the Appellant that no Crl.A. No.05 of 2020 13 Lalit Rai vs. State of Sikkim
motive was established by the Prosecution, cannot be
countenanced as ocular testimony of witnesses have rightly been
considered by the Trial Court to bring home the charge against
the Appellant.
13. Hence, in light of the discussion made hereinabove,
the findings of the Learned Trial Court proving the guilt of the
Appellant is just and proper and thereby the impugned Judgment
and Order on Sentence warrants no interference.
14. Consequently, we find no merit in the Appeal which
fails and is accordingly dismissed.
15. No order as to costs.
16. Copy of this Judgment be transmitted to the Learned
Trial Court, for information.
17. Records be remitted forthwith.
( Meenakshi Madan Rai ) ( Jitendra Kumar Maheshwari )
Judge Chief Justice
16.04.2021 16.04.2021
Approved for reporting : Yes
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