THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 14th December, 2021
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DIVISION BENCH : THE HON'BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE
THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.04 of 2018
Appellant : Subash Thapa
versus
Respondent : State of Sikkim
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Tashi Rapten Barfungpa, Advocate (Legal Aid Counsel) for
the appellant.
Dr. Doma T. Bhutia, Public Prosecutor with Mr. S. K. Chettri,
Additional Public Prosecutor for the respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The instant matter pivots around the death of the
victim, one Purna Kumar Gurung, aged about 34 years, working as
a Lab Attendant under the Human Resource Development
Department, in a school at Khecheopalri, West Sikkim. He is
alleged to have been murdered by the appellant on the intervening
night of 16-04-2016 and 17-04-2016 on a road half a kilometer
away from his residence situated at 13th Mile, Thingling, West
Sikkim. The appellant was charged under Sections 302, 392 and
427 of the Indian Penal Code, 1860 (for short "IPC"). To each
count of charge the appellant pleaded "not guilty". The learned
trial Court on consideration of the entire Prosecution evidence
furnished before it, convicted the appellant as charged vide the
impugned Judgment dated 29-11-2017, in Sessions Trial Case Crl.A. No.04 of 2018 2 Subash Thapa vs. State of Sikkim
No.03 of 2016 and vide assailed Order dated 30-11-2017
sentenced him to undergo imprisonment for life under Section 302
of the IPC, rigorous imprisonment of 10 years under Section 392
of the IPC and rigorous imprisonment of 2 years under Section 427
of the IPC. The sentences of imprisonment were ordered to run
concurrently. Sentences of fine were also imposed with default
sentence of imprisonment. Assailing the Judgment and the Order
on Sentence, the appellant is before this Court.
2(i). Learned counsel for the appellant while meticulously
walking this Court through the evidence of the Prosecution
Witnesses put forth the arguments that the Prosecution case is
inter alia based on the "last seen together theory", built around the
evidence of P.W.2, a Police personnel, whose evidence by itself is
debatable as P.W.2 was himself travelling in the direction opposite
to that allegedly taken by the victim and the appellant. That, the
Prosecution effort was to convince the Court that the appellant was
motivated by greed on seeing the victim in possession of a
substantial amount of money, and the alleged recovery of a sum of
Rs.71,000/- (Rupees seventy one thousand) only, from the
appellant‟s residence was said to be adequate ground not only to
prove robbery but also murder. However, only P.W.2 deposed that
the deceased was in possession of a bundle of currency notes,
uncorroborated by other witnesses who were assembled at the
Hotel where they were playing cards. P.W.2 however was not
made a witness to the recovery of the money or for identification of
the currency notes. The ownership of the currency notes is not
proved as no forensic tests were conducted to verify this aspect.
The money recovered was in the denomination of Rs.1,000/- Crl.A. No.04 of 2018 3
Subash Thapa vs. State of Sikkim
(Rupees one thousand) only, whereas P.W.3 the victim‟s mother
deposed that she had handed over currency notes to the victim in
the denomination of Rs.500/- (Rupees five hundred) only and
Rs.1,000/- (Rupees one thousand) only. None of the currency
notes alleged to have been seized from the appellant had blood
stains. That, the evidence of P.W.14 and P.W.19 reveals that the
Police seized M.O.V, wallet of the deceased, from the accident site,
containing Rs.11,000/- (Rupees eleven thousand) only, and a gold
ring. If robbery was the motive it is unfathomable as to why the
appellant would not have taken the money in the victim‟s wallet
and his jewellery. Motive is unproved as the appellant was
financially stable as established by the evidence of P.W.19 who
deposed that the appellant, a Contractor, had encashed two bills
amounting to Rs.5,00,000/- (Rupees five lakhs) only, and
Rs.4,42,000/- (Rupees four lakhs and forty-two thousand) only,
some time before his arrest, negating any requirement for
commission of robbery. Hence, this stance of the Prosecution
cannot be countenanced. That, in Tarseem Kumar vs. The Delhi 1 Administration the Hon‟ble Supreme Court has held that in a case
of circumstantial evidence, motive for committing crime assumes
importance which has not been established in the instant case.
Strength was also drawn on this aspect from the ratio of State of
Rajasthan vs. Hakam Singh2.
(ii) That, the Disclosure Statement of the appellant, Exhibit
5 reflects that the statement was recorded on 18-04-2016,
whereas recovery of incriminating articles, viz., M.O.VII
(Rs.71,000/- in Rs.1,000/- denomination), M.O.VIII blood stained
1 AIR 1994 SC 2585 2 (2011) 15 SCC 171 Crl.A. No.04 of 2018 4 Subash Thapa vs. State of Sikkim
shoes, M.O.IX Jeans of the appellant and M.O.X gray coloured
jumper, were made in the presence of P.W.15 and P.W.16 on 17-
04-2016, prior in time to the recording of Exhibit 5, thereby
demolishing the Prosecution case of recovery of these articles on
disclosure. P.W.14 has corroborated the evidence of P.Ws 15 and
16 with regard to the date of seizure of the articles being 17-04-
2016 and not 18-04-2016 as asserted by the Prosecution. That,
P.W.15 and P.W.16 are also stock witnesses for the Investigating
Officer (for short, the "I.O."), P.W.43, both having been witnesses
in S.T. Case No.10/2015 and J.J. Case No.01/2016 in which P.W.43
was the I.O. Even if the Prosecution case with regard to the
Disclosures in Exhibit 5, is to be believed, the appellant allegedly
stated therein that he had washed the insoles of the shoes worn by
him at the time of the offence. Contrarily, P.W.15 has deposed
that a pair of blood stained shoes with insoles were seized by the
Police fortifying the allegation that P.W.15 is a stock witness and
thereby unreliable. That, the Court should be wary while
considering the evidence of such interested witness as held in State
of U.P. vs. Arun Kumar Gupta3, thus Exhibit 5 deserves to be
discarded in view of the anomalies. The evidence of P.W.5 a Police
personnel subordinate to the I.O. reveals that on 17-04-2016 after
forwarding the dead body to Gangtok for post-mortem, he along
with P.W.43, the I.O. went to the house of the appellant, obtained
the keys from the appellant‟s father and brought a few clothes
belonging to the appellant to the Police Station. His statement
thus further buttresses the evidence of P.W.14 and the fact that
the clothes of the appellant were seized in his absence, prior in
3 (2003) 2 SCC 202 Crl.A. No.04 of 2018 5 Subash Thapa vs. State of Sikkim
time to the Disclosure Statement. P.W.27, a witness declared
hostile by the Prosecution did not see the appellant and the victim
going together on the motorcycle after their game of cards.
Another witness, P.W.38 stated that he had not even seen the
appellant at the game of cards, according to him, P.W.2, P.W.27
and P.W.28 left the game together, neither had he seen any
motorcycle parked outside the Hotel where they had all gathered to
play cards. The evidence of these witnesses are contrary to the
evidence of P.W.2 with regard to the departure of the victim and
the appellant.
(iii) That, the evidence of P.W.36 and P.W.37 alleged to
have heard the extra-judicial confession of the appellant are
unreliable, as P.W.37 made a concerted bid to improve his
statements during the trial, leading to inconsistencies in the
Prosecution case besides which he had political rivalry with the
appellant during the Panchayat elections. That, the delay in
forwarding the blood sample of the deceased for forensic testing
sans reasons raises doubts about the Prosecution case as the
incident took place on the intervening night of 16-04-2016 and 17-
04-2016, while the sample was forwarded on 08-05-2016. Succour
was drawn on this count from the observation in Arun Kumar Gupta
(supra). That, as no finger prints were lifted from the place of
occurrence or from any of the material objects seized by the Police
the complicity of the appellant has not been proved. Although
attempts were made to tarnish the character of the appellant by
the I.O. P.W.43, by alleging he had been terminated from service
due to unruly behavior this is not substantiated by proof. The
evidence of P.W.42 categorically indicates that the appellant was at Crl.A. No.04 of 2018 6 Subash Thapa vs. State of Sikkim
another location at 10-10.30 pm. of 16-04-2016 and not with the
victim and that the victim and the appellant did not bear animosity
towards each other. The „Shungdi' (a religious thread worn around
the neck) with which the appellant is alleged to have dragged the
dead body, although allegedly seized was not exhibited by the
Prosecution.
(iv) It was next urged that during post-mortem P.W.39 Dr.
O.T. Lepcha, the Medico-Legal Consultant found that the abdomen
of the victim smelled of fermented alcohol, hence intoxication being
the cause of the accident cannot be ruled out. The alleged weapon
of offence M.O.I, a stone, was not shown to P.W.39 to determine
the cause of injuries found on the victim. On this aspect, reliance
was placed on Ishwar Singh vs. State of U.P.4. That, the Prosecution
had attempted to establish that the appellant also rode pillion with
the victim on the bike to a further distance instead of alighting on
reaching his home and then committed the offence, devoid of
evidence. The blood group of both the victim and the appellant
was admittedly „AB‟, but no effort was made during investigation to
conduct further scientific tests to establish beyond doubt that the
blood stains on M.O.I was that of the deceased. That, suspicion
however grave cannot take the place of proof as held by the
Hon‟ble Supreme Court in Rajiv Singh vs. State of Bihar and Another5.
That, it is established law that if two views are possible on the
evidence adduced in the case, one pointing to the guilt and the
other to the innocence of the accused, the view favourable to the
accused should be accepted. On this count, reliance was placed on
4 (1976) 4 SCC 355 5 (2015) 16 SCC 369 Crl.A. No.04 of 2018 7 Subash Thapa vs. State of Sikkim
Suchand Pal vs. Phani Pal and Another6 and State of Rajasthan vs. 7 Naresh alias Ram Naresh . That, the learned trial Court has rejected
the evidence of the Defence Witnesses while failing to appreciate
that it is the bounden duty of the Prosecution to prove its case
beyond all reasonable doubt and not for the defence to establish
innocence. Reliance was placed on State of Haryana vs. Ram Singh8.
That, in view of all arguments put forth and the mandate of law
supra, the Judgment of the learned trial Court be set aside and the
appellant acquitted of the offences charged with.
3(i). Countering the arguments of learned counsel for the
appellant, learned Public Prosecutor contended that the four
circumstances relied on by the Prosecution to prove its case was
the Last Seen Theory, Motive, recovery of money and non-
explanation by the appellant of how he came to be in possession of
Rs.71,000/- (Rupees seventy one thousand) only.
(ii) That, the last seen together theory has been
established by P.W.2 duly corroborated by P.W.37 and P.W.1.
P.W.1 saw the deceased and the appellant entering the Hotel.
P.W.2 and P.W.37 saw them going out together. That, the
evidence of P.W.2, a Police personnel should not be discounted
merely on account of his profession. On this count, reliance was
placed on Kashmiri Lal vs. State of Haryana9. P.W.33 had also seen
the appellant and the deceased in a vehicle returning from the
wedding at 14th Mile.
(iii) That, the death being the result of an accident is ruled
out by the injuries apparent on the back of the head of the
6 (2003) 11 SCC 527 7 (2009) 9 SCC 368 8 (2002) 2 SCC 426 9 (2013) 6 SCC 595 Crl.A. No.04 of 2018 8 Subash Thapa vs. State of Sikkim
deceased as an accident would have caused only frontal injuries,
added to which P.W.26, the Motor Vehicle Inspector (Technical)
deposed that there was no mechanical defect in the motorcycle.
The dead body was found 49 feet below the road, thus if the death
was due to accident there was no reason either for blood to be
found on the road or on the stone M.O.I, the weapon of offence.
(iv) The recovery of cash from the deceased has been
established by the evidence of P.W.15, P.W.16 and P.W.43 and
P.W.3 has proved that she had handed over money to her son, the
victim, on the relevant day. The money was for paying P.W.4 who
in turn had deposed that the deceased had told him that he would
pay Rs.80,000/- (Rupees eighty thousand) only, as an advance for
the landed property purchased from him, but he failed to turn up at
his house. That, the appellant made a Disclosure Statement,
Exhibit 5, without coercion as proved by P.W.15 and P.W.16 and
P.W.43, the I.O. Motive has been established by the fact that the
deceased had refused to give the appellant a sum of Rs.5,000/-
(Rupees five thousand) only, on his request when gambling and the
humiliation of the refusal and awareness of the victim‟s possession
of a large sum of money led to the offence. Drawing the attention
of this Court to the decision in Paramjeet Singh alias Pamma vs. State 10 of Uttarakhand , it was next urged that motive is for the purpose of
supplying a link in the chain of circumstantial evidence, but its
absence cannot be a ground to reject the Prosecution case.
(v) That, PWs 15 and 16 cannot be referred to as stock
witnesses merely because they are witnesses in two other matters
where P.W.43 was the I.O. This is a result of people not wanting to
10 (2010) 10 SCC 439 Crl.A. No.04 of 2018 9 Subash Thapa vs. State of Sikkim
be embroiled in any criminal disputes but in no way renders their
evidence weak, reliance was placed on Sri Bhagwan vs. State of 11 Uttar Pradesh . It was contended that minor discrepancies and
infirmities in the Prosecution evidence is not a ground to reject the
Prosecution case in its entirety as the evidence has to be
considered as a whole in order to assess the truth. Reliance was
placed on the ratio of State of Uttar Pradesh vs. Krishna Master and 12 Others . Inviting the attention of this Court to the decision in State
of M.P. through CBI and Others vs. Paltan Mallah and Others13 it was
canvassed that evidence obtained under illegal search is not
completely excluded unless it has caused serious prejudice to the
accused and the discretion lies with the Court to accept or reject
such evidence. That, since the doctrine of last seen together has
been proved the burden of proof shifts to the accused, however,
the appellant has failed to shed light on his role or his possession
of Rs.71,000/- (Rupees seventy one thousand) only, reliance was
placed on Pattu Rajan vs. State of Tamil Nadu14 to drive home this
point. That, merely because P.W.27 and P.W.28 turned hostile
their evidence cannot be rejected in totality, evidence which is
otherwise acceptable can be relied upon. Strength was drawn from
the ratio in Khujji @ Surendra Tiwari vs. State of Madhya Pradesh15.
4. Having heard the rival submissions of learned counsel
for the parties in extenso, perused the entire records of the learned
trial Court including the impugned Judgment and Order on
Sentence and the citations made at the Bar, this Court is to
determine whether the Prosecution on the edifice of circumstantial 11 (2013) 12 SCC 137 12 (2010) 12 SCC 324 13 (2005) 3 SCC 169 14 (2019) 4 SCC 771 15 (1991) 3 SCC 627 Crl.A. No.04 of 2018 10 Subash Thapa vs. State of Sikkim
evidence has proved its case beyond a reasonable doubt, thereby
rendering the impugned Judgment of the learned trial Court
unassailable.
5. In order to gauge this circumstance, it is necessary to
briefly delve into the facts of the case. The Prosecution case is that
on 17-04-2016 at 0830 hours, Exhibit 13 an FIR was lodged by
P.W.36 at the Gyalshing Police Station at 7 a.m., informing that in
the morning he received a call from P.W.7 stating that the
deceased had met with an accident and his motorcycle was lying
below the road, but the victim was not seen there. The
Complainant reached the spot and found the victim lying face
downwards. On close inspection of the victim he suspected that he
had been murdered and hence lodged the FIR seeking necessary
action. On the basis of the Exhibit 13, Gyalshing P.S. Case No.22/
2016, dated 17-04-2016, under Section 302 of the IPC was
registered against unknown persons and taken up for investigation
by the I.O. P.W.43, the Station House Officer (SHO) of the
Gyalshing P.S. On completion of the investigation, prima facie case
under Sections 341/302/392/427 of the IPC was made out against
the appellant and charge-sheet submitted accordingly.
6. On the appellant‟s plea of "not guilty" to the charges
framed against him by the learned trial Court under Sections 302,
392 and 427 of the IPC the Prosecution embarked on examining 43
witnesses including the I.O. of the case. On closure of Prosecution
evidence, the appellant was examined under Section 313 Criminal
Procedure Code, 1973 (for short, "Cr.P.C.") and his responses
recorded. He sought to and was permitted to examine 6 (six)
persons as his witnesses being D.W.1 to D.W.6. The learned trial Crl.A. No.04 of 2018 11 Subash Thapa vs. State of Sikkim
Court on consideration of oral, documentary and material evidence
pronounced the impugned Judgment of conviction and Order on
Sentence.
7(i). While reaching its conclusion of guilt of the appellant
under the various offences he was charged with the learned trial
Court observed that proof of possession of cash with the victim was
given by P.W.3 and chose to disbelieve that the victim had
adequate means of income. That, the appellant made no effort to
explain his possession of the recovered cash, although he had the
opportunity to do so when examined under Section 313 Cr.P.C.
While discussing the forensic evidence put forth by the Prosecution
and the evidence of P.W.25, the learned trial Court concluded that
the appellant did not explain how his shoes/insoles came to have
blood stains. He had taken the plea that the Police had rubbed "his
blood on his shoes" and clothes but never explained how or when
the Police obtained his blood.
(ii) While discussing the last seen theory, the learned trial
Court found the evidence of P.W.2 credible and trustworthy. The
Court was loathe to accept the statement of P.W.27 that he along
with P.W.28 and P.W.2 left the Hotel together and reasoned that it
was not corroborated by P.W.28, P.W.38 or P.W.2. That, P.W.2
had also clearly testified that the appellant had lost while gambling
and requested the deceased for a loan which the deceased refused
lending motive to the crime.
(iii) The evidence of the Motor Vehicle Inspector, P.W.26,
was considered and the learned trial Court concluded that it was
highly improbable that the victim would have died as a result of an
accident and nothing in the evidence of P.W.2, P.W.27, P.W.28 and Crl.A. No.04 of 2018 12 Subash Thapa vs. State of Sikkim
P.W.38 suggested remotely that the appellant was so intoxicated to
have lost control of his motorbike.
(iv) The medical evidence of P.W.39 who opined that the
cause of death was intracranial haemorrhage with fracture of skull
as a result of blunt force was believed to have been a result of the
assault by the appellant.
(v) The evidence of P.W.5 to the extent that the appellant
tried to escape from the Police vehicle was found to be another
incriminating circumstance against the appellant. The extra-
judicial confession of the appellant as deposed by P.W.36 and
P.W.37 was found plausible, while the Disclosure Statement,
Exhibit 5 was believed to have been made by the appellant before
P.W.15 and P.W.16 at the Gyalshing P.S. of his own freewill. The
seizures made pursuant to Exhibit 5 were given due consideration
and accepted as the truth. The evidence of the Defence Witness
were disregarded in totality and after recording its observations the
assailed Judgment was pronounced.
8. Circumstantial evidence is legal evidence, but when the
Prosecution relies upon circumstantial evidence as is the case here,
the circumstances must be so convincing that no other conclusion
can be arrived at than the guilt of the accused which must
adequate to convict the accused. In Hanumant Govind Nargundkar
and Another vs. State of Madhya Pradesh16 while considering a case
based on circumstantial evidence, the Hon‟ble Supreme Court held
as follows;
"[10] ............................................................
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to
16 AIR 1952 SC 343 Crl.A. No.04 of 2018 13 Subash Thapa vs. State of Sikkim
be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ................."
9. The Supreme Court in Sharad Birdhichand Sarda vs. State 17 of Maharashtra expounded that the five golden principles which
constitute the panchsheel of the proof of a case based on
circumstantial evidence as (i) The circumstances from which the
conclusion of guilt is to be drawn must or should be and not merely
"may be" fully established; (ii) The facts so established should be
consistent with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other hypothesis except
that the accused is guilty; (iii) The circumstances should be of a
conclusive nature and tendency; (iv) They should exclude every
possible hypothesis except the one to be proved; and (v) There
should be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act
must have been done by the accused. On the anvil of these well-
settled parameters the evidence in the instant matter is to be
examined to assess whether they fulfil the above principles.
10(i). The first link in the chain of circumstantial evidence
would undoubtedly have to be the last seen together theory. In
Bodhraj alias Bodha and Others vs. State of Jammu and Kashmir18 the
Supreme Court held that the last seen theory comes into play
17 (1984) 4 SCC 116 18 (2002) 8 SCC 45 Crl.A. No.04 of 2018 14 Subash Thapa vs. State of Sikkim
where the time gap between the point of time when the accused
and deceased were seen last alive and when the deceased is found
dead, is so small, that possibility of any person other than the
accused being the author of crime becomes impossible. Only on
this circumstance being proved can the Prosecution link the other
circumstances to it and thereby the offence to the appellant. On
this aspect the evidence of P.W.2 a Police personnel posted at the
Yuksom Police Out Post at the relevant time is to be examined. As
per P.W.2 the deceased had called him to the Hotel after his duty
hours. He along with the deceased, P.W.28, P.W.27 and P.W.38
and the appellant played cards and he noticed that the deceased
was in possession of some amount of money in the denomination
of Rs.1,000/- (Rupees one thousand). When they dispersed after
the game he saw the deceased and the appellant going towards
Gyalshing on the motorcycle of the deceased. P.W.27 and P.W.28
who were also at the same Hotel and playing cards, were declared
hostile by the Prosecution. Another witness present at the place
was P.W.38.
(ii) On careful consideration of the evidence of the
Prosecution Witnesses present at the Hotel, it is evident that
P.W.27, P.W.28 and P.W.38 have not supported the evidence of
P.W.2 with regard to the time of the card playing session at the
Hotel and their dispersal from the place. According to P.W.27,
after the game of cards the group had dispersed and he left with
P.W.2 and P.W.28 at 6.30 p.m., he did not see the motorbike of
the deceased. P.W.28 too denied seeing the appellant and the
deceased on the bike of the deceased. According to him, he along
with P.W.27 went to the place where the appellant, the deceased Crl.A. No.04 of 2018 15 Subash Thapa vs. State of Sikkim
and others were gambling. Thereafter, he left with P.W.27 went
shopping and returned home. That, he did not state to the Police
that he had seen the appellant and the deceased leave together on
a motorbike and such a statement was falsely attributed to him in
his Section 161 Cr.P.C. statement. P.W.38 deposed that he left the
Hotel around 6.30 to 7.00 p.m., that P.W.2, P.W.27 and P.W.28
had also left the store room where the gambling took place. He
had not seen any bike parked outside the Hotel where the game of
cards was played. Contrarily P.W.2 stated that he went to the
Hotel at around 7.30 to 8 p.m., P.W.2 failed to give details of the
time when the group broke up after the game of cards. This
evidence is to be considered in tandem with that of P.W.32 who
stated that he had attended the wedding at 49th Mile, Thingling, on
reaching home he found that he had lost one of his two mobiles
and he told the appellant telephonically about the loss. P.W.42
supported the evidence of P.W.32 and under cross-examination
deposed that at 10-10.30 p.m. of 16-04-2016 the appellant had
come to their house in his Maruti 800 car looking for the lost
mobile.
(iii) In light of the above, evidence of the witnesses,
furnished by the Prosecution, it is questionable as to why more
weight was attached to the evidence of P.W.2 by the learned trial
Court when other witnesses have not corroborated his evidence
and when specific timings of the event are missing from his
evidence as against the evidence of P.W.27 and P.W.38 who vouch
for the fact that they all dispersed from the Hotel at 6.30 p.m. The
I.O. in his evidence has stated that the game of cards gave over at
2200 hours which is contrary to the evidence of P.W.27, P.W.28, Crl.A. No.04 of 2018 16 Subash Thapa vs. State of Sikkim
P.W.38 and P.W.6 one of the Hotel owners, according to whom, her
Hotel closed down at 7 p.m. The evidence of P.W.2 that he
reached the Hotel at 7.30 p.m. to 8 p.m., therefore, falls flat
considering that the Hotel owner claimed that her Hotel closed
down at 7 p.m. Although Learned Public Prosecutor had contended
that P.W.1 had seen the appellant and the deceased at her Hotel
thereby buttressing the last seen theory, under cross-examination
P.W.1 stated that she did not see the appellant on the relevant day
at her Hotel. She also stated that the deceased had „allegedly‟
come to her Hotel at around 4.30 p.m. To compound the confusion
P.W.5 added that "........... during the investigation it was found that
during the day the deceased had last been seen with the accused
on the motorbike". In light of the anomalies with regard to the
time of closure of the Hotel, the time when P.W.2 reached there
and the consistent contradictory evidence of the time of dispersal
of the gathering, added to the contradictory evidence of P.W.2 with
that of P.W.27, 28 and 38, the evidence of P.W.2 having last seen
the deceased and the appellant together on the motorbike cannot
be countenanced. Hence, the cogent and consistent evidence
essential to establish the last seen theory in the Prosecution case is
glaringly lacking. Besides P.W.2, no other person assembled at the
Hotel and gambling, there had seen the victim in possession of a
large sum of money. It is these anomalies and conflicting evidence
that make the testimony of P.W.2 untenable and unworthy of
reliance and not the fact that he is a Police personnel. Beneficially it
may also be stated that it is no more res integra that it is not
prudent for the Court to base its conviction solely on the basis of
the last seen theory.
Crl.A. No.04 of 2018 17
Subash Thapa vs. State of Sikkim 11(i). Next, on the basis of Exhibit 5 the Disclosure
Statement of the appellant under Section 27 of Indian Evidence
Act, 1872 (for short, "Evidence Act") allegedly made in the
presence of PWs 15 and 16, M.O.VII cash amounting to
Rs.71,000/- (Rupees seventy one thousand) only was recovered
vide Exhibit 6, dated 18-04-2016, from the place allegedly shown
by the appellant. Vide Exhibit 7, dated 17-04-2016, signed by PWs
15 and 16 on 18-04-2016, M.O.VIII (pair of white blood stained
shoes with insoles), M.O.XXVI (one white coloured blood stained
Jumper), M.O.IX (one blood stained blue Jeans trousers of the
appellant) and M.O.X (one blood stained V-shaped vest with blood
stains), were seized allegedly. But can these recoveries link the
crime to the appellant? In our considered opinion, it would not be
so in view of the contradictions that emerges in the Prosecution
evidence with regard to Exhibit 5.
(ii) Before discussing this aspect of the Prosecution case,
we may briefly examine what Section 27 of the Evidence Act
entails. The provision of Section 27 of the Evidence Act is
extracted below for easy reference;
"27. How much of information received from accused may be proved.─Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Section 27 is by way of a proviso to Sections 25 and 26 of
the Evidence Act, by which a statement made in police custody
which distinctly relates to the fact discovered is admissible in
evidence against the accused. The conditions prescribed in Section
27 enabling admissibility of the statement of the accused made to Crl.A. No.04 of 2018 18 Subash Thapa vs. State of Sikkim
the police are enumerated in Pulukuri Kottaya and Others vs. 19 Emperor which still rules the roost with regard to the
interpretation of Section 27 of the Evident Act as follows;
"[10]. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and there upon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. ........"
The phrase "distinctly relates to the fact discovered" in
Section 27 of the Evidence Act is the foundational aspect of this
provision. This phrase refers to that part of the information
supplied by the accused which is the driver and immediate cause of
the discovery. If a fact is actually discovered in consequence of
information given by the accused, it affords some guarantee of the
truth of that part of the information which was the clear, immediate
and proximate cause of the discovery.
(iii) Bearing in mind the principles so enunciated, we now
examine Exhibit 5 recorded by the I.O. in the presence of two
witnesses, P.W.15 and P.W.16. In his Disclosure, the appellant
claims to have washed the insoles of the shoes, M.O.VIII and
washed the white jumper worn by him on the night of the incident
19 AIR 1947 PC 67 Crl.A. No.04 of 2018 19 Subash Thapa vs. State of Sikkim
which he could show the witness. P.W.43 has strangely however
recovered a blood stained white Jumper and blood stained insoles
allegedly in pursuance to the appellant‟s disclosure vide Exhibit 7.
M.O.X a gray Jumper was not even one of the articles seized on the
basis of Exhibit 5 as deposed by P.W.15. The appellant is alleged
to have revealed in Exhibit 5 that the shoes, M.O.VIII were kept
separately and the washed insoles kept elsewhere but the
Prosecution evidence indicates that the shoes were seized with the
insoles, in contradiction to the Disclosure Statement thereby
making the recovery suspect.
(iv) P.W.15 and P.W.16 under cross-examination admitted
that articles under Exhibit 7, dated 17-04-2016, were seized on the
same date, i.e., 17-04-2016 at 1515 hours and recovery of the
money was also made on the same date vide Exhibit 6. The
Disclosure Statement Exhibit 5, was recorded on 18-04-2016,
hence it emerges that recovery of articles reflected in Exhibit 7
were made prior to the disclosure, which is an incongruous
proposition and razes the Prosecution case to the ground. The
learned Public Prosecutor sought to brush aside these anomalies as
minor discrepancies, however, these discrepancies strike at the
root of the Prosecution case since their attempt is to link the crime
to the appellant on the anvil of Exhibit 5. In such a circumstance,
the investigation is required to be faultless. Apart from violation of
the legal provision the seizures being inconsistent with the
statement in Exhibit 5 are, therefore, prone to be viewed with
suspicion. The evidence of P.W.5 fortifies the statement of P.W.15
and P.W.16 and lends further doubt to the seizures of even having
been made in the presence of P.W.15 and P.W.16. According to Crl.A. No.04 of 2018 20 Subash Thapa vs. State of Sikkim
P.W.5, the victim‟s body was forwarded to Gangtok for post-
mortem while he was at the place of occurrence. This statement
obtains credence from Exhibit 3 the Medico-Legal Autopsy Report
of the victim which records that the body was received by the
STNM Hospital, Gangtok, on 17-04-2016 at 6.45 p.m. After
forwarding the body, he along with P.W.43 went to the house of
the appellant for investigation after getting the keys from the
father of the appellant, which were returned only on the next day.
They brought a few clothes of the appellant from his house and
came to the Police Station. His evidence thus leads to the
conclusion that he accompanied P.W.43 to the house of the
appellant on 17-04-2016 itself. P.W.5 surprisingly is not even a
witness to the articles seized vide Exhibit 7 and the I.O. has not
explained this circumstance in his testimony nor has he disclosed
as to what became of the clothes taken by him when P.W.5 had
accompanied him to the appellant‟s house. It would be profitable
to notice at this point that in Question No.9 put to the appellant in
his Section 313 Cr.P.C. statement he has shed light on how the
blood stains came on his washed clothes. The Question and
Answers are extracted hereinbelow for convenience;
"Q. No.9 PW-15 has further stated that on the
same day the police also seized a pair of blood stained
shoes (MO-VIII), a jeans pant (MO-IX) and a gray
coloured jumper (MO-X) from your room in his
presence vide Exhibit-7.
What have you to say?
Ans:- These clothes and the money was taken by the Police on 17.4.2016 from my house and brought to the Police Station. Thereafter, they again rubbed blood on my clean clothes and later went and placed the clothes and money in my house in various places. On 18.4.2016 the Police then took me to my house and the money was taken out by the Police and my Crl.A. No.04 of 2018 21 Subash Thapa vs. State of Sikkim
clothes were also taken out by the Police from Tikjuk P.S."
(v) Learned Public Prosecutor while relying on Paltan Mallah
(supra) had contended that evidence obtained under illegal search
is not completely excluded unless it has caused serious prejudice to
the accused. The facts and circumstances in the said case are
distinguishable from the one at hand. In Paltan Mallah (supra) the
Prosecution had conducted search of the residence of A1 and
recovered certain articles, however, the recovery was not based on
Section 27 of the Evidence Act. Once the Prosecution bases its
case on Section 27 of the Evidence Act then necessarily the
procedure laid down therein must be followed to the hilt, as the
liberty of an individual is at stake.
(vi) P.W.25 the Junior Scientific Officer examined the
Material Objects, i.e., one white coloured Jumper, M.O.XXVI; one
blue coloured Jeans pant, M.O.IX; one brown coloured V-shaped,
M.O.X (in the impugned Judgment M.O.X is indicated as gray
coloured Jumper); blood sample of victim, M.O.XXVII and blood
sample of the accused, M.O.XXX. As providence would have, the
blood sample of both the appellant and the deceased belonged to
the blood group „AB‟. Despite the similarity in the blood group of
the victim and the deceased, no effort was made during
investigation to establish by further scientific evidence as to whose
blood was found on the clothes and shoes of the appellant. Blood
was not detected on the brown V-shaped vest, white Jumper and
Jeans. Pausing here it requires to be reiterated that even forensic
tests did not detect blood on these articles, but the I.O. contrarily
has recorded in Exhibit 7 that the articles were blood stained. It is
relevant to recapitulate that the appellant in Exhibit 5 had stated Crl.A. No.04 of 2018 22 Subash Thapa vs. State of Sikkim
that the insoles of his shoes were washed but strangely appears to
have contained blood stains when forwarded for forensic test. It is
not the Prosecution case that there were blood stained foot prints
at the site of the crime or on the road where the alleged incident
took place. Thus, even the forensic evidence is of no assistance to
the Prosecution case.
(vii) P.W.3 has stated that on the date of the accident she
handed over Rs.1,00,000/- (Rupees one lakh) only, to the victim.
Recovery of cash amounting to Rs.71,000/- (Rupees seventy one
thousand) only, was made by the Police from the place of
concealment as disclosed by the appellant, but no finger prints
were lifted from the currency notes to establish ownership of the
currency notes, followed by robbery and thereby change in
ownership. No investigation ensued to prove the fate of the
remaining Rs.29,000/- (Rupees twenty nine thousand) only, out of
the said Rs.1,00,000/- (Rupees one lakh) only. The added
anomaly is that P.W.3 had evidently handed over Rs.1,00,000/-
(Rupees one lakh) only, in denominations of Rs.500/- (Rupees five
hundred) only, but recovery was of denominations in Rs.1,000/-
(Rupees one thousand) only. The vehement argument of the
learned Public Prosecutor that the burden was cast on the appellant
to establish how he came to be in possession of Rs.71,000/-
(Rupees seventy one thousand) only, in our considered opinion, is
against all established legal tenets as the reverse burden under
Section 106 of the Evidence Act would fall into place only once the
Prosecution succeeds in establishing by plausible evidence its
allegations against the appellant. The Prosecution, as can be seen
from the discussions above, has failed to discharge its obligation. Crl.A. No.04 of 2018 23
Subash Thapa vs. State of Sikkim
The motive of the appellant to do away with the victim has not
been established nor was it established that they had inimical
relations. As pointed out by learned counsel for the appellant if
greed was the factor that motivated him, then it needs to be
mulled over as to why a sum of Rs.11,000/- (Rupees eleven
thousand) only, said to be found in the victim‟s possession at the
place of occurrence as also his gold ring were not taken by the
appellant.
(viii) P.W.39 the Doctor who examined the victim has merely
opined that the approximate time since death was 12 to 24 hours
and the cause of death, to the best of his knowledge and belief,
was due to intracranial haemorrhage with profuse loss of blood,
with fracture of skull as a result of blunt force trauma. No opinion
was expressed on how the blunt force trauma was inflicted on the
victim. An expert deposing before the Court plays a crucial role as
the entire purpose of opinion evidence is to aid the Court in
forming its opinion on questions concerning science, medical
aspects, etc. Here, P.W.39 was not able to opine as to whether the
death was homicidal or accidental and he was disadvantaged by
not having been shown M.O.I the alleged weapon of offence. The
wounds on the person of the victim and the fracture of his skull
could well have been the consequence of having been struck by a
stone (M.O.I) or due to a fall from the height of the road, but the
Prosecution case cannot be based on conjectures.
(ix) Investigation has failed to explain as to how the
ligature mark (5 cm width) appeared over the neck of the deceased
detected by P.W.39 was inflicted. P.W.39 has opined as follows;
"11. Ligature mark (5 cm width) placed over the neck and running backwards situated just over Crl.A. No.04 of 2018 24 Subash Thapa vs. State of Sikkim
and above the thyroid. The left ligature is placed 3.9 cm below left ear and right ligature is placed 3.8 cm below right ear. The ligature encircles the neck and does not extend upwards. Multiple small ligature marks (2 in numbers) each measuring 0.5 cm and is placed within the broad ligature mark of 5 cm. The ligature mark excludes possibility of hanging."
He, however, was not shown any article which could have
caused the ligature mark neither has any such object been
exhibited by the Prosecution before the learned trial Court to
explain the mark.
12(i). So far as extra-judicial confession of the appellant to
P.W.37 is concerned, in his evidence-in-chief, P.W.37 stated that
the appellant narrated to him in the Nepali language, which roughly
translated into English, reads as follows;
I pushed the bike from behind and it toppled over. After that I took a stone and hit him and killed him. To make it appear like an accident I made it look like the bike had fallen down, took the money and came home.
(ii) Under cross-examination, it was elicited from him that
this statement supra finds no place in his Section 161 Cr.P.C.
statement recorded by the I.O. during the course of investigation.
P.W.37 also sought to clarify that although the „wife‟ of the
appellant was not present when his statement was being recorded
her presence had been wrongly mentioned, when in fact it was the
„uncle‟ of the appellant who was present. The witness sought to
rectify this error. In light of the above contradictions, it would be a
risky proposition to rely on the deposition of this witness as his
evidence before the Court appears to be an effort to improve the
Prosecution case by insertion of concocted statements which had
earlier not been made by him. According to P.W.36, the appellant
had told him that he had returned home with the victim and that
now he would be dragged into the matter, but he had also added Crl.A. No.04 of 2018 25 Subash Thapa vs. State of Sikkim
that after they returned together he had gone home while the
victim had proceeded ahead towards 13th Mile. If that be the case,
then the statement of the appellant made to the witness must be
appreciated in its entirety and the Prosecution cannot pick and
choose sentences which suit them and discard the portions
unsavoury to the Prosecution.
(iii) Although the learned trial Court observed that the
accident could not have occurred in view of the absence of
mechanical failure of the bike, however, the fact that the appellant
was speeding and went off the road also cannot be discounted
these are therefore only conjectures and surmises not evidence.
The Motor Vehicle Inspector (Technical), P.W.26 was not in a
position to state whether the victim was speeding or not.
Moreover, finger prints were not lifted by the I.O. from the
motorbike to substantiate the Prosecution version that the
appellant was riding pillion when the victim was driving at the time
of the incident. The statements of P.W.5 and P.W.43 that the
appellant attempted to escape from the custody of the Police have
to be taken with a pinch of salt as records reveal that no such
effort was made by him during the entire intervening night after
the alleged incident, although he was allegedly in possession of the
stolen amount of Rs.71,000/- (Rupees seventy one thousand) only,
and could well have made good his escape.
(iv) That, having been said the delay in forwarding the
blood sample of the victim to P.W.25, the Junior Scientific Officer,
stationed at Ranipool, East District of Sikkim, on 08-05-2016, when
the incident had occurred on the intervening night of 16-04-2016 Crl.A. No.04 of 2018 26 Subash Thapa vs. State of Sikkim
and 17-04-2016, has not been explained by the Prosecution and
adds to the doubts about the authenticity of the Prosecution case.
(v) Despite there being strong suspicion against the
appellant with regard to him having a hand in the death of the
appellant, suspicion however strong cannot replace certainty. Moral
conviction cannot be resorted to in a criminal case as the golden
rule is proof of case beyond a reasonable doubt.
13. In the end result, we find that the Prosecution has not
only failed to establish the last seen together theory, but also the
motive of the appellant for committing the crime. On pain of
repetition, it is reiterated that the seizure of the articles allegedly
based on Exhibit 5 is fraught with inconsistencies. In the absence
of cogent, consistent and plausible evidence furnished by the
Prosecution, there is every possibility of a false implication of the
appellant.
14. Consequently, the conviction and sentence imposed on
the appellant vide the impugned Judgment and Order on Sentence
of the Learned Trial Court are set aside.
15. The appellant is acquitted of the charge under Sections
302, 392 and 427 of the IPC.
16. Appeal allowed.
17. Appellant be released from custody forthwith unless
required to be detained in connection with any other case.
18. Fine, if any, deposited by the appellant in terms of the
impugned Order on Sentence, be reimbursed to him.
19. No order as to costs.
Crl.A. No.04 of 2018 27
Subash Thapa vs. State of Sikkim
20. Copy of this Judgment be transmitted to the learned
trial Court, for information, along with its records and a copy be
sent forthwith to the Jail Authorities as also e-mailed.
( Meenakshi Madan Rai ) ( Biswanath Somadder )
Judge Chief Justice
14-12-2021 14-12-2021
Approved for reporting : Yes
ds
