Sagar Subba vs State Of Sikkim
2021 Latest Caselaw 69 Sikkim

                          THE HIGH COURT OF SIKKIM : GANGTOK
                                         (Criminal Appellate Jurisdiction)

                                        DATED : 10th November, 2021
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 DIVISION BENCH: THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
                 THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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                                          Crl. A. No.11 of 2020
                                   Appellant            :      Sagar Subba
                                                                 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, Advocate (Legal Aid Counsel) for the
                          Appellant.
                          Mr. Sudesh Joshi, Public Prosecutor with Mr. Yadev Sharma,
                          Additional Public Prosecutor and Mr. Sujan Sunwar, Assistant
                          Public Prosecutor, for the State-Respondent.
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                                         JUDGMENT

Meenakshi Madan Rai, J.

1. The only question for determination in this Appeal is

whether the offence committed by the Appellant-Accused

(hereinafter the "Appellant") is murder, as defined under Section

300 of the Indian Penal Code, 1860 (for short, the "IPC"), or

whether it would fall under the Exceptions carved out under the

said provision of law, whereby the offence would be one under

Section 304 of the IPC, thereby entailing a lesser degree of

penalty.

2. In his arguments, Learned Counsel for the Appellant

contended that the Prosecution case was one of premeditated

murder by the Appellant but, in fact, the offence was committed on

the spur of the moment on a grave and sudden provocation given

Sagar Subba vs. State of Sikkim

by the deceased consequent upon which the offence was

committed. While walking this Court through the evidence of the

Prosecution Witnesses, more especially that of P.Ws.1, 9, 12, 15

and 16, it was urged that although P.Ws.15 and 16 were minor

children and alleged eye-witnesses to the offence, however, the

evidence of P.W.15 reveals that he saw the Appellant draw out a

khukuri (sharp edged weapon) but did not witness the assault,

whereas P.W.16 stated that she had seen both the Appellant and

the deceased having some discussion near the shop of P.W.12. She

does not speak of the Appellant having drawn out the khukuri.

There is thus an anomaly in the evidence of these two Witnesses

who were together. P.W.12, the Shopkeeper in front of whose shop

the alleged offence took place, did not lodge any Complaint while

P.W.9, the wife of P.W.12 and the mother of P.W.6, is the only

Witness who informed her son P.W.6 after hearing a commotion

outside their Shop and on seeing one boy lying in front of their

Shop however P.W.6 also did not lodge an FIR. The antecedents of

the Appellant were known to P.W.1 as the Appellant used to work

in the house of P.W.7, the father of P.Ws.1 and 2. Evidently, there

was no animosity between the deceased and the Appellant as can

be culled out from the evidence of P.Ws.1, 2 and 7. That, P.W.3 the

father of the deceased, did not witness the incident and was only

informed of it by his niece, one Leela Subba who is not even a

Witness in the instant matter, thereby raising doubts about the

authenticity of the evidence of P.W.3. That, as both the deceased

and the Appellant were in a drunken condition, it was essentially a

drunken brawl and on sudden provocation, the Appellant struck the

deceased fatally. Hence, the offence committed by him would be

Sagar Subba vs. State of Sikkim

under the ambit of Section 304 of the IPC and not under Section

300 thereof. To buttress his submissions, Learned Counsel placed

reliance on Surinder Singh vs. State of Punjab1.

3. Repudiating the arguments of Learned Counsel for the

Appellant, Learned Public Prosecutor contended that P.W.12 had

clearly seen the assault, while P.Ws.15 and 16 the minor children

have both seen the Appellant and the deceased together and both

have witnessed them having a discussion. That, P.W.17 the Medico

Legal Consultant who examined the body of the deceased, found

six ante mortem injuries, as detailed in Exhibit 10, the Medico

Legal Autopsy Report pertaining to the Appellant. It thus stands to

reason that the deceased being unarmed, was assaulted by the

Appellant leading to his death. No grave and sudden provocation

has been established by the Appellant and hence the offence falls

under all Clauses of Section 300 of the IPC. That, none of the

Exceptions carved out in Section 300 of the IPC, are attracted for

the wanton act committed by the Appellant. Conceding that it may

not have been a premeditated murder, Learned Public Prosecutor

urged that it was undoubtedly committed with the knowledge and

intention of causing murder and well within the parameters of the

offence defined under Section 300 of the IPC, hence, the Appeal

deserves a dismissal.

4. The submissions of Learned Counsel for the parties

were heard in extenso, all evidence examined and the impugned

Judgment perused as also the citation made at the Bar.

5. The facts of the case which have led to the instant

Appeal are that on 19.10.2018, P.W.3 Amber Bahadur Limboo, the

1989 Supp (2) SCC 21

Sagar Subba vs. State of Sikkim

father of the deceased, lodged Exhibit 3 the FIR on 19.10.2018

before the Singtam Police Station informing that on the same

evening at around 6 p.m., the Appellant, a helper in the house of

Puspak Ram Subba (P.W.7), had assaulted and killed his son Saran

Subba in front of the shop of Hira Lal Bhagat (P.W.12), by

repeatedly attacking him with a khukuri. Hence, legal action was

sought. The Singtam Police Station registered Exhibit 3, the FIR, on

the same date as FIR No.53/2018 under Section 302 of the IPC

against the Appellant and the matter was endorsed to P.W.24 S.I.

Sonam Dorjee Lachenpa for investigation. P.W.24, on completion of

his investigation, submitted Charge-Sheet against the Appellant

under Section 302 of the IPC.

6. The Learned Trial Court framed Charge against the

Appellant under Section 302 of the IPC, to which the Appellant

pleaded "not guilty." The Prosecution, in an endeavour to prove its

case beyond a reasonable doubt, examined twenty five Witnesses.

On closure of the Prosecution evidence, the Appellant was afforded

an opportunity under Section 313 of the Code of Criminal

Procedure, 1973, to explain the incriminating evidence against him.

He denied any involvement in the offence. Arguments of the parties

were finally heard and the impugned Judgment pronounced on

08.10.2020 convicting the Appellant under Section 302 of the IPC.

The Order on Sentence was pronounced on 09.10.2020, whereby

the Appellant was sentenced to suffer Rigorous Imprisonment for

life and to pay a fine of Rs.30,000/- (Rupees thirty thousand) only,

with a Default Clause of Imprisonment, hence this Appeal.

7.(i) P.W.3 the father of the deceased, proved the contents

of Exhibit 3 the FIR lodged by him. He is not an eye-witness to the

Sagar Subba vs. State of Sikkim

offence but had gone to the Place of Occurrence (for short, the

"P.O.") in front of the Shop of P.W.12, after being informed of the

incident by his niece Leela Subba at around 7.30 p.m. to 8 p.m. of

the date of the incident i.e. 19.10.2018. At the P.O., he found his

son (deceased) lying on the ground in a pool of blood. Thereafter

he lodged Exhibit 3 at the Singtam Police Station. P.W.1 Bhaskar

Hang Thebey and P.W.2 Raj Hang Thebey are the sons of P.W.7, in

whose house the Appellant used to work as a Labourer. P.W.7 lent

no support to the Prosecution case, however, P.Ws.1 and 2 were

witnesses to the seizure of M.O.V the khukuri with a wooden

scabbard and a black coloured sling attached to it, which were

seized by the Police from the possession of the Appellant after they

found him near the woods on the river side along with his bedding

and the khukuri. P.Ws.1 and 2 had accompanied the Police to

search for the Appellant along with P.W.14 Norbu Tshering Bhutia

and P.W.18 ASI P.B. Subba, who duly supported the fact of seizure

of M.O.V from the Appellant and confirmed the place where the

Appellant was hiding. It also emerges from the evidence of P.Ws.1

and 2 that after the seizures were made, the Police packed and

sealed the seized articles in their presence. P.Ws.1 and 2 both saw

the body of the deceased lying in front of the Shop of P.W.12. The

cross-examination of P.W.2 indicates that he had heard someone

shouting that a person was being killed and he immediately went to

verify. When he reached the P.O., five-six people were gathered

there and the Victim lay dead on the ground in a pool of blood,

thus corroborating the evidence of P.W.1 who, under cross-

examination, deposed that he had also seen the deceased lying in a

pool of blood.

Sagar Subba vs. State of Sikkim

(ii) P.W.5 Uma Tamang and P.W.6 Roshan Kumar Bhagat

son of P.W.12 Hira Lal Bhagat and P.W.9 Shova Devi, also

witnessed the body of the deceased on the ground and were also

Witnesses to the Police lifting the Blood Sample of the deceased

from the P.O. in their presence. P.Ws.5 and 6 both identified MO

VI, MO VII and MO VIII as the blood lifted by the Police from the

P.O. in their presence consequent upon which, Exhibit 6 the

Seizure Memo, was prepared wherein they affixed their respective

signatures. P.W.6, corroborating the evidence of P.W.9, his mother,

stated that he heard her shouting and saw the deceased on the

ground in a pool of blood.

(iii) P.W.12 was the only eye-witness to the incident. He

runs a Grocery Shop at the road level floor of the building of P.W.7.

According to this Witness, on 19.10.2018, at around 6.30 p.m. to

6.45 p.m., the Appellant came to his Shop and purchased two-

three cigarettes. He appeared to be under the influence of alcohol.

After about 5-10 minutes, the deceased also arrived at the same

place. An altercation arose between the Appellant and the

deceased, the details of which he did not hear. Suddenly, the

Appellant started assaulting the deceased on his neck and other

parts of the body. He saw the deceased falling down and blood

oozing out of his neck and other parts of the body. Consequent

thereto, the Witness fell down and became unconscious. Although

he could not specifically identify M.O.V as the same khukuri, he

however stated that it looked like the khukuri which was in the

Appellant's hand. His evidence remained undecimated in cross-

examination.

Sagar Subba vs. State of Sikkim

(iv) P.W.15 Binod Subba, a child of about twelve years saw

the Appellant and the deceased having an altercation whereupon

the Appellant drew a khukuri but being scared, he along with his

sister, P.W.16 Mandira Subba, aged about eight years, returned

home. P.W.16 has stated much the same, except that she did not

see the Appellant drawing out his khukuri.

(v) By far, the most important evidence is of P.W.17 Dr.

O.T. Lepcha, Medico Legal Consultant. The body of the deceased,

with a history of having been assaulted by one Sagar Subba

(Appellant) with a khukuri, along with Inquest Papers were

received by him on 20.10.2018. He conducted autopsy on the

same day, at around 12.40 p.m. On examination of the deceased,

the Doctor recorded inter alia as follows;

"Antemortem injuries:-

1) Incised chopped wound 21 cm x 6 cm x spine over the right side of neck with bevelling of the upper border of the wound. The injury is clean cut, bleeding and is directed medially and downwards. It involves the scalp and the right side muscles of the neck with fracture of the second cervical vertebrae.

2) Incised injury 8 cm x 0.1 cm bleeding over the left biceps.

3) Elliptical incised chop wound over the right side of back over the fifth and sixth lumbar vertebrae measuring 11 cm x 2 cm x bone.

4) Elliptical incised chop wound 12 cm x 2 cm x bone placed 2.5 cm below injury No.3.

5) Incised chop injury 7.5 cm x 1.8 cm placed at medline over the back 2 cm below injury No.4.

6) Superficial linear incised injury(5 in numbers) each measuring 7 cm x 0.5 cm to 4.2 cm x 0.5 cm and placed over right side of the back.

........................................... Based on my examination, I opined that the approximate time since death was 12 to 24 hrs and the cause of death to the best of my knowledge and belief was as a result of hypovolaemic hemorrhagic shock due to multiple homicidal chop wound.

Exhibit 10 is medico legal autopsy report drawn by me, Exhibit 10(a) is my signature. Going through MO V shown to me I can say that it could cause the injuries mentioned in my report."

Sagar Subba vs. State of Sikkim

8.(i) The evidence on record having thus been examined, it

may relevantly be mentioned here that Exception 4 of Section 300

of the IPC, which the Appellant seeks to invoke, 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, or acted in a cruel or unusual manner. Thus, in order to

bring the instant matter within the ambit of Exception 4, all of the

ingredients mentioned in the Exception have to be proved. The

Appellant is necessarily to prove that the offence was (a)

committed without premeditation, (b) in a sudden fight, (c) in the

heat of passion, (d) upon a sudden quarrel, and (e) without the

offender having taken undue advantage, (f) or acted in a cruel or

unusual manner. If the Prosecution evidence does not point to a

sudden fight and the Appellant had acted in a cruel manner, the

least that can be said is that he took advantage of the deceased,

thereby leaving no justification for applying the Exception 4 to

Section 300 of the IPC. Clearly, the Prosecution evidence does not

indicate that there was a grave or sudden provocation given by the

deceased. Even if the act was committed without premeditation, it

is clear that the deceased was unarmed, while the Appellant was

armed with the khukuri M.O.V. He struck the deceased relentlessly

several times with the khukuri, leading to numerous deep injuries,

as apparent from the evidence of P.W.17, Dr. O.T. Lepcha. This is a

clear indication that he had taken undue advantage of the situation

and also acted in a cruel and unusual manner by inflicting injuries

on the neck and other parts of the body of the Victim.

Consequently, no scope remains for invocation of Exception 4 to

Sagar Subba vs. State of Sikkim

Section 300 of the IPC and the offence, indeed, squarely falls under

Section 302 of the IPC.

(ii) Reliance on the ratio of Surinder Singh supra, by

Learned Counsel for the Appellant is misplaced as in the said case,

the accused and the deceased broke into a drunken brawl and the

murder was allegedly committed about five-six hours later. The

facts therein are clearly distinguishable from the instant matter.

9. Hence, in light of all the discussions that have

emanated hereinabove, we are of the considered opinion that no

error emanates in the findings arrived at by the Learned Trial

Court.

10. In the end result, the impugned Judgment and Order

on Sentence, dated 08.10.2020 and 09.10.2020 respectively, of

the Learned Sessions Judge, Special Division-I, East Sikkim at

Gangtok, in Sessions Trial Case No.02 of 2019, are upheld.

11. The Appeal fails and is accordingly dismissed.

12. No order as to costs.

13. Copy of this Judgment be transmitted to the Learned

Trial Court, for information.

14. Trial Court Records be remitted forthwith.

                      ( Bhaskar Raj Pradhan )                           ( Meenakshi Madan Rai )
                                    Judge                                             Judge
                                    10.11.2021                                        10.11.2021




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