THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 28th July, 2022
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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.05 of 2021
Appellant : Satar Gurung
versus
Respondent : State of Sikkim
Application under Chapter XXIX Section 374(2)
of the Code of Criminal Procedure, 1973
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Appearance
Mr. N. Rai, Senior Advocate (Legal Aid) with Mr. Sushant Subba,
Advocate (Legal Aid) for the Appellant.
Mr. Sudesh Joshi, Public Prosecutor with Mr. Yadev Sharma and
Mr. Thinlay Dorjee Bhutia, Additional Public Prosecutors for the
State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
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
1 (1980) 2 SCC 218 2 (1993) Supp 1 SCC 447 3 2004 SCC OnLine Bom 1227 4 AIR 2021 SC 534 5 AIR 2021 SC 1547 6 AIR 2022 SC 805 Crl.A. No.05 of 2021 5
Satar Gurung vs. State of Sikkim
were at the place of occurrence and had witnessed the incident and
were not party to the offence and hence their rightful acquittal.
The evidence of P.W.2 with regard to the incident has remained
resolute and he is a truthful witness. He placed reliance on Rakesh
and Another vs. State of Uttar Pradesh and Another7. That, P.W.31
has supported the evidence of P.W.2 while the seizure of the
weapon of offence M.O.XIV has been proved by the Prosecution.
That, conviction can be based on the testimony of a sole witness as
held by the Hon'ble Supreme Court in Edward vs. Inspector of Police, 8 Aandimadam Police Station , in the instant case it was not only one
witness but P.W.2 and P.W.3 who witnessed the incident and their
evidence fortifies the Prosecution case. The Learned Trial Court
has in the impugned Judgement given consideration to all the
relevant facts and circumstances and then correctly convicted the
Appellant of the offence under Section 304 Part II of the IPC,
therefore, no requirement arises to interfere with the findings of
the Learned Trial Court and the Appeal be dismissed.
4. We have given due consideration to the submissions of
the Learned Counsel for the parties, carefully considered the
evidence on record and perused the impugned Judgment and
citations made at the Bar.
5. The facts which led to the trial in the instant matter
was the result of a fight between the deceased and the Appellant
that occurred on 18-10-2017 at Adarsh Gaon, South Sikkim,
outside the temporary shed of P.W.6. Investigation revealed that
the Appellant along with Diwash Gurung (Accused No.3) and
Suman Subba (Accused No.2) returned to the room of Suman 7 (2021) 7 SCC 188 8 (2015) 11 SCC 222 Crl.A. No.05 of 2021 6
Satar Gurung vs. State of Sikkim
Subba in Adarsh Gaon after spending some time at the river side.
The accused Suman Subba and his nephew P.W.18 lived in two
separate rooms, in one shed. These three persons were joined in
the room of Accused No.2 by P.W.2 and P.W.3. After some time
the deceased entered the room where the five persons had
congregated and went into the room of P.W.18, in his absence and
bolted the door from inside. When P.W.2 knocked on the door and
enquired as to why he was inside the room of P.W.18, a discussion
ensued between the three accused persons on one side and the
deceased on the other. P.W.2 then pacified the warring factions.
The victim was escorted till the road by P.W.2 while the Appellant
was told by Accused No.2 to return home. The deceased suddenly
returned and attacked the Appellant which resulted in a violent
fight, during the course of which the Appellant took out a key chain
knife (khukuri) which was in his trouser's pocket and stabbed the
victim multiple times. The Accused No.3 intervened and stopped
the fight between them after which the Appellant fled from the
scene while the victim lifted his shirt and showed the stab injuries
on his stomach to P.W.2 and told him that he had been stabbed by
the Appellant. The victim was evacuated to Singtam District
Hospital, thereafter to the CRH Manipal where he succumbed to his
injuries on 26-10-2017. P.W.19 recorded the video of the victim at
the CRH, Manipal, in which the deceased named Accused Nos.2 and
3 as being involved in the incident and that he was stabbed by the
Accused No.1/Appellant with a knife. Charge-sheet under Sections
302/34 of the IPC was submitted against all three accused persons,
which on conclusion of trial led to the impugned Judgment and
Order on Sentence.
Crl.A. No.05 of 2021 7
Satar Gurung vs. State of Sikkim
6. The only question that falls for consideration before this
Court is; Whether the Learned Trial Court was in error in convicting
the Appellant under Section 304 Part II of the IPC?
7(i). It emerges that P.W.2 and P.W.3 were present at the
place of occurrence along with the deceased and the accused
persons. P.W.2 and P.W.3 along with the three accused persons
had witnessed the deceased entering the room of P.W.18. Later,
an argument ensued between the deceased and the Accused No.2
initially regarding the entry of the deceased into the room of
P.W.18 in his absence, upon which the Accused No.1 intervened
and questioned him as to why he was arguing with the Accused
No.2 who was elder than the deceased. Accused No.3, according
to P.W.2, also advised the deceased not to argue with Accused
No.2. P.W.2 himself also told the deceased not to argue with
Accused No.2. The deceased and the Appellant entered into a
verbal altercation upon which the deceased challenged the
Appellant to a physical fight and assaulted the Appellant with fists
and blows. That, they separated the deceased and the Appellant
and P.W.2 took the deceased and escorted him to the road to
enable him to go to this house situated about 80 feet away from
the place of incident. P.W.2 saw the Accused Nos.2 and 3 sending
the Appellant to his house located at a considerable distance from
the place of occurrence. P.W.2 also witnessed the deceased
suddenly returning and jumping upon the Appellant, whereupon a
physical fight ensued between the two. The deceased threw the
Appellant to the ground and after about 4 to 5 minutes of the fight
the deceased lifted his shirt and showed P.W.2 a wound and told
him in Nepali, which translated into English would be; "look what Crl.A. No.05 of 2021 8
Satar Gurung vs. State of Sikkim
Satar has done Durga Mama". P.W.2 thereupon noticed a cut
mark each on the chest and abdomen of the deceased with blood
stains. Learned Senior Counsel had argued that there was
discrepancy in the Section 164 Cr.P.C. statement of P.W.2 with his
deposition in Court inasmuch in his Section 164 Cr.P.C. statement.
P.W.2 had not mentioned that the deceased named ‗Satar'
(Appellant) as having caused the wound, whereas in the Court he
had made a bid to improve his statement by deposing that the
victim had told him that Satar had inflicted the injury. That, the
evidence of P.W.2 was thus untenable and unreliable. In this
context, it is relevant to notice that the Section 164 Cr.P.C.
statement of P.W.2 was recorded on 07-11-2017 while his evidence
in the Court was recorded on 03-05-2018. The lapse in time would
obviously lead to a difference of a few words during the deposition
of P.W.2 in Court. It is not possible for any witness to state
verbatim in the Court what he has stated either in his Section 161
Cr.P.C. statement or in his Section 164 Cr.P.C. statement, it
suffices that the gist of his statements are consistent. It is now
settled law that minor discrepancies that do not strike at the root
of the case are not to be given emphasis by the Courts. In Yogesh
Singh vs. Mahabeer Singh and Others9 the Supreme Court while
considering the question of minor discrepancies opined that;
"29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such
9 (2017) 11 SCC 195 Crl.A. No.05 of 2021 9
Satar Gurung vs. State of Sikkim
inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. ............................"
It is evident that no incongruity has arisen due to the minor
discrepancy in the statement of P.W.2 before the Court and in his
Section 164 Cr.P.C. statement. The fact remains that P.W.2 was
present when the physical fight between the deceased and the
Appellant took place. It is not the Prosecution case that the
deceased had any injuries before the fight started, evidently it is
only after the fight that he sustained the injuries and he lifted his
shirt and showed the wounds to P.W.2. This fact is a common
thread in the statement of P.W.2, both in his deposition before the
Court and in his Section 164 Cr.P.C. statement. P.W.1, the
Complainant, did not witness the fight between her deceased
brother and the Appellant, but she did hear someone shouting that
her brother had been stabbed with a knife, she came down from
the terrace of her building and saw her father and uncle helping her
brother and taking him out from the bathroom of their house. The
victim was bleeding profusely. Although she had stated that the
victim disclosed that ‗Satar' had stabbed him, under cross-
examination she admitted that she had not stated this fact to the
Police when her statement was recorded during investigation. The
argument advanced by Learned Counsel for the Appellant that
P.W.1 nowhere stated that the Appellant disclosed in her presence
that he was stabbed by the Appellant is incorrect as it appears in
her evidence-in-chief.
Crl.A. No.05 of 2021 10
Satar Gurung vs. State of Sikkim
(ii) P.W.3 was the other witness who was also present at
the spot where the fight occurred. He was witness to the exchange
of the words between the three accused persons on one side and
the victim on the other. He also witnessed the physical fight
between the deceased and the Appellant. According to him, during
the fight between them, the deceased kicked the Appellant several
times before throwing him to the ground. P.W.2 separated them
and thereafter P.W.3 left for his home located opposite to the place
of the incident. Six-seven minutes later he saw a gathering at the
same place where the fight had taken place and he witnessed
P.W.2 informing P.W.20, the father of the deceased and P.W.31 a
relative of P.W.20 that, a fight had taken place between the
Appellant and the deceased and that the deceased had sustained a
stab injury. It is evident from the statement of P.W.3 that the
deceased was intoxicated at the time of the incident. Under cross-
examination P.W.3 has stated that he did not see the Appellant
assaulting the deceased and had witnessed him trying to pacify the
deceased and Accused No.2, who were arguing. That, it was the
deceased who was the aggressor both verbally and physically.
(iii) P.W.6 alleged to have witnessed the incident was
declared hostile as she failed to support the Prosecution case.
However, it emerges from her evidence that she did not witness
the incident, but only heard the commotion outside the door to her
room. It may relevantly be noted that the Supreme Court in a
catena of decisions has held that the evidence of a hostile witness
need not necessarily be rejected as a whole. The evidence of such
witness which supports or demolishes the Prosecution case can be
taken into consideration. In Ramesh Harijan vs. State of Uttar Crl.A. No.05 of 2021 11
Satar Gurung vs. State of Sikkim
10 Pradesh while dealing with the aspect of hostile witnesses, the
Supreme Court held as below;
"23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him.
'6. ... The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof.' [Vide Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389]; Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233]; Syad Akbar v. State of Karnataka [(1980) 1 SCC 30] and Khujji v. State of M.P. [(1991) 3 SCC 627] (SCC p. 635, para 6).]"
Even after careful scrutiny of the evidence of P.W.6 it fails to
substantiate the Prosecution case, save to the extent that a
commotion occurred outside her room and is therefore of no
assistance to the Prosecution case.
(iv) P.W.18 the occupant of the room which the deceased
had entered without permission on account of which the verbal
fight initially started, also reached the place of occurrence where
he saw all three accused persons in the room of Accused No.2
drinking Beer. He too witnessed the deceased quarrelling with the
Appellant and others, in the room of Accused No.2 and advised
them not to quarrel but thereafter immediately left the place as he
had to collect his wages from a third person. His evidence lent no
succour to the Prosecution case. P.W.20 the father of the deceased
was not a witness to the incident but was informed by P.W.2 that
the deceased, his son, had been stabbed. He went in search of his
son to the house of P.W.18 and on not finding him there returned
home. He heard someone saying that the deceased appeared to
have gone into the bathroom of their house. When he entered the
bathroom he saw the deceased stooping over a bucket in the 10 (2012) 5 SCC 777 Crl.A. No.05 of 2021 12
Satar Gurung vs. State of Sikkim
bathroom. He shook him but the deceased did not respond. He
called his sons-in-law and with their help took the deceased from
the bathroom and laid him on the floor. When he lifted the black
vest that the victim was wearing he saw cut marks/stab injuries
over the right side of his stomach. He immediately evacuated the
victim, his son, to the District Hospital with the help of P.W.19 and
other boys. The victim was referred to CRH Manipal. As per
P.W.19 he accompanied the victim and P.W.20 to the CRH.
According to P.W.20, the deceased was speaking to P.W.19 who
took his video where the deceased stated that the Appellant had
stabbed him in the presence of Accused Nos.2 and 3.
8(i). P.W.31 was not at the place of occurrence but he was
at the house of the deceased where a family gathering was under
way. Before the incident the deceased told P.W.31 that he would
fetch a mobile charger from his friend and left the house. After
some time P.W.2 told him that the Appellant had stabbed the
deceased with a knife. He went in search of the victim and found
him on the ground floor in the bathroom crying in pain. He noticed
a cut injury in his abdomen and saw blood flowing from his
abdomen. He also assisted the family to evacuate the victim to
Singtam Hospital from where he was referred to CRH, Manipal.
According to him, he affixed his signature Exhibit 40(a) on Exhibit
40, a document prepared by the Police in his presence. The other
witness who gave evidence with regard to Exhibit 40 was P.W.33
who while admitting that Exhibit 40 bore his signature which he
signed at Adarshgaon Police Out Post, under cross-examination,
stated that he had signed on all Exhibits and M.Os at Adarshgaon
Police Out Post, on the request of the Police.
Crl.A. No.05 of 2021 13
Satar Gurung vs. State of Sikkim
(ii) Exhibit 40 allegedly was the statement of the Appellant
under Section 27 of the Evidence Act, allegedly given in the
presence of P.W.31 and P.W.33. However, as evident from the
foregoing statements, neither of the witnesses have stated that the
Appellant made any disclosure statement to the Police in their
presence. As per P.W.31 the document Exhibit 40 was prepared by
the Police and as per P.W.33 he signed on Exhibit 40 on the
request of the Police. Their evidence lends no support to the
Prosecution case with regard to the preparation of Exhibit 40, or
the Appellant having made a disclosure statement in terms of
Section 27 of the Evidence Act. In this light of the matter, the
Learned Trial Court has correctly disregarded Exhibit 40 furnished
by the Prosecution.
9(i). The Learned Trial Court had also disregarded M.O.XIV
as the weapon of offence observing that in the absence of definite
proof, augmented by the evidence of P.W.32 who opined that the
cut marks present on M.O.XV could not have been caused by
M.O.XIV, it was unsafe to hold that the key chain knife, M.O.XIV,
was the weapon of offence. That, this would however not absolve
the Appellant since non-recovery of weapon of offence by itself
cannot be the reason to reject the testimony of witnesses which is
reliable. On this aspect, it is necessary to examine the evidence on
record to analyse whether M.O.XIV was the weapon of offence or
not.
(ii) P.W.9 the Medical Officer at the Central Referral
Hospital, Tadong, examined the victim and inter alia found the
following injuries;
"On examination, following injuries were found; Crl.A. No.05 of 2021 14
Satar Gurung vs. State of Sikkim
1. stab injury measuring 1 x 1 cms was found over left hypochondrial region;
2. stab injury measuring 1 x 1 cms was found over right lower thorax. Active bleeding present in the stab injuries. Breath sound absent on the right side of the chest. BP was 70/80 mmhg. Pulse - feeble. Saturation - 88% in room air.
Patient was semi conscious, irritable and not oriented to time, place and person.
Opinion:- Nature of injury - grievous. Remarks:- patient was drowsy and in shock on arrival due to tremendous loss of blood."
The witness was not shown the weapon of offence at the time of
examination and has opined under cross-examination that injuries
mentioned in Exhibit 6, the wound certificate prepared by her,
could not be the result of a fall on the ―edgy stones‖.
(iii) P.W.14, the Assistant Professor, Department of
Forensic Medicines and Toxicology, Sikkim Manipal Institute of
Medical Sciences, conducted the autopsy of the deceased along
with one Dr. Chedup Lepcha, Senior Tutor of the same Department
as P.W.14, and found the following injuries;
"External injuries:-
1. Surgically stitched stab wound 3 cms length bearing two black silk sutured (sic, sutures) on right lower anterior chest wall placed obliquely 8.5 cms below and medial to right nipple, 26 cms from tip of right shoulder and 116 cms from right heel;
2. Superficial scratch abrasion 8.5 cms long placed diagonally with reddish brown scab 4.5 cms below left nipple and 5 cms lateral to it;
3. Surgically incised wound of 20 cms length bearing 16 staples placed vertically at midline left lateral to umbilicus;
4. Similar wound at left subcostal region of 15 cms length bearing 15 staples;
5. Surgically staple (sic, stapled) stab wound of 2 cms length bearing 2 staples at tip of seventh rib of left hypochondrium, 16 cms below left nipple and 101 cms from heel;
6. Brownish scab which peeled off leaving a hypopigmented region at mid forehead 1 cm above glabella above 0.25 cm diameter;
7. Abrasion 2 x 0.25 cm on dorsum of left elbow;
Crl.A. No.05 of 2021 15
Satar Gurung vs. State of Sikkim
8. Surgically incised wound 2.5 cms x 0.5 cms x cavity deep at fourth intercostal space along right mid axillary line for chest drainage with chest tube removed;
9. Similar wound at left iliac fossa for peritoneal drainage;
10. Multiple very small injury at left lateral aspect of neck for central line.
Internal injuries:-
Head and neck: Scalp contused along the posterior 1/3rd aspect of sagittal sutured (sic, suture) 4 x 3 cms and on right parietal eminence. Skull intact. Meninges intact. Brain intact, pale and edematous. Chest (Thorax): Vertically perforated rib cage on right medial aspect of sixth rib at costochondral junction underneath external injury No.1.
Pleural cavity: filled with straw coloured fluid serosanginous in nature 250 ml in right pleural cavity. Lungs: Lacerated lingula of right lungs surrounded by contusion of lung parenchyme over an area 3 x 2 cms. Consolidated bilateral lower lobe of lung with gritty sensation on cut section with brownish coloured discharge.
Abdomen: Surgically repaired anterior abdominal wall. Surgically repaired greater omentum with dull, non glistening, matted appearance and pus discharge with adherent peritoneum. Surgically repaired tip of pancreas.
Opinion:-
(1) The above mentioned injuries were ante
mortem in nature and could have been
caused by sharp cutting weapon;
(2) External injury No.1, 2 & 5 were caused by
sharp cutting weapon, out of which injury No.1 & 5 were fatal in nature;
(3) The cause of death was due to combined effect of peritonitis and pneumonia;
(4) Time since death was within 6 hours prior to
autopsy." [emphasis supplied]
This witness was also not shown the weapon of offence at the time
of the autopsy. Under cross-examination, she volunteered to add
that the death of the deceased was due to the injuries mentioned
in Exhibit 22, the Medico Legal Autopsy Report prepared by her and
Dr. Chedup Lepcha.
(iv) P.W.23 was at the relevant time a Senior Resident in
the Department of Surgery at the CRH, Manipal. He examined the
victim on 19-10-2017 and found the following injuries; Crl.A. No.05 of 2021 16
Satar Gurung vs. State of Sikkim
"1. Two stab injuries, one at mid anterior slightly right side of chest and another at left upper abdomen.
2. a) Chest wound was approximately 2.5 x 1 cm and depth could not be appreciated, but it penetrated the lung parenchyma, which lead to right sided hemo- thorax (blood in lung).
b) Left upper abdomen wound approximately 3 x 1 x 10 cm, which leads to injury to both walls of stomach and pancreas, lino-renal ligament and retroperitoneal hematoma.
3. Both injuries are incised wounds, margins are clean cut, penetrating, and elliptical in shape.
4. Nature of injuries are stab injury.
5. Sharp object injury.
6. Probably caused by knife or any sharp object."
[emphasis supplied]
Before this witness also, the weapon of offence was not produced
when the victim was being examined.
(v) On perusal of the evidence of P.W.32, the Scientist at
CFSL, Kolkata, it was found that he examined M.O.XIV and M.O.XV,
i.e., one key chain knife and one black and white coloured torn T-
shirt, respectively, and found the following;
"..................... On my examination, the following results were obtained.
1. The cut mark marked CC1 on the exhibit G was found to be sharp cut having length of 2.1 cm approximately and cloth fibers were found to be pulled out at some placed at the cut mark.
2. The cut mark marked CC2 on the exhibit G was ―L‖ shaped cut having total length of 4.4 cm (length- 1.7 cm and breadth-2.7 cm) approximately and cloth fibers were found to be pulled out at some places at cut mark.
3. The keychain knife of exhibit A was found to be on one side blunt and one side not very sharp with curbed shape. There were some engraved designs on both sides of the knife. The dimension of the knife was as given below:
a) The total length of the knife - 8.85 cm
b) The total length of metallic handle - 3.3 cm
c) The total length of blade portion - 5.55 cm
d) The maximum thickness of blunt edge - 1.45 mm (approx.)
e) The minimum thickness of sharp edge - 0.6 mm (approx.)
4. Test cuts (marked TC-1, TC-2, TC-3, TC-4 and TC-
5) were made on the exhibit G by using keychain Crl.A. No.05 of 2021 17
Satar Gurung vs. State of Sikkim
knife of exhibit A and found to be just pierce through in blunt form when cut/punched forcefully.
5. The cut marks CC1 and CC2 on Exhibit-G were found to be not consistent with test cut marks TC-1, TC-2, TC-3, TC-4 and TC-5 on Exhibit-G."
On the basis of the above findings, he opined that the cut
marks CC1 and CC2 on Exhibit ‗G' (M.O.XV) could not have been
caused by a tool such as the key chain knife of Exhibit ‗A'
(M.O.XIV).
(vi) With regard to the Appellant having caused the stab
wounds, the reliance of the Prosecution is also on the video
recording made by P.W.19. The Prosecution has not furnished a
Certificate in terms of Section 65B of the Evidence Act. On this
aspect, we are therefore in agreement with Learned Senior Counsel
for the Appellant that such evidence is not permissible as held by
the Hon'ble Supreme Court in the absence of a Certificate required
under Section 65B of the Evidence Act. In Ravinder Singh alias Kaku
vs. State of Punjab11 the Supreme Court observed as follows;
"61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473], and incorrectly ―clarified‖ in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801] . Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426], which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose."
(vii) However, at this stage, it is relevant to carefully
analyse the evidence of P.W.29, who is the Scientist ‗B' (Biology),
CFSL, Kolkata. The Learned Trial Court has completely ignored the
11 2022 SCC OnLine SC 541 Crl.A. No.05 of 2021 18
Satar Gurung vs. State of Sikkim
evidence of this witness and no reference whatsoever is made to
his evidence in the impugned Judgment. According to P.W.29,
"In connection with this case, on 09.01.2018 our lab had received one sealed cloth parcel containing following exhibits:-
1. Exhibit A: Knife - One keychain knife bearing no visible stain;
2. Exhibit B: T-shirt - One white color T-shirt bearing few reddish brown stains i.e. MO-VII (shown to me in the Court today);
3. Exhibit C: Containing three paper packets marked as C1, C2 & C3 respectively -
i) Exhibit C1: Nail clippings - Five number of nail clippings i.e. MO-VIII (coll.) (shown to me in the Court today);
ii) Exhibit C2: Hair - Not opened i.e. MO-IX (shown to me in the Court today);
iii) Exhibit C3: Blood sample - Reddish brown stains on a gauze piece said to be blood sample of the deceased i.e. MO-X (shown to me in the Court today);
4. Exhibit D: Stone - One big stone is having few dark brown stains along with some small pebbles and soil i.e. MO-XI (shown to me in the Court today);
5. Exhibit E: Blood Sample - Dark brown fluid in plastic container said to be blood sample of the deceased i.e., MO-XII (shown to me in the Court today);
6. .............................................
7. Exhibit G: T-shirt - One black color T-shirt with white stripes in torn condition, bearing reddish brown stains."
After he conducted the Scientific tests as detailed in his
evidence, the witness concluded as follows;
"From the above results, it was observed that:
a) The Autosomal STR profile recovered from the human blood stain positive Exhibits A [Knife], B/MO- VII [T-shirt], C/MO-VIII [Nails] and D/MO-XI [Stone] are identical in all respective amplified loci and tailed with the genetic profile of the deceased (Source of Exhibit C3/MO-X: Blood sample of the deceased).
b) Mixed Autosomal STR profile was recovered from the human blood stain positive Exhibit G [T-shirt].
From the above observations, it was concluded that -
a) Human blood could be detected on Exhibits A [Knife], B/MO-VII [T-shirt], D/MO-XI [Stone] and Exhibit G [T-shirt].
b) The genetic profile of the deceased (Source of Exhibit C1/MO-VIII and C3/MO-X) is consistent as the Crl.A. No.05 of 2021 19
Satar Gurung vs. State of Sikkim
source of human blood present on Exhibit A [Knife], B/MO-VII [T-shirt], D/MO-XI [Stone] and Exhibit G [T-shirt].
............................................................................."
Despite a prolonged cross-examination the evidence of the witness
stating that the human blood stain on the knife, T-shirt, nails and
stone were identical with the genetic profile of the deceased as
found in his blood sample was not demolished.
(viii) Hence, in light of the scientific evidence of P.W.29
which is self-explanatory and detailed, we are constrained to differ
with the observation of the Learned Trial Court on M.O.XIV not
being the weapon of the offence. Indeed the injuries on the body
of the victim were inflicted by a sharp weapon as per the evidence
of the Doctors P.W.9, P.W.14 and P.W.23. The evidence of P.W.29
clinches the Prosecution case of M.O.XIV being the weapon of
offence and the ocular evidence of P.W.2 and P.W.3 regarding the
incident and injuries inflicted on the victim, seen by them, finds
fortification in the evidence of P.W.9, P.W.14, P.W.19, P.W.20,
P.W.23 and P.W.31.
10(i). Learned Senior Counsel had relied on Yogendra Morarji
(supra), wherein it has been held therein that the right of private
defence accrued to the Accused/Appellant but he had exceeded his
right by causing the death of the deceased, hence his conviction
under Section 304 Part II of the IPC was upheld by the Supreme
Court. This ratio therefore lends no support to the arguments of
Learned Senior Counsel that the offence committed by the
Appellant would be one under Section 324 of the IPC.
(ii) In Deoka (supra) relied on by Learned Senior Counsel
the Supreme Court had held that even if evidence regarding motive
is eliminated the Court has to consider whether the offence alleged Crl.A. No.05 of 2021 20
Satar Gurung vs. State of Sikkim
against the Accused is established by ocular evidence of the
witness. This observations also lends no support to the Appellant's
case as P.W.2 and P.W.3 ocular witnesses, have consistently
deposed that they witnessed the physical fight between the
Appellant and the deceased where the deceased was the
aggressor.
(iii) In Ramesh alias Dapinder Singh (supra) the Supreme
Court had absolved the Appellant of the liability under Section 34 of
the IPC insofar as the charges under Sections 302 and 324 of the
IPC were concerned, after delving into a deep discussion about the
provisions of Section 34 of the IPC and the necessity/requirement
of a prior meeting of minds of the principal culprit and his
companions with regard to the offence committed. The facts
therein are distinguishable from the instant matter and thereby
garners no support to the Appellant's case. The other ratiocinations
(supra) relied on by Learned Senior Counsel for the Appellant also
fail to support his contentions.
11. In fine, in consideration of the entire evidence as
discussed hereinabove, it emerges that the case of the Prosecution
comes within Exception 4 of Section 300 of the IPC which reads as
follows;
"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, Crl.A. No.05 of 2021 21
Satar Gurung vs. State of Sikkim
in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
............................................. Exception 4.--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.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
............................................." [emphasis supplied]
12. Although the Learned Trial Court has failed to explain in
detail as to why the offence fell under Section 304 Part II of the
IPC instead of Section 300 IPC, from the evidence on record it
obtains that the deceased was the aggressor and initiated both the
verbal and the physical duel with the Appellant. However, it cannot
be said that the offence would be one under Section 324 IPC as
urged by Learned Senior Counsel for the Appellant, as it was not a
voluntary act as envisaged by the Section 324 of the IPC. The
Appellant after being kicked and thrown to the ground evidently
made an effort to defend himself resulting in the wounds inflicted
on the deceased. There was indeed no premeditation, planning or
the requisite mens rea to bring the offence within the ambit of
Section 300 of the IPC. The Appellant committed the offence
without premeditation, in a sudden fight in the heat of passion,
upon a sudden quarrel and it cannot be said that the Appellant took
undue advantage.
13. Hence, it is evident that the ultimate conclusion of the
Learned Trial Court convicting the Appellant under Section 304 Part
II of the IPC is not erroneous and we accordingly uphold the
conviction under the said provision of law. However, considering
the facts and circumstances of the case and in view of the Crl.A. No.05 of 2021 22
Satar Gurung vs. State of Sikkim
submission of Learned Senior Counsel that the Appellant has
already undergone incarceration for a period of approximately 4
(four) years 7 (seven) months and 25 (twenty-five) days as on the
date of hearing, we reduce his sentence as detailed hereinbelow as
we are of the considered opinion that it meets the ends of justice.
14. The Appellant is accordingly sentenced to undergo
simple imprisonment of 4 (four) years and 7 (seven) months and
to pay a fine of Rs.10,000/- (Rupees ten thousand) only, under
Section 304 Part II IPC. In default of payment of fine to suffer six
months of rigorous imprisonment.
15. No order as to costs.
16. Copy of this Judgment be forwarded to the Learned
Trial Court for information, along with its records.
17. Copy of this Judgment also be forwarded to the Jail
Authority at the Central Prison, Rongyek, for information.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
28-07-2022 28-07-2022
Approved for reporting : Yes
ds
