Dechen Lepcha vs State Of Sikkim
2022 Latest Caselaw 79 Sikkim

           THE HIGH COURT OF SIKKIM : GANGTOK
                             (Criminal Appellate Jurisdiction)
                            DATED : 30th November, 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.02 of 2022
              Appellant                :       Dechen Lepcha

                                                     versus

              Respondent               :       State of Sikkim

                   An Appeal under Section 374(2) of the
                     Code of Criminal Procedure, 1973.
      --------------------------------------------------------------------------------------
       Appearance
            Mr. Tashi Rapten Barfungpa, Advocate (Legal Aid Counsel) for
            the Appellant.
            Dr. (Mrs.) Doma T. Bhutia, Public Prosecutor with Mr. S. K.
            Chettri, Additional Public Prosecutor for the State-Respondent.
      --------------------------------------------------------------------------------------
                                  JUDGMENT

Meenakshi Madan Rai, J.

1. This Appeal assails the Judgment and Order on

Sentence, dated 26-10-2021 and 28-10-2021 respectively, of the

Learned Sessions Court, West Sikkim, at Gyalshing, in Sessions

Trial Case No.01 of 2020.

2. The Appellant on 04-01-2020, having caused the death

of his wife by assaulting her with a stone on her head, at

Ramgaythang, West Sikkim, surrendered before the In-Charge,

Yuksom Police Outpost, West Sikkim at around 1.40 p.m. and

informed P.W. 3, the Assistant Sub-Inspector of Police (ASI), of the

incident. P.W. 3 immediately took him into custody and reported

the incident to P.W. 17, the Station House Officer (SHO), Gyalshing

Police Station, who directed him to file a Report. P.W. 3

accordingly lodged Exhibit 7 at the Gyalshing Police Station at

Dechen Lepcha vs. State of Sikkim

around 3.00 p.m. Gyalshing Police Station, Case No.01/2020,

dated 04-01-2020, under Section 302 of the Indian Penal Code,

1860 (hereinafter, the "IPC"), was then registered against the

Accused/Appellant. P.W. 7 took up for the investigation and

submitted Charge-Sheet against the Appellant under Section 302 of

the IPC and Supplementary Charge-Sheet containing the Forensic

Report.

3(i). The Appellant pleaded "not guilty" to the Charge under

Section 302 of the IPC before the Learned Trial Court which led to

the Prosecution examining seventeen witnesses to establish their

case. The Appellant was afforded an opportunity to explain the

incriminating evidence against him under Section 313 of the Code

of Criminal Procedure, 1973 (hereinafter, the "Cr.P.C"), where he

denied having gone to the Yuksom Police Outpost, West Sikkim,

but did not deny the evidence that appeared against him.

Pursuant to the final arguments of the parties, the Learned Trial

Court on consideration of the entire evidence, convicted the

Appellant under Section 302 of the IPC and Sentenced him to

undergo life imprisonment and to pay a fine of Rs.10,000/-

(Rupees ten thousand) only.

(ii) Assailing the Judgment of conviction under Section 302

of the IPC, Learned Counsel for the Appellant submitted that the

offence committed by the Appellant falls within the ambit of

Section 304 Part II of the IPC and not under Section 302 of the

IPC. That, mens rea which constitutes an essential element in an

offence under Section 302 of the IPC was lacking when the incident

occurred, on the spur of the moment, due to grave and sudden

provocation meted out by the victim to the Appellant. The incident

Dechen Lepcha vs. State of Sikkim

was not premeditated therefore taking it out of the ambit of

Sections 300 and penalty under Section 302 of the IPC. That, the

statement of the Appellant under Section 27 of the Indian Evidence

Act, 1872 (hereinafter, the "Evidence" Act) was correctly

disregarded by the Learned Trial Court for the reason that P.W. 11

one of the witnesses to the Disclosure statement, Exhibit 16 failed

to prove that it was made in his presence. That, the Appellant

has no criminal antecedents and the incarceration of the Appellant

is in fact penalising his child who was two years old at the time of

the incident is now in foster care, devoid of the care and affection

of his father.

(iii) Relying on the ratio of Kusha Laxman Waghmare vs. State

of Maharashtra , it was urged that the Hon‟ble Supreme Court while

considering a matter in which the Appellant had assaulted and

killed his wife with a wooden stick, on analysing the entire evidence

was of the view that it was not a fit case where conviction could be

sustained under Section 302 of the IPC, as there was no cogent

evidence to show that the Appellant had beaten the deceased with

an intention to cause her death. That, in such circumstances, the

conviction of the Appellant under Section 304 Part II of the IPC was

held to be just and proper. That, in Yatendrasingh Ajabsingh Chauhan

vs. The State of Maharashtra , the Appellant was working as a

security guard in the bungalow of a film star where the deceased

and other security guards were also deployed. The deceased on

that night questioned the Appellant as to why he was sitting on the

chair, whether his revolver was filled with bullets or not and

whether his fire arm was working. The Appellant in anger held the

(2014) 10 SCC 298

Criminal Appeal No.822 of 2018 decided on 04-08-2022 by the SCI : 2022 LiveLaw (SC) 664

Dechen Lepcha vs. State of Sikkim

deceased by his collar and pulled the trigger of the revolver on the

deceased‟s chest, which led to his death. The Court took the

assistance of the Judgment in Pulicherla Nagaraju Alias Nagaraja

Reddy vs. State of A.P , wherein it was observed inter alia that the

intention to cause death can be gathered generally from the

combination of a few or several of the circumstances as

enumerated in the Judgment. The Supreme Court concluded that

there was no premeditation and the incident was due to an

altercation between the deceased and the Appellant. That, the

possibility of the Appellant being short tempered and responding in

an unfortunate manner, could not be ruled out. It was also

remarked that, unfortunately a loaded weapon was provided to the

Appellant by his employer. That, no doubt the Appellant should

have exercised caution and controlled himself, however, there

cannot be a straitjacket formula for deciding whether there was

intention to commit murder or not. That, similarly, whether there

was grave and sudden provocation which would lead the Accused

to lose his power of self-control, would depend upon the facts and

circumstances of each case. That, how a person responds to a

particular situation would depend upon the temperament of a

particular person. A hot tempered person may react differently as

compared to a cool headed person. The Supreme Court was

therefore of the view that the case would fall under Exception 1 of

Section 300 of the IPC and the conviction under Section 302 of the

IPC was converted to on under Section 304, Part I, of the IPC.

That, in consideration of the facts of the instant case the offence be

thus converted to one under Section 304 Part II of the IPC.

(2006) 11 SCC 444

Dechen Lepcha vs. State of Sikkim

4(i). Learned Public Prosecutor for the State-Respondent

conversely contended that the Appellant started a quarrel with the

victim, at the place where she was doing her chores and thereafter

on her refusal to return home with him, despite his persuasion, he

was enraged. That, the fact that he had the intention to kill her is

evident from the circumstance that he chased her across the fields

and assaulted her several times to ensure that she would meet her

end. The cross-examination of the Prosecution Witnesses did not

indicate that the offence took place on sudden provocation at the

heat of the moment. The father of the Appellant, P.W. 4,

witnessed the Appellant attempting to strike his wife with a stone

and he told him not to do so, thereafter the Appellant was seen

chasing her towards the fields. The cross-examination of P.W. 4

or P.W. 6, the Appellant‟s mother, did not reveal the temperament

of the Appellant to assess his reaction to the quarrel. P.W. 8

heard P.W. 4 shouting that a person had been killed establishing

that the Appellant had killed the victim and P.W. 11 and P.W. 13

witnesses to the Disclosure statement under Section 27 of the

Evidence Act have proved that the rock employed by the Appellant,

to assault the victim on her head, was recovered at the Appellant‟s

instance and Exhibit 16 was proved by P.W. 11 and P.W. 13.

(ii) The Public Prosecutor further contended that the arrest

took place on 04-01-2020, and the Appellant‟s Disclosure

statement was recorded by the Investigating Officer (I.O.) on 05-

01-2020 in Police custody in the presence of witnesses, duly

establishing compliance of the envisaged legal requirements.

That, Exhibit 16 was not considered by the Learned Trial Court

despite it fulfilling all requisite legal parameters. That, P.W. 14

Dechen Lepcha vs. State of Sikkim

the Doctor, on post mortem of the victim found her face and skull

were disfigured and the presence of lacerated injuries over both

her right temporal bone and left forehead, with underlying fracture

of the left frontal bone, revealing repeated assaults. That, the

Appellant committed the offence of murder in a cruel manner duly

established by the evidence on record, hence, the Judgment and

Order on Sentence requires no interference.

5. Having considered the opposing submissions, examined

all documents on record and evidence of the witnesses, the

questions that require determination are;

(i) Whether the Learned Trial Court was correct in dis-regarding Exhibit 16 the Disclosure statement of the Appellant?

(ii) Whether the Appellant can invoke the clemency of Exception 4 to Section 300 of the IPC claiming that the offence occurred without premeditation, in a sudden fight, without the Appellant having taken undue advantage or acted in a cruel unusual manner?

6(i). Addressing the first question flagged, Section 27 of the

Evidence Act, is extracted hereinbelow;

"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."

(ii) It is imperative at this juncture to notice that Section 27

is by way of a proviso to Sections 25 and 26 of the Evidence Act,

by which a statement made by the accused in Police custody, which

distinctly relates to the fact discovered, is admissible in evidence

Dechen Lepcha vs. State of Sikkim

against the accused. The phrase "distinctly relates to the fact

discovered" refers to that part of the information supplied by the

accused which leads to the immediate cause of the discovery. If a

fact is thereby actually discovered it lends some guarantee of the

truth of that part of the information which was the clear, immediate

and the proximate cause of the discovery. In Pulukuri Kottaya and

Others vs. Emperor4 the Privy Council while clarifying the

requirements of Section 27 of the Evidence Act, observed 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. ........"

(iii) On the edifice of the principles enunciated above, it is

necessary to examine Exhibit 16, the disclosure statement of the

Appellant. Indisputably, it has been recorded when the Appellant

was in Police custody on 05-01-2020, the incident having occurred

on 04-01-2020. The witnesses to the statement were P.W. 11 Tika

AIR 1947 PC 67

Dechen Lepcha vs. State of Sikkim

Ram Chettri and P.W. 13 Mangal Limboo. The Learned Trial Court

was unimpressed with the statement of P.W. 13, as according to

him, the recovery of M.O.V and M.O.VI (stones) were made from

an open field. The Learned Trial Court opined that although the

seizure of M.O.V and M.O.VI could not be demolished, nevertheless

P.W. 13 admitted that the spot from where the stone was seized is

an open area and that when they reached the spot there was

several people already gathered at the spot. The Learned Trial

Court also concluded that P.W. 11 had failed to prove that Exhibit

16 was made in his presence by the Appellant and hence, the

Learned Trial Court dis-regarded Exhibit 16.

(iv) It is not the case of the Accused that the stones were

planted there by any other person. The fact that seizure of M.O.V

and M.O.VI from the place of occurrence in the presence of P.W. 11

and P.W. 13 have been duly established and the I.O. garners this

evidence. It is settled law that where the evidence of the I.O. who

recovered the Material Objects is convincing, the evidence as to

recovery need not be rejected on the ground that

seizure/panch witnesses did not support the Prosecution version.

The evidence of P.W. 11 and P.W. 13 supports the evidence

regarding recovery of M.O.V and M.O.VI. P.W. 13 specifically

deposed that Exhibit 16 was recorded in his presence and that of

P.W. 11. P.W. 11 admitted to having affixed his signature on

Exhibit 16 and identified it as Exhibit 16(a) although he appears to

be unsure as to whether Exhibit 16 was prepared in his presence.

P.W. 17, the I.O., deposed that Exhibit 16 was recorded in the

presence of two independent witnesses, wherein the Appellant

revealed that the stone which was the weapon of offence, had been

Dechen Lepcha vs. State of Sikkim

kept at the crime scene and he could show the spot where he had

thrown the stone.

(v) Strictly speaking, Section 27 of the Evidence Act does

not even envisage witnesses at the time of disclosure. However,

witnesses are kept by way of abundant precaution by the I.O. In

this context, in State, Govt. of NCT of Delhi vs. Sunil and Another5, the

Supreme Court held as follows;

"20. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of

(2001) 1 SCC 652

Dechen Lepcha vs. State of Sikkim

witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

[emphasis supplied]

(vi) Hence, in light of what has been elaborated above, the

disregarding of Exhibit 16 by the Learned Trial Court was

erroneous, considering that the requisite parameters of law had

been duly complied with. There is no eye witness to the ultimate

incident and the ensuing death of the victim. P.W. 4 the eighty-

one year old father of the Appellant was present when a quarrel

broke out between the Appellant and the victim. According, to

P.W. 4 at the time of incident the victim, his daughter-in-law, had

come to their house (house of parents-in-law) and spent the night

there. The next morning the Appellant arrived and asked the

victim to return to their marital home, with him, which she refused.

A quarrel thus ensued between them. The Appellant attempted to

strike his wife with a stone in the presence of P.W. 4, who was

holding their baby, he thus verbally restrained him. The victim

thereafter fled towards the fields and the Appellant ran in her

pursuit. P.W. 4 followed them and when he reached the spot at

some distance below his house, he found her dead, lying face down

on the ground with her clothes torn, with the Appellant nowhere in

sight. His cross-examination could not decimate the evidence-in-

chief. P.W. 1, the Learned Judicial Magistrate, had recorded the

statement of P.W. 4 under Section 164 of the Cr.P.C which was

Dechen Lepcha vs. State of Sikkim

duly admitted by P.W. 4. The statement under Section 164 of the

Cr.P.C and his evidence before the Learned Trial Court pertaining

to the incident are consistent.

(vii) P.W. 2, the Doctor who examined the Appellant on the

evening of the incident, around 10.30 p.m., prior to his Police

custody, opined in Exhibit 6 her report, that he was fit for custody.

He had admitted to her that the he had consumed alcohol at 11.00

a.m., that morning. P.W. 3 was the person to whom the Appellant

reported the incident after the death of his wife. Upon such

information when P.W. 3 reached the place of occurrence, he found

the deceased lying face down on the ground, a blood stained stone

nearby and a big boulder next to her body which also had blood

stains. He found her face blood stained and her nose smashed,

he also saw blood over her head and ears. The fact that the

Appellant had reported to P.W. 3 that he had assaulted the victim

and she had died was not demolished under cross-examination of

P.W. 3. P.W. 5 the Vice-President of the Gram Panchayat Unit also

went to the place of occurrence where he saw the body of the

deceased lying face down near a big rock and saw the Appellant

and P.W. 4 the Appellant‟s father at the spot. P.W. 6 mother of

the Appellant had seen her son and the victim quarrelling but she

left to fetch a shaman, prior to the occurrence of the incident.

(viii) P.W. 8 heard P.W. 4 shouting that a person had been

killed despite which, she continued with her chores, on completion

of which she went to the spot located above her house and saw the

body of the victim and the villagers gathered there. P.W. 9 helped

the police carry the body of the deceased from the place of

occurrence to the road. P.W. 10 accompanied the sister-in-law of

Dechen Lepcha vs. State of Sikkim

the deceased to Gangtok with the dead body for its post mortem.

P.W. 11 along with P.W. 13 were at the place of occurrence where

the Police showed them a big rock which had blood stains and the

Police chipped off part of the blood stained stone and took it. P.W.

11 testified that he was made to sign on Exhibit 14 and Exhibit 15

Seizure Memos of articles seized in the presence of both witnesses

and on Exhibit 16, the Disclosure statement of the Appellant. The

cross-examination did not decimate the facts stated in his

evidence. P.W. 12 was a hearsay witness, while P.W. 13 the

second witness to the Disclosure statement of the Appellant, stated

with clarity that the Appellant in his presence and that of P.W. 11,

at the Yuksom Police Outpost, disclosed in Exhibit 16, that he had

killed his wife with a stone and he could show them where he had

left the stone. Thereafter, according to him they accompanied

the Police and the Appellant to a spot below the Appellant‟s house

where the blood stained rock was seen and he also showed them

another stone from where the Police took samples. The recovered

articles which were sealed and packed in their presence.

(ix) The Doctor, P.W. 14, who conducted the post mortem

of the deceased at a Government Hospital in Gangtok on 05-01-

2020 at around 03.40 p.m. which concluded at 04.30 p.m.

recorded the findings in his report as follow;

"On external examination I found the following:- Face was fully blood stained. Bleeding from nose and ear. Rigor mortis also present.

Ante mortem injuries found were as under:-

1. Bilateral bruised black eye.

2. Face and the skull found disfigured.

3. Lacerated injury measuring 4x3 cm over the right side of scalp over the right temporal bone.

Dechen Lepcha vs. State of Sikkim

4. Lacerated injury measuring (5x4xbone) over the left forehead with underlying fracture of the frontal bone (left side).

5. Fracture of the left maxilla (cheek).

6. Abrasion measuring 4x3 cm over the right shoulder.

7. Abrasion measuring 5x8 cm over the extensor aspect of the right forearm. On internal examination I found the following:-

1. Skull/Head and neck - found presence of extradural hemorrhage measuring 6x4x2 over the frontal lobe with fracture of the frontal bone. The said fracture extended up to the interior cranial cavity.

2. Both lungs were oedematous (puffed up).

3. Stomach contained around 800 ml of fluid (with few food particles with alcoholic smell).

4. Uterus was non-gravit (not pregnant). Based on my autopsy findings, I opined that the approximate time since death was 12-24 hours and the cause of death to the best of my knowledge and belief was a result of intra-cranial hemorrhage caused as a result of blunt trauma force.

After the autopsy, I handed over the blood in filter paper, liquid blood and hair sample with root (all sealed and packed) over to the I.O. of the case."

The cross-examination conducted could not demolish his

evidence in chief.

(x) P.W. 16, the DNA Examiner in the laboratory of DNA

Fingerprinting Services, CDFD, Hyderabad since January, 2020,

had the experience of having examined around a thousand cases.

He concluded that the biological fluids on the sources of Exhibit „A‟,

„C‟, „E‟, „G‟, „H‟, „I‟, „J‟ and „K‟ is from the source of Exhibit 5

(stained filter paper said to be containing blood stains of the

deceased). He indentified the articles examined by him being,

Exhibit „A‟ (M.O.I) the T-shirt of the deceased, Exhibit „C‟ (M.O.VII)

a floral design top of the deceased, Exhibit „G‟ (M.O.III) the blue

jacket of the Appellant, Exhibit „H‟ (M.O.III) a stone seized from

the scene of offence. M.O.VI collectively (being Exhibit „I‟, Exhibit

„J‟ and Exhibit „K‟ marked in the laboratory) stone chips containing

Dechen Lepcha vs. State of Sikkim

blood samples from the rock at the scene of offence. Exhibit „D‟

was the stained filter paper said to contain blood stains of the

deceased. The biological fluid on M.O.I, M.O.VII, Exhibit „E‟ (hair

strands of deceased) M.O.III, M.O.V, M.O.VI (collectively stone

scrapings) tallied with the blood stains of the deceased collected on

Exhibit „D‟.

7. The relevant evidence having been seen, it is now

essential to consider the provisions of Section 300 of the IPC,

which reads as extracted below;

"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,─ 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, 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.

........................................................."

8. Learned Counsel for the Appellant sought to convince

this Court that the incident took place without premeditation in a

sudden fight in the heat of passion. We find no evidence to assist

us to conclude that the victim provoked the Appellant so gravely as

to incite him to the extent of killing her. The exceptions to Section

300 IPC provide for the acts which would exempt the act of the

Accused as being a murder. Exception 4 to Section 300 of the IPC

which the Appellant seeks to invoke, reads as follows;

Dechen Lepcha vs. State of Sikkim

".......................................................... ........................................................... ...........................................................

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.

.............................................................."

9. Premeditation can be established by direct or

circumstantial evidence which could be expression of ill-feeling and

also the manner in which the act was committed. Premeditation is

also a state of mind which manifests itself in the acts of the

accused. The facts in Yatendrasingh (supra), in our considered

opinion, are distinguishable from the facts in the instant Appeal.

In Yatendrasingh (supra) there was one single bullet injury which

led to the death of the victim on the perpetrator being suddenly

gravely provoked. In the instant matter, several injuries were

found in the face and head of the victim, as indicated by P.W. 14,

revelatory of the fact of repeated assaults on the head and face of

the hapless victim. The infliction of the injuries which are serious

and repeated proves the intention of the Appellant. No proof of

grave and sudden provocation meted out by the deceased to the

Appellant at the relevant time was furnished. On this point, the

evidence of P.W. 4 is clear that the victim was not agreeable to the

persuasions of the Appellant to return home, upon which he

attempted to strike her. The victim fled from the place, but was

followed into the fields by the Appellant where she was later found

dead. It is also essential to note that a fight is essentially a

psychical combat in which a person inflicts a blow on the other,

which is retaliated to. The victim had several injuries on her face

and head, but no injuries were found on the body of the Appellant

Dechen Lepcha vs. State of Sikkim

on his medical examination indicating that it was not a physical

fight between them. It was merely a female pitted against the

male, who repeatedly hit her on the various parts of her head with

a stone. The assaults were made at random and the number of

injuries indicate that the Appellant had acted in a cruel and unusual

manner apart from which he disrobed her and left her with one

garment to cover her shame.

10. In view of the above facts and circumstances, we find

that the clemency provided under Exception 4 of Section 300 of the

IPC cannot be invoked here. Thus, the Appellant having taken

undue advantage of the victim and the circumstances and acted in

a cruel manner by disrobing her and inflicting several injuries on

her, his act falls within the ambit of Fourthly of Section 300 IPC.

11. We thereby uphold the Judgment of conviction of the

Learned Trial Court handed out to the Appellant under Section 302

of the IPC and the Order on Sentence.

12. Appeal is dismissed and disposed of accordingly.

13. Pending applications, if any, stand disposed of.

14. No order as to costs.

15. Copy of this Judgment be forwarded to the Learned

Trial Court along with its records.

          ( Bhaskar Raj Pradhan )                     ( Meenakshi Madan Rai )
                  Judge                                        Judge
                      30-11-2022                                       30-11-2022




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