THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
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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. 06 of 2022
Sanjit Rai,
Aged about 19 years,
Son of Shri Man Bir Rai,
Resident of Langang,
Gyalshing,
West Sikkim. ..... Appellant
versus
State of Sikkim ..... Respondent
Appeal under section 374(2) of the Code of Criminal Procedure, 1973
[Against the judgment dated 24.02.2022 in the matter of State of Sikkim vs.
Sanjit Rai - Sessions Trial Case No. 03 of 2020 passed by the learned Sessions
Judge, West Sikkim at Gyalshing]
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Appearance:
Ms. Puja Lamichaney, Advocate (Legal Aid Counsel) for the
appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Ms Pema Bhutia and Mr. Shakil Raj Karki, Assistant
Public Prosecutors, for the State-respondent.
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Date of hearing : 26th June, 2023
Date of judgment : 7th August, 2023
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JUDGMENT
1. The murder of a young school going girl, ironically
wearing a T-shirt which said ―Good Things are Going to Happen‖
on that fateful 10th day of August, 2020 by the appellant, who 2 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
was known to her, by inflicting multiple stab wounds on her
body, perforating the lungs and liver by a 10 inch 7 centimetres
‗Rambo Knife' with sharp edges on one side, resulting in severe
haemorrhage shock and death before she could reach the
hospital, led to the appellant's conviction.
2. The impugned judgment dated 24.02.2022 and the
order on sentence dated 25.2.2022 sought to be assailed by the
appellant found him guilty under sections 302 and 201 of the
Indian Penal Code, 1860 (IPC) and sentenced him to
imprisonment for life and to pay a fine of Rs.10,000/- for the
offence under section 302 IPC. In default, the appellant was to
undergo further imprisonment for one year. The appellant was
also sentenced to 7 years and to pay a fine of Rs.5000/- for the
offence under section 201 IPC. In default, he was to undergo
further imprisonment for a term of 6 months. The sentences were
directed to run concurrently. An amount of Rs.6,00,000/- was
also awarded to the parents of the deceased victim under section
2(e) of the Sikkim Compensation to the Victims (or their
Dependants) Scheme, 2021 for the loss of the life of their child.
Circumstances held against the appellant.
3. According to the learned Sessions Judge, the present
case was based on circumstantial evidence as there were no
eyewitnesses. The following circumstances were considered by 3 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
the learned Sessions Judge to conclude that the chain of
circumstances was complete, cogent and coherent and it was the
appellant who was guilty of the offences charged and no other.
"70. .....................................................................................
PW-2 sees a boy wearing a red jacket at the PO dragging a girl and proceeding to throw the girl over the edge. When PW-2 runs towards the boy, the boy flees from the spot. The said boy according to PW-2 was wearing a black cap, a red jacket and was carrying a black back-pack. PW-2 finds the deceased bleeding at the spot. PW-3 arrives at the spot and helps PW-2 evacuate the deceased to the hospital where she is declared dead. PW-19 I.O confirms that the Medical Officer Dr. Bandana Thapa (PW-1) had handed over the articles which were brought along with the victim to him which consists of a green ladies hand bag containing the victim's mobile phone, tempered glass, a purse, cash Rs.160/-, two photographs and two ear tops.
The deceased is identified as Kooshma Hangma Subba by PW-
5 sister of the deceased who calls the sister's cellphone and is informed by a person on the sister's phone that her sister is injured and PW-5 is to come to the hospital.
PW-5 goes to the hospital to find her sister has succumbed to her injuries.
PW-5 informs PW-19 that Sanjit Rai (accused) is the boyfriend of the deceased, but in March, 2020 during the lockdown her victim sister had confided in her that she had broken up with her boyfriend Sanjit Rai (accused).
Accused in his 313 admits to having been the boyfriend of the victim and to their breakup.
I.O. then apprehends the accused as a suspect and during investigation records the disclosure statement (Exhibit-15) of the accused in presence of PW-16 and 17. PWs-16 and 17 both prove Exhibit-15 was made by the accused in their presence at the police station and recorded by PW-19.
The apparel worn by the accused at the time and the black backpack are recovered on the basis of Exhibit-15 from the room of the accused. The apparel consists of a red jacket [M.O- X] and a blue jeans pant [M.O-XII].
Both articles of clothing are found to contain blood stains which matches the blood of the victim on examination by PW- 18, the forensic examiner, RFSL.
Accused also points out the spot below the PO is from where the search team recovered a knife [M.O-VI] on the basis of Exhibit-15.
M.O-VI also has blood stains which matches the blood group of the deceased as per finding of PW-18.
PW-15 proves he drew the blood sample of the deceased [M.O-
VII]. 4
Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
The injuries on the deceased are confirmed to be stab wounds as seen by PWs-1,2,3,8,9 and 15.
PW-15 confirms the ante mortem injuries were 17 stab injuries with perforation of the lungs and liver caused by a sharp edged weapon, homicidal in nature.
Accused admits in his statement recorded under Section 313, Cr.PC to making his statement Exhibit-15 and to the recovery of M.O-X, XI thereafter from his room and M.O-VI from the PO. He also admits in his statement recorded under Section 313, Cr.PC to going to the spot and pointing out the spot from where the knife [M.O-VI] is recovered by the police. Accused in his examination under Section 313 Cr.PC. admits to having gone to the PO and having met the deceased. He admits to his clothes being stained by the blood of the victim in his examination under Section 313, Cr.PC."
Submissions of the counsel
4. Heard Ms Puja Lamichaney, learned Counsel for the
appellant and Mr. Yadev Sharma, learned Additional Public
Prosecutor for the State. Ms Puja Lamichaney submitted that the
prosecution has failed to establish the case beyond reasonable
doubt and that the chain of circumstances to prove the guilt of
the appellant is not complete. The evidence led by the
prosecution is replete with material discrepancies which has the
propensity to doubt the case put forward by them. Mr. Yadev
Sharma on the other hand argues that the prosecution has been
able to cogently prove that it was the appellant and the appellant
alone who was guilty of the murder of the deceased. The
disclosure statement (exhibit-15) led to the recovery of the
wearing apparels of the appellant from his room including the
red jacket (M.O-X) and blue jeans pant (M.O-XII) which had
blood of the deceased in it. The recovery of the weapon of offence,
i.e., the knife (M.O-VI), at the instance of the appellant also 5 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
connects the appellant to the act of murder as the forensic
examination concluded that there was blood of the deceased in
the knife (M.O-VI) as well. The learned Additional Public
Prosecutor submitted that the nature of injuries clearly
establishes the appellant's intention and therefore, the
judgement of conviction and order on sentence need not be
interfered with.
5. We shall now examine each of the submissions made
on behalf of the appellant.
Disclosure Statement
5(i) In the disclosure statement (exhibit-15), the appellant
disclosed that he had thrown the knife in the jungle and kept the
clothes he had worn, i.e, red jumper and jeans pant, in his room
and that he would be able to show the knife as well as the
clothes he had worn in the presence of witnesses.
5(ii) The disclosure statement (exhibit-15) is vital to the
prosecution case and therefore, seriously attacked by the learned
counsel for the appellant. It is contested that the disclosure
statement (exhibit-15) which is said to have been made in the
presence of Labden Bhutia (PW-16) and Mahesh Subedi (PW-17)
suffers from material discrepancies. The learned counsel submits
that both Labden Bhutia (PW-16) and Mahesh Subedi (PW-17)
deposed about going to the Police Station with Mingma Tshering
Bhutia (PW-2) and not with each other. A closer look at the 6 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
depositions reflects that Labden Bhutia (PW-16) did mention that
Mahesh Subedi (PW-17) was present at the Police Station along
with him. The disclosure statement (exhibit-15) also records the
presence of both Labden Bhutia (PW-16) and Mahesh Subedi
(PW-17) and bears their signatures on it. Thus, failure of Mahesh
Subedi (PW-17) to mention the presence of Labden Bhutia (PW-
16) in his deposition would not make the discrepancy material.
Deposition of Mingma Tshering Bhutia (PW-2)
5(iii) The learned counsel for the appellant submitted that
the failure of Mingma Tshering Bhutia (PW-2) to mention about
the disclosure statement and the subsequent seizures would
vitally affect the prosecution case. Mingma Tshering Bhutia (PW-
2) was examined by the prosecution as he was the first witness
who saw the victim and an unidentified person at the place of
occurrence immediately after the incident. He was not a witness
to the disclosure statement (exhibit-15) or the seizure of the
wearing apparels of the appellant, the victim and the weapon of
offence, i.e., the knife (M.O-VI). Therefore, there was no need for
Mingma Tshering Bhutia (PW-2) to provide details of the weapon
of offence, depose about the wearing apparels of the appellant
seized pursuant to the disclosure statement (exhibit-15) and sign
on it. These are not discrepancies or inconsistencies in the
prosecution case. Minor inconsistencies in the individual
statement of these witnesses may have occurred as they were
recollecting what the appellant stated to the Police on 10.08.2020 7 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
after almost four months. However, that does not affect the
prosecution version.
The time of recording the disclosure statement (exhibit-15)
5(iv) The learned counsel for the appellant argued that
there is a vital flaw in the time of recording the disclosure
statement (exhibit-15). According to her, the prosecution
maintains that the disclosure statement (exhibit-15) was
recorded at 2200 hours on 10.08.2020. However, Mahesh Subedi
(PW-17) during cross-examination admitted that it was recorded
in the evening. The fact that Mahesh Subedi (PW-17) qualified his
statement by saying that he does not remember the exact time of
recording the disclosure statement nullifies the argument made
by the learned counsel about the discrepancy in the time of
recording the same.
Discrepancy in the deposition of seizure witnesses
5(v) The learned counsel for the appellant laid stress on
the discrepancy in the depositions of Labden Bhutia (PW-16),
Mahesh Subedi (PW-17) and the Investigating Officer (PW-19)
regarding the recovery of clothes of the appellant. The fact that
all the three witnesses deposed that the wearing apparels were
recovered at the instance of the appellant from his room upstairs
reassures us that the recoveries were made pursuant to the
disclosure statement (exhibit-15) from the appellant's room.
While Labden Bhutia (PW-16) and Mahesh Subedi (PW-17)
deposed that the appellant took out the wearing apparels and the 8 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
black bag from his room upstairs, the Investigating Officer
deposed that the appellant showed them a bag which he had
hidden under his bed from where he pulled out a grey black
back-pack and from inside it the wearing apparels, are also
merely minor discrepancies. These minor inconsistencies may be
the result of multiple factors like the time gap between the
incident and the recording of the deposition, memory lapses, lack
of focus, etc. However, for inconsistencies to dent a criminal
prosecution it must be such that it affects the core of the
prosecution case and shakes its very foundation.
Contradictions in recovery of knife (M.O-VI) and other material objects
5(vi) The learned counsel for the appellant submitted that
there are contradictions in the evidence led by the prosecution
regarding recovery of the knife (M.O-VI). It is the prosecution's
case that certain other recoveries including some items of the
victim and the knife (M.O-VI) were recovered on 11.8.2020 at the
instance of the appellant after he made the disclosure statement
(exhibit-15). The disclosure statement (exhibit-15) was recorded
on 10.8.2020. The seizure of the wearing apparels of the
appellant from his room was made at 2310 hours on 10.8.2020.
According to the Investigating Officer (PW-19), after the recovery
of the wearing apparels they proceeded to the place of occurrence
where the appellant pointed out the spot where he had thrown
the weapon of offence, i.e., the knife (M.O-VI). They went down to 9 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
the spot to search for the knife (M.O-VI) but as it was past
midnight, dark and raining, they decided to resume the search
the next day. The next morning on 11.8.2020 around 0700
hours, the Investigating Officer, his team along with the
witnesses and the appellant went to the place of occurrence and
inspected the spot shown by the appellant from where he
recovered and seized an umbrella with blood stains (M.O-XV),
surgical mask with blood stains (M.O-XVII), two dry leaves with
blood stains (M.O- XVI), one red black pink coloured shoe of the
left foot (M.O-XVIII). They then went down to the spot pointed out
by the appellant the night before where he had thrown the knife
(M.O-VI). The knife (M.O-VI) was recovered from near a tree
situated about 70 feet below the place of occurrence. These facts
deposed to by the Investigating Officer have been cogently
corroborated by the two witnesses, i.e., Labden Bhutia (PW-16)
and Mahesh Subedi (PW-17) who were witnesses to the
disclosure statement (exhibit-15) and the seizure memos
(exhibits-19, 20, 21 & 22). The contradictions pointed out by the
learned counsel in the testimony of the Investigating Officer,
Labden Bhutia (PW-16) and Mahesh Subedi (PW-17) are minor
contradictions which does not shake the foundation of the
prosecution case.
Material objects not kept in proper custody and may have been tampered with.
5(vii) It is argued by the learned counsel for the
appellant that when the knife (M.O-VI) was seized, it did not have 10 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
blood stains but when it was forensically examined it is said that
it had blood stains and thus there is likelihood that the knife
(M.O-VI) had been tampered with. The seizure memos, i.e.,
exhibits 19 and 20, records that the umbrella (M.O-XV), surgical
mask (M.O-XVII) and dry leaves (M.O-XVI) had blood stains. The
seizure memo (exhibit-22) by which the knife (M.O-VI) was seized
does not record that it had blood stains. The description of
exhibits received in the forensic examination report dated
12.4.2021 (exhibit-23) also does not record that the knife (M.O-
VI) had blood stains. However, on forensic examination, human
blood was detected in it which gave positive test for blood group
‗AB' matching the blood group of the deceased. This has been
proved by the Forensic Expert - Prem Kumar Sharma (PW-18)
through his deposition and forensic examination report dated
12.4.2021 (exhibit-23). Obviously, what was not visible to the
naked eye was detected during forensic examination.
5(viii) It was argued that Sonam Zangmu Shenga (PW-
11) - Incharge of the Malkhana, stated that the case was
registered on 10.08.2020 and the Station House Officer (SHO)
had brought the case exhibits including the knife to the Police
Station although the prosecution case is that the knife (M.O-VI)
was recovered on 11.08.2020. A closer look at the deposition
reflects that Sonam Zangmu Shenga (PW-11) had mentioned that
the case was registered on 10.08.2020 but had not stated when
the SHO had brought the exhibits to the Police Station. The 11 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
evidence of the Investigating Officer, Labden Bhutia (PW-16) and
Mahesh Subedi (PW-17) however makes it absolutely certain that
the knife was recovered on 11.08.2020 and not on 10.08.2020 as
suggested. There is no evidence on record to take serious note of
the suggestion made by the learned counsel for the appellant
that the material objects were not kept in safe custody and
therefore may have been tampered with. Allegation of tampering
is a serious charge. In the cross-examination of the Investigation
Officer, no charge of tampering has been suggested by the
defence. The seizure memo (exhibit-16) through which the
Investigating Officer seized the red jacket (M.O-X), T-shirt (M.O-
XI), blue jeans pant (M.O-XII), black coloured shoe (M.O-XIII)
with white stripes and one back-pack (M.O-XIV) was prepared on
10.08.2020 at 2310 hours. It does not mention that any of these
items had blood stains on them. Neither does the forensic
examination report (exhibit-23) in the description of the exhibits
received. However, the Investigating Officer deposed that these
material objects were seized in the presence of Labden Bhutia
(PW-16) and Mahesh Subedi (PW-17). The seizure memo (exhibit-
16) reflects that the seizure was affected by the Investigating
Officer in their presence and bears their signature. They also
confirmed the seizure. According to the Investigating Officer, the
seized articles were handed over to Sonam Zangmu Bhutia (PW-
11) - the Malkhana Incharge, who confirmed the same and also
gave evidence of its safe custody. Thereafter, the seized articles 12 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
were sent for forensic examination to RFSL Ranipool on
25.8.2020. The forensic expert Prem Kumar Sharma (PW-18) -
the Junior Scientific Officer, examined the articles forwarded to
him seized during investigation and concluded that the Blood
Group of the deceased was ‗AB' and that human blood was
detected in the surgical mask (M.O-XVII), the knife (M.O-VI), red
jacket (M.O-X), blue jeans pant (M.O-XII), ladies hand bag (M.O-
XXII), maroon T-shirt (M.O-III), black jeans pant (M.O-IV), bra
(M.O-V) and underwear (M.O-XXIV) were also of Blood Group
‗AB'. The surgical mask (M.O-XVII) was seized from the place of
occurrence on 11.8.2020 by the Investigating Officer in the
presence of Labden Bhutia (PW-16) and Mahesh Subedi (PW-17).
The knife (M.O-VI) was recovered by the Police on 11.8.2020
approximately 70 feet below the place of occurrence at the
instance of the appellant. The red jacket (M.O-X) and the blue
jeans pant (M.O-XII) of the appellant were seized by the
Investigating Officer on 10.8.2020 from the room of the appellant
in the presence of Labden Bhutia (PW-16) and Mahesh Subedi
(PW-17). The bra (M.O-V), black jeans pant (M.O-IV) and
underwear (M.O-XXIV) were handed over to the Investigating
Officer by Dr. O.T. Lepcha (PW-15) after conducting the autopsy
and preparing the medical report (exhibit-14). The failure of the
Investigating Officer to mention blood stains on the material
objects seized from the house of the appellant at his instance is
easily explainable as they were seized in the middle of the night 13 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
and may not have been visible. It could very well be that the
Investigating Officer ignored to mention it. It is equally possible
that the blood stains may not have been clearly visible. However,
it is quite evident that this failure to mention the blood stains is
not a result of tampering as suggested. The seized articles were
kept in the Malkhana for safe custody and thereafter sent for
forensic examination which yielded the forensic examination
report (exhibit-23). The period of interval between the criminal
act, the arrest of the appellant, the making of the disclosure
statement and the recovery of the material objects are so close
and interconnected that there would be no room to doubt the
recovery. The evidence led by the prosecution inspires confidence
inspite of the little anomalies pointed out by the learned counsel
for the appellant.
Prem Kumar Sharma (PW-18) is not an expert
5(ix) It has also been suggested that the prosecution had
failed to prove that Prem Kumar Sharma (PW-18) was an expert.
A perusal of his deposition, however, reflects that he had stated
on oath that he was the Junior Scientific Officer posted at RFSL
Saramsa and had examined the material objects by
biological/serological techniques. The forensic examination
report (exhibit-23) also records the same fact. The cross-
examination by the defence neither alleges that as a Junior
Scientific Officer he was incompetent to examine the material
objects nor does it suggest that there was anything wrong with 14 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
the biological/serological techniques used by him for
examination of the material objects. Detection of human blood
and its evaluation is by biological/serological techniques. Thus,
it can be safely concluded that Prem Kumar Sharma (PW-18) was
an expert and that forensic examination report (exhibit-23)
clearly reports what was examined and concluded by the expert.
Failure of the prosecution to examine the appellant's blood
5(x) The learned counsel for the appellant submitted that
Prem Kumar Sharma (PW-18) had admitted during cross-
examination that the blood sample of the appellant was not sent
to their office for forensic examination and therefore the
prosecution has not been able to prove that the blood found in
the wearing apparels of the appellant was that of the deceased
alone.
5(xi) The seizure of the red jacket (M.O-X) was on the very
same day when the crime was committed and the appellant
apprehended. The seizure was at the instance of the appellant
after he made the disclosure statement. The recovery of the red
jacket (M.O-X) was from the appellant's room late in the night of
the same day. The red jacket (M.O-X) had blood stains which
have been clearly established by the prosecution. On forensic
examination, the blood stain on the red jacket (M.O-X) gave
positive test for blood group ‗AB' which was the same blood
group of the deceased. The argument of the learned counsel for 15 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
the appellant that since the appellant's blood had not been tested
it cannot be conclusively held that the blood stains found on the
red jacket (M.O-X) was that of the victim, does not impress us.
The medical examination of the appellant conducted on
10.8.2020 by Dr. Jigmee Wangchuk Bhutia (PW-12) reflects that
the appellant had no local injuries over any part of his body.
Thus, it can be safely held that the blood on the red jacket (M.O-
X) of the appellant was that of the deceased and deceased alone.
Failure of the Prosecution to prove the red jacket (M.O-X)
5(xii) The learned counsel for the appellant also vehemently
argued that Mingma Tshering Bhutia (PW-2) had without
hesitation deposed that the unidentified man he saw at the place
of occurrence with the victim was wearing a red jacket (M.O-X)
with a white stripe over the arms. The evidence of Mingma
Tshering Bhutia (PW-2) regarding the white stripe on the red
jacket (M.O-X) was recorded on 10.12.2020 after four months of
the incident. Mingma Tshering Bhutia (PW-2) had witnessed the
unidentified person kneeling by the side of the road holding a girl
on his lap with his back turned to the road. His deposition
reflects that he saw the appellant mostly from the back and in
the evening. The blood of the deceased on the red jacket (M.O-X)
of the appellant convinces us that the mention of a white stripe
over the arms by Mingma Tshering Bhutia (PW-2) in such
circumstances is not significant enough to throw out the
prosecution case.
16
Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
Mingma Tshering Bhutia (PW-2) did not identify appellant in Court as the assailant.
5(xiii) It was argued that Mingma Tshering Bhutia
(PW-2) had failed to identify the appellant in Court as the
assailant. Mingma Tshering Bhutia (PW-2) identified the
appellant as the same person he saw at the Police Station on the
night of the incident where he confessed his crime. His evidence
reflects that he was at a distance from the unidentified person
and the deceased. It also reflects that he did not clearly see the
unidentified person's face as it was in the evening and his back
was turned towards him. Thus, in such circumstances, failure of
Mingma Tshering Bhutia (PW-2) to identify the appellant in Court
as the unidentified person he saw in the evening of 10.8.2020 is
natural, truthful and understandable. It does not affect the
prosecution case as other circumstances cogently proved by the
prosecution unerringly proves that the unidentified person who
Mingma Tshering Bhutia (PW-2) saw that evening holding the
deceased was the appellant and appellant alone. The argument of
the learned counsel for the appellant that the prosecution had
failed to connect the appellant to the crime is without any merit.
The prosecution has been able to prove the chain of
circumstances leading to the guilt of the appellant with great
certainty.
Black cap worn by the unidentified person not seized
5(xiv) Similarly, the failure of the Investigating Officer to
seize the cap worn by the unidentified person at the time of the 17 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
incident from the appellant does not dilute the prosecution case
further as the red jacket (M.O-X) and blue jeans pant (M.O-XII)
worn by the appellant at the time of the commission of the crime
was recovered pursuant to his disclosure statement (exhibit-15)
which had blood stains of the deceased. However, the deposition
of Mingma Tshering Bhutia (PW-2) that when he ran towards the
unidentified person he let go of the body and fled down the hill is
relevant to infer the appellant's guilt.
Discrepancy regarding the colour of the T-shirt (M.O-III)
5(xv) It is true that Dr. O.T. Lepcha (PW-15) noted ―blood
stained blue round coloured T-shirt with ‗Good Things are Going
to Happen' printed in the front. ...........‖ in his autopsy report. He
said so in his deposition as well. Dr. O.T. Lepcha (PW-15)
however identified the round collared T-shirt as M.O-III. M.O-III
is a maroon coloured T-shirt with ‗Good Things are Going to
Happen' printed in the front. The inquest report (exhibit-5)
records that the deceased was wearing maroon coloured T-shirt
at the time of the inquest. The chalan (exhibit-13) sending the
dead body of the deceased for post mortem examination also
records that she was wearing a maroon T-shirt. The forensic
examination report (exhibit-23) also records the receipt of
maroon coloured T-shirt. The autopsy was conducted on
11.08.2020. According to Dr. O.T. Lepcha (PW-15), after the
autopsy was conducted, the wearing apparels of the deceased
were packed and sealed and handed over to the Police. The 18 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
Investigating Officer confirmed the receipt of the body of the
deceased and deposed that it was sent for forensic examination
on 25.08.2020. The defence did not even suggest that the Police
had tampered with the evidence during the cross-examination of
the Investigating Officer. Therefore, the mention of a blue
coloured T-shirt in the autopsy report (exhibit-14) seems only a
typographical error.
5(xvi) In Bijender alias Mandar vs State of Haryana1 cited by
the learned counsel for the appellant, the Supreme Court held
that it may be true that at times the Court can convict an
accused exclusively on the basis of his disclosure statement and
the resultant recovery of inculpatory material. However, in order
to sustain the guilt of such accused, the recovery should be
unimpeachable and not be shrouded with elements of doubt. On
examination of the evidence led by the prosecution and
considering all the submissions made by the learned counsel for
the appellant, we are of the considered view that the disclosure
statement and the recovery made thereafter is unimpeachable
and not shrouded with elements of doubt.
Motive not proved
5(xvii) The learned Sessions Judge has held that the
prosecution has not been able to prove the call data records
(exhibit-32) as there is no certificate under section 65B(4) of the
1 (2022) 1 SCC 92 19 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
Indian Evidence Act, 1872. The learned counsel for the appellant
contends that the prosecution has failed to prove motive of the
appellant to murder the deceased. It is correct that in cases
which is sought to be proved by way of circumstantial evidence
motive is of great relevance. However, it would not be correct to
suggest that the absence of motive would completely destroy the
prosecution story. Motive is always in the mind of the accused
and it may not be possible for the prosecution to spell it out with
accuracy in every case. To argue that in every given case motive
needs necessarily to be proved would be giving far too much
importance to it than is required. PW-5 clearly deposed that the
appellant was her sister's boyfriend and that she had disclosed to
her that she had broken up with him. What transpired between
the appellant and the deceased was known only to them. The
deceased is no more but the appellant had her blood in his
wearing apparels. The prosecution has been able to establish
beyond reasonable doubt that the unidentified person who was
seen by Mingma Tshering Bhutia (PW-2) with the deceased at the
time of the incident holding her was the appellant. The chain of
circumstances as enumerated by the learned Sessions Judge
establishes beyond reasonable doubt that it is the appellant and
the appellant alone who had committed the offence and merely
because the prosecution failed to establish motive in great detail
it cannot be held that the appellant is not guilty. 20
Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
The facts
6. In the evening of 10.08.2020, Mingma Tshering
Bhutia (PW-2) while taking a walk saw a person kneeling by the
side of the road at Maneydara holding a girl on his lap. His back
was turned to the road but he saw the long hair of the girl he was
holding. He did not pay much attention as he thought they were
a couple. While climbing up the slope he turned back to notice
that the boy was dragging the girl towards the edge of the hill.
The boy thereafter carried the girl and it looked as if he was
about to throw her over. Mingma Tshering Bhutia (PW-2) ran
towards him. The boy let go of the body and fled down the hill.
He ran after the boy but could not catch up. Mingma Tshering
Bhutia (PW-2) noticed that the boy was wearing a black cap, a
red jacket with a white stripe over the arms and carrying a black
back-pack. He returned to the spot where the girl was lying and
found her bleeding from the neck. She was still breathing and
blinking slowly. Just then, an Alto vehicle belonging to one
Prabin dai from Langang and known to him arrived at the spot.
Mingma Tshering Bhutia (PW-2) stopped the vehicle, carried the
girl into it and rushed to the hospital.
7. Prabin Subba (PW-3) confirmed that while returning
from Byadung in his Alto vehicle on the date of the incident, he
was stopped by a person known to him from Naya Busty at
Maneydara. The person told him that a boy had thrown a girl at 21 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
the spot and fled. He saw the body of the girl lying on the ground
with cut injuries on her clothes and body and an open wound
near the kidney area. He was informed by the person that the girl
still had pulse and suggested that they rush her to the hospital.
Prabin Subba (PW-3) and the person then took the girl to the
hospital where she was declared dead. It is evident that Mingma
Tshering Bhutia (PW-2) and Prabin Subba (PW-3) had rushed the
deceased to the Hospital.
8. Dr. Bandana Thapa (PW-1) - the Medical Officer, was
on duty on10.08.2020 when a body of an unknown female with
multiple stab wounds on the body, face and neck was brought to
the District Hospital, Gyalshing by Mingma Tshering Bhutia (PW-
2). Thereafter, she lodged the First Information Report
(FIR)(exhibit-1).
9. PW-4 - mother of the deceased, learnt about the
deceased being in the Hospital from PW-5 (sister of the deceased)
who went to the Hospital along with her siblings and was
informed by the Investigating Officer that her sister was no more.
She noticed the injury on her neck. PW-5 deposed that the
appellant was the boyfriend of the deceased and that her sister
used to stay in the hostel of Tashi Namgyal Academy at Gangtok.
She identified the appellant in Court. According to her, when the 22 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
deceased had returned to Gyalshing around March 2020 she had
confided in her that she had broken up with the appellant.
10. The criminal investigation was taken up by Narayan
Kumar Rai (PW-19) as the Investigating Officer. He was also the
Station House Officer of the Gyalshing Police Station. Gyalshing
P.S. Case FIR No. 21/2020 dated 10.08.2020 under section 302
IPC was registered against unknown persons.
11. During the course of investigation, the Investigating
Officer learnt that the appellant was the victim's boyfriend. The
appellant was thereafter apprehended and brought to the Police
Station. At the Police Station on 10.8.2020 at 2200 hours, the
appellant made his confession which was recorded in the
disclosure statement (exhibit-15) in the presence of Labden
Bhutia (PW-16) and Mahesh Subedi (PW-17). Mingma Tshering
Bhutia (PW-2) was also at the Police Station during this time.
12. The disclosure statement (exhibit-15), the prosecution
asserts, led to the recovery of the wearing apparels of the
appellant worn during the incident from his room in the second
floor of his house at his instance. The seizure was made at 2310
hours on 10.8.2020 vide seizure memo (exhibit-16) by the
Investigating Officer (PW-19) in the presence of Labden Bhutia
(PW-16) and Mahesh Subedi (PW-17).
23
Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
13. Thereafter, they proceeded to the place of occurrence
where the appellant pointed out to the spot where he had thrown
the knife (M.O-VI). They went down to the spot but as it was past
midnight, dark and raining, they decided to resume the search
the next day.
14. On 11.8.2020 around 0700 hours at the instance of
the appellant, the Investigating Officer recovered an umbrella
with blood stains (M.O-XV), surgical mask with blood stains
(M.O-XVII), two dry leaves with blood stains (M.O-XVI), one red
black pink coloured ladies shoe of the left foot (M.O-XVIII). The
seizure was affected through seizure memos (exhibit-19 and
exhibit-20) in the presence of Labden Bhutia (PW-16) and
Mahesh Subedi (PW-17) between 0740 and 0800 hours.
15. Thereafter they went down to the spot pointed out by
the appellant the night before and recovered the knife (M.O-VI)
from near a tree situated about 70 feet below the place of
occurrence. The knife (M.O-VI) was seized through seizure memo
(exhibit-22) at 0900 hours.
16. On the same day, the Investigating Officer conducted
the inquest on the body of the deceased and found 16-17 injuries
which appeared to be stab wounds inflicted on the head, neck,
abdomen and back. He thereafter prepared the inquest report 24 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
(exhibit-5). Kharka Bahadur Subba (PW-8) was present at the
Gyalshing Hospital where the inquest was conducted on the body
of the deceased along with Santa Man Limboo (PW-9). They were
the witnesses to the preparation of the inquest report and
noticed the injuries on the body and a deep cut on the nape of
the neck. Santa Man Limboo (PW-9) also saw several injuries
including stab wounds in the abdomen, back, head and neck of
the deceased.
17. At around 3:42 p.m. on 11.8.2020, Dr. O.T. Lepcha
(PW-15) - the Chief Medico Legal Consultant, conducted the
autopsy on the body of the deceased and noted 17 ante mortem
injuries, 4 internal injuries and opined that the cause of death
was the result of severe haemorrhage and shock as a result of
multiple stab injuries with perforation of the lungs and liver
caused by cutting edged weapon homicidal in nature.
18. On completion of the investigation and recording
statement of witnesses, the Investigating Officer filed the charge-
sheet.
19. The learned Sessions Judge framed two charges
against the appellant under section 302 IPC for the murder of the
deceased and under section 201 IPC for causing disappearance
of the evidence and screening himself.
25
Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
20. During the trial, the prosecution examined 19
witnesses including the Investigating Officer. The facts as stated
above have been proved by the prosecution through the
prosecution witnesses. After recording the prosecution evidence,
the appellant's statement under section 313 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) was recorded on 31.12.2021.
The appellant stated that he was innocent of the charges but
admitted to have gone to the place of occurrence and that the
deceased was known to him. The appellant stated that he did not
desire to produce any witnesses in his defence.
21. The Investigating Officer (PW-19) has proved the
inquest report (exhibit-5) and deposed that when he conducted
the inquest on the body of the deceased at the hospital he found
16-17 injuries which appeared to be stab wounds inflicted on the
head, neck, abdomen and back.
22. Dr. O.T. Lepcha (PW-15) - the Chief Medico Legal
Consultant, who conducted the autopsy of the body of the
deceased on 11.8.2020 at around 3:42 p.m. noted the following
ante mortem injuries over the body:-
―1. Wedge shaped stab injury measuring 3 x 1.2 x cavity placed over the Right Mid Axillary line, placed 112.5 cm above heel.
2. Wedge shaped stab injury with clean margin measuring 3 x 1.2 x cavity placed over the right chest along the Right Mid Axillary line and placed 112.5 cms above heel.
26
Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
3. Wedge shaped stab injury with clean cut margins measuring 3.5 x 1 x cavity placed at the right anterior axillary line 112 cms above heel.
4. Horizontally placed wedge shaped stab injury with clean margin measuring 3.5 x 2 x bone placed over the right mid axillary line, placed 103 cms above the heel.
5. Horizontally placed wedge shaped stab injury with clean margin measuring 3.5 x 1.7 x cavity placed over the lover right chest 99 cms above the heel.
6. Horizontally placed wedge shaped stab injury with clean margin measuring 3 x 2 x cavity over the right chest 95 cms above the heel.
7. Vertically placed wedge shaped stab injury with clean margin measuring 3 x 2 x cavity over the right chest placed 88.5 cms above heel.
8. Horizontally placed wedge shaped stab injury with clean margin measuring 4.7 x 1.5 x cavity in the mid line (just below the Xiphisternum) placed 96 cms above heel. [the said injury has perforated the stomach].
9. Perforating injury with clean margin placed over the left upper arm with the entry wound measuring 3x1.5 cms placed over the lateral aspect. The Exit wound measures 2.5 x 0.8 cms and placed over the lower medical aspect of the left upper arm.
10.Puncture wound 2 x 0.5 x fracture of the underlying left zygomatic bone, placed just in front of the tragus of the left ear.
11.Puncture wound 3 x 1cm over the left zygoma, with underlying fracture of the zygomatic bone and placed 3 cms in front of injury no.10.
12.Incised injury 6 x 1cms with underlying fracture of the occipital bone, with avulsion of the lower scalp downward (force directed downwards).
13.Horizontally placed chop wound 3 x 1.3 x vertebrae -- the injury is directed and is placed at the nuchal bone and is situated 134 cms above the heel.
14.Puncture wound 3.5 x 1cms x vertebrae placed 4.7 cm right to midline and situated 141 cms above heel.
15.Puncture wound 1.3 x 0.8 x bone placed 145 above heel.
16.Incised injury 3 x 0.7cms placed 3cms left to midline and 130 cms above the heel.
17.Incised injury 5 x 1cm placed 128 cms above heel.‖
23. Dr. O.T. Lepcha (PW-15) also noted the following
internal injuries over the body:-
―1. Perforation of the right lung with around 1800ml of blood with clots present in cavity.
2. Perforation of the diaphragm (right dome) present.
3. Perforation of the Right Lobe of liver present.
27
Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
4. Around 1000-1500 ml of blood is present in the abdominal cavity.‖
24. While handing over the wearing apparels of the
deceased, Dr. O.T. Lepcha noted the blood stains on them. He
also noted that the round collared T-shirt (M.O-III) had multiple
holes and tears corresponding to the underlying injuries over the
body.
25. Dr. O.T. Lepcha (PW-15) was not shown the weapon
of offence and the prosecution is devoid of his specific expert
opinion on whether the knife (M.O-VI) could have caused the
injuries. Dr. O.T. Lepcha (PW-15) however has given a detailed
report on the ante mortem injuries and his opinion that the
injuries was caused by cutting edged weapon. His cross-
examination by the defence clarifies the nature of injuries
further. Dr. O.T. Lepcha (PW-15) opined that the injuries were
caused by cutting edged weapon and not by ‗bamphok' or
‗khukri'. The length of the knife (M.O-VI) was 10 inches 7
centimetres. It had sharp edges on one side. These facts have
been sufficiently proved. The detection of the blood of the
deceased on the knife (M.O-VI) by the forensic expert with the
evidence of Dr. O.T. Lepcha (PW-15) clearly establishes that it
was the weapon of offence by which the deceased was murdered. 28
Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
26. The nature of the injuries both ante mortem and
internal proves beyond reasonable doubt the intention of the
assailant. The blood of the deceased found on the red jacket
(M.O-X) and the blue jeans pant (M.O-VII) of the appellant,
recovered at his instance pursuant to the disclosure statement
(exhibit-15) from his room on the very same day of the incident,
and the arrest convincingly proves beyond reasonable doubt that
it was the appellant and the appellant alone who was guilty of
the crime.
27. Thus, the prosecution has been able to convincingly
establish that on 10.08.2020 Mingma Tshering Bhutia (PW-2)
saw a boy holding the deceased who had multiple stab wounds at
the place of occurrence. The boy ran away on seeing Mingma
Tshering Bhutia (PW-2). Prabin Subba (PW-3) who arrived at the
place of occurrence helped Mingma Tshering Bhutia (PW-2)
evacuate the deceased to the hospital as they could still feel her
pulse. At the hospital, Dr. Bandana Thapa (PW-1) received the
body of the deceased with multiple stab wounds on the body,
face and neck and thereafter lodged the FIR. PW-5 - sister of the
deceased, identified her at the hospital. She also informed that
the appellant was the boyfriend of the deceased and that she had
recently broken up with him. On being informed about the
relationship between the appellant and the deceased, the
Investigating Officer arrested the appellant who confessed to his 29 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
crime at the Police Station and made a disclosure statement
(exhibit-15). The disclosure statement (exhibit-15) led to the
recovery of the wearing apparels of the appellant from his room
on the same day of the incident and his arrest. The next day, at
the instance of the appellant, certain material objects belonging
to the deceased was recovered from the place of occurrence.
Thereafter, the weapon of offence which was thrown by the
appellant after committing the crime was also recovered from
below the place of occurrence. On forensic examination, blood of
the deceased was traced in the red jacket (M.O-X) and the blue
jeans pant (M.O-XII) worn by the appellant at the time of
commission of the crime. The blood of the deceased was also
traced in the knife (M.O-VI) which clearly established that this
was the weapon of offence. The inquest as well as the autopsy
clearly established that it was a case of homicide. The nature of
injuries established the intention of the appellant of causing
death of the deceased. The chain of circumstances as
enumerated by the learned Sessions Judge establishes beyond
reasonable doubt that it is the appellant and the appellant alone
who had committed the offence and merely because the
prosecution failed to establish motive in great detail it cannot be
held that the appellant is not guilty.
28. Dr. O.T. Lepcha (PW-15) opined that the cause of
death was the result of severe haemorrhage shock as a result of 30 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
multiple stab injuries with perforation of the lungs and liver,
caused by cutting edged weapon homicidal in nature. It was
certain that the death was homicidal. The multiple injuries
sustained by the deceased on vital parts of her body reflects that
the deceased was inflicted multiple blows with an intention of
causing death. This amounts to murder as defined by section
300 of the IPC. Consequently, the appellant's conviction under
section 302 IPC by the learned Sessions Judge is upheld.
29. The appellant has also been convicted under section
201 of the IPC for causing disappearance of evidence of offence,
or giving false information to screen offender. Section 201 IPC
reads as under:-
"201. Causing disappearance of evidence of offence, or giving false information to screen offender.--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life.--and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to 31 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
one-fourth part of the longest term of the imprisonment provided for the offence, or with fien, or with both."
30. The learned Sessions Judge has held that as it is
proved that the knife (M.O-VI) was thrown in the jungle below the
place of occurrence which is not an easily accessible spot it
establishes the intention of the appellant to dispose the weapon
of offence used by him in causing the murder. Further, the knife
(M.O-VI) could not be recovered immediately and was found only
on the second day after a thorough search, thereby sufficiently
proving the charge against him under section 201 IPC.
31. The Supreme Court in Kodali Purnachandra Rao and
Another vs. The Public Prosecutor, Andhra Pradesh2 held that:
"16. In order to bring home an offence under Section 201, Penal Code the prosecution has to prove: (1) that an offence has been committed; (2) that the accused knew or had reason to believe the commission of such offence;
(3) that with such knowledge or belief he
(a) caused any evidence of the commission of that offence to disappear, or
(b) gave any information respecting that offence which he then knew or believed to be false; (4) that he did so as aforesaid, with the intention of screening the offender from legal punishment; (5) If the charge be of an aggravated form, as in the present case, it must be proved further that the offence in respect of which the accused did as in (3) and (4), was punishable with death, or with imprisonment for life or imprisonment extending to ten years."
2
(1975) 2 SCC 570 32 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
32. The proved facts reflect that the appellant had thrown
the knife (M.O-VI) below the place of occurrence after the
commission of murder. It also reflects that the knife (M.O-VI) was
recovered at the instance of the appellant after he made the
disclosure statement (exhibit-15). It is not the case of the
prosecution that the appellant gave any false information which
he knew or believed to be false to screen the offender. Therefore,
it was necessary for the learned Sessions Judge to examine
whether in the facts of the case the act of the appellant would
amount to causing the knife (M.O-VI) to disappear. The
circumstance of the knife (M.O-VI) not being recovered
immediately and found only the next day was more due to the
fact that by the time the Investigating Officer had completed the
search and seizure from the room of the appellant, it was very
late in the night. By the time the Investigating Officer reached the
place of occurrence it was past midnight and dark. It is
established that the appellant had thrown the knife (M.O-VI)
below the place of occurrence after the commission of murder
and it was recovered the next day at his instance after he gave
his disclosure statement (exhibit-15).
33. The Constitutional Bench of the Supreme Court in
Kalawati vs. State of Himachal Pradesh3 held that section 201 is
not restricted to the case of a person who screens the actual
3 (1953) 1 SCC 86 33 Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
offender; it can be applied even to a person guilty of the main
offence, though as a matter of practice a Court will not convict a
person both of the main offence and under section 201.
34. Thus, in view of the judgment of the Supreme Court,
we are of the view that it may not be prudent to convict the
appellant who has been found guilty of the main offence of
murder for the offence under section 201 IPC as well in the facts
and circumstances stated above. We, therefore, set aside the
conviction of the appellant under section 201 IPC.
35. Considering the manner in which the appellant
committed the crime by inflicting multiple stab injuries by 10
inches 7 centimetres ‗Rambo knife' with jagged edge on one side
on vital parts of her body, we are of the view that the sentence
imposed for the offence of murder by the learned Sessions Judge
needs no interference. It is accordingly confirmed. The sentence
imposed under section 201 IPC is, however, set aside. The
amount of Rs.6,00,000/- awarded by the learned Sessions Judge
to the parents of the deceased victim under the Sikkim
Compensation to the Victims (or their Dependants) Scheme, 2021,
is maintained.
34
Crl. A. No. 06 of 2022 Sanjit Rai vs. State of Sikkim
36. The impugned judgment and the order on sentence
stands modified to the above extent. The appeal is disposed
accordingly.
37. The Registry shall furnish a certified copy of this
judgement free of cost to the appellant. A copy thereof shall be
transmitted to the Court of the learned Sessions Judge, West
Sikkim at Gyalshing along with the Trial Court records.
( Bhaskar Raj Pradhan ) (Meenakshi Madan Rai)
Judge Judge
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