THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED : 27th March, 2023
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.17 of 2021
Appellant : Chingba @ Robin Tamang
versus
Respondent : State of Sikkim
An Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973.
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Appearance
Mr. Umesh Ranpal, Advocate (Legal Aid Counsel) for the
Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant was convicted of the offences under
Section 307/323/448 of the Indian Penal Code, 1860 (hereinafter,
the "IPC") and sentenced to undergo seven years rigorous
imprisonment and to pay a fine of ₹5,000/-(Rupees five thousand)
only, under Section 307 of the IPC with a default clause of
imprisonment, six months simple imprisonment under Section 323
of the IPC and six months simple imprisonment under Section 448
of the IPC. The sentences were ordered to run concurrently,
setting off the period of imprisonment already undergone by the
Appellant. Aggrieved thereof, he is before this Court assailing the
Judgment, dated 29-09-2021, in Sessions Trial Case No.05 of 2019
and Order on Sentence, dated 30-09-2021, of the Court of the
Learned Sessions Judge, Special Division - I, East Sikkim, at
Gangtok.
Crl.A. No.17 of 2021 2
Chingba @ Robin Tamang vs. State of Sikkim
2. The Prosecution narrative is that Exhibit 1, the First
Information Report (for short, the "FIR"), was lodged by P.W.1, Dr.
N. Topden Bhutia posted at the Primary Health Centre (for short,
the "PHC"), Rangpo, before the Rangpo Police Station, on 14-11-
2018, at 2220 hours. The victim was brought to him on the same
night at around 09.40 p.m. with laceration on the left side of his
face extending upto his ear, the neck region and over his scalp,
allegedly inflicted by a sharp object. Investigation by P.W.16, the
Investigating Officer (for short, the "I.O.") of the case, revealed
that the victim had performed local healing rituals on the wife of
the Appellant but her condition deteriorated. Enraged, the
Appellant held the victim responsible for her condition and
assaulted him with a "khukuri", M.O.I. Charge-sheet was
accordingly submitted against the Appellant under Sections
307/323/448 of the IPC. The Learned Trial Court framed charge
against the Appellant under the above Sections of law to which he
entered a plea of "not guilty" and claimed trial. The Prosecution
examined sixteen witnesses, on closure thereof, the Appellant was
examined under Section 313 of the Code of Criminal Procedure,
1973 (hereinafter, the "Cr.P.C"), to enable him to explain the
incriminating circumstances appearing against him in the evidence.
Thereafter, the final arguments were heard and on consideration of
all materials by the Learned Trial Court, the impugned Judgment
and Order on Sentence were pronounced.
3. Learned Legal Aid Counsel for the Appellant put forth
multipronged arguments viz; in the first instance the identification
of the accused is not established, as neither the victim P.W.11 nor
his wife P.W.12 saw him on the night of the assault. That, the
cross-examination of the victim indicates that he was coerced by Crl.A. No.17 of 2021 3 Chingba @ Robin Tamang vs. State of Sikkim
the Police to identify the Appellant as the assailant, in the teeth of
his clear admission that he could not identify the person who had
assaulted him. That, the victim's wife P.W.12 has also conceded in
her evidence that the attack occurred during the night time and as
she has a vision problem with her right eye she could not see
properly. She has deposed that the attack was abrupt and she
could not switch on the lights, therefore she did not see the
assailant's face. That, although she claims to have identified the
Appellant on recognising his voice, no forensic tests for voice
recognition were performed during the investigation to verify this
contention. It was also her unequivocal evidence that four to five
persons had accompanied and attacked the victim on the relevant
night but investigation failed to identify or arrest the said persons,
rendering her evidence doubtful. P.W.5, 6 and 7 who helped
evacuate the victim to the hospital did not witness the incident nor
could they identify the Appellant as the assailant.
(i) Next it was contended that, there is a discrepancy with
regard to the description of the weapon of offence M.O.I, the
"khukuri", as P.W.11 in Exhibit 12, his "Dying Declaration" recorded
on the night of the incident, claimed to have been hit with a 'fire
wood' on his head following which he did not remember anything.
Contrarily before the Court he deposed that he was assaulted with
a "khukuri". P.W.12 his wife identified M.O.I the "khukuri" as the
weapon of offence while at the same time admitting that the room
was dark and she was unable to see the assailant. That, her
identification of M.O.I is not plausible considering her inability to
see in the darkness at the relevant time. Hence, no weight can be
attached to the evidence of P.W.11 and P.W.12 with regard to the
weapon of offence.
Crl.A. No.17 of 2021 4
Chingba @ Robin Tamang vs. State of Sikkim
(ii) In the third prong of his arguments, it was urged that
the CCTV footage was not seized as per law as no seizure memo
was prepared. That, although M.O.XII is said to be the Compact
Disc (for short, "CD") which contained the CCTV footage of the
night when the Appellant allegedly went to the Police Station with
the "khukuri" and "torch light" at around 2100 hours, the footage
fails to reveal that the Appellant confessed to being the offender.
(iii) It was further urged that the forensic examination
report, Exhibit 23, did not support the Prosecution case as the
blood group of both the Appellant and the victim were "AB" hence
it was not established as to whose blood M.O.I was stained with.
In his ultimate argument it was contended that the motive behind
the assault went unestablished by the Prosecution. That, in light of
all the arguments advanced, the impugned Judgment and Order on
Sentence be set aside and the Appellant acquitted of all charges.
4. Strongly repudiating the arguments of the Learned
Counsel for the Appellant, Learned Additional Public Prosecutor
contended that, P.W.2 the Police Personnel on duty at the Rangpo
Police Station identified the Appellant as the assailant as he had
entered the Police Station in an inebriated condition, at around
09.30 p.m. with the "khukuri", M.O.I containing blood stains. This
is buttressed by the evidence of the I.O. P.W.16, who testified that
the Appellant had identified himself at the Police Station and
confessed to having assaulted the victim in his residence at IBM,
Rangpo. That, the Learned Trial Court was privy to the contents of
the CD which contained the CCTV footage and had rightly observed
that the Appellant had entered the reporting room carrying the
"khukuri" and "torch light", M.O.VI. Hence, the Learned Trial Court
was correct in having convicted the Appellant under the above Crl.A. No.17 of 2021 5 Chingba @ Robin Tamang vs. State of Sikkim
provisions of law. P.W.12, the victim's wife, has also clearly
stated that the Appellant had assaulted her husband several times
and she could identify him from his voice as he uttered words
during the assault, blaming the victim for his wife's condition.
That, although the blood group of the Appellant and the victim was
the same, but the blood stains on M.O.I was undoubtedly that of
the victim as the medical examination of the Appellant revealed
that he was devoid of any injuries. That, the evidence of P.W.12
regarding four other persons who came along with the Appellant
has to be ignored considering that she is a rustic villager, thereby
incapable of recalling and narrating the incident in all its minute
details.
5. The submissions of Learned Counsel have been heard
at length and all materials on records examined.
(i) It needs no reiteration that the standard of proof in a
criminal case is for the Prosecution to prove its case beyond
reasonable doubt. In Rajiv Singh vs. State of Bihar and Another1 it
was held as follows;
"66. It is well-entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well-established canon of criminal justice is "fouler the crime higher the proof". In unmistakable terms, it is the mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt.
67. The above enunciations resonated umpteen times to be reiterated in Raj Kumar Singh v. State of Rajasthan [(2013) 5 SCC 722 : (2013) 4 SCC (Cri) 812] as succinctly summarised in para 21 as hereunder: (SCC pp. 731-32) "21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason
1 (2015) 16 SCC 369 Crl.A. No.17 of 2021 6 Chingba @ Robin Tamang vs. State of Sikkim
that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true, and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. .......... ............................................................."
[Emphasis supplied]"
(ii) Bearing in mind the standard prescribed, while dealing
first with the identification of the Appellant, the Learned Trial Court
observed that the victim had categorically stated in his evidence
that, the Appellant entered his room abruptly at around 9 o'clock
when he was asleep and hit him on his head with a "khukuri", upon
which he fell unconscious. The Learned Trial Court also observed
that P.W.11 had admitted that he was "told" that the person who
assaulted him was the accused person. It was further observed
that as the victim fell unconscious he did not get the opportunity to
see and recognise the attacker. That, however P.W.12, his wife
had clearly seen and recognised the Appellant assaulting the victim
with the "khukuri", M.O.I.
At this juncture, it would be relevant to peruse and consider
the cross-examination of both P.W.11 and P.W.12 who were the
only persons present at the time of the incident. The evidence of
P.W.11 reveals that he was accompanied by the Police to the Court
who tutored him to identify the Appellant as the assailant. That,
on the relevant night he did not see the assailant. The cross-
examination of P.W.12 reveals that her husband had performed
healing rituals on the wives of two persons in the village. On
account of her inability to switch on the light when the attack
ensued she could not see the face of her husband's assailant. She
claims to have identified the voice of the Appellant but no evidence Crl.A. No.17 of 2021 7 Chingba @ Robin Tamang vs. State of Sikkim
has been furnished by the Prosecution to indicate that she was
familiar with the Appellant and could identify his voice sans forensic
tests.
The identification of the Appellant from the voice may be
possible if there is evidence to show that the witness was
sufficiently acquainted with the accused in order to recognize him
or her by voice (see Dola alias Dolagobinda Pradhan and Another vs.
State of Orissa2). No evidence on this aspect was placed before
the Learned Trial Court. Merely because the Appellant lived in the
same locality as the victim it cannot be deduced that they were
acquainted with him or that P.W.12 was familiar with his voice.
The I.O. failed to conduct voice identification tests during the
course of investigation to enable P.W.12 to confirm that the voice
she heard that night was that of the assailant and none else.
P.W.11 and P.W.12 are clear in their admission on their inability to
recognise the Appellant as the assailant. They were told of his role
by the Police. Despite the evidence of P.W.11 and P.W.12 the
Learned Trial Court has proceeded erroneously to hold the assailant
as the offender.
(iii) To identify the Appellant as the perpetrator of the
offence, the Prosecution also took the assistance of the evidence of
P.W.2, Keshar Singh Basnett, who was assigned the duty of night
non-commissioned officer at the Rangpo Police Station, on the
night of the incident. According, to him at around 09.30 p.m. the
Appellant entered the Police Station in a drunken state carrying a
naked "khukuri" with blood stains and "torch light" in his hand. He
asked him to sit and inquired as to why he had come to the Police
Station with a weapon, on which the Appellant stated that he had
2 (2018) 18 SCC 695 Crl.A. No.17 of 2021 8 Chingba @ Robin Tamang vs. State of Sikkim
come to report that he had killed a person. His cross-examination
revealed that the Appellant did not tell him the name of the person
whom he had assaulted with the "khukuri". His evidence is to be
considered along with the evidence of P.W.1, the doctor posted at
the PHC at the relevant time and who medically examined the
Appellant at around 11.40 p.m., post the Appellant's arrival at the
Police Station said to be at 09.30 p.m.(supra). Exhibit 9 is the
medical report pertaining to the Appellant in which it is inter alia
recorded as follows;
"Name: Changba (Robin Tamang) Age: 53 yrs Add: IBM ........................................................................................... O/E (1) Complexion: brown.
(2) Well oriented.
(3) Talking fluently.
(4) Pupil not dilated.
(5) Alcohol not consumed.
(6) No inj sustained.
(7) Standing straight but swaying.
.........................................................................................."
The evidence of P.W.1 and P.W.2 are contradictory with
regard to the consumption of alcohol. As per P.W.2 the Appellant
was inebriated, whereas the doctor found that he had not consumed
alcohol, and he was well oriented and speaking fluently. More
weight in my considered opinion has to be attached to the evidence
of P.W.1 who is a disinterested witness in the matter and had
medically observed the Appellant. P.W.5 was a resident of the same
locality as the Appellant and the victim. He is however, a hearsay
witness who neither witnessed the incident nor did he identify the
Appellant as the assailant, as is also the case with P.W.6 and P.W.7.
(iv) The next point that fails to support the Prosecution
case is that P.W.12 had told her husband that there were four to
five people who had attacked him on the relevant night. Her
evidence further reveals that "It is true that I was "told" by the
police that it was the accused who had assaulted my husband on Crl.A. No.17 of 2021 9 Chingba @ Robin Tamang vs. State of Sikkim
the relevant night. It is true that I did not see any weapon of
offence at the relevant time of assault." It is therefore not the
witness who identified the Appellant, it is the Police in fact who told
her that he was the assailant. Even if the arguments of the
Prosecution with regard to P.W.12 being a rustic villager and her
evidence containing some discrepancies which should be ignored by
the Court is to be considered, this Court cannot lose sight of the
fact that as per P.W.12 "four to five" assailants entered the room
and not one. Even a rustic villager would be able to comprehend
the difference between one person and four people. The
Prosecution has failed to put forth in its evidence as to what was
the fate of the other four to five people as deposed by P.W.12 who
had attacked the victim on the relevant night. There is no
explanation whatsoever put forth on this count even by P.W.16, the
I.O. of the case. Although P.W.2 stated that the Appellant
confessed to having killed a person, without naming any person,
but P.W.16 during the investigation did not deem it necessary to
take steps to record the Section 164 Cr.P.C statement of the
Appellant.
(v) The Learned Trial Court was impressed by the fact that
the CCTV footage showed that the accused had gone to the Police
Station with the "khukuri" and "torch light", however it is relevant
to notice that P.W.16 in his evidence has not stated that the CCTV
footage reveals the Appellant's alleged confession as deposed by
P.W.2 nor is it revealed that he was wearing a blood stained T-shirt
as stated by P.W.8 and P.W.9. The observation of the Learned
Trial Court was that the CCTV footage was played in the open Court
Room in the presence of the Appellant and his Counsel wherein it
was seen that the Appellant had appeared carrying a "khukuri", Crl.A. No.17 of 2021 10 Chingba @ Robin Tamang vs. State of Sikkim
M.O.I and "torch light", M.O.IV. The Learned Trial Court is silent
as to whether any confession was made by the Appellant in the
footage, with regard to the offence.
(vi) Appositely, it has to be considered that P.W.8 and
P.W.9 were witnesses to the seizure of the "khukuri", M.O.I and
"torch light", M.O.VI, vide Exhibit 16, on which they have affixed
their signatures. Their evidence however does not reveal as to
whom M.O.I and M.O.VI were seized from. In other words, they
did not witness the Material Objects being seized by the Police from
the possession of the Appellant and it is the specific evidence of
P.W.9 that the Police told him that M.O.I and M.O.VI were brought
by the Police. This evidence has not been considered by the
Learned Trial Court. The Learned Trial Court also failed to consider
that there was no proof of seizure of the CCTV footage. The
evidence of P.W.13 corroborated by the evidence of P.W.16
establishes undoubtedly that Exhibit 21, a certificate under Section
65B of the Indian Evidence Act, 1872 was issued by P.W.13, the
Station House Officer, posted at the Rangpo Police Station at the
time of incident. However, not only did P.W.13 under cross-
examination admit that he did not view the CCTV footage while
signing Exhibit 21, he also admitted that the footage was not seized
vide any Seizure Memo. That, there was no document to establish
that I.O. of the case received the CCTV footage. The evidence on
record is also revelatory of the fact that a copy of the CD was not
made available to the Appellant.
(vii) In the absence of any cogent proof that the Appellant
was the assailant, augmented with the vacillating unestablished
evidence of P.W.12 that there were four to five assailants who
entered along with the Appellant, I am of the considered opinion Crl.A. No.17 of 2021 11 Chingba @ Robin Tamang vs. State of Sikkim
that the Prosecution has not been able to establish that the
Appellant was in fact the assailant responsible for the assault on
the victim on the relevant night. Merely because the "khukuri" was
blood stained with the blood group "AB" is not clinching evidence
with regard to the identification of the Appellant and the
consequent alleged assault. The blood group of both the Appellant
and the victim admittedly is "AB" as discovered on forensic test of
their blood samples by P.W.15 Prem Kumar Sharma, Junior
Scientific Officer in the Biological Division of RFSL, Saramsa, East
Sikkim. It is not anyone's case, including that of P.W.2, that the
"khukuri" contained "fresh" blood stains. P.W. 15 also examined
M.O.I to M.O.VII, forwarded to him by the Sub-Divisional Police
Officer, Rangpo Sub-Division, on 05-12-2018. The witness has
failed to elucidate as to whether the blood groups were AB +ve or
AB -ve. In his cross-examination admittedly he did not conduct
tests to assess the age of the blood on the "khukuri". The forensic
report of this witness is thus inconclusive with regard to the blood
found on M.O.I or on the other Material Objects forwarded to him
and thereby renders no assistance to the Prosecution case in any
manner.
(viii) So far as reliance of the Learned Counsel for the
Appellant on the discrepancy with regard to the weapon of offence
given by P.W.11 in his "Dying Declaration", Exhibit 12 and in his
evidence before the Court, although it is settled law that the
document obviously cannot be considered as a "Dying Declaration"
if the person making the statement survives the assault, however,
nothing debars the Court from considering the contradictory
evidence revealed supra with regard to the weapon of offence. Crl.A. No.17 of 2021 12
Chingba @ Robin Tamang vs. State of Sikkim
(ix) The other shortcomings that are found in the
Prosecution case is that according to P.W.16 he received a distress
call from the Mobile No.8597643649 concerning the assault at the
IBM. Neither his investigation nor his evidence revealed who the
caller was or the identification of the subscriber to the number and
P.W.16 under cross-examination has admitted that the said person
was not made a Prosecution witness. The identity of the caller has
thus remained undisclosed. A minor discrepancy also arises with
regard to the arrival of P.W.11 and P.W.12 at the PHC. As per
P.W.16 both P.W.11 and P.W.12 were taken to the PHC together,
which is however belied by the evidence of P.W.1 and P.W.12
herself.
(x) It is also clear that the Prosecution has failed to
establish motive. In R. Shaji vs. State of Kerala3, the Supreme Court
while discussing the importance or otherwise of motive observed as
follows;
"33. Motive is primarily known to the accused himself and therefore, it may not be possible for the prosecution to explain what actually prompted or excited the accused to commit a particular crime. In a case of circumstantial evidence, motive may be considered as a circumstance, which is a relevant factor for the purpose of assessing evidence, in the event that there is no unambiguous evidence to prove the guilt of the accused. Motive loses all its significance in a case of direct evidence provided by the eyewitnesses, where the same is available for the reason that in such a case, the absence or inadequacy of motive cannot stand in the way of conviction. However, the absence of motive in a case depending entirely on circumstantial evidence, is a factor that weighs in favour of the accused as it "often forms the fulcrum of the prosecution story". ......................."
In the absence of motive the Prosecution case flounders as
there is no ocular evidence.
3 (2013) 14 SCC 266 Crl.A. No.17 of 2021 13 Chingba @ Robin Tamang vs. State of Sikkim
6. In the end result, for the foregoing reasons, I find that
the Prosecution has failed to prove its case beyond a reasonable
doubt.
7. Appeal is allowed.
8. The Judgment and Order on Sentence of the Learned
Trial Court are set aside. The Appellant is acquitted of the offences
under Section 307/323/448 of the IPC.
9. He be set at liberty forthwith, if not required in any
other matter.
10. Fine, if any, deposited by the Appellant in terms of the
impugned Order on sentence, be reimbursed to him.
11. Pending applications, if any, stand disposed of.
12. No order as to costs.
13. Copy of this Judgment be forwarded to the Learned
Trial Court along with its records.
( Meenakshi Madan Rai ) Judge 27-03-2023
Approved for reporting : Yes
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