Sikkim High Court
Tsheten Tshering Bhutia vs State Of Sikkim on 3 July, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
Dated : 3rd July, 2024
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. A. No.05 of 2023
Appellant : Tsheten Tshering Bhutia
versus
Respondent : State of Sikkim
Application under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. T. R. Barfungpa, Advocate (Legal Aid Counsel) for the Appellant.
Mr. S. K. Chettri, Additional Public Prosecutor for the Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The only plea advanced by Learned Counsel for the
Appellant is that the sentence imposed vide the impugned Order on
Sentence, dated 30-03-2021, of the Court of the Learned Sessions
Judge, South Sikkim, at Namchi, in Sessions Trial Case No.02 of
2018 (State of Sikkim vs. Tsheten Tshering Bhutia), for a term of ten
years under Section 304 Part II of the Indian Penal Code, 1860
(hereinafter, the "IPC"), against the Appellant, be reduced to the
period of incarceration already undergone by him.
2. Learned Counsel for the Appellant canvassed the
contention that while the Appellant is not aggrieved with the
finding of the Learned Trial Court vide the impugned Judgment, this
Court in Satar Gurung vs. State of Sikkim1, wherein the facts and
circumstances were identical to the instant case, reduced the
sentence of imprisonment to the period already undergone by the
Appellant. That, the Appellant in Satar Gurung (supra) had
2022 Cri. L. J. 3867 : AIROnline 2022 SK 50
attempted to defend himself resulting in the wounds inflicted on
the deceased, to which he succumbed. It was also observed
therein that there was no premeditation, planning or the requisite
mens rea, to bring the offence within the ambit of Section 300 of
the IPC. That, the Appellant therein committed the offence without
premeditation, in a sudden fight in the heat of passion, upon a
sudden quarrel and it cannot be said that the Appellant took undue
advantage. Similarly, in the Appeal at hand the Appellant had
inflicted the wounds on the deceased while attempting to defend
himself from the physical assault being perpetrated on him, by the
deceased and had no intention to cause his death. Hence, it is a fit
case for reduction of the sentence.
3. Learned Additional Public Prosecutor had no specific
submissions to advance in this context.
4. Although, the plea put forth by Learned Counsel for the
Appellant is only for reduction of the sentence imposed by the
Learned Trial Court in its impugned Order of Sentence, we may for
clarity briefly narrate the facts as per the Prosecution.
(i) On 10-12-2017, at around 1740 hours, the Appellant
along with his brother PW-10 were returning home. Both were
inebriated and got into a brawl with each other, their elder brother
PW-6 and his wife PW-8 tried to pacify them, in vain. In the
meanwhile, the deceased Phurba Ongdi Bhutia arrived at the spot
and also attempted to separate the two, unsuccessfully. PW-8 then
sought the help of the co-villagers upon which PW-2, PW-3, PW-5
and PW-12 arrived at the spot to intervene. Whilst the brawl
ensued, the duo also argued with the persons who had come to
separate them. PW-12 then slapped both of them, after which the
matter was seemingly put to rest and PW-6 then served tea to all
present. The Appellant was seen to have left the kitchen but
returned after sometime and started challenging PW-12, who
allegedly pushed the Appellant out to the lawn, a scuffle then
ensued between them. Meanwhile, after having served tea to all,
PW-8 looked out of the window and saw the deceased lying on the
ground with the Appellant standing beside him. She yelled out that
"maanchey larecha" (a man has fallen). On hearing her shout, all
the men inside the house rushed out and found the deceased lying
in a pool of blood with the Appellant standing beside him with
blood smeared over his shirt and his body. Consequent, upon such
discovery PW-1 lodged Exbt 1, informing the concerned Police
Station, at around 07.30 p.m., of the occurrence of the incident.
The Police Station registered a case against the Appellant under
Section 302 of the IPC and endorsed it to the PW-22, the
Investigating Officer (IO), for investigation. Investigation
conducted inter alia revealed that the deceased had been stabbed
in his right chest and right cheek by the Appellant. On completion
of investigation, Charge-Sheet was submitted against the Appellant
under Section 302 of the IPC.
(ii) Charge was framed against the Appellant under the
same section of law by the Learned Trial Court, to which he entered
a plea of "not guilty". The trial commenced consequently, where
the Prosecution examined twenty-two witnesses including PW-22,
the IO to establish its case. The Learned Trial Court in Paragraphs
76 and 77 of the Judgment concluded that it was established that
due to a sudden fight between the deceased and the Appellant, the
deceased was assaulted by the Appellant with a knife (MO-I), on a
vital part of his body, his chest, in the courtyard of the house of
PW-6, and succumbed to his injuries. That, the circumstantial
evidence produced by the Prosecution unerringly pointed to the
fact that the Appellant had committed the crime by which the life
of an innocent person had ended. It was further observed that, it
was difficult to conclude that there was any motive, premeditation
or intention on the part of the Appellant to cause the death of the
deceased. Accordingly, in the absence of the above factors, the
Prosecution had proved its case against the Appellant under
Section 304 Part II of the IPC but not under Section 302 of the IPC,
hence the Judgment and impugned Order on Sentence.
(iii) In this context, while addressing the argument of
Learned Counsel for the Appellant that the facts of the instant case
are identical to that of Satar Gurung (supra), it is essential to notice
that in Satar Gurung (supra) this Court, after having examined and
discussed the evidence of the Prosecution witnesses, detailed at
Paragraph 12 of the Judgment as follows;
"12. Although the Learned Trial Court has
failed to explain in detail as to why the offence fell
under Section 304 Part-II of the IPC instead of
Section 300 IPC, from the evidence on record it
obtains that the deceased was the aggressor and
initiated both the verbal and the physical duel with
the Appellant. However, it cannot be said that the
offence would be one under Section 324 IPC as urged
by Learned Senior Counsel for the Appellant, as it was
not a voluntary act as envisaged by Section 324 of
the IPC. The Appellant after being kicked and thrown
to the ground evidently made an effort to defend
himself resulting in the wounds inflicted on the
deceased. There was indeed no premeditation,
planning or the requisite mens rea to bring the
offence within the ambit of Section 300 of the IPC.
The Appellant committed the offence without
premeditation, in a sudden fight in the heat of
passion, upon a sudden quarrel and it cannot be said
that the Appellant took undue advantage."
(emphasis supplied)
(iv) In the backdrop of the above conclusion, while
discussing the evidence on record pertaining to the instant case it
is apparent PW-2 was called and requested by PW-8 to pacify the
quarrelling brothers i.e., the Appellant and PW-10. According to
PW-2, the deceased was standing on the doorstep of the kitchen,
situated separately from the main house. On reaching the place
Appellant questioned PW-12 as to why he had slapped him. The
deceased, a close relative of the Appellant, who was standing on
the doorstep asked the Appellant as to why he was creating
problems. When the Appellant did not pay heed to the deceased, a
quarrel broke out between them, where the deceased slapped the
Appellant once, after which a "tug of war" ensued between them
where the Appellant pulled the deceased to the courtyard. PW-8
entreated them not to fight, when she later looked out at the
courtyard she shouted "maanchey maryo" (a man is killed) and ran
towards them. PW-2 also went to the place of occurrence and saw
the deceased lying on the ground and the Appellant standing
nearby holding a knife in his hand. PW-3 witnessed the deceased
advising the Appellant not to quarrel with his brother when the
Appellant was standing outside the kitchen and the deceased was
near the kitchen door. PW-4 also saw the deceased and the
Appellant involved in a discussion and saw the deceased going out
of the kitchen, while the Appellant was already outside. PW-5 too
noticed the argument between the deceased and the Appellant and
heard the deceased slapping the Appellant. After some time he
heard PW-8 shouting "maanchey maryo" (a man is killed). PW-6
was also witness to the Appellant and the deceased standing near
the door of the kitchen and they went quarrelling towards the
courtyard of the house, in a while they heard PW-8 shouting and
saw him dead. PW-8 witnessed much the same events as the
other witnesses. In pith and substance the evidence of the
Prosecution witnesses corroborates with each other. It is evident
from the deposition of the witnesses that the deceased being elder
to the Appellant attempted to pacify him and on the
aggressiveness of the Appellant rendered him a slap but the
Appellant being armed with a knife assaulted him, which led to his
death.
(v) These facts are clearly distinguishable from that of
Satar Gurung (supra). The Appellant therein was surely not the
aggressor. In Paragraph 7(i) of Satar Gurung (supra) it has been
recorded inter alia that, PW-2 told the deceased not to argue with
the Accused No.2. The deceased and the Appellant entered into a
verbal altercation upon which the deceased challenged the
Appellant to a physical fight and assaulted him with fists and
blows. That, PWs 2 and 3 separated the deceased and the
Appellant and PW-2 took the deceased and escorted him to the
road to enable him to go to his house however thereafter, the
deceased suddenly returned and jumped upon the Appellant,
whereupon a physical fight ensued between two and the fatal
wounds came to be inflicted on the deceased. It is thus reiterated
that the Appellant in Satar Gurung (supra), was not the aggressor
by any stretch of the imagination. In the facts of the instant case,
the Appellant is without a doubt the aggressor having earlier left
the house of PW-6 and PW-8 and returned armed with a knife and
indulged in an uncalled for verbal duel with all and sundry,
including the deceased and then assaulting him fatally with the
knife.
5. Accordingly, we are constrained to observe that there is
no reason to interfere with the Order on Sentence imposed by the
Learned Trial Court to reduce it as prayed for by Learned Counsel
for the Appellant.
6. Appeal dismissed and disposed of accordingly.
7. Copy of this Judgment be forwarded to the Learned
Trial Court for information along with its records.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
03-07-2024 03-07-2024
Approved for reporting : Yes
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