Sikkim High Court
Thoubalmayum Fazal Alias Fajal Khan vs State Of Sikkim on 8 July, 2024
Author: Bhaskar Raj Pradhan
Bench: Meenakshi M. Rai, Bhaskar Raj Pradhan
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. 23 of 2023
Thoubalmayum Fajal alias Fajal Khan,
Aged about 32 years,
S/o Thoubalmayum Abdul Khan,
Permanent resident of Yairpok Tulibal,
Imphal East, Manipur.
Temporary resident of Marchak, Ranipool, Sikkim
Presently lodged at Rongyek Jail,
Gangtok, Sikkim. ..... Appellant
versus
State of Sikkim ..... Respondent
Appeal under Section 374(2) of the
Code of Criminal Procedure, 1973
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Appearance:
Mr. Thupden Youngda, Advocate (Legal Aid Counsel) for the Applicant.
Mr. S.K. Chettri, Additional Public Prosecutor for the Respondent.
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Date of hearing : 27th May, 2024
Date of judgment : 8th July, 2024
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JUDGMENT
Bhaskar Raj Pradhan, J.
1. The prosecution has successfully secured conviction and
sentence against the appellant under sections 302 and 506 (Para II)
of the Indian Penal Code, 1860 (IPC) for life and for a period of one
year respectively relying on circumstantial evidence.
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
2. The first information report (FIR) (exhibit P-1) was
lodged by A. Chandrakala Devi (PW-2) - wife of the deceased,
against the appellant stating that he had called at around 01:10
a.m. on 03.03.2019 from her husband's mobile number asking her
to come out alone to save her husband near the Ranipool petrol
pump and when she reached there she found her husband lying
dead in the gorge near the petrol pump. She stated that she had the
phone recording of the conversation. She further stated that the
appellant had threatened her not to inform the police or else she
and her children would face dire consequences. The FIR was
registered by Karma Dolma (PW-42). The allegation in the FIR was
investigated by Police Inspector Deepa Sharma (PW-47) who filed
the charge-sheet against the appellant on 28.05.2019 who had been
arrested on 03.03.2019 under sections 302, 506 and 509 of the IPC.
Thereafter, it was followed by two supplementary charge-sheets on
receipt of the DNA report prepared at CDFD Hyderabad and CFSL
report of voice sample of CFSL Chandigarh.
3. On 13.08.2021, charges under sections 302, 201 and
506 (Para II) of the IPC were framed against the appellant. The
charge under section 302 of the IPC was for murder of the deceased
on the intervening night of 02.03.2019 and 03.03.2019. The charge
under section 201 was for having dragged the deceased after his
murder using the appellant's belt to the nearby jungle below the
road with the intention of screening himself from legal punishment.
The charge under section 506 (Para-II) of the IPC was for criminal
intimidation committed on A. Chandrakala Devi (PW-2) by
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
demanding that she come to the spot where the murder took place
alone and threatening to kill the deceased if she did not. The
appellant pleaded not guilty and claimed trial. 47 prosecution
witnesses were examined, numerous documents and material
objects were exhibited by the prosecution to establish their case.
The appellant was examined under section 313 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) when as many as 494
circumstances were put to him. The appellant did not have any
evidence to enter in his defence and claimed that he was innocent
and falsely implicated. The learned Sessions Judge rendered a
judgment on 29.08.2023 convicting the appellant and sentencing
him under section 302 of the IPC for life and a fine of Rs.500/- and
under section 506 (Para-II) of the IPC for one year.
4. The appellant has preferred this appeal on the ground
that the facts, documentary and oral evidence were not correctly
appreciated; there were contradictory evidence adduced by the
prosecution; and the prosecution had failed to establish the
ingredients of the offences charged.
5. The learned Sessions Judge was of the view that the
circumstantial evidence produced by the prosecution unerringly
proved that the appellant was guilty of the offence under sections
302 and 506 (Para-II) of the IPC. A reading of the impugned
judgment reflects that the learned Sessions Judge had held the
following circumstances had been fully established and all the facts
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
so established were consistent only with the hypothesis of guilt of
the accused:
(i) The deceased and the appellant were known to each
other as they both worked in CAEPHT.
(ii) On 02.03.2019, there was a marriage reception party at
Hotel Chakhhum, in which, both the deceased as well as the
appellant were present.
(ii) After A. Chandrakala Devi (PW-2), her son Angom
Dawnychip (PW-3) and daughter Angom Angelica (PW-4) left
the party and reached home, she received a call after midnight
from the appellant using her husband's mobile phone
threatening her to come to the bridge near the Ranipool Petrol
Pump alone if she wanted her husband alive. Thereafter, when
A. Chandrakala Devi (PW-2) accompanied by others reached
the bridge, she received another call from him questioning her
for not coming alone and telling her that her husband would
now die.
(iii) The phone conversation between A. Chandrakala Devi
(PW-2) and the appellant which was in Manipuri was recorded
in her phone by her son Angom Dawnychip (PW-3). It was also
circulated on Whatsapp and translated by Dr. Chakpram
Birendrajit (PW-38).
(iv) The voice samples of A. Chandrakala Devi (PW-2) and
the appellant were taken by the Investigating Officer (PW-47),
downloaded in pen drives, packed, sealed and sent for forensic
examination along with the mobile phone of A. Chandrakala
Devi (PW-2) which had the recorded conversation. The forensic
expert opined that the voice in the phone conversation between
A. Chandrakala Devi (PW-2) and the appellant matched the
voice samples of the respective persons in the pen drives.
(v) The appellant was apprehended on 03.03.2019 and
thereafter arrested. His wearing apparels, i.e., jeans and boots
which had blood stains on them, were sent for forensic
examination which revealed that the blood stains were of the
deceased.
(vi) After the arrest of the appellant, he confessed to his
crime and in his disclosure statement recorded under section 27
of the Indian Evidence Act, 1872, stated that he would be able
to show where he had thrown the stone which he had used to
hit the deceased. Pursuant thereto, the stone with blood stains
was recovered and sent for forensic examination which revealed
that the blood stains on the stone was that of the deceased.
(vii) The post-mortem of the deceased revealed that injuries
were ante-mortem in nature and the cause of death was due to
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
craniocerebral injuries and complications thereof caused by
hard and blunt trauma.
6. Mr. Thupden Youngda, learned counsel for the appellant
submitted that the prosecution has failed to prove the case against
the appellant beyond reasonable doubt. He also submitted that the
last seen theory put forth by the prosecution has not been
satisfactorily proved. Similarly, the entire investigation has been
faulty and contents of document relied upon not proved. As per the
evidence led by the prosecution, the point of suspicion of guilt could
be upon B. Hemchandra Sharma (PW-1) or one Roshan, who A.
Chandrakala Devi (PW-2) had initially suspected, and not the
appellant. Further, the prosecution had failed to prove that the jeans
and boots seized belonged to the appellant. Therefore, the blood of
the deceased found in the jeans and boots by the forensic expert
could not be connected to the appellant. According to the learned
counsel, this is a case based on circumstantial evidence, however,
many of the crucial circumstantial evidence has not been proved by
the prosecution. The prosecution has also failed to prove the
contents of the phone conversation. The discrepancies pointed out
as above by the learned counsel shall be dealt with while
considering each of the circumstantial evidence led by the
prosecution.
7. Mr. S.K. Chettri, learned Additional Public Prosecutor,
submitted that the prosecution has been able to prove their case
beyond all reasonable doubt by way of circumstantial evidence. The
learned counsel drew the attention of this Court to the various
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
evidence, both oral and documentary, led by the prosecution to
make good his submissions. It is submitted that the appellant has
been correctly identified; the prosecution has proved that the
appellant had attended the marriage reception party on 02.03.2019;
that the appellant was last seen with the deceased; that the
appellant had made two calls to A. Chandrakala Devi (PW-2)
threatening to kill her husband (the deceased); that the disclosure
statement made by the appellant led to the recovery of the stone
with which he had killed the deceased; that the wearing apparels of
the appellant had blood stains of the deceased on them; and the
post mortem examination conducted on the deceased revealed that
the injuries were ante-mortem in nature and caused by hard and
blunt trauma.
8. The prosecution case in short is that on the night of
02.03.2019 there was a wedding reception of M. Sanju Singh (PW-
26) at hotel Chakhhum, a Manipuri restaurant at Ranipool. This was
attended by the appellant, deceased and his family members and
other Manipuri guests. After a while, the wife of the deceased - A.
Chandrakala Devi (PW-2), their son Angom Dawnychip (PW-3) and
daughter Angom Angelica (PW-4) left hotel Chakhhum for their
home. The deceased stayed on. The appellant and the deceased
were last seen together leaving hotel Chakhhum. After reaching
home, A. Chandrakala Devi (PW-2) received a call from the
appellant using the mobile phone of the deceased at 1 a.m. asking
her to come alone to the bridge if she wanted her husband alive.
She, accompanied by her son - Angom Dawnychip (PW-3) and
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
daughter Angom Angelica (PW-4), went towards the bridge along
with N. Uma Devi (PW-8) and A. Nirupama Devi (PW-9). At the
bridge, A. Chandrakala Devi (PW-2) received another call from the
appellant from the mobile phone of the deceased. The appellant was
annoyed that she had got her family and friends and had not come
alone and threatened to kill the deceased if they did not return
home. This conversation was recorded by Angom Dawnychip (PW-3)
in A. Chandrakala Devi's (PW-2) mobile phone. Thereafter, they
searched for the deceased. B. Hemchandra Sharma (PW-1) who was
the owner of hotel Chakhhum verbally informed the Ranipool Police
Station, who deployed two officers - Sarita Chettri (PW-28) and
Nima Lhamu Bhutia (PW-10), to search for the deceased. The
appellant was apprehended in the premises of the College of
Agricultural Engineering and Post Harvest Technology (CAEPHT).
The appellant tried to mislead the search party by giving different
stories. The search party ultimately found the body of the deceased
in the jungle below the road. Thereafter, FIR dated 03.03.2019 was
lodged by A. Chandrakala Devi (PW-2) at the Ranipool Police Station
against the appellant who was working as a staff in CAEPHT.
9. The Supreme Court in Neeraj Dutta vs. State1 (NCT of
Delhi), held:
"Evidence that does not establish the fact in issue directly but
throws light on the circumstances in which the fact in issue did
not occur is circumstantial evidence (also called inferential or
presumptive evidence). Circumstantial evidence means facts
from which another fact is inferred. Although circumstantial
evidence does not go to prove directly the fact in issue, it is
equally direct. Circumstantial evidence has also to be proved by
direct evidence of the circumstances. Further, letting in evidence
should be in accordance with the provision of the Evidence Act by
(2023) 4 SCC 731
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
the examination of witnesses i.e. examination-in-chief, cross-
examination, and re-examination. ...."
10. The Supreme Court in Bodhraj v. State of J&K2, held:
"9. Before analysing factual aspects it may be stated that for
a crime to be proved it is not necessary that the crime must be
seen to have been committed and must, in all circumstances be
proved by direct ocular evidence by examining before the court
those persons who had seen its commission. The offence can be
proved by circumstantial evidence also. The principal fact
or factum probandum may be proved indirectly by means of
certain inferences drawn from factum probans, that is, the
evidentiary facts. To put it differently, circumstantial evidence is
not direct to the point in issue but consists of evidence of various
other facts which are so closely associated with the fact in issue
that taken together they form a chain of circumstances from
which the existence of the principal fact can be legally inferred or
presumed.
10. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence, the
inference of guilt can be justified only when all the incriminating
facts and circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other person.
(See Hukam Singh v. State of Rajasthan [(1977) 2 SCC 99 :
1977 SCC (Cri) 250 : AIR 1977 SC 1063] , Eradu v. State of
Hyderabad [AIR 1956 SC 316 : 1956 Cri LJ 559]
, Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983
SCC (Cri) 447 : AIR 1983 SC 446] , State of
U.P. v. Sukhbasi [1985 Supp SCC 79 : 1985 SCC (Cri) 387 : AIR
1985 SC 1224] , Balwinder Singh v. State of Punjab [(1987) 1
SCC 1 : 1987 SCC (Cri) 27 : AIR 1987 SC 350] and Ashok Kumar
Chatterjee v. State of M.P. [1989 Supp (1) SCC 560 : 1989 SCC
(Cri) 566 : AIR 1989 SC 1890] ) The circumstances from which
an inference as to the guilt of the accused is drawn have to be
proved beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be inferred
from those circumstances. In Bhagat Ram v. State of
Punjab [AIR 1954 SC 621 : 1954 Cri LJ 1645] it was laid down
that where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances must
be such as to negative the innocence of the accused and bring
home the offences beyond any reasonable doubt."
11. In Hanumant Govind Nargundkar3, the Supreme Court
held:
(2002) 8 SCC 45
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
"10. .................. In dealing with circumstantial evidence the
rules specially applicable to such evidence must be borne in
mind. In such cases there is always a danger that conjecture or
suspicion may take the place of legal proof and therefore, it is
right to recall the warning addressed by Baron Alderson to the
jury in Reg. vs. Hodge, (1838) 2 Lewin 227) where he said:
"The mind was apt to take a pleasure in adapting
circumstances to one another, and even in straining them a little,
if need be, to force them to form parts of one connected whole;
and the more ingenious the mind of the individual, the more
likely was it, considering such matters, to overreach and mislead
itself, to supply some little link that is wonting, to take for
granted some fact consistent with its previous theories and
necessary to render them complete."
It is well to remember that in cases where the evidence is
of circumstantial in nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be
fully established, and all the facts so established should be
consistent only with the hypothesis of guilt of the accused. Again,
the circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the
one proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any reasonable
doubt for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human
probability the act must have been done by the accused. ...."
12. In the light of the profound rendition of the Supreme
Court as above, we shall examine the circumstantial evidence led by
the prosecution which convinced the learned Sessions Judge that
the appellant was guilty of the offence of murder and criminal
intimidation.
The deceased and the appellant were known to each other as
both worked in CAEPHT
13. B. Hemchandra Sharma (PW-1), A. Chandrakala Devi
(PW-2), Yengkhom Thoiba Singh (PW-5), Chongtham Sanjoy Singh
(PW-6), Prasanta Singh Laishram (PW-7), N. Uma Devi (PW-8),
Devendra Kumar Chettri (PW-20), K. Arun Kumar Singh (PW-24), M.
Sanju Singh (PW-26), Y. Guneshwori Devi (PW-37) and Dr.
Chakpram Birendrajit (PW-38), confirmed that the appellant worked
AIR 1952 SC 343
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
as a contract labourer in CAEPHT while the deceased was working as
Assistant Professor there.
Marriage reception party at hotel Chakhhum on 02.03.2019
and the presence of the appellant and the deceased.
14. B. Hemchandra Sharma (PW-1), A. Chandrakala Devi
(PW-2), Angom Dawnychip (PW-3), Angom Angelica (PW-4),
Yengkhom Thoiba Singh (PW-5), Chongtham Sanjoy Singh (PW-6),
Prasanta Singh Laishram (PW-7), N. Uma Devi (PW-8), A. Nirupama
Devi (PW-9), K. Arun Kumar Singh (PW-24), M. Sanju Singh (PW-
26), Y. Guneshwori Devi (PW-37), Dr. Chakpram Birendrajit (PW-
38) and Philem Roshan Singh (PW-43), all confirmed that on
02.03.2019 there was a wedding reception party organised at hotel
Chakhhum, opposite Shanti Complex, Ranipool, by M. Sanju Singh
(PW-26). B. Hemchandra Sharma (PW-1) deposed that he was at
the wedding reception with the appellant, deceased, Roshan and
Sanjay consuming alcohol and after some time Roshan left the
hotel. Thereafter, Sanjay, the deceased and the appellant also left
the hotel. He further deposed that the appellant and the deceased
went towards their house. However, in cross-examination he
admitted that he did not last see the deceased and the appellant
together. Philem Roshan Singh (PW-43) deposed that while he was
leaving the hotel he saw B. Hemchandra Sharma (PW-1),
Chongtham Sanjoy Singh (PW-6), the deceased and the appellant
were talking about dropping the deceased to his house and that he
heard the conversation between the deceased and the appellant that
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
they would go together. The defence could not demolish the version
of Philem Roshan Singh (PW-43).
15. B. Hemchandra Sharma (PW-1), Yengkhom Thoiba
Singh (PW-5), Chongtham Sanjoy Singh (PW-6), Prasanta Singh
Laishram (PW-7), N. Uma Devi (PW-8), A. Nirupama Devi (PW-9),
K. Arun Kumar Singh (PW-24), M. Sanju Singh (PW-26), Dr.
Chakpram Birendrajit (PW-38) and Philem Roshan Singh (PW-43),
confirmed that the appellant as well as the deceased were at the
wedding reception on 02.03.2019.
Incriminating phone call made by the appellant to A.
Chandrakala Devi (PW-2) on the date of the incident.
16. A. Chandrakala Devi (PW-2), Angom Dawnychip (PW-3)
and Angom Angelica (PW-4) deposed about the two phone calls
between A. Chandrakala Devi (PW-2) and the appellant who was
using the mobile phone of the deceased. A. Chandrakala Devi (PW-
2) identified the mobile phone (MO-2) as the mobile phone of the
deceased. The mobile phone (MO-2) was seized by the Investigating
Officer (PW-47) vide seizure memo (exhibit P-24) on 03.03.2019
from above the place where the dead body of the deceased was
found in the presence of Dawa Lepcha (PW-19) and Nabin Daween
(PW-30) who identified their signatures on the seizure memo
(exhibit P-24). The Investigating Officer (PW-47) deposed that she
had seized the mobile phone (MO-1) of A. Chandrakala Devi (PW-2)
after preparing a seizure memo (exhibit P-3). She proved the
seizure of the mobile phone (MO-1) seized by her. Sima Singh Lama
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
(PW-16) who was a seizure witness turned hostile. During cross-
examination by the learned Prosecutor, she however, admitted that
she had stated to the police about the seizure of the mobile phone
(MO-1) in the presence of another witness - Komal Singh (PW-17).
She also admitted having stated that the mobile phone had been
packed and sealed in their presence. She admitted signing the
seizure memo (exhibit P-3) and identified it but refused to recognise
the mobile phone. Komal Singh (PW-17) confirmed the seizure of
the mobile phone (MO-1), the preparation of the seizure memo
(exhibit P-3) and her signature thereon. During cross-examination,
he confirmed that on the relevant day the mobile phone was in
possession of A. Chandrakala Devi (PW-2). The seizure of the mobile
phone of A. Chandrakala Devi (PW-2) is unquestionable.
Phone conversation between A. Chandrakala Devi (PW-2)
and the appellant which was in Manipuri was recorded in her
phone by her son Angom Dawnychip (PW-3). It was also
circulated on WhatsApp and translated by Dr. Chakpram
Birendrajit (PW-38).
17. Both A. Chandrakala Devi (PW-2) and her son Angom
Dawnychip (PW-3) deposed that the conversation between the
appellant and A. Chandrakala Devi (PW-2) was recorded by Angom
Dawnychip (PW-3) in her phone. Dr. Chakpram Birendrajit (PW-38)
deposed that on the following day A. Chandrakala Devi (PW-2)
forwarded the conversation between the appellant and her to him
and other Manipuris through WhatsApp and he translated the
conversation which was in Manipuri to English and typed it in his
computer and thereafter handed it over to the police. The
Investigating Officer (PW-47) confirmed this fact and deposed that
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
she had seized the translation (exhibit P-26) in the presence of
independent witnesses vide seizure memo (exhibit P-25). The
seizure memo (exhibit P-25) has been proved by Investigating
Officer (PW-47) and the seizure witness - Devendra Kumar Chettri
(PW-20). The translation (exhibit P-26) has been proved by Dr.
Chakpram Birendrajit (PW-38). During the cross-examination of Dr.
Chakpram Birendrajit (PW-38), the defence confirmed that A.
Chandrakala Devi (PW-2) had in fact forwarded the conversation to
him. The above facts have been sufficiently proved by the
prosecution.
18. The translation (exhibit P-26) of this conversation which
has been proved by Dr. Chakpram Birendrajit (PW-38) makes it
evident that the appellant was with the deceased when he made the
phone calls to A. Chandrakala Devi (PW-2). It also proves that he
had, as deposed by A. Chandrakala Devi (PW-2), called her and
asked her to come alone and was irritated and angry when she was
accompanied by others. It reflects that in fact the appellant was at a
vantage point and could notice that A. Chandrakala Devi (PW-2) had
not come alone as the appellant had asked her to but with others.
The conversation also records that atleast on two occasions the
appellant had threatened to kill the deceased. The recorded phone
conversation is incriminating against the appellant.
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
The phone conversation between the appellant and A.
Chandrakala Devi (PW-2) recorded in her phone matched
their voice samples.
19. The Investigating Officer (PW-47) deposed that she had
requisitioned the In-charge of Psalms Studio, Metro Point Tadong,
on 23.04.2019 to record the voice sample of A. Chandrakala Devi
(PW-2) and the appellant and thereafter sent it for forensic
examination to CFSL, Chandigarh, through the Superintendent of
Police, CID. Enoch Lingdong (PW-13) deposed that he had recorded
the voice sample of the appellant in his studio, downloaded the
same in two pen drives (MO-6) and handed it over to the
Investigating Officer (PW-47) who prepared the seizure memo
(exhibit P-10) bearing his signature. K. Arun Kumar Singh (PW-24)
and Yengkhom Thoiba Singh (PW-5) were the seizure witnesses to
the seizure memo (exhibit-10) by which the pen drive were seized.
Although, Yengkhom Thoiba Singh (PW-5) was not sure why he had
signed on the document he identified his signature thereon. K. Arun
Kumar Singh (PW-24), however, stated that the Investigating
Officer had seized the pen drive vide seizure memo (exhibit P-10)
and also identified his signature thereon. Enoch Lingdong (PW-13)
also deposed about receiving a requisition (exhibit P-19) from the
Investigating Officer which bears his signature. The requisition
(exhibit P-19) which bears his signature has been proved by Enoch
Lingdong (PW-13) and the Investigating Officer (PW-47) has also
deposed about the same. The pen drives containing the voice
sample of A. Chandrakala Devi (PW-2) was seized by the
Investigating Officer (PW-47) vide seizure memo (exhibit P-20).
Tilak Gajmer (PW-22) and Balaram Prasad (PW-23) were the seizure
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
witnesses of the pen drive. Although, Tilak Gajmer (PW-22) was not
sure whether the pen drive shown to him in Court was the same pen
drive seized, Balaram Prasad (PW-23) proved the seizure of the pen
drives and that the same had been packed and sealed in his
presence. He identified the signature on the white envelope (MO-13)
in which the pen drives had been packed and sealed. Dr. Aanchal
Dwivedi (PW-45), Scientist at CFSL, Chandigarh, holding a PhD in
Physics, deposed that he had received one sealed cloth parcel from
the Superintendent of Police, CID, Gangtok, with the mobile phone
and the pen drives. He deposed about examining the same and
concluded that the voice samples of the appellant and A.
Chandrakala Devi (PW-2) matched with the recording in the mobile
phone of A. Chandrakala Devi (PW-2) to a high probability which
was also reflected in his report (exhibit P-41). Additionally, Enoch
Lingdong (PW-13) also identified the voice of the appellant recorded
by him in the pen drives (MO-6).
20. Dr. Anchal Dwivedi (PW-45), the Forensic Expert,
through forensic report (exhibit P-41) proved that the recording of
the conversation in the mobile phone was between A. Chandrakala
Devi (PW-2) and the appellant as it matched their voice samples
recorded in the pen drives which were also examined. The
prosecution has been able to prove that the person who made that
incriminating conversation with A. Chandrakala Devi (PW-2) - wife
of the deceased, immediately before the dead body of the deceased
was found was the appellant and no other.
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
The seized wearing apparels of the appellant which he was
wearing on that day were smeared in blood of the deceased.
21. A. Chandrakala Devi (PW-2), Yengkhom Thoiba Singh
(PW-5), A. Nirupama Devi (PW-9) and Md. Kudush Khan (PW-27) -
the appellant's Uncle and also working in CAEPHT, confirmed that
the appellant was apprehended in the College Campus by them.
According to them, the police thereafter took the appellant with
them. The Investigating Officer (PW-47) deposed that she arrested
the appellant and forwarded him for medical examination. The
arrest memo (exhibit P-28) is dated 03.03.2019 and the time of
arrest is reflected as 08:25 hours. The Investigating Officer (PW-47)
deposed that she seized the wearing apparels of the appellant
having blood stains on it, i.e., blue jeans (MO-9), T-shirt (MO-10),
white PT vest (MO-35), shoes along with socks (MO-11) collectively,
one mobile phone vide seizure memo (exhibit P-23) in the presence
of independent witnesses. Investigating Officer (PW-47) proved the
seizure memo (exhibit P-23) and her and the appellant's signatures
thereon. The seizure memo (exhibit P-23) reflects the time of
seizure as 12:30 hours on 03.03.2019. The cross-examination of the
Investigating Officer (PW-47) on this aspect did not yield any fact
which would prove the evidence of the Investigating Officer (PW-47)
about the seizure to be untrue. Arun Pathak (PW-18) - the seizure
witness, deposed that the Investigating Officer (PW-47) had seized
the wearing apparels of the appellant duly preparing the seizure
memo (exhibit P-23) which bears his signature. However, during
cross-examination he stated that those articles seized were lying on
the floor of the Ranipool P.S. and it was the Investigating Officer
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
(PW-47) who had told them that it belonged to the appellant.
Buddha Mukhia (PW-29) - the second seizure witness, also deposed
about the seizure of the wearing apparels of the appellant in their
presence and the preparation of the seizure memo (exhibit P-23)
where he too had endorsed his signature. During cross-examination,
he however, could not say whether the wearing apparels seized
belonged to the appellant definitely and where it came from.
Although the seizure witnesses could not say with certainty that the
wearing apparels seized did belong to the appellant, the evidence of
the Investigating Officer (PW-47), the endorsement of the signature
of the seizure witnesses in the seizure memo (exhibit P-23) and
their evidence that the seizure was affected and prepared in their
presence read with the seizure memo (exhibit P-23) convinces us
that seizure did take place in the manner deposed by her and that
the wearing apparels seized did belong to the appellant. We find
that the evidence of the Investigating Officer (PW-47) is genuine
and there is credibility of the seizure. There was no reason for the
Investigating Officer to falsely implicate the appellant.
22. On 23.03.2019, on the requisition of the Investigating
Officer (PW-47), Dr. O.T. Lepcha (PW-31) confirmed that the
Medical Superintendent directed the Head of the Department,
Pathology, for necessary action pursuant to which blood sample of
the appellant was drawn in filter paper, packed and sealed in an
envelope. Thereafter, he filled up the biological specimen
authentication card for DNA testing (exhibit P-30) in which passport
size photograph of the appellant was also affixed. This was then
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
forwarded for forensic examination. The Investigating Officer (PW-
47) deposed that the blood sample along with other seized exhibits
were packed and sealed in a white carry bag (MO-12) which was
thereafter forwarded for forensic examination to CFSL Kolkata along
with other exhibits, however, it was returned and thereafter, it was
forwarded to CDFD, Hyderabad, for forensic examination vide letter
dated 23.09.2019 (exhibit P-48). The forensic report from CDFD
Hyderabad and CFSL Chandigarh were filed through supplementary
charge-sheet. Pooja Tripathy (PW-46) - DNA Examiner at Centre for
DNA Fingerprinting and Diagnostic Hyderabad who had a MSc.
Degree in Bio-Technology and experience of nine years, deposed
about receiving the exhibits in a sealed condition. She concluded
that the source of various exhibits from the crime scene and the
black pair of shoes with socks of the appellant, stone seized from
the crime scene, stone with hair strands and blood stains seized
from the crime scene, two stones with blood stains seized from the
crime and mud from blood seized from the crime scene are from
source of blood sample soaked gauze, scalp hair, nail clippings of
the deceased. It is thus clear that the shoes and the socks of the
appellant seized on 03.03.2019 at 12:30 hours at the Ranipool
Police Station from the appellant in the presence of Arun Pathak
(PW-18) and Buddha Mukhia (PW-29) immediately after his
apprehension from CAEPHT and arrest had blood stains of the
deceased which he refused to explain during examination under
section 313 Cr.P.C. When a specific question regarding the seizure
of his wearing apparels with blood stains was put to the appellant,
he skirted the issue and answered "I do not know".
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
23. This fact establishes that the appellant was with the
deceased at the time of the incident providing a vital link to the
chain of circumstances put forth by the prosecution.
Disclosure statement under section 27 of the Indian Evidence
Act, 1872 and the recovery.
24. Section 27 of the Indian Evidence Act, 1872 provides
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.
25. In Himachal Pradesh Administration vs. Shree Om Prakash 4,
the Supreme Court had occasion to examine the provision of section
27 of the Indian Evidence Act, 1872. It was held that:
"8. ..... we are not unaware that section 27 of the Evidence
Act which makes the information given by the accused
while in custody leading to the discovery of a fact and the
fact admissible, is liable to be abused and for that reason
great caution has to be exercised in resisting any attempt
to circumvent, by manipulation or ingenuity of the
Investigating Officer, the protection afforded by Section 25
and Section 26 of the Evidence Act. While considering the
evidence relating to the recovery we shall have to exercise
that caution and care which is necessary to lend assurance
that the information furnished and the fact discovered is
credible.
..............
10. ...... In our view the evidence relating to recoveries is
not similar to that contemplated under section 103 of the
Criminal Procedure Code where searches are required to be
made in the presence of two or more inhabitants of the
locality in which the place to be searched is situate. In an
investigation under section 157 the recoveries could be
proved even by the solitary evidence of the Investigating
Officer if his evidence could otherwise be believed. ......."
(1972) 1 SCC 249
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
26. Further, the Supreme Court in Praveen Kumar vs. State of
Karnataka held that section 27 does not lay down that the
statement made to a police officer should always be in the presence
of independent witnesses. Normally, in cases where the evidence led
by the prosecution as to a fact depends solely on the police
witnesses, the Courts seek corroboration as a matter of caution and
not as a matter of rule. Thus, it is only a rule of prudence which
makes the Court to seek corroboration from an independent source,
in such cases while assessing the evidence of the police. But in
cases where the Court is satisfied that the evidence of the police can
be independently relied upon then in such cases there is no
prohibition in law that the same cannot be accepted without
independent corroboration.
27. The Investigating Officer (PW-47) deposed that during
the course of investigation she interrogated the appellant where he
disclosed of having disposed one of the weapons of offence in the
surrounding areas of the place of occurrence and she recorded his
statement under section 27 of the Indian Evidence Act, 1872 in the
presence of two witnesses. The Investigating Officer (PW-47) proved
the disclosure statement (exhibit P-22), identified the signatures of
the appellant as well as the two witnesses therein. The disclosure
statement (exhibit P-22) is in Hindi which reveals that the appellant
had confessed to the crime; that he had grabbed a stone and hit the
deceased on his head; and that he had thrown that stone in the
(2003) 12 SCC 199
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
location of the incident which he could show. Thereafter, she along
with the appellant and the two witnesses went to the place of
occurrence and recovered the weapon of offence, i.e., stone bearing
blood stains and hair strands (MO-22) at the instance of the
appellant. This was seized, packed and sealed in the presence of the
witnesses. She identified the stone (MO-22) recovered by her vide
seizure memo (Exhibit P-21). Bharat Sharma (PW-14) and Subash
Sharma (PW-15) - the seizure witnesses, confirmed that the
appellant had made the disclosure statement (exhibit P-22) in their
presence pursuant to which they had proceeded to the place of
occurrence where the stone was recovered. They also confirmed
that the stone was seized, sealed and packed vide seizure memo
(exhibit P-21).
28. Both the seizure witnesses, however, identified the
stone marked as MO-4 as the one recovered at the instance of the
appellant and not the stone which was identified by the
Investigating Officer (PW-47). The seizure memo (exhibit P-21)
reflects the date of seizure of the seized stone (MO-22) as
03.03.2019. The Investigating Officer (PW-47) deposed further
about seizure of other stones with blood stains vide seizure memos
(exhibit P-37 & P-38) both dated 03.03.2019. Passang Bhutia (PW-
40), Deo Kumar Chettri (PW-41) and Bijay Pradhan (PW-44) were
the seizure witnesses to the seizure memos (exhibit P-37 & P-38).
Passang Bhutia (PW-40) deposed about the seizure of a stone, one
bunch of keys, belt and blood along with mud lifted from the new
road vide seizure memo (exhibit P-37) on 03.03.2019. Deo Kumar
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
Chettri (PW-41) deposed about those articles and the stone seized
by the police vide seizure memo (exhibit P-37). He also deposed
about seizure made by the police vide seizure memo (exhibit P-38).
Bijay Pradhan (PW- 44) deposed that the police had seized some
stones containing blood stains on it from the place of occurrence
vide seizure memo (exhibit P-38). He deposed further that the
police had then packed and sealed the same in his presence and in
the presence of another witness. The seizure memo (exhibit-38)
reflects the seizure of two stones long with other evidence on
03.03.2019. Apparently, the two stones seized vide seizure memo
(exhibit-38) were MO-4.
29. It is apparent that the prosecution as well as the two
seizure witnesses - Bharat Sharma (PW-14) and Subash Sharma
(PW-15), wrongly identified MO-4 as the stone seized vide seizure
memo (exhibit-21) when according to the Investigating Officer (PW-
47) it was MO-22 which was seized vide seizure memo (exhibit-21).
The signatures of the Investigating Officer (PW-47) and the two
seizure witnesses - Bharat Sharma (PW-14) and Subash Sharma
(PW-15), on the seizure memo (exhibit-21), convinces us that they
had rightly deposed about the seizure of MO-22 vide seizure memo
(exhibit-21) in their depositions. The incorrect identification of MO-4
which was also a stone with blood stains from the place of
occurrence on the same day as the stone seized vide the seizure
memo (exhibit-21) does not, in the given circumstances, fatally
affect the prosecution case. Moreso, when all the stones seized by
the Investigating Officer (PW-47) from the place of occurrence have
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
been proved to have the blood of the deceased on them by Pooja
Tripathi (PW-46) - the Forensic Expert, i.e., DNA Examiner at
Centre for DNA Fingerprinting and Diagnostic at Hyderabad, which is
reflected in her report (exhibit P-43).
30. Keeping in mind the opinion of the Supreme Court
above, we are of the considered view that the prosecution has been
able to establish that a stone with blood stains and hair strands
(MO-22) was seized by the Investigating Officer (PW-47) pursuant
to the disclosure statement (exhibit P-22). Further, the prosecution
has also been able to establish that the seized stone with blood
stains and hair strands (MO-22) had the blood of the deceased.
The cause of death has been proved to be due to
craniocerebral injuries and complications thereof
31. Dr. Karma Mingur Diki Bhutia (PW-33) who conducted
the post mortem of the deceased on 04.03.2019 proved the autopsy
report (exhibit P-33) prepared by her and Dr. Ashim Mishra. They
noted that the post-mortem of the deceased revealed that he had
sustained multiple external injuries on the frontal eminence, left
glabella, left upper eye-lid, left temporal region, over left ear, over
anti-helix and helix, over right eye, over right zygoma, over lower
lip, over chin at centre, on neck, over right chest, above umbilicus,
over left chest, over left loin, over left knee, below left knee over
left leg, over left mid thigh, over right knee, over left elbow dorsal
aspect and over left leg. Internal injuries were also noticed over left
frontal, occipital and right frontal area, vertex to left parietal
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
eminence, left middle ear bone and ribs. Dr. Karma Mingur Diki
Bhutia (PW-33) examined the dark brown belt with dried blood
stains, two flat stones of varied dimension with blood stains,
triangular stone with a pointed tip with dried blood stains and scalp
hair and a flat and heavy stone with dried blood stain forwarded by
the Investigating Officer (PW-47) and deposed that the external
injuries were anti mortem in nature; all injuries were caused by
hard and blunt trauma. Dr. Karma Mingur Diki Bhutia (PW-33) also
opined that one of the injuries corresponds to strangulation ligature
and could be possible by the belt which was of a fatal nature and
sufficient to cause death and the other injury could be possible by
the triangular stone. It was opined that the deceased died due to
craniocerebral injuries and complications thereof.
32. Dr. Karma Mingur Diki Bhutia (PW-33) also deposed that
they had examined the dark brown belt with blood stains; two flat
stones with dried blood stains; a triangular stone with pointed tip
with dried blood stains and scalp hair and; a flat and heavy stone
with dried blood stain.
33. We are of the opinion that the prosecution has been able
to prove successfully that the deceased died due to external injuries
which were ante-mortem in nature caused by hard and blunt trauma
causing craniocerebral injuries. The prosecution has also proved
beyond reasonable doubt that these injuries were caused by the use
of the stone (MO-22) which had the blood stains of the deceased
with his scalp hair.
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
34. We have noticed that the defence has attempted to raise
doubts about the guilt of the crime upon others by putting
suggestions to the prosecution witnesses, however, unsuccessfully.
All circumstantial evidence led by the prosecution leads us to believe
that it was the appellant and the appellant alone who was guilty of
the act of murder of the deceased and criminal intimidation of A.
Chandrakala Devi (PW-2). The contradiction appearing in the
depositions of the prosecution witness are not fatal in nature. We
also notice that the deposition of Angom Dawnychip (PW-3)- son of
the deceased, has exaggerations which we have chosen to ignore
and not consider.
35. We have considered each of the above circumstances
and are of the opinion that each of them has been fully established.
These circumstances are of conclusive nature. The chain of evidence
is interconnected without any broken link. It leaves no reasonable
doubt on the prosecution case. These circumstances proved by the
prosecution establishes the conclusion of guilt against the appellant
and shows that within all human probability the act was done by the
appellant and no other.
36. The conviction of the appellant under sections 302 and
506 (Para-II) of the IPC for the murder of the deceased are upheld.
37. The learned Sessions Judge has sentenced the appellant
to undergo imprisonment for life and pay a fine of Rs.500/- for
commission of the offence under section 302 IPC. The punishment
Thoubalamayum Fajal alias Fajal Khan vs. State of Sikkim
prescribed for murder under section 302 is punishment with death,
or imprisonment for life, and also with fine. Keeping in mind the
circumstances and the nature and gravity of the offence, we uphold
the sentence. For the offence of criminal intimidation under section
506 (Para-II), the learned Sessions Judge has sentenced the
appellant to undergo imprisonment for a period of one year only.
The sentence under section 506 (Para-II) is also upheld.
38. Appeal dismissed and disposed off accordingly.
39. Copy of this judgment along with Trial Court records be
remitted forthwith.
(Bhaskar Raj Pradhan) (Meenakshi Madan Rai)
Judge Judge
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