An entry made by a public servant in a public or other official book stating a fact in issue has been made relevant

The assertion on the part of the Learned Senior
Counsel
that
the
Vehicle
Movement
Register,
Exhibit 5, is a fabricated document, in our view, is
unsustainable on the face of the credible evidence
of its proof by P.Ws 5, 6, 7 and 17. No doubt, the
Register is a common one available in the markets

and that it also does not contain the official seal of
the Police, but this does not detract from the fact
that the entries in that Register were made by the
Police Officers in discharge of their official duty.
In Brij Mohan Singh vs. Priya Brat Narain
Sinha
and
Others
:
AIR
1965
SC
282
a
Constitution Bench of the Hon’ble Supreme Court
has held that “the reason why an entry made by a public
servant in a public or other official book, register, or record
stating a fact in issue or a relevant fact has been made
relevant is that when a public servant makes it himself in
the discharge of his official duty, the probability of its being
truly and correctly recorded is high.” This principle was
enunciated while interpreting Section 35 of the
Evidence Act that provides for relevancy of entry in
public record or an electronic record made in
performance of duty.
Section 35 is reproduced
below for convenience:-
“S.35. Relevancy of entry in public record
or an electronic record made in performance of
duty.—An entry in any public or other official book,
register or record or an electronic record, stating a
fact in issue or relevant fact, and made by a public
servant in the discharge of his official duty, or by
any other person in performance of a duty
specially enjoined by the law of the country in
which such book, register or record or an
electronic record is kept, is itself a relevant fact.”

In the case at hand there is no manner of
doubt that the entries in question were made by
the concerned Police Officials who are public
servants while discharging their official duties. For
these reasons, the contention stands rejected.

THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 17-06-2013
CORAM
HON’BLE THE CHIEF JUSTICE
MR. JUSTICE PIUS C. KURIAKOSE
HON’BLE MR. JUSTICE S. P. WANGDI, JUDGE
Crl.A. No. 06 of 2012
(Jail Appeal)
Deepak Pradhan

Versus
State of Sikkim

Wangdi, J.
Citation;2013 CR L J 4834 sikkim
Dated; 17-6- 2013

In this Appeal, the Appellant seeks to assail the
judgment dated 14-03-2008 passed by the Learned
2
Crl.A. No. 06 of 2012
Sessions Judge, South and West District at Namchi in
Sessions Trial Case No.30 of 2004 by which he and Rudra
Thapa, Accused No.1, were convicted for offences under
Sections 302/201/379/34 of the Indian Penal Code (in
short “IPC”) and sentenced to undergo imprisonment for
life.
2(a).
To state the prosecution case briefly, on 01-07-
2004 one Devi Prasad Sharma, priest of Kali Mandir, 16th
Mile Jorethang-Melli Road, appeared at the Jorethang
Police Station and orally informed that in the early
morning of that day he saw a person lying on the cliff
below the road in front of the Kali Mandir.
(b)
On this information, PI C. Chopel, P.W. 25, O/C
Jorethang Police Station, rushed to the place accompanied
by available staff from the Police Station and found an
unidentified dead body of a male aged about 30-35 years
thrown into the bushes about 30' below the road on the
cliff for concealment lying in a supine position with head
upside down.
On retrieving the body, a cut injury
measuring 7'' long and 4'' deep was noticed on the right
nape which indicated the death to be homicidal in nature.
Wearing apparels of the deceased, a leather wallet
3
Crl.A. No. 06 of 2012
containing driving licence, identity card and two pocket
diaries bearing the name of Avijit Haobam of West Imphal,
Manipur, recovered and seized at the time of inquest,
helped in identifying the dead body.
Photographs of the
dead body were also taken from different angles and a
rough sketch of the place of occurrence prepared.
After
the inquest, the dead body was forwarded to the District
Hospital, Namchi for medico-legal autopsy and opinion.
(c)
case
On the basis of these facts, P.W.25 registered a
suo
moto
under
Sections
302/201
IPC
under
Jorethang P.S. Case No.18(7)04 dated 01-07-2004 against
unknown persons and endorsed it to SI M. L. Pradhan,
P.W.26, for further investigation.
(d)
It is stated that during the inquest of the dead
body, the following articles were recovered from the body
of the deceased:-
(i) Leather Wallet marked M.O. XIII which contained
   Driving Licence in the name of the deceased,
  Exhibit 2;
(ii) Student Identity Card of the deceased marked
    Exhibit 3;
(iii) Personal pocket diary marked Exhibit 34;
(iv) Indian currency note of Rs.306/- marked M.O. XI
    (collectively);
(v) One Bhutan currency note of Rs.10/-marked
   M.O.XII;
4
Crl.A. No. 06 of 2012
(vi) Some
    visiting
   (collectively);
(vii) Wrist watch (Omega) marked M.O.VIII;
(viii) One steel bracelet marked M.O.IX;
(ix) One silver ring marked M.O.XVI; and
(x) One copper ring marked M.O.X.
(e)
cards
marked
M.O.XV
P.W.25 handed over these to P.W.26 while
endorsing the case to him for investigation.
From the
articles so recovered the deceased was identified to be
Haobam Avijit Singh, resident of Pisum Chingmathak,
Imphal, Manipur.
(f)
deceased
During
and
the
autopsy,
viscera
were
blood
sample
preserved
for
of
the
CFSL
examination. When the cell phone number collected from
the pocket diary, Exhibit 34, was dialed, it was responded
to by Haobam Ajit Singh, P.W.11, the elder brother of the
deceased, who informed that the deceased had left for
Siliguri on 25-06-2004 in his Maruti Esteem Car bearing
No. MN 1K 2920. Enquiry revealed that this very vehicle
had been seen at Jorethang in the early morning of 30-06-
2004 by H/C Ash Bir Subba, P.W.1 and Constable Wangyal
Tshering Lepcha during their patrolling duty. Melli Check
Post also reported that the vehicle had entered Sikkim in
5
Crl.A. No. 06 of 2012
the evening of 29-06-2004 and had left for Siliguri on 30-
06-2004. “Hue and cry” messages were then transmitted
to O/Cs and I/Cs of all Police Stations and Out-Posts of
Sikkim and, Darjeeling and Jalpaiguri Districts of West
Bengal, specially alerting Melli Check Post.
Police
team
led
by
P.W.25
proceeded
Later, the
to
Siliguri
apprehended Rudra Thapa, Accused No.1, the Appellant
and Rajen Biswakarma, Accused No.3, from Pradhan
Nagar, Siliguri and also recovered the Maruti Esteem Car,
M.O.I from Dagapur, Siliguri in presence of witnesses vide
Exhibit 10 along with its certificate of registration, merit
certificate in the name of the deceased awarded by Cricket
Association, Namchi and a car stereo from Pradhan Nagar,
Siliguri.
(g)
The accused persons were brought to Jorethang
Police Station where the statement of Rudra Thapa,
Accused No.1 was recorded under Section 27 of the the
Indian Evidence Act, 1872 (in short “the Evidence Act”),
Exhibit 13, in presence of witnesses, Dilip Kumar Agarwal,
P.W.18 and Sunil Prasad, P.W.24. On the basis of this the
weapon of offence, a ‘khukuri’, M.O.VI and its sheath,
M.O.VII, were recovered from the place shown by the
accused and seized vide Seizure Memo Exhibit 15.
6
Crl.A. No. 06 of 2012
(h)
The investigation revealed that on 21-06-2004,
the deceased and his elder brother Haobam Ajit Singh,
P.W.11, had arrived at Gangtok in their Maruti Esteem
Car, M.O.I from Manipur.
On 25-06-2004 the deceased
had left Gangtok for Siliguri alone in his car and, at the
Presbyterian
Church,
Pradhan
Nagar,
Siliguri,
while
searching for one of his friends from Manipur, he met
Kumar Pariyar, P.W.21, a driver of that Church with whom
Rudra Thapa, Accused No.1, had been residing.
The
deceased stayed at that place till 28-06-2004 and during
this time he got acquainted with the Accused No.1 and the
Appellant.
On 27-06-2004 when the victim asked the two
accused persons to look for a buyer for the Maruti Esteem
Car, M.O.I, on payment of some commission, they offered
to purchase it themselves at a cost fixed at Rs.1,20,000/-.
As the accused persons did not have the capacity to pay
the amount they conspired to rob the deceased of the
vehicle by murdering him.
(i)
On the pretext that the amount would be paid at
Soreng, West Sikkim, where the Appellant lived, they left
Siliguri for Soreng on 29-06-2004 on the vehicle, M.O.I,
crossing Melli Check Post at 1640 hours informing of this
7
Crl.A. No. 06 of 2012
to the Police on duty at the Check Post.
The accused
persons then deliberately delayed their journey from Melli
to Jorethang with the intention to commit the offence
enroute late in the night under the cover of darkness. At
Bhanrikhola near Jorethang, the Appellant led them to the
bank of river Rangeet by a ‘kutcha’ road but finding the
place to be inconvenient, led them back on to the main
road.
This was noticed by one Dawa Tamang alias David
Tamang, P.W.20, a quarry labour who lived in a hut
nearby. On their way to Jorethang they stopped under a
pole light in front of the Kali Mandir at 16th Mile in the
vicinity of Jorethang at about 2200 hours where the
deceased came out of the vehicle and lifted its bonnet
open as the engine had got heated. When the deceased
bent forward to check the battery, Rudra Thapa, Accused
No.1, struck him on the neck with a ‘khukuri’ from behind
causing the deceased to fall off the road on to the cliff
towards the Rangeet river and got stuck upside down on
the bush 30' below.
(j)
The two accused persons then fled towards
Jorethang on the vehicle, M.O.I, in which they spent the
night in front of Hotel Rangeet Valley.
At about 0400
8
Crl.A. No. 06 of 2012
hours of 30-06-2004 when a Police patrol party consisting
of Ash Bir Subba, P.W.1 and Constable Wangyal Tshering
Lepcha, having noticed them, checked their documents,
the accused persons showed the R/C book that had the
photograph of the deceased pasted on it stating that the
driver had gone out. The accused persons were later seen
by W/C Dawa Gyatso Bhutia, P.W.2, posted at the Akar
Bridge Police Booth as its in-charge, pushing the car
across the Bridge.
On reaching Sikkim Sangam Auto
Works across Bridge at Naya Bazar, mechanic Biren
Oraon, P.W.9, finding the battery low set it up for
charging.
(k)
The Appellant and Accused No.1 left for Soreng
where they went to the house of one Bhim Bahadur
Pradhan, P.W.4 and sought his help in selling the car
which he said had been purchased by Rudra Thapa,
Accused No.1, believing it to be one brought from Manipur
but was actually found to have been a stolen one and, that
the person from whom it was purchased had returned
from Jorethang.
When P.W.4 expressed his inability to
help, Accused No.1 managed to sell him his cell phone for
Rs.1,200/- on payment of Rs.150/- as advance.
The
9
Crl.A. No. 06 of 2012
accused persons then returned to Jorethang in the
afternoon where they met Mohan Kumar Rai, P.W.8. On
the pretext that their driver had gone back to Siliguri due
to illness, the Appellant and the Accused No.1 asked P.W.8
to look for a driver which later led them to engaging
Aitaraj Rai, P.W.12. They then proceeded towards Siliguri
and crossed Melli Check Post at 1800 hours informing the
Police on duty that they were travelling from Don Bosco
School, Soreng to Siliguri.
On reaching Siliguri, they
parked the vehicle in front of a Club House and stayed in
the room of one Kiran Pradhan.
On 01-07-2004 they
engaged one Rajen Biswakarma, the Accused No.3, to sell
the vehicle, M.O.I who helped them to conceal the car at
Dagapur, Siliguri for being disposed off later.
P.W.12
being suspicious of the activities of the accused persons,
returned back to Jorethang in the same evening.
(l)
The medico-legal autopsy report, Exhibit 21,
prepared by Dr. K. B. Gurung, Senior Medico Legal
Consultant, P.W.19, indicated the cause of death of the
deceased as being due to ante-mortem neck injury caused
by heavy sharp cutting weapon.
10
Crl.A. No. 06 of 2012
(m)
The facts and circumstances as revealed from
the investigation having clearly made out a prima facie
case under Sections 120B/397/302/201/34 IPC against
Rudra Thapa, Accused No.1 and the Appellant and under
Sections 120B/201 against Rajen Biswakarma, Accused
No.3, charge-sheet was accordingly filed against them.
3.
The Learned Sessions Judge, South and West
Sikkim upon consideration of the materials on record by
Order dated 16-10-2004, discharged Rajen Biswakarma,
Accused No.3, for want of evidence against him but
framed charges against Rudra Thapa, Accused No.1 and
the Appellant for the offences punishable under Sections
302/201/379/34 IPC to which they pleaded not guilty and
claimed trial.
4.
During the trial, the prosecution examined 26
witnesses including the Investigating Officer (in short
“I.O.”) apart from exhibiting a number of documents in
order to prove its case against the accused persons. On
the culmination of the trial, they were found guilty of the
charges and accordingly sentenced as already observed in
the earlier part of this judgment.
11
Crl.A. No. 06 of 2012
5.
It is relevant to note that out of the two accused
persons, namely, Rudra Thapa, Accused No.1 and Deepak
Pradhan,
Accused
No.2,
who
were
convicted
and
sentenced by the impugned judgment and order, only the
Accused No.2, the Appellant, has preferred this Appeal to
assail the impugned judgment. It has been stated that the
Accused No.1 is absconding since he broke jail.
The
Appeal will, therefore, be confined to the Appellant alone.
6.
Appearing on behalf of the Appellant, Mr. N. Rai,
Learned Senior Advocate, submitted that the case against
the Appellant is based solely upon circumstantial evidence
and that the prosecution case is riddled with contradictions
and suffers from the vice of lack of proof beyond
reasonable
doubt.
We
may
take
up each
of the
contentions raised by Mr. Rai in seriatim below:-
(i)
The evidence of P.Ws 1, 2, 5, 6, 7, 17, 25 and
26 requires to be scrutinised carefully as they
are police witnesses and, therefore, interested.
(ii)
By relying upon the case of Sharad Birdhichand
Sarda vs. State Maharashtra : AIR 1984 SC
1622 (paragraphs 142, 144, 150, 158 and 198) Mr.
12
Crl.A. No. 06 of 2012
Rai submitted that the evidence of P.Ws 3, 6,
13, 14, 15, 16, 17, 20, 22 and 23 cannot be
considered at all as the circumstances emerging
out of the evidence of these witnesses have not
been put to the Appellant in his examination
under Section 313 of the Code of Criminal
Procedure, 1973 (in short “Cr.P.C.”).
(iii)
The Vehicle Movement Register, Exhibit 5, as
per Mr. Rai is a fabricated document for the
following reasons:-
(a)
There are over-writings over Exhibit
5(a)
which
is
the
relevant
entry
pertaining to the case.
(b)
The entry of date “30-06-2004” in the
column pertaining to the time of entry
when such an entry already existed on
top of the page casts a serious doubt
on the authenticity of the register.
Apart
sequential
from
manner
this, the perfect
of the entries
maintained in the Register gives rise to
a
reasonable
suspicion
that
the
Register, Exhibit 5, is a fabricated one.
(c)
There is neither signature nor seal of
the Police Officers on Exhibit 5.
13
Crl.A. No. 06 of 2012
(d)
Exhibit 5 is not a ‘Government Register’
but an exercise book of the kind which
is easily available in stationery shops.
(iv)
Test
Identification
persons was not
Parade
of
the
accused
conducted rendering their
identity in the Court room after considerable gap
of time unreliable. The same would be the case
as regards the
identification
Esteem Car, M.O.I.
of the
Maruti
The cases of OMA alias
Omprakash and Another vs. State of Tamil
Nadu : 2013 CRI.L.J. 997 (SC) (paragraphs 31
and 33) and Kanan and Others vs. State of
Kerala : AIR 1979 SC 1127 (paragraph 3) were
referred to and relied upon by Mr. Rai on this
contention.
(v)
Referring to the cases of Salim Akhtar alias
Mota vs. State of Uttar Pradesh : 2003 CRI.L.J.
2302 (SC) and Tulshiram Bhanudas Kambale
and Others vs. State of Maharashtra : 2000
CRI.L.J. 1566 (Bombay) (paragraphs 8, 28 and
28A) it was submitted that the material objects
and the alleged weapon of offence were not
14
Crl.A. No. 06 of 2012
sealed at the place of its seizure by the
Investigating Agency and the finger prints of the
accused persons were also not lifted by the I.O.
(vi)
The disclosure statement under Section 27 of
the Evidence Act, Exhibit 13 of Rudra Thapa,
Accused No.1, cannot be used against the
Appellant when the Appellant did not give any
such statement.
Mr. Rai referred to a large
number of decisions in support of this contention
but it would be sufficient to mention only
Haricharan Kurmi, Jogia Hajam vs. State of
Bihar : AIR 1964 SC 1184 (paragraph 16).
(vii)
The Appellant was ignorant of the existence of
the weapon of offence, i.e., ‘khukuri’, M.O.VI.
There is no evidence as to how the ‘khukuri’
came to be in the hands of the Accused No.1.
(viii)
As per the evidence of Dr. K. B. Gurung, Senior
Medico Legal Consultant, P.W.19, blood would
spurt out from an injury like the one found in
the neck of the deceased when struck by sharp
cutting weapon. But neither traces of blood nor
15
Crl.A. No. 06 of 2012
hair were found at the place of occurrence.
There was also no blood at the spot from where
the body was retrieved.
There is no evidence
of there being rainfall during that period. Going
by the evidence that there was only one
‘khukuri’ which the Accused No.1 had disclosed
in his statement under Section 27 of the
Evidence Act and that the deceased had died by
a solitary ‘khukuri’ blow would indicate that it
was not the Appellant who had struck the fatal
blow on the deceased.
Even if the murder was
committed by Accused No.1, the Appellant was
ignorant as to from where Accused No.1 had
brought the ‘khukuri’ and in what manner he
struck the fatal blow on the deceased.
The substance of his entire submission is
that the Appellant was not at all connected with
the weapon of offence being unaware of its
procurement and its use by Rudra Thapa,
Accused No.1.
(ix)
It has come in the evidence of Biren Oraon,
P.W.9 that the accused persons were seen in the
16
Crl.A. No. 06 of 2012
company of one driver called “Jaggu” but the
said
“Jaggu”
prosecution
was
to
not
produced
corroborate
the
by
the
evidence
of
P.W.9.
(x)
The prosecution witness, Aitaraj Rai, P.W.12,
who is said to have been engaged by the
accused persons to drive their vehicle to Siliguri
is a false witness which stands established by
the fact that he was always seen in the company
of the O/C Jorethang P.S., P.W.25, when the FIR
pertaining to the case was lodged, when P.W.25
visited Siliguri in connection with case and with
the I.O., P.W.26, at all places which he visited
for the purpose of investigation of the case and,
was
also
a
witness
to
all
the
documents
prepared in Siliguri.
(xi)
There are irreconcilable contradictions regarding
the mobile phone, M.O.II, as to whether or not
it belonged to the deceased.
(xii)
The Appellant could not be held liable for the
offence
under
Section
302
IPC
and
other
17
Crl.A. No. 06 of 2012
cognate offences by application of Section 34
IPC, the common intention of the Appellant and
the Accused No.1 to commit those offences
having not been established.
(xiii)
The only fact emerging from the evidence of
P.W.21 involving the Appellant is with regard to
the purchase of the vehicle from the deceased
and, therefore, the common intention in so far
as the Appellant is concerned would be attracted
only on the factum of the purchase of the
vehicle.
There is no evidence that would
inculpate the Appellant in the commission of the
offence under Section 302 IPC.
Reference was
made on this by Mr. Rai to Ben Kumar Rai alias
Johny Rai vs. State of Sikkim and Lhakpa
Sherpa and Another vs. State of Sikkim : 2004
CRI.L.J. 4080 (Sikkim) and Ramashish Yadav
and Others vs. State of Bihar : 2000 CRI.L.J.
12 (SC) (paragraph 3).
(xiv)
Adverse inference ought to have been drawn
against the prosecution for failing to examine
material witnesses like (a) ‘Jaggu’; (b) Kiran
18
Crl.A. No. 06 of 2012
Pradhan from whom a car stereo, M.O.IV, was
seized; (c) the two passengers who boarded the
Maruti
Esteem
Car
at
Jorethang;
(d)
Anil
Sharma; and (e) Constable Wangyal Tshering
Lepcha.
Reliance on this was placed upon to
Thulia Kali vs. The State of Tamil Nadu : AIR
1973 SC 501 and Guljara Singh vs. State of
Rajasthan : AIR 1971 Rajasthan 68.
(xv)
The FIR was drawn suo moto by the O/C
Jorethang P.S., P.W.25, when it ought to have
been on the basis of the information provided by
Devi Prasad Sharma, the Priest at the Kali
Mandir.
This as per Mr. Rai casts a serious
doubt on the prosecution case.
As per the case
of the prosecution the deceased was murdered
at the place of occurrence in the evening of 29-
06-2004 but no one else had seen the dead
body on 30-06-2004. It was seen by the Priest,
Devi Prasad Sharma, only in the early morning
of 01-07-2004.
Therefore, as per him, the
incident probably took place either in the night
of 30-06-2004 or early in the morning of 01-07-
19
Crl.A. No. 06 of 2012
2004 and that since during that period as per
the evidence of P.W.12 and P.W.21, the accused
persons were in Siliguri, they could not have
committed the offence.
(xvi)
The entire documents pertaining to the vehicle
and the deceased were seized by the Police from
the possession of Rudra Thapa, Accused No.1
and, that the Appellant has been involved only
because of his being in the company of Accused
No.1.
(xvii)
The CFSL reports, Exhibits 42 to 45, cannot be
accepted as a valid piece of evidence as they
were not proved as required under Section 293
Cr.P.C. and that the Scientific Expert was also
not produced for the purpose. On this, Mr. Rai
has sought to rely upon the case of Sonam
Tshering Bhutia vs. State of Sikkim :
2004
CRI.L.J 3136 (Sikkim).
(xviii) The CFSL report also cannot be considered as an
acceptable and reliable evidence as neither the
origin nor the group of the blood could be
20
Crl.A. No. 06 of 2012
determined by referring to the case of Chitra
Vijay
Singh
and
Another
vs.
State
of
Chhattisgarh : 2010 CRI.L.J. 4 (Chhattisgarh)
(paragraphs 12, 13 and 14) and Kansa Behera vs.
State of Orissa : AIR 1987 SC 1507 (paragraphs
11 and 12).
(xix)
The medico-legal autopsy report prepared by
Dr. K. B. Gurung, P.W.19, was assailed as being
doubtful in view of the over-writings in column K
and mistakes in columns K(a) and K(b) from
which a reasonable inference of manipulation in
the report can be drawn.
(xx)
Relying upon the case of Mohibur Rahman and
Another vs. State of Assam : 2002 SCC (Cri)
1496 and State of Goa vs. Sanjay Thakran and
Another : (2007) 3 SCC 755 (paragraphs 31 to
36) it was submitted that the last seen theory
set up on behalf of the prosecution based on the
evidence of P.W.21 would not be sustainable
considering the distance of about 100 kms.
between Siliguri and Jorethang and the gap of
time when the deceased was seen with the
21
Crl.A. No. 06 of 2012
accused persons and when the dead body of the
deceased
was
discovered.
It
is,
therefore,
submitted that the last seen theory would
become altogether irrelevant in the facts and
circumstances of the present case.
(xxi)
To sum up his contentions it was stated as
follows:-
“a)
If ‘khukuri’, M.O.VI, was the weapon of
offence there is no proof as to who had
brought it to the place of occurrence
and from where.
b)
The
Appellant
had
not
made
any
disclosure statement and the disclosure
statement made by the A-1 cannot be
used against the Appellant.
Without
the said disclosure statement the link to
the chain of circumstances breaks in
the case of the Appellant.
c)
Exhibit 5 is a fabricated document
which if discarded will lead to there
being no starting point for the link to
the chain of circumstances.
d)
That no officials of Melli Check Post
identified any of the accused persons or
deceased, either at the entry or at the
exit of the Check Post.
22
Crl.A. No. 06 of 2012
e)
No
T.I.
Parade
was
conducted
to
identify the accused persons.
f)
No FIR was taken from Devi Prasad
Sharma and
g)
No Blood or hair mark was noticed or
picked
up
from
the
place
of
occurrence.”
(xxii)
Mr. Rai went on to submit that although the
facts and circumstances would attract a fair
amount
suspicion
of suspicion
cannot
take
against
the
the
place
Appellant,
of
proof.
Support on this was sought by Mr. Rai in the
following decisions:
(a) The State of Punjab vs. Bhajan Singh and
   Others : AIR 1975 SC 258;
(b) Smt. Basanti vs. State of Himachal
   Pradesh and Himachal Pradesh vs. Assoo
  alias Aso Ram : AIR 1987 SC 1572
 (paragraph 2); and
(c) Ashish Batham vs. State of Madhya
   Pradesh : 2002 CRI.L.J. SC 4676 (SC)
  (paragraphs 6, 7 and 8).
(xxiii) It was then submitted that from the evidence
and the facts and circumstances available on the
records possibilities do emerge that (a) the
23
Crl.A. No. 06 of 2012
Appellant is involved in the murder of the
deceased; (b) the accused persons had in fact
purchased the Maruti Esteem Car, M.O.I for
Rs.1,20,000/-;
and
(c)
the
deceased
was
murdered by some others in the evening of 30-
06-2004.
Relying upon the case of Sharad
Birdhichand Sarda (supra) it was submitted by
Mr. Rai that when several possibilities can be
deduced from the evidence then by application
of the settled principle of law the one that
benefits the accused ought to be accepted.
7.
Mr. Karma Thinlay Namgyal, Learned Additional
Public Prosecutor, supporting the impugned judgment
submits that there is no reason as to why the impugned
judgment should be interfered with.
As per him, the
prosecution has been able to establish beyond reasonable
doubt, the circumstances appearing against the Appellant.
The following have been culled out by him as the
circumstances that stand proved against the Appellant:-
(i)
The deceased and his brother, Haobam Ajit
Singh, P.W.11, had left Manipur for Gangtok on
19-06-2004
in
their
family
car
bearing
24
Crl.A. No. 06 of 2012
registration
no.
MN
1K
Gangtok on 21-06-2004.
2920
and reached
The deceased stayed
with his brother at Gangtok till 24-06-2004 and
left for Siliguri on 25-06-2004.
(ii)
On reaching Siliguri, the deceased met Kumar
Pariyar, P.W.21.
In his evidence, P.W.21 has
set out in detail as to how he introduced the
deceased to the Appellant and the other accused
persons and their close association thereafter.
P.W.21 also stated about the various incidents
that took place during the stay of the deceased
with him, most important of which was the
conversation between the Appellant and the
deceased and their agreement to purchase the
vehicle on 50:50 basis and ultimately, on 28-06-
2004 the accused persons fixing the price of the
vehicle at Rs.1,20,000/- after checking the
relevant documents.
(iii)
P.W.21 saw the accused persons in Siliguri on
01-07-2004 and when asked they gave a false
story
that
the
documents
of
the
vehicle
25
Crl.A. No. 06 of 2012
purchased by them were found to be duplicates
and that the deceased had fled away.
(iv)
Karma Lhendup Bhutia, P.W.5 and Lok Man
Subba,
P.W.6,
Police
Constable
and
Head
Constable respectively on duty at the Melli
Check Post on 29-06-2004, witnessed entry of
the vehicle No. MN 1K 2920 into Sikkim and as
per P.W.5 the three accused persons were
present in the said vehicle.
(v)
One Esteem car was seen parked in front of
Jorethang Kali Mandir between 10 to 10.30 p.m.
by Pradeep Gupta, P.W.10 sometimes in the
month of June, 2004.
He also saw one man
standing in front of the car with his back
towards him.
On 29-06-2004 between 7 and
7.30 p.m., Dawa Tamang, P.W.20, a quarry
labour at the Bhanrikhola, saw a white car being
driven up from the Bhanrikhola side emitting
smoke profusely.
He also saw three boys
coming out of the said vehicle and trying to
control the smoke. One of them was also seen
pouring water in the engine.
Later, the three
26
Crl.A. No. 06 of 2012
boys boarded the vehicle and drove away
towards Jorethang.
(vi)
The vehicle was seen at Jorethang in the early
morning of 30-06-2004 by H/C Ash Bir Subba,
Jorethang P.S., P.W.1, during his patrolling duty
with Constable Wangyal Tshering Lepcha. When
they noticed the accused persons in the vehicle
and asked them for papers they produced the
registration certificate of the vehicle saying that
the driver of the vehicle had gone to Bazar to
have
tea.
P.W.1
who
later
had
also
accompanied the police team to the place of
occurrence after being informed of the discovery
of a dead body, recognised it to be of the same
person whose photograph was seen pasted in
the vehicle registration certificate shown to him
by the accused persons.
(vii)
The accused persons were seen by W/C Dawa
Gyatso Bhutia, P.W.2 pushing a white esteem
car being No. MN 1K 2920 towards the Akar
Bridge at 7 a.m. of 30-06-2004.
27
Crl.A. No. 06 of 2012
(viii)
The Appellant calling out at Bhim Bahadur
Pradhan, P.W.4, at his house in Soreng Busty in
the morning of 30-06-2004 informing him that
the car that they had purchased from Manipur
was found to be a stolen one. That the person
who sold it to them had returned from Jorethang
and that he required the help of P.W.4 to look
for a purchaser for the car or to find a garage
where they could sell it in parts.
(ix)
The Appellant falsely informing Mohan Kumar
Rai, P.W.8, at Jorethang that the driver of the
vehicle had fallen ill and had sent him to Siliguri
for treatment as a pretext in seeking his help to
look for a driver.
(x)
P.W.9, an Electrician at Sikkim Sangam Auto
Works, Naya Bazar, West Sikkim, knew the
accused persons who had come to the garage
with P.W.12, a driver by profession who was
known as “Jaggu” to collect the battery left by
them for being recharge.
(xi)
The vehicle bearing No. MN 1K 2920 had
crossed Melli Check Post on 30-06-2004 and
28
Crl.A. No. 06 of 2012
proceeded towards Siliguri.
This was noted by
P.W.17 and P.W.7, Constables on duty at the
Melli Check Post at the material time.
(xii)
Entry Exhibit 5(a) in the Vehicle Movement
Register, Exhibit 5, that was seized from Melli
Police Station.
(xiii)
The disclosure statement under Section 27 of
the Evidence Act, Exhibit 13, rendered by Rudra
Thapa, Accused No.1 in presence of P.W.18 and
P.W.24 and on the basis of that statement the
weapon of offence, M.O.VI and its sheath,
M.O.VII were recovered from the place shown
by the Accused No.1.
(xiv)
The
Appellant
failed
to
explain
the
circumstances put to him under Section 313
Cr.P.C.
8.
As per the Learned Additional Public Prosecutor
the circumstances set out above stand proved beyond any
reasonable
doubt
and
those
circumstances
form
an
unbroken chain leading to the sole hypothesis that the
Appellant had committed the murder of the deceased.
29
Crl.A. No. 06 of 2012
9.
It
was
his
further
submission
that
the
circumstances set out above which, as per him, stand
proved beyond any reasonable doubt, would establish that
there was a common intention between Rudra Thapa,
Accused No.1, and the Appellant for committing the
murder of the deceased and to rob him of his vehicle.
10.
A number of decisions were cited by him on the
principle governing Section 34 IPC but it will be sufficient
to mention only one of them being Chaman and Another
vs. State of Uttaranchal : (2008) 17 SCC 431 where we
find reiteration of the settled position of law that “direct
proof of common intention is seldom available and, therefore, such
intention can only be inferred from the circumstances appearing
from the proved facts of the case and the proved circumstances”.
It also re-emphasises that “in order to bring home the charge of
common intention, the prosecution has to establish by evidence,
whether direct or circumstantial, that there was plan or meeting of
minds of all the accused persons to commit the offence for which
they are charged with the aid of Section 34, be it prearranged or on
the spur of the moment; but it must necessarily be before the
commission of the crime.”
11.
As regards the value of the disclosure statement
of the co-accused and its applicability to the Appellant, it
30
Crl.A. No. 06 of 2012
was submitted that it was permissible to take the
confession of a co-accused as a corroborative piece of
evidence in the light of the other evidence available in the
records and may be used to lend assurance to those.
Reliance in this regard was sought upon to Pancho vs.
State of Haryana : (2011) 10 SCC 165 where it has been
held that “where the prosecution relies upon the confession of one
accused against another, the proper approach is to consider the
other evidence against such an accused and if the said evidence
appears to be satisfactory and the court is inclined to hold that the
said evidence may sustain the charge framed against the said
accused, the court turns to the confession with a view to assuring
itself that the conclusion which it is inclined to draw from the other
evidence is right.”
The Learned Additional Public Prosecutor
also referred to Bishnu Prasad Sinha and Another vs.
State of Assam :
(2007) 11 SCC 467 where we find
reiteration of the same position.
12.
In view of this above legal position, it is the
submission of Mr. Karma Thinlay Namgyal that there is no
bar upon the Court to accept the disclosure statement of a
co-accused
as
an
evidence
against
the
Appellant
particularly when the other evidence available on the
records are found reliable.
31
Crl.A. No. 06 of 2012
13.
Rebutting the plea raised on behalf of the
Appellant that many of the prosecution witnesses are
police witnesses and relying upon Govindaraju alias
Govinda vs.
State by Sriramapuram Police Station and
Another : (2012) 4 SCC 722, it was submitted that it is
not the law that the police witnesses should not be relied
upon and their evidence cannot be accepted unless it is
corroborated
in
the
material
particulars
by
other
independent witnesses and that if the evidence of the
police officer inspires confidence and is found to be
trustworthy and reliable, it can by itself form the basis of
conviction.
14.
On the question of some persons not being
examined by the prosecution although named by various
witnesses during the course of the investigation of the
case, failure to collect the human hair found underneath
the bonnet of the car, etc., as per the Learned Additional
Public Prosecutor, are not such as to shake the foundation
of the prosecution case. As per him, it can at best be a
case of defective investigation.
Relying upon Hiralal
Pandey and Others vs. State of Uttar Pradesh : (2012) 5
SCC 216 it was submitted that unless the lapses on the
32
Crl.A. No. 06 of 2012
part of the Investigating Authorities, as pointed out on
behalf of the Appellant, are such as to cast reasonable
doubt on the prosecution story or seriously prejudice the
defence of the accused, the Court would not set aside the
conviction on such ground. The irregularity pointed out on
behalf of the Appellant do not in any manner give rise to
any inference of manipulation or cause prejudice to the
Appellant in the light of the other evidence appearing
against him.
15.
It is then submitted that the Appellant has
resorted to giving false answers in his statement recorded
under Section 313 Cr.P.C. and that, as held in Mani
Kumar Thapa vs. State of Sikkim : (2002) 7 SCC 157,
false answers can also form an additional link in the chain
of circumstances. Relying upon Naval Kishore Singh vs.
State of Bihar : (2004) 7 SCC 502 it was submitted that
Section 313 examination are not to be carried out as an
empty formality.
16.
The Learned Additional Public Prosecutor took us
through the various questions and answers contained in
the
proceedings
under
Section
313
Cr.P.C.
more
particularly, to questions no.15 to 22, questions no.55 to
33
Crl.A. No. 06 of 2012
69 and questions no.99 and 100 to show that the
Appellant
had
failed
to
explain
the
incriminating
circumstances against him. This as per him, amounts to
failure to discharge the onus which lies on an accused
under Section 106 of the Evidence Act and that this by
itself
provides
an
additional
link
in
the
chain
of
circumstances proved against him.
17.
In reply to the contention on behalf of the
Appellant that there was non-compliance of Section 293
Cr.P.C. as the report of the Chemical Examiner was not
proved in accordance with Section 293 Cr.P.C., it was
submitted that it is not obligatory that an expert should
necessarily be examined as would appear from the bare
reading of that provision. As per him, such contention is
clearly misconstrued.
18.
Having set the prosecution story to the extent
material for the purpose of disposal of this Appeal, the
effort on behalf of the Appellant to assail the impugned
judgment
and
the
submissions
on
behalf
of
the
prosecution to sustain it, we may now proceed to examine
those to arrive at a finding as to whether the Appellant
has
been
successful
in
creating
any
dent
in
the
34
Crl.A. No. 06 of 2012
prosecution case and sustain the inadequacies alleged to
exist in the impugned judgment of the Learned Sessions
Court.
19.
There is no doubt that the case against the
Appellant is based purely upon circumstantial evidence.
Keeping in view the principle of law set out by the Learned
Public Prosecutor which is trite, it is found that the
prosecution
has
indeed
been
able
to
prove
the
circumstances against the Appellant indicated below by
examining the evidence against each of them in seriatim:-
Circumstance (i)
The deceased, Avijit Haobam Singh, had travelled
from Gangtok to Siliguri in his Maruti Esteem Car,
M.O.I, bearing registration no.MN 1K 2920 driven by
himself.
Circumstance (ii)
At Siliguri, the deceased had gone to the Presbyterian
Church at about 3 p.m. looking for his friend, Shanti
Kumar Singh from Manipur and stayed with Kumar
Pariyar, P.W.21.
Circumstance (iii)
On 25-06-2004, when the deceased visited the house
of P.W.21, the Appellant and Rudra Thapa, Accused
No.1, had also gone there where P.W.21 introduced
them to the deceased.
35
Crl.A. No. 06 of 2012
(a)
We
may
for
convenience
take
these
circumstances together and analyse the evidence relevant
thereto.
(b)
It is in the evidence of P.W.26 that he found the
address and cell phone number of one Haobam Ajit Singh
in the pocket diary, Exhibit 34, recovered from the pocket
of the deceased and when contacted the said Haobam Ajit
Singh informed that Avijit Haobam was his younger
brother and that he had come to Sikkim along with him in
a Maruti Esteem Car bearing registration No.MN 1K 2920
and after 3/4 days of his stay with him at Gangtok the
said Avijit Haobam had left for Siliguri in his own car, i.e.,
the Maruti Esteem Car.
It is based on this information
that the deceased was identified as “Avijit Haobam”. The
person who spoke thus to P.W.26 was P.W.11 who in his
evidence, apart from reaffirming what he had narrated
earlier over phone to P.W.25, further went on to state that
on 27-06-2004 at about 6.30 p.m. the deceased had rung
him up and informed that he was in Siliguri and was
staying there in the Presbyterian Church at Pradhan Nagar
with his friend by the name of Rudra Thapa.
We may
reproduce below the relevant portions of the evidence of
P.W.11 and P.W.21:-
36
Crl.A. No. 06 of 2012
Haobam Ajit Singh, P.W.11
“........................... We reached Chandmari,
Gangtok at around 11.00 p.m. on 21-6-2004. On
22nd and 23rd June, 2004 my brother Haobam
Abhijit remained busy in repairing our family car
i.e. MN-1K/2920. On 24-6-2004 myself and my
said brother stayed at Burtuk where I worked. On
25-6-2004 at around 12.00 noon my said brother
left for Siliguri alone by the said vehicle, from
Burtuk. ................... On 27-6-2004 at about 6.30
p.m. my said brother rank (sic) up to me . We
had telephonic conversation . I asked him from
where he had made a call and as to where he was
staying. He informed me over telephone he was
at Siliguri and was staying in Presbiterian, Pradhan
Nagar, Siliguri. He further informed me that he
was staying there with one friend by the name of
Rudra Thapa. He further said that he will ring up
after sometime.
..........................................”
Kumar Pariyar, P.W.21
“I have been running the vehicle of
Presbyterian church, Pradhan Nagar, Siliguri for
the last 4 years. ........................ On 25-6-2004 at
about 3.00 p.m. one Manipuri boy Avijit Singh
came in his Esteem car bearing registration
No.MN-1K/2920 in search of one Shanti Kumar
Singh who was the Chowkidar of the said Church.
..................... On 25-6-2004 when the said Avijit
Singh visited my house the two accused persons
present in the dock also came to my house. I
introduced the said Avijit Singh to both the
accused persons. ..........................”
(c)
These witnesses have remained unshaken and
firm in their cross-examination thereby fully establishing
these circumstances.
(d)
From the extract of the evidence of these
witnesses, the prosecution story of the Appellant having
left for Siliguri on 25-06-2004 alone driving his Maruti
37
Crl.A. No. 06 of 2012
Esteem Car bearing No. MN 1K 2920, his going to the
Presbyterian Church, Pradhan Nagar, Siliguri meeting
Kumar Pariyar, P.W.21 there and staying with him clearly
stand established. It also indubitably establishes the fact
that the deceased had met Rudra Thapa, Accused No.1,
and the Appellant at the Presbyterian Church and were
introduced to the deceased by the said Kumar Pariyar,
P.W.21.
(e)
Having held so in respect of three circumstances
indicated above, we may now proceed to examine the
other circumstances.
Circumstance (iv)
The two accused persons and the deceased were in
close contact and interacting with each other at
Siliguri.
When the deceased sought the help of the
two accused persons to look for a customer for his
vehicle which he wanted to sell, they offered to
purchase it themselves on 50:50 basis between
them.
Circumstance (v)
On
28-06-2004,
the
accused
persons
and
the
deceased were seen checking the documents of the
questioned vehicle and were heard negotiating its
price and agreeing at Rs.1,20,000/-.
38
Crl.A. No. 06 of 2012
Circumstance (vi)
On 29-06-2004, two accused persons boarded the
vehicle driven by the deceased informing P.W.21 that
they were going to purchase it from the deceased
and that they would first go to the house of the
Appellant in Soreng, West Sikkim and would return to
Siliguri three days later.
Circumstance (vii)
Both accused persons returned to Siliguri earlier than
they had stated and when asked by P.W.21 they
informed him that the deceased had fled away when
the documents of the purchased vehicle were found
to be duplicates.
Circumstance (viii)
The deceased was last seen with the Appellant and
Rudra Thapa, Accused No.1, at 9 a.m. of 29-06-2004
when they left together in the Maruti Esteem Car,
M.O.I driven by the deceased.
(a)
Circumstances (iv) to (viii) above are also taken
up together for convenience and, on a careful examination
of the evidence relevant therefor, we find that of P.W.21
most crucial as will appear hereunder:
Kumar Pariyar, P.W.21
“.......................... The accused Rudra Thapa
used to run a stationery shop behind our Church.
As his shop was congested I had allowed Rudra
Thapa to keep his bed and personal belongings in
my room for a period of one month. On 26.6-
2004 I along with Avijit Singh returned home after
39
Crl.A. No. 06 of 2012
getting his vehicle repaired. In the said evening
both Avijit and myself went to Siliguri market in
the said vehicle as the said Avijit Singh wanted to
purchase seat covers of the vehicle and some
other articles for his brother who was stated to be
staying at Gangtok during the relevant time. In
fact on the night of 25-6-2004 we all i.e. both the
accused persons standing in the dock, the said
Avijit Singh and myself had our dinner in my
house and slept in my house except Deepak
Pradhan who left for his house. Avijit Singh and
myself returned to my quarters at about 8.00 p.m.
after making some purchases. We had our meals
and slept but both the accused persons did not
come in my house on the night of 26-6-2004. 27-
6-2004 was a Sunday. At about 9.00 a.m. I along
with Avijit Singh, two accused persons present in
the dock and In-Charge of Presbyterian Church
Lalrian Thanga went to Fallawadi Nepali Church for
Church Service. In the afternoon we returned to
my quarters.
As the vehicle developed some
defects I along with the said Avijit Singh went to
Mattigarh Workshop for repair of the vehicle
whereas both the a-ccused persons standing in the
dock stayed back in my quarters. We returned
from the workshop at about 5.00 p.m. and found
both the accused persons sitting in my quarters.
In the same evening Avijit Singh and myself
proceeded to my house at Fallawadi and both the
accused persons also took their cycles in order to
go to their friend Gopal Biswakarma. At about
8.00 p.m. while Avijit Singh and myself were
present in my house both the accused persons
also arrived there. We all had our dinner in my
house on the said night. I also heard both the
accused persons having a talk with the said Avijit
Singh for the purchase of his vehicle, by the
accused persons behind my house. I also heard
both the accused persons agreed to purchase the
said vehicle of Avijit Singh on 50-50 basis.
....................................................... On 29-6-2004 at
about 9.00 a.m. the said Avijit Singh took his
vehicle MN-1K/2920 outside the compound of the
Church and I put his attache ( two suit cases ) and
other belongings into his vehicle as he wanted to
proceed to Gangtok to meet his brother. In fact
while the said Avijit Singh was cleaning his vehicle
during the day on 28-6-2004 both the accused
persons and the said Avijit Singh were checking
the relevant documents of the said vehicle MN-
1K/2920. They also agreed and fixed the price of
the vehicle at Rs.1,20,000/-. The said Avijit Singh
started his vehicle to proceed to Gangtok. In the
40
Crl.A. No. 06 of 2012
meantime the two accused persons appeared
there, and boarded the vehicle. They also said
that they were going to purchase the said vehicle
from Avijit Singh. The said Avijit Singh also said
that they would first go to the house of Deepak
Pradhan, Soreng, West Sikkim. Both the accused
persons standing in the dock informed me that
they would be returning on 3rd day of the
following month. Thereafter we shook hands and
they proceeded in the said vehicle.
Both the
accused persons in the dock came to my quarters
on the 1st day of the following month instead of
3rd day of the month. I asked them about the
whereabouts of Avijit Singh. They informed me
that they purchased the vehicle from Avijit Singh
and the documents produced by the said Avijit
Singh in respect of the said vehicle were found to
be duplicate and he fled away. ..................”
[emphasis supplied]
(b)
Analysing the above evidence in the light of the
evidence of Haobam Ajit Singh, P.W.11 reproduced earlier,
the prosecution appears to have been successful in
establishing that the deceased was in close interaction
with Rudra Thapa, Accused No.1 and the Appellant at
Siliguri during the period commencing from 25-06-2004 to
29-06-2004. That the deceased intended to sell his Maruti
Esteem Car, M.O.I, for which he sought the help of the
Accused No.1 and the Appellant and, that the accused
persons agreed to purchase the vehicle at a cost of
Rs.1,20,000/- on 50:50 basis between them. That at
about 9 a.m. of 29-06-2004 the deceased and the accused
persons had left for the house of the Appellant at Soreng,
West Sikkim, in the same Maruti Esteem Car, M.O.I,
41
Crl.A. No. 06 of 2012
driven by the deceased where he was promised payment
of price of the vehicle and, therefore, the deceased was
last seen with the accused persons on that day.
Circumstance (ix)
On 29-06-2004 a white Maruti Esteem Car bearing
Registration No. MN 1K 2920, M.O.I, with three
persons on board crossed the Melli Check Post at
about 1640 hours informing the Police at the Check
Post as they did that they were proceeding to
Soreng.
(a)
On a careful examination of the evidence of
Karma Lhendup Bhutia, P.W.5, Constable posted at the
Melli Check Post at the material time, we find that
this
circumstance stands proved as will appear from his
deposition below:-
“On 29.6.2004 my duty at Melli Check Post
was from 4.00 p.m. to 8.00 p.m. At about 1640
hours one Maruti esteem car bering (sic)
registration No. MN-1k/2920 came to Melli Check
Post. I stopped the said vehicleand asked the
driver as to from where the vehicle came and as to
where it was proceeding too. The driver of the
said vehicle replied that the vehicle was coming
from Siliguri and was proceeding to Soreng.
Accordingly, I reported for the said vehicle to the
duty NCO present at the Check Post. The duty
NCO made entry in the vehicle movement register.
The number of the vehicle and the place from
where it was coming and the place where it was
proceeding too. There were three persons in the
said vehicle including the driver.
The vehicle
proceeded towards Jorethang. Exhibit-5 is the
vehicle movement register of Melli Check Post, for
the period 22.6.2004 to 1.7.2004. On 29.6.2004
42
Crl.A. No. 06 of 2012
at 1640 hours there is an entry of vehicle bearing
registration No. MN1K 2920 showing it to be
proceeding from Siliguri to Soreng. Exhibit-5/a is
the entry made in the said vehicle movement
register ................. It was entered in the register
by Head Constable L.M. Subba. I am acquainted
with his handwriting.”
(b)
The evidence of P.W.5 is found corroborated by
Lok Man Subba, Head Constable, P.W.6, on duty at the
Melli Check Post on that day as evident from his deposition
which reads as under:-
“....................... On 29-6-2004 I was the duty
NCO at Melli Checkpost from 12.00 noon to
6.00p.m. Along with me the other duty constable
was Karma Bhutia. I was recording the movement
of the vehicle passing through Melli Checkpost. As
reported by my duty constable I recorded at 1640
hours that one Maruti Car bearing registration
No.MN-1K/2920 came from Siliguri and proceeded
towards Soreng. After I recorded the particulars
of the vehicle it left Melli Checkpost. Exhibit 5 is
the vehicle movement register of Melli Checkpost
relating to the period 22-6-2004 to 1-7-2004.
Exhibit 5/a is the entry made by me in respect of
the vehicle MN-1K/2920 which came from Siliguri
and was bound for Soreng on 29-6-2004 at 1640
hours. In the said vehicle three persons were
found travelling.”
(c)
We also find from the evidence of Pradeep
Gupta, P.W.10, that a Maruti Esteem Car was seen parked
in front of Jorethang Kali Mandir between 10 to 10.30 p.m.
under a pole light and a person standing in front of the
car.
(d)
Therefore, considering the evidence set out
above, there can be no manner of doubt that Maruti
43
Crl.A. No. 06 of 2012
Esteem Car bearing No.MN 1K 2920, i.e., M.O.I, did cross
the Melli Check Post at about 6 p.m. of 29-06-2004
heading for Soreng, West Sikkim from Siliguri with three
persons aboard.
Further, it can reasonably be inferred
that it was the very Maruti Esteem Car, M.O.I , that was
seen by P.W.10 parked in front of the Kali Mandir, 16th
Mile, Jorethang-Melli Road between 10 to 10-.30 p.m.
since the Vehicle Movement Register, Exhibit 5, had not
recorded entry of any other vehicle of that make that
night.
Circumstance (x)
In the early morning of 30-06-2004 at about 4 a.m.,
the two accused persons were found sleeping in the
Maruti Esteem Car, M.O.I, in front of Hotel Rangeet
Valley.
A little later, they were seen pushing the
vehicle and when accosted by the
party
they
produced
the
police patrolling
vehicle
registration
certification stating that the driver had gone to have
tea.
(a)
This circumstance stands fully established by the
evidence of Ash Bir Subba, Head Constable, Jorethang
P.S., P.W.1, the relevant portion of whose evidence is
reproduced below for convenience:-
“.......................... I know both the accused
persons present in the dock. On 30-6-2004 I was
44
Crl.A. No. 06 of 2012
on bazaar duty from 4.00 a.m. to 8.00 a.m. Along
with me one Constable Wangyal Tshering Lepcha
was also on duty . While we were on foot
patrolling duty we noticed one Esteem Car bearing
registration No. MN-1K/2920 parked in front of the
waiting shed opposite to Sikkim Nationalised
Transport Office at Jorethang Bazaar.
It was
about 4.10 a.m. when we noticed the said vehicle.
We also noticed two boys sleeping inside the said
vehicle. We did not disturb them and proceeded
on towards Akar bridge, Jorethang. As soon as we
reached Jorethang Akar bridge we saw both the
boys got up from the said car and started pushing
it towards Mazjid lane. We also wentnear the said
car and asked them as to from where they came .
They replied that they came from Manipur and
that they were going to Don Bosco School, Soreng
in order to take their children.
Thereafter I
demanded to produce the registration certificate of
the vehicle. One of the two boys took out the
registration certificate and showed it to me . I
further asked them about whereabouts of the
driver of the said vehicle. They informed me that
the driver of the vehicle has gone to the bazaar to
have tea. They also informed me that there was
starting problem with the vehicle as the battery of
the vehicle was weak. They were pushing the
vehicle towards Jorethang Bazaar. The accused
persons present in the dock were the same
persons who were found sleeping inside the car
and later pushing the vehicle for repair. Seeing
them pushing the vehicle towards Jorethang
Bazaar I advised them to take the vehicle across
Akar Bridge as there was no workshop at
Jorethang Bazaar. Later the two accused persons
took the vehicle towards the garrage across the
bridge . ...............................”
Circumstance (xi)
The accused persons were then seen pushing the
vehicle across the Akar Bridge at Jorethang towards
Melli Bazar as the vehicle would not start.
(a)
evidence
We find this circumstance established by the
of
Dawa
Gyatso
Bhutia,
Writer
Constable,
Jorethang P.S., P.W.2, who was on duty at the Jorethang
45
Crl.A. No. 06 of 2012
Akar Bridge Booth, on the material date and time. This is
evident from the following portion of his deposition:-
“On 30-6-2004 I along with Constable Dawa
Gyaltshen Bhutia was detailed for Jorethang Akar
Bridge booth duty from 4.00 a.m. to 8.00 a.m. At
about 5.00 a.m. Head Constable Ash Bir Subba
( ,PW-1 ) arrived at our booth near Akar bridge,
South Sikkim. Seeing him I asked him as to
where he was going in the morning. He replied
that he was required to conduct checkings of some
vehicle . He further said that there was one white
car parked near Rangeet hotel and the same
appeared to be suspicious and some checking has
to be done about the said vehicle.
In the
meantime Constable Wangyal Lepcha also arrived
there who was on bazaar duty. Head Constable
Ash Bir Subba instructed the said Constable
Wangyal Lepcha to check the vehicle that was
parked near Rangeet Hotel. Thereafter both H/C
Ashbir Subba and Constable Wangyal Lepcha
proceeded towards the place where the said white
car was parked. They did not returned (sic) to the
booth again . At about 7.00 a.m. the two accused
persons present in the dock along with 2/3 other
persons brought one white Esteem Car bearing
No. MN-1K/2920 pushing towards Akar bridge.
Seeing this I asked them as to where they were
pushing the said vehicle.
The two accused
persons informed me that the vehicle broke down
and that they were pushing the vehicle to the
garrage.
Accordingly, I suggested them the
garrage situated across the bridge.”
(b)
From the evidence of P.W.2 extracted above, we
find that he has also corroborated P.W.1 in full measure as
regards
circumstance
(x)
discussed
earlier
thereby
confirming its veracity.
Circumstance (xii)
After giving the battery for being charged at Naya
Bazar, the accused persons proceeded for Soreng and
upon reaching there, they went to the house of P.W.4
46
Crl.A. No. 06 of 2012
where
the
Appellant
informed
him
of
having
purchased a stolen car which they wanted to sell.
(a)
It is in the evidence of Biren Oraon, P.W.9, an
Electrician in the Sikkim Sangam Auto Works, Naya Bazar,
West Sikkim, that accused person had given the car
battery for recharge in the early morning of 30-06-2004.
Bhim Bahadur Pradhan, P.W.4, on the other hand most
categorically states in his evidence that the accused
persons had gone to his house at Soreng where the
Appellant had asked for his help in selling the car as would
appear, from the following portions of his evidence:-
“.....................................................
On 30th June 2004, one Wednesday the
accused Deepak Pradhan along with the other
accused present in the dock came to my
residents (sic) at Soreng Busty at about 10.00
a.m. In my residence the accused Deepak
Pradhan called me to come out of the house
and took me to a place about 20 feet away
from my residence and informed me that his
friend i.e. the other accused present in the
dock purchased a car brought from Manipur.
The said car subsequently was found to be a
stolen can (sic). He further said that the
person who sold out the said stolen car
returned from Jorethang. The accused Deepak
Pradhan further asked me to find out a
purchaser of the said car and if not to find out
and show him the garage/workshop where
they could sell out the parts of the said car. I
told the accused Deepak Pradhan that I will
not be able to find out such purchaser. At this
he requested me to show the workshop where
he could sell out the parts of the vehicle.
Thereafter the accused Deepak Pradhan and
me came back to my home, where the other
47
Crl.A. No. 06 of 2012
accused was sitting. ................. Thereafter I
took both of them to the workshop at Soreng.
And as requested by the accused persons I
asked the worker if they would purchase the
parts of the vehicle. The workers present in
the workshop informed that they would not
purchase the parts of the vehicle. From the
workshop we came back to my resident (sic).
We all had our meals in my residence. After
changing their clothes both the accused
persons present in the dock left my home.
...................................”
Circumstance (xiii)
Having failed in their attempt to sell the car, M.O.I,
they returned to Jorethang where they engaged a
driver, P.W.12, with the help of P.W.8, a friend of the
Appellant.
Circumstance (xiv)
After fitting the recharged battery the two accused
persons boarded the vehicle, M.O.I, driven by P.W.12
and left for Siliguri.
(a)
The above two circumstances taken together are
found to have been proved in the evidence of Mohan
Kumar Rai, P.W.8, a friend of the Appellant and Biren
Oraon, P.W.9. We may reproduce the relevant extract of
their evidence below:-
Mohan Kumar Rai, P.W.8
“I know accused Deepak Pradhan but I do
not know the other accused present in the dock.
The other accused present in the dock was seen
with the accused Deepak Pradhan at Jorethang
Bazaar on 30-6-2004.
On meeting me at
Jorethang Bazaar the accused Deepak Pradhan
proposed to move about for sometime at
48
Crl.A. No. 06 of 2012
Jorethang Bazaar. While we were strawling at
Jorethang Bazaar the accused Deepak Pradhan
told me that he had one vehicle brought from
Manipur . The said vehicle was brought from Don
Bosco School, Soreng. On the way the driver of
the vehicle fell ill and he was sent to Siliguri for
treatment. He further said that in the absence of
the driver he ( Deepak Pradhan ) himself brought
the said vehicle to Jorethang from 8th mile. The
accused Deepak Pradhan further requested me to
find out a driver for him to drive the said vehicle
to Siliguri on payment. Thereafter we went to the
Taxi Syndicate at Jorethang. I requested one of
the drivers present there to arrange a driver for
accused Deepak Pradhan. The said driver at Taxi
Stand arranged another driver for accused Deepak
Pradhan. Thereafter we came to the workshop
along with a new driver to drive the vehicle.
There was one white car at Naya Bazaar Workshop
with its bonnet open. Seeing this (vehicle ) the
accused Deepak Pradhan said that the battery
given for repair was not delivered and he went
around in search of the mechanic of battery.
............................”
Biren Oraon, P.W.9
“.................................. At about 4.00 p.m. the
two accused persons accompanied by one driver
came to the garrage. The said driver accompanied
by the accused persons hails from Jorethang. The
said driver used to drive one Commander Jeep
bearing No. SK-04/2195 as its second driver. At
the relevant time I did not know the name of the
said driver. But subsequently I came to know his
name as Jaggu. After they came to the garrage I
took out the battery from the re-charging machine
and fitted in the said car. Thereafter all of them
left the garrage including the driver. One of them
( the witness pointed out to the accused Rudra
Thapa ) gave Rs.20/- as fees for the re-charging
the mattery (sic). ..........................................”
(b)
The
evidence
of
P.Ws
8
and
9
stands
corroborated in full measure by P.W.12 which is quite
evident from the following extract of his evidence:-
“............................. I do not remember the
month but the date was 30th day of the month
49
Crl.A. No. 06 of 2012
about one year ago and the day was Wednesday I
was at the van stand at Jorethang.
In the
afternoon at about 3.00/4.00 p.m. the two
accused persons present in the dock and one
unknown man came to the van stand and were
asking some other drivers present there to
arrange for one temporary driver to drive their
vehicle to Siliguri. They were further saying that
they were the staff of Don Bosco School at Siliguri
and that they had come to Don Bosco School,
Chakung, West Sikkim. They further said that
they had come from Siliguri and on the way their
driver fell ill and had to be sent for treatment.
They further said that they needed a temporary
driver in order to drive their vehicle to Don Bosco
School Siliguri and that their vehicle was parked at
Jorethang. The drivers present there at the Van
stand at Jorethang suggested me to drive their
vehicle from Jorethang to Don Bosco School,
Siliguri. I agreed to drive their vehicle and came
along with them. On the way one of their friends
went away and I came to the tworks-hop with the
two accused persons. In the workshop the two
accused persons showed me the vehicle. Earlier
they had informed me that their vehicle was a van
but I found it to be one white Maruti Esteem Car
bearing registration No.MN-1K/2920.
It was
pa-rked in a workshop at Naya Bazaar below the
old bridge.
They offered me the key of the
vehicle. There was no battery in the vehicle.
In the meantime one electrician Biren brought the
battery from the nearby shop and fitted in the
vehicle ............................... Thereafter I started the
vehicle. The bonnet of the vehicle was opened.
On the side of the bonnet I detected some human
hair. I asked them as to how the said human hair
had come . I further noticed the left side window
pane of the vehicle broken. Seeing this I told
them that there would be difficulty to pass through
Melli Checkpost. At this the two accused persons
said that I need not worried as they would manage
at the checkpost. Thereafter I started the vehicle
and set of for Siliguri. .................. We started from
Jorethang at about 5.00 p.m. and reached Melli at
about 6.00 p.m. ..............................”
Circumstance (xv)
The vehicle, Maruti Esteem Car bearing No.MN 1K
2920, crossed Melli Check Post at about 6 p.m. with
50
Crl.A. No. 06 of 2012
three persons on board informing the Police at the
Check Post as they did that they were travelling from
Don Bosco, Soreng, West Sikkim to Siliguri.
(a)
P.W.7
and
P.W.17,
the
Police
Constables
stationed at Melli Check Post, on 30-06-2004 have most
unequivocally deposed on this circumstance establishing it
beyond any doubt. The relevant extract of their evidence
set out below:-
Sarman Rai, P.W.7
“....................................On 30-6-2004 my duty
at the Melli Checkpost was from 4.00 p.m. to 8-00
p.m. Headconstable Norden Bhutia was the duty
NCO during the relevant time. At about 6.00 p.m.
one Maruti Esteem Car bearing Registration
No.MN-1K/2920 came from Jorethang side and
stopped at the Checkpost gate. I asked the d river
of the said vehicle as to from where the vehicle
was coming and the destination bound for . The
driver of the vehicle informed me that he was
coming from Don Bosco School, Soreng and was
proceeding to Siliguri. Accordingly, I reported to
the duty NCO who recorded the particulars of the
vehiclein the vehicle movement register. Inside
the said vehicle three persons were there including
the driver. Exhibit 5 is the Vehicle Movement
Register of Melli Checkpost relating to the period
from 22-6-2004 to 1-7-2004. Exhibit 5/b is the
entry made by the duty W/C Norden Bhutia .
Exhibit 5/b is in the hand writing of Writer
Constable Norden Bhutia with which I am familiar
being my senior. I can identify the vehicle if I am
allowed to do so.
.................................................”
Norden Bhutia, P.W.17
“.............................. On 30-6-2004 my duty at
Melli Checkpost from 6.00 p.m. to 8.00 a.m. of the
following day. I was the duty NCO for the said
period and my checker constable Sharman Rai. At
about 6.00 p.m. I took over charge of the Melli
Checkpost as duty NCO from one Lakpa Sherpa
51
Crl.A. No. 06 of 2012
( Writer Constable ) Immediately after I took over
the charge as duty NCO one Maruti Esteen Car,
white in colour came at Melli Checkpost from
Jorethang side. My constable Checker asked the
driver of the said vehicle as to from where the
vehicle was coming and as to where it was
proceeding to.
The driver informed that the
vehicle was coming from Don Bosco School,
Soreng and was proceeding to Siliguri. At the
relevant time 3 persons were in the said vehicle
including the driver. I made the number of the
vehicle entered in the Register maintained in the
checkpost.
I can identify the said register,
wherein I made the entry if I am allowed to do so.
Exhibit 5 is the said register showing the
movement of the vehicles passing through Melli
Checkpost.
The said vehicle bore registration
No.MN-1K-2920. Exhibit 5/b is the entry that I
have made in my own hand writing in the register
exhibit 5, in respect of the vehicle MN-1K/2920. It
indicates that it was coming from Don Bosco
School, Soreng, West Sikkim and was proceeding
towards Siliguri.”
(b)
From a bare reading of their evidence, we find
that these witnesses have also most unerringly proved the
Vehicle Movement Register, Exhibit 5, and entry 5(b)
therein recording the movement of Maruti Esteem Car
bearing No.MN 1K 2920 in the evening of 30-06-2004.
Circumstance (xvi)
In the early morning of 01-07-2004 Devi Prasad
Sharma, Priest of Kali Mandir, 16th Mile, Jorethang-
Melli Road, appears at Jorethang P.S. informing of
him having seen a dead body lying on the cliff below
the road in front of the Mandir.
(a)
It has come in the evidence of P.W.25 that Devi
Prasad Sharma, the Priest of the Kali Mandir at 16th Mile,
52
Crl.A. No. 06 of 2012
Jorethang-Melli Road informed orally at the Jorethang P.S.
at about 0745 hours that he had seen a dead body lying
on the cliff below the road in front of the Kali Mandir. The
consequent enquiry by O/C, Jorethang P.S., P.W.25,
revealed that indeed a dead body was stuck in a bush on
the cliff about 30' below the road in front of the Kali
Mandir at 16th Mile, Jorethang-Melli Road.
(b)
formal
We find that this fact has been recorded in the
FIR, Exhibit
25,
in
the
depositions
of
O/C,
Jorethang P.S., P.W.25, the I.O., P.W.26 and Ash Bir
Subba, P.W.1.
In this context, the second part of the
evidence of Ash Bir Subba, H/C of the Jorethang P.S.,
P.W.1,
assumes
greater
significance
as
he
had
encountered the Appellant and Rudra Thapa, Accused
No.1, in the morning of 30-06-2004 during his patrolling
duty with his constable. It has come in his evidence that
he had also followed the police team led by O/C Jorethang
P.S., P.W.25, when they had gone to the place of
occurrence in the morning of 01-07-2004 for inquiry and
that some of the photographs, i.e., Exhibits 2 and 3,
recovered from the body of the deceased by P.W.25 tallied
with the photograph that was pasted in the registration
53
Crl.A. No. 06 of 2012
certificate of the vehicle, Exhibit 1, which the two accused
persons had produced when demanded by him in the early
morning of 30-06-2004.
The relevant extracts of the
evidence of P.Ws 25, 26 and 1 are reproduced below for
convenience:-
C. Chopel, P.W.25
“....................... During July, 2004 I was
posted as O.C. Jorethang Police Station. I know
both the accused persons present in the dock as I
had partly conducted investigation of the instant
case. On 1.7.04 one Devi Prasad Sharma, Priest
of Kali Mandir, 16th Mile Jorethang – Melli Road,
Jorethang, came to Jorethang Police Station and
verbally reported that on the relevant day in the
morning he saw a person lying below the road in
front of the Kali Mandir. The same man was lying
on the cliff. .........................................”
M. L. Pradhan, P.W.26
“.......................................................
On 01.07.2004 my Officer-In-Charge, PI,
Chundi Choppel Bhutia registered J. P.S. Case No.
18(7)04 dated 1.7.04 under Section 302/201
Indian Penal Code against unknown persons on
suo motu basis, on the information given by the
priest Devi Prasad Sharma of Jorethang Kali
Mandir.
After registration of the case it was
endorsed to me for further investigation.
........................”
Ash Bir Subba, P.W.1
“...................................................
On 1-7-2004 in the morning a report came
to Jorethang Police Station saying that one person
was found lying dead below the road near 16th
mile, Kali Mandhir. The O.C. Jorethang Police
Station and other staff proceeded to the place of
occurrence. I also followed them. ...............”
Circumstance (xvii)
The accused persons including the Appellant are
arrested at Siliguri on 03-07-2004 and brought to
Jorethang P.S. on 07-07-2004.
54
Crl.A. No. 06 of 2012
(a)
This circumstance stands established by the
evidence of P.Ws 12 and 25. The relevant portions of their
evidence are as follows:-
Aitaraj Rai, P.W.12
“............................. Two accused persons
present in the dock along with one person who
showed toe (sic) park the said vehicle on the
ground in fron (sic) the said aunty were arrested
in my presence and I have signed in their arrests
memos. Exhibit 6, 7 and 8 are the arrest memos
of the accused persons. Exhibits 6/a, 7/a and 8/a
are my signatures. .......................”
C. Chopel, P.W.25
“............................... On 2.7.2004 I submitted
a requisition marked exhibit- 26 to Officer-In-
Charge, Pradhan Nagar, Out post, Siliguri for
providing police assitatance (sic) for recovery of
vehicle
bearing
registration
No.
MN-
IK/2920(Esttem Car) also to effect arrest of the
accused person involve the murder of the
deceased Avijit Haovom. Exhibit- 26 is the carbon
copy of my requisition and exhibit– 26/a is my
signature. With the assistance of the Pradhan
Nagar Police Out Post I effected the arrest of
accused Rudra Thapa vide arrest memo exhibit-6
he was pointed out by and identified by Aita Raj
Rai who drove the Maruti Car mentioned above
from Jorethang to Siliguri. Exhibit- 6/a is the
signature of said Aita Raj Rai, exhibit- 6/b is the
signature of accused Rudra Thapa and exhibit- 6/c
is my signature. Vide arrest memo exhibit- 7 & 8 i
effected the arrest of accused Deepak Pradhann
and Rajen Biswakarma on being identified by the
said Aita Raj Rai. Exhibit- 7/a and 8/a are the
signatures of said Aita Raj Rai, and exhibit 7/b &
8/b are the signatures of Deepak Pradhan, and
Rajen Biswakarma respectively. Exhibit. 7/c and
exhibit- 8/c are my signatures. All the 3 accused
persons were arrested on the information
furnished by Aita Raj Rai (driver) who drove the
vehicle from Jorethang to Siliguri. ...............”
Circumstance (xviii)
Rudra Thapa, Accused No.1’s statement recorded
under Section 27 of the Evidence Act.
55
Crl.A. No. 06 of 2012
Circumstance (xix)
Based on the above statement, the Police recover the
weapon of offence, M.O.VI and its sheath, M.O.VII,
from the place shown by him.
(a)
The above two circumstances taken together
stand proved by the evidence of P.Ws 18, 24 and 26. The
relevant portions of whose evidence are reproduced
below:-
Dilip Kumar Agarwal, P.W.18
“I know the accused Rudra Thapa present in
the dock.
I also know the another accused
present in the dock and his name is Deepak
Pradhan.
On 7-7-2004 the second O.C. of
Jorethang Police Station recorded the statement of
accused Rudra Thapa at Jorethang Police Station.
During the relevant time one Sunil Prasad of
Jorethang Bazaar and myself were present.
..................... The accused Rudra Thapa further said
that he threw the weapon of offence from the said
place towards the river side. On the way towards
Jorethang side he also threw the sheath of the
khukuri below the road. The said Rudra Thapa
further said that he could show the pla-ces from
where he had thrown the weapon of offence and
the sheath of the khukuri if he was allowed to do
so. Exhibit 13 is the said disclosure statement of
the a ccused Rudra Thapa, that was recorded in
our presence at Jorethang Police Station. Exhibit
13/a is my signature.
Exhibit 13/b is the
signature of Rudra Thapa who signed in our
presence.
After the disclosure statement was
recorded we went to the place of occurrence for
recovery. The accused showed the place where he
had stated to have thrown the weapon of offence
i.e. Khukuri. The said accused ( Rudra Thapa )
who showed the place was accused Rudra Thapa.
On search being conducted one Khukuri was
retrived (sic) and the same was seized vide
seizure memo exhibit 14. The said khukuri was
seized by the Investigating Officer inmy presence
and in presence of Sunil Prasad. Exhibit 14/a is
my signature and exhibit 14/b is the signature of
56
Crl.A. No. 06 of 2012
Accused Rudra Thapa who showed the pla-ce
Exhibit 14/b was signed by the accused Rudra
Thapa in our presence. I can identify the said
khukuri seized in our presence. MO-VI is the said
khukuri that was seized by the Investigating
Officer vide seizure memo exhibit 14 from the
place pointed out by the accused Rudra Thapa.
On the same day i.e. on 7-7-2004 one sheath of
the khukuri was also seized from a place pointed
out by the accused Rudra Thapa. The sheath of
the khukuri MO-VII was recovered and seized at a
distance of about 15 feet from the place of
recovery of khukuri. It was recovered towards
Jorethang side from the place of recovery of
Khukuri near old Gas office. The sheath of the
khukuri marked MO-VII was seized vide seizure
memo exhibit 15. Exhibit 15/a is my signature
and exhibit 15/b is the signature of accused Rudra
Thapa, who signed in our presence. The seized
articles were placed in white clothes and sealed.”
Sunil Prasad, P.W.24
“I know both the accused persons present in
the dock as I had seen them at Jorethang Police
Station. They were under arrest. On 7.7.2004 I
had gone to the Jorethang Police Station in
connection with my personal matter and found
both the accused persons in the Police Station.
................... In presence of both of us the statement
of accused Rudra Thapa was recorded. ...................
Thereafter they threw the dead body of the
deceased below the road. The accused Rudra
Thapa stated that he cut the deceased with the
help of the khukuri and threw the same from the
place of occurrence. He further said that they
themselves pushed and took the vehicle to
Jorethang.
On the way he threw the sheath of
the khukuri below the road. He further said that
he could show the places from where he threw the
weapon of offence ie. khukuri and the sheath of
khukuri. Exhibit- 13 is the said disclosure
statement made by the accused Rudra Thapa
which was recorded by the second Officer-In-
Charge, Shri M.L. Pradhan. Exhibit- 13/a is the
signature of said Marwari Contractor of Jorethang,
exhibit- 13/b is the signature of accused Rudra
Thapa who singed (sic) in my presence, exhibit-
13/c is my signature. On being pointed out by the
accused Rudra Thapa a khukuri was recovered and
seized from below the road in my presence and in
presence of said Marwari Contractor vide seizure
57
Crl.A. No. 06 of 2012
memo exhibit- 14. Exhibit– 14/a is the signature
of the said Marwari Contractor who signed in my
presence and exhibit. 14/b is the signature of
accused Rudra Thapa who also singed (sic) in my
presence and exhibit- 14/c is my signature. I can
identify the said Khukuri pointed out by the
accused if I am asked to do so. MO- VI is the said
khukuri that was recovered on being pointedout by
the accused Rudra Thapa and seized vide seizure
memo exhibit- 14 in my presence. MO- VI was
recovered from below the road near Kali Mandir
Jorethang little above the river Rangeet. MO- VII
is the said sheath of the khukuri that was
recovered from the place pointed out by the
accused Rudra Thapa, which was about 200 feet
ahead of the Kali Mandir towards Jorethang Bazaar
below the road about 10 feet away from the road.
The sheath of the khukuri MO- VII was seized vide
seizure memo exhibit- 15 in my presence and in
presence of said Marwari contractor. Exhibit- 15/a
is the signature of said Marwari Contractor,
exhibit- 15/b is the signature of accused Rudra
Thapa who signed in my presence and exhibit-
15/c is my signature.”
M. L. Pradhan, P.W.26
“........................... After the accused persons
were arrested by the O.C. Jorethang P.S. I
recorded the statement of accused Rudra Thapa in
presence of witnesses Dilip Kumar Agarwal and
Sunil Prasadon 7.7.2004. ............................. The
accused Rudra Thapa further said that he threw
the khukuri (weapon of offence) towards the river.
He further stated that after travelling for some
distance from the place of occurrence the accused
Rudra Thapa threw the sheath of the khukuri
below the road . He further staed (sic) that he
could show the place from where he threw the
weapon of offence and its sheath. Exhibit– 13 is
the said disclosure statement recorded by me in
presence of witnesses . Exhibit- 13/a is the
signature of Dilip Kumar Agarwal, exhibit – 13/b is
the signauture (sic) of Rudra Thapa, exhibit- 13/c
is the signature of Sunil Prasad and exhibit- 13/d
is my signature. On being pointed out by the
accused Rudra Thapa khukuri MO- VI was
recovered and seized vide seizure memo exhibit-
14 in presence of witnesses. Exhibit- 14/a is the
signature of Dilip Kumar Agarwal, exhibit– 14/b is
the signature of accused Rudra Thapa, exhibit-
14/c is the signature of Sunil Prasad and exhibit–
14/d is my signature.
On the same day the
58
Crl.A. No. 06 of 2012
sheath of the khukuri MO- VI was also recocered
(sic) from the place shown by the accused and
seized in presence of witnsses (sic) Sunil Prasad
and Dilip Kumar Agarwal vide seizure memo
exhibit-15. Exhibit- 15/a is the signature of Dilip
Kr. Agarwal, exhibit- 15/b is the signature of
Rudra Thapa, exhibit- 15/c is the signature of
Sunil Prasad and exhibit- 15/d is my signature.
.......................................”
(b)
Another aspect that calls for our consideration is
as regards the genuinity of the weapon of offence, M.O.VI,
and the injury found on the neck of the deceased, there
being no traces of blood found at the place of occurrence.
In this regard, it is observed that the law of evidence does
not contemplate the hair splitting manner of appreciation
of evidence as propounded on behalf of the Appellant. In
cases of the present kind which is based on circumstantial
evidence, it becomes necessary for the Courts to arrive at
reasonable assumptions founded on the overall evidence
that are found credible.
The recovery of the weapon of
offence, M.O.VI, consequential to the disclosure statement
of Rudra Thapa, Accused No.1, stands established. When
we consider the nature of the injury described as “sharp
cut injury on the right side of the neck measuring about 7"
in length and 4" in depth” as per the inquest report which
was “caused by a heavy sharp cutting weapon” in terms of
the Medico Legal Autopsy Report, we can reasonably
59
Crl.A. No. 06 of 2012
assume that the injury was caused by the weapon M.O.VI.
These circumstances when considered with the other
circumstances, most unequivocally lead us to conclude
that it was Rudra Thapa, Accused No.1 who had wielded
the weapon, M.O.VI and struck the deceased with it and
caused his death.
Circumstance (xx)
Blunt denials of the circumstances and refusal of the
Appellant to reply to the questions put to him in his
examination under Section 313 Cr.P.C.
(a)
We
are
in
agreement
with
the
Learned
Additional Public Prosecutor that the Appellant has failed
to explain the circumstances put to him under Section 313
Cr.P.C. either by giving blunt denials or refusing to answer
the questions and that in a case based on circumstantial
evidence blunt denials and false answers can form an
additional link in the chain of circumstances.
(b)
In Joseph s/o Kooveli Poulo vs. State of Kerala
: (2000) 5 SCC 197 it has been held as follows:-
“14.
.................
During the time of
questioning under Section 313 CrPC, the appellant
instead of making at least an attempt to explain or
clarify the incriminating circumstances inculpating
him, and connecting him with the crime by his
adamant attitude of total denial of everything
when those circumstances were brought to his
60
Crl.A. No. 06 of 2012
notice by the Court not only lost the opportunity
but stood self-condemned.
Such incriminating
links of facts could, if at all, have been only
explained by the appellant, and by nobody else,
they being personally and exclusively within his
knowledge. Of late, courts have, form the falsity
of the defence plea and false answers given to
court, when questioned, found the missing links to
be supplied by such answers for completing the
chain of incriminating circumstances necessary to
connect the person concerned with the crime
committed (see State of Maharasthra v. Suresh).
That missing link to connect the accused-
appellant, we find in this case provided by the
blunt and outright denial of every one and all the
incriminating circumstances pointed out which, in
our view, with sufficient and reasonable certainty
on the facts proved, connect the accused with the
death and the cause for the death of Gracy.
.............................”
[emphasis supplied]
(c)
In State of Maharashtra vs. Suresh : (2000) 1
SCC 471 relied upon in Joseph (supra), it has been held
that “false answer offered by the accused when his attention was
drawn
to
any
inculpating
circumstance
circumstance as capable of inculpating him.
would
render
such
The Court also held
that in such a situation a false answer can also be counted as
providing “a missing link” in completing the chain.”
(d)
Considering the facts of the presence case on
the anvil of the ratio laid down in the above aforesaid
cases the statement of the Appellant made under Section
313 Cr.P.C. being palpably false on the face of the other
circumstances established by the prosecution on the basis
of reliable and cogent evidence adduced by them as
61
Crl.A. No. 06 of 2012
regards the Appellant’s role in the commission of offence,
we will have to proceed on the basis that the Appellant
has
not
explained
the
inculpating
circumstances
established by the prosecution against him which would
form an additional link in the chain of circumstances.
20.
It is pertinent to note that the oral evidence
extracted above against each of the circumstance could
not
be
contradicted
materially
as
the
prosecution
witnesses remained firm and unshaken. The documents,
more
particularly,
the
vehicle
registration
certificate,
Exhibit 1, driving licence, exhibit 2, identity card, exhibit 3
and the Maruti Esteem Car bearing registration No. MN 1K
2920, M.O.I, exhibited by the prosecution witnesses are
found quite reliable. The factum of Rudra Thapa, Accused
No.1, having given the statement under Section 27 of the
Evidence Act and the consequent recovery of the weapon
of offence, i.e., the ‘khukuri’, M.O.VI and its sheath,
M.O.VII, from the spots as shown by him have remained
unassailable.
21.
We find that each of the circumstance set out
above stand established by satisfying the standard of
proof
beyond
reasonable
doubt
and
that
those
62
Crl.A. No. 06 of 2012
circumstances form an unbroken chain that leads to the
sole hypothesis, and none other, that the Appellant and
Rudra Thapa, Accused No.1 had with common intention to
rob the deceased of his Maruti Esteem Car had committed
his murder in the manner as revealed in the case of the
prosecution.
22.
Notwithstanding the above position, we may
deal with some of the lacunae said to exist in the
prosecution case as pointed out by Mr. N. Rai, Senior
Advocate, on behalf of the Appellant.
(i)
The evidence of P.Ws 1, 2, 5, 6, 7, 17, 25 and 26,
the police witnesses alleged to be interested
witnesses have been carefully examined with the
required circumspection and it is found that they
are truthful witnesses having withstood the test of
their cross-examinations on all material parts of
their evidence. This apart, we also find sufficient
corroboration
of
their
evidence
in
the
other
evidence available on the record.
As held in the case of Govindaraju (supra)
referred
to
by
the
Learned
Additional
Public
Prosecutor the evidence of police witnesses by
63
Crl.A. No. 06 of 2012
itself can form the basis of conviction if such
evidence inspires confidence and is found to be
trustworthy and reliable.
(ii)
The argument that the evidence of P.Ws 3, 6, 13,
14, 15, 16, 17, 20, 22 and 23 have to be left out
to the ambit of consideration as their evidence
were not put to the Appellant in his examination
under Section 313 Cr.P.C., in my view, cannot be
sustained as, except for the evidence of P.Ws 6
and 17, the others pertain to facts that are
peripheral and quite insignificant.
So far as the
evidence of P.Ws 6 and 17 are concerned, they
deal with the circumstance of the Maruti Esteem
Car, M.O.I, having entered Sikkim from Siliguri
with three persons on board on 29-06-2004 at 6
p.m. and, having left Sikkim with the same
number of persons on 30-06-2004 at about 6 a.m.
respectively. The evidence of the Head Constable,
P.W.6, on duty at the Melli Check Post in the
evening of 29-06-2004, is found to have been
corroborated on all material particulars by the
Constable, P.W.5, on duty with him. Similarly the
64
Crl.A. No. 06 of 2012
evidence of the Writer Constable, P.W.17, on duty
at that Check Post in the evening of 30-06-2004,
stands corroborated by his Constable P.W.7 on
duty with him. P.Ws 5 and 7 in fact were the ones
who had checked the vehicle and reported to Head
Constable, P.W.6 and Writer Constable, P.W.17
respectively who then had made their respective
entries Exhibit 5(a) and Exhibit 5(b) in the Register
Exhibit 5.
We find that the evidence of P.Ws 5
and 7 have been put to the Appellant while being
examined
under
Section
313
Cr.P.C.
under
questions no.23 to 25 and 26 to 28 respectively
which in substance would include the evidence of
P.Ws 6 and 17 thereby rendering the necessity to
put their evidence to the accused persons again
futile and of no consequence.
(iii)
The assertion on the part of the Learned Senior
Counsel
that
the
Vehicle
Movement
Register,
Exhibit 5, is a fabricated document, in our view, is
unsustainable on the face of the credible evidence
of its proof by P.Ws 5, 6, 7 and 17. No doubt, the
Register is a common one available in the markets

and that it also does not contain the official seal of
the Police, but this does not detract from the fact
that the entries in that Register were made by the
Police Officers in discharge of their official duty.
In Brij Mohan Singh vs. Priya Brat Narain
Sinha
and
Others
:
AIR
1965
SC
282
a
Constitution Bench of the Hon’ble Supreme Court
has held that “the reason why an entry made by a public
servant in a public or other official book, register, or record
stating a fact in issue or a relevant fact has been made
relevant is that when a public servant makes it himself in
the discharge of his official duty, the probability of its being
truly and correctly recorded is high.” This principle was
enunciated while interpreting Section 35 of the
Evidence Act that provides for relevancy of entry in
public record or an electronic record made in
performance of duty.
Section 35 is reproduced
below for convenience:-
“S.35. Relevancy of entry in public record
or an electronic record made in performance of
duty.—An entry in any public or other official book,
register or record or an electronic record, stating a
fact in issue or relevant fact, and made by a public
servant in the discharge of his official duty, or by
any other person in performance of a duty
specially enjoined by the law of the country in
which such book, register or record or an
electronic record is kept, is itself a relevant fact.”

In the case at hand there is no manner of
doubt that the entries in question were made by
the concerned Police Officials who are public
servants while discharging their official duties. For
these reasons, the contention stands rejected.
(iv)
So far as the question of Test Identification Parade
of the accused persons having not been conducted
is concerned, it is our considered view that it is
hardly of any consequence to the prosecution case
in view of the overwhelming evidence pertaining to
the identity of the Appellant available on the
record. Ash Bir Subba, Head Constable, Jorethang
P.S., P.W.1, had the occasion to see the accused
persons for considerable length of time in the early
morning of 30-06-2004.
Similar is the case with
Dawa Gyatso Bhutia, P.W.2 as he had not only
seen the accused persons pushing the vehicle
towards Naya Bazar at “Akar Bridge” but also had
exchanged conversation with them and suggested
them to take the vehicle to a garage across the
bridge.
The identification of the Appellant and
Rudra Thapa, Accused No.1, by these witnesses do

not appear to have been contradicted in their
cross-examination.
We also do not find even a
whisper of a suggestion that it was not the accused
persons who were seen in the vehicle first by Ash
Bir Subba, P.W.1 and later by Dawa Gyatso Bhutia,
P.W.2.
Bhim Bahadur Pradhan, P.W.4, Mohan Rai,
P.W.8, Biren Oraon, P.W.9, Aitaraj Rai, P.W.12,
and Kumar Pariyar, P.W.21, who are the other
witnesses who identified the accused persons,
were well-acquainted with them as would appear
from their evidence and their identification by
these witnesses have remained unquestioned in
their cross-examination.
In Amitsingh Bhikamsingh Thakur vs. State
of Maharashtra : (2007) 2 SCC 310, it has been
held that while the necessity of holding Test
Identification Parades is desirable, the Court may
accept the evidence of identification even without
insisting on corroboration. In paragraph 14 of the
decision, references have been made to earlier
decisions of the Court laying down such approach
but suffice it to refer only to the following:
68
Crl.A. No. 06 of 2012
“14. “7.
It is trite to say that the
substantive
evidence
is
the
evidence
of
identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the
position in law is well settled by a catena of
decisions of this Court. The facts, which establish
the identity of the accused persons, are relevant
under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the
statement made in court. The evidence of mere
identification of the accused person at the trial for
the first time is from its very nature inherently of a
weak character. The purpose of a prior test
identification, therefore, is to test and strengthen
the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn
testimony of witnesses in court as to the identity
of the accused who are strangers to them, in the
form of earlier identification proceedings. This rule
of prudence, however, is subject to exceptions,
when, for example, the court is impressed by a
particular witness on whose testimony it can safely
rely, without such or other corroboration. The
identification parades belong to the stage of
investigation, and there is no provision in the Code
of
Criminal
Procedure
which
obliges
the
investigating agency to hold, or confers a right
upon the accused to claim a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence
of identification in court. The weight to be
attached to such identification should be a matter
for the courts of fact. In appropriate cases it may
accept the evidence of identification even without
insisting
on
corroboration.
(See Kanta
Prashad v. Delhi
Admn.
:
AIR
1958
SC
350, Vaikuntam Chandrappa v. State of A.P. : AIR
1960 SC 1340, Budhsen v. State of U.P. : AIR
1970 SC 1321 and Rameshwar Singh v. State of
J&K : AIR 1972 SC 102).”
[emphasis supplied]
Similar has been the view taken in the case of
Malkhansingh and Others vs. State of M.P. :
(2003) 5 SCC 746.

Therefore, it follows from the above that even
if no Test Identification Parade was held, it is
permissible for us to accept the identification of the
Appellant and Rudra Thapa, Accused No.1 by P.Ws
1, 2, 4, 8, 9, 12 and 21 when we find their
evidence beyond reproach and reliable.
This
consideration would also apply as regards the
identification of the Maruti Esteem Car bearing
registration No.MN 1K 2920.
(v)
The contention that the weapon of offence was not
sealed at the place of its seizure by the I.O., in our
view, also appear
to be
of
no consequence
considering the evidence of Dilip Kumar Agarwal,
P.W.18, and Sunil Prasad, P.W.24, in their cross-
examinations that the weapon of offence, i.e., the
‘khukuri’, M.O.VI, and its sheath M.O.VII, had first
of all been retrieved from the places as shown by
Rudra Thapa, Accused No.1, then wrapped in white
cloths and stitched with needle and thread and
then sealed.
(vi)
The contention that the disclosure statement of co-
accused Rudra Thapa cannot be used against the

Appellant is based on a generally well-accepted
position of law which we find re-emphasised in
Haricharan Kurmi (supra) relied upon on behalf of
the Appellant.
However, in that very case it has
been held that “the confession of a co-accused person
cannot be treated as substantive evidence and can be
pressed into service only when the court is inclined to
accept other evidence and feels the necessity of seeking for
an assurance in support of its conclusion deducible from
the said evidence.”
The principle of law as regards permissibility
of relying upon the confession of one accused
against another have been found reiterated in
Pancho (supra) and Bishnu Prasad Sinha (supra)
referred
to
by
the
Learned
Additional
Public
Prosecutor. The law postulates that before a Court
relies upon the confession of a co-accused it ought
to consider
other
evidence
in
order
to
lend
assurance to such confession.
The culpability of the Appellant in the case is
fixed by application of Section 34 IPC against him.
It is not the case of the prosecution that it was he
who had dealt the fatal blow on the deceased but

that he had the common intention with Rudra
Thapa, Accused No.1, to rob the deceased of his
Maruti Esteem Car, M.O.I after doing him to death.
We have alluded to the evidence of P.Ws 1, 2, 4,
8, 9, 12 and 21 who have in most unambiguous
terms and in graphic details stated on the role
played by the Appellant. There are circumstances
that undoubtedly confirm the inculpatory role of
the Appellant.
From the evidence discussed in
detail earlier, we have noted that the Appellant
freely
indulged
in
giving false
statements to
various witnesses, first of them being H/C Ash Bir
Subba, P.W.1, to whom he and Rudra Thapa,
Accused
No.1,
had
shown
the
registration
certificate of the Maruti Esteem car to give an
impression that they were the owners saying that
the driver had gone out to have tea, obviously
intending to
photograph
mean
was
that the
pasted on
deceased
the
whose
registration
certificate, was the driver. Later, on the same day
at Soreng the Appellant gave a false story to P.W.4
that he and Rudra Thapa, Accused No.1 had
unknowingly purchased a stolen car which they

wanted to sell. When they returned to Jorethang
that evening the Appellant got hold of his friend
P.W.8 and asked for his help to engage a driver on
a false plea of their driver having left due to
illness. On reaching Siliguri he gave another false
story to P.W.21 of the deceased having fled away
on their finding the documents of the car as
duplicates. As discussed earlier, the Appellant had
lured the deceased to go to his house at Soreng on
a false plea that the price of the vehicle would be
paid there.
Exhibit
Therefore, the disclosure statement,
13,
corroborative
would
piece
be
of
relevant
evidence
only
as
to the
a
other
formidable ones appearing against the Appellant
that establishes his participation in the commission
of the offence.
Connected with the foregoing is also the
assertion on behalf of the Appellant that intention
of
the
Appellant
cannot
be
traced
to
the
commission of the offence of murder but could be
so only as regards the purchase of the Maruti
Esteem Car, M.O.I, as set out in paragraph 6(xiii)
while deliberating on the contentions raised on
73
Crl.A. No. 06 of 2012
behalf of the Appellant in support of the Appeal.
In
view
of
the
detailed
discussions
on
the
culpability of the Appellant in the commission of
the offences, we desist ourselves from repeating
those save to the extent that although it may not
have been the Appellant who actually landed the
deathly blow upon the deceased but, that does not
detract from the fact that the Appellant had
participated in the series of incidents with Rudra
Thapa, Accused No.1, leading to the murder of the
deceased and incidents thereafter. We are thus of
the considered view that the conduct of the
Appellant that are so glaring would clearly bring
him within the ambit of Section 34 IPC and,
therefore, also liable for the principal offences
under Sections 302/201/379 IPC.
We are inclined to agree with the Learned
Additional Public Prosecutor that direct proof of
common
intention
is
seldom
available
and,
therefore, such intention can only be inferred from
the
proved
facts
of
the
case
and
proved
circumstances as held in Chaman (supra) relied
upon by the Learned Additional Public Prosecutor.
74
Crl.A. No. 06 of 2012
In Balram Singh and Another vs. State of
Punjab : AIR 2003 SC 2213, the Hon’ble Supreme
Court, relying upon
its
previous decisions
in
Badruddin vs. State of U.P. : (1998) 7 SCC 300
and Ramashish Yadav and Others vs. State of
Bihar : (1999) 8 SCC 555, has held that “all that
the prosecution has to establish is that there was a prior
concert or meeting of minds between the accused persons
and such prior concert or meeting of minds may be
determined from the conduct of the offenders unfolding
itself during the course of action and the declaration made
by them just before mounting the attach.”
Following from the above, we are satisfied
that the prosecution has been able to establish
that there was a plan of the Appellant and Rudra
Thapa, Accused No.1, to commit the offence of
which they were charged and, therefore, liable
thereunder.
Under
such
circumstances,
the
assertion
naturally calls for rejection and is accordingly
rejected.
(vii)
The point that no traces of blood were found either
at the place of occurrence or at the spot where the
75
Crl.A. No. 06 of 2012
body
was
retrieved
consequence
in
would
view
of
also
the
be
firm
of
no
evidence
appearing against Rudra Thapa, Accused No.1, as
discussed earlier while dealing with circumstances
(xviii) and (xix).
The innocence of the Appellant
stand clearly discounted for the reasons already
discussed in the preceding paragraph.
(viii)
As far as the identity of the driver named “Jaggu”
is concerned the evidence of Biren Oraon, P.W.9,
the
Electrician,
appears
to
have
settled
the
controversy when it has come in his evidence that
“the said driver accompanied by the accused persons hails
from Jorethang.
The said driver used to drive one
Commander Jeep bearing No. SK-04/2195 as its second
driver. At the relevant time I did not know the name of the
said driver. But subsequently I came to know his name as
Jaggu.”
The effort on the part of the Learned Senior
Counsel
to
invoke
the
principle
of
adverse
inference under Section 114(g) of the Evidence Act
against the prosecution for non-examination of (a)
“Jaggu”; (b) Kiran Pradhan from whom a car
stereo, M.O.IV, was seized; (c) the two passengers

who boarded the Maruti Esteem Car at Jorethang;
(d) Anil Sharma; and (e) Constable Wangyal
Tshering Lepcha, in our view, also do not appear to
be of much substance.
We hold this view, firstly
because ‘Jaggu’ being no less than Aitaraj Rai is
found
to
have
been
examined
as
P.W.12.
Secondly, the rest of the persons only appear to be
additional witnesses to the facts already proved by
other witnesses.
The other witnesses in whose presence the
car stereo, M.O.IV, was seized are P.W.12 and
P.W.22
who
have
been
examined
by
the
prosecution.
The two passengers who boarded the Maruti
Esteem
Car
at
Jorethang
would
have
been
additional witnesses to the fact of the accused
persons having left Jorethang in the evening of 30-
06-2004
on
which
P.W.12
is
found to have
deposed in detail and corroborated by P.W.8 and
P.W.21.
Non-examination of Anil Sharma is also of no
consequence in view of the evidence of P.W.11
who is the principal witness leading to the identity

of the deceased and from whom the initial clue of
the deceased having got acquainted with the
accused persons at Siliguri was received.
In so far as Constable Wangyal Tshering
Lepcha is concerned, he is said to be the one who
was with Ash Bir Subba, P.W.1, while on patrol
duty in the early morning of 30-06-2004 and we
find this evidence to be reliable and convincing
considered in the light of the evidence of P.W.2,
Writer Constable, Jorethang Police Station who was
also on duty at the Jorethang Akar Bridge Booth at
the same time as P.W.1.
The cases of Thulia Kali (supra) and Guljara
Singh (supra) are on the general principle of the
law of evidence as regards the consequence of
non-production
prosecution.
of
In
material
the
witness
present
by
case,
the
the
circumstances obviously are quite different.
(ix)
We also do not find any merit in the contention
that the CFSL reports, Exhibits 42 to 45 cannot be
accepted as valid evidence having not been proved
as required under Section 293 Cr.P.C. and that the
Scientific Expert was not produced for the purpose.

Firstly, this plea was never raised during the
trial.
Secondly, on perusal of the Serological
Examination Reports, we find that the Officer who
examined the samples was of the rank of Junior
Scientific Officer.
These reports appear to have
been accepted as valid pieces of evidence under
Sub-Section (1) of Section 293 Cr.P.C. as the
competence of that Officer in the light of Sub-
Section
(4)
of
Section
293
had
not
been
questioned.
We find support on this view of ours in
Dalwadi Govindbhai Amarsinghbhai vs. State of
Gujarat : 2004 CRI.L.J. 2767 (Gujarat) where a
Division Bench of the Gujarat High Court had held
as under:-
“20. ..........................................
The record does not show that any request
was made by the defence to summon expert of
Forensic Science Laboratory to prove the contents
of report. No challenge to report was made when
it was produced on record during the examination
of Investigating Officer, Mr. Mer. Therefore, the
argument that Xerox copy of report of Forensic
Science Laboratory could not have been relied
upon has no substance, and is hereby rejected.”
Similarly,
in
Phool
Kumar
vs.
Delhi
Administration : 1975 CRI.L.J. 778 (SC) it has
been laid down as under:-
79
Crl.A. No. 06 of 2012
“3. .................... The report of the expert was
used as evidence by the prosecution without
examining him in court. Neither the court thought
it fit nor the prosecution of the accused filed any
application to summon and examine the expert as
to the subject-matter of his report. The court was
bound to summon the expert if the accused would
have filed any such application for his
examination.
That not having been done the
grievance of the appellant apropos the report of
the expert being used without his examination in
court made in the High Court and repeated in this
Court had no substance. ............................”
In any case, the CFSL reports are not the sole
evidence on which conviction of the Appellant is
being sought for but is rather one of several
others.
The case of Sonam Tshering Bhutia
(supra) relied upon by the Learned Senior Counsel
on behalf of the Appellant is quite distinguishable
from the facts and circumstances in the present
case and, therefore, clearly not applicable.
(x)
The attempt on behalf of the Appellant to assail
the last seen theory placing reliance upon Mohibur
Rahman
(supra),
in
our
view,
cannot
be
sustained. The case of Mohibur Rahman (supra)
was one where the last seen theory was the
singular piece of circumstantial evidence available
against the accused and, that the number of days
that the accused was last seen with the deceased

was unascertainable.
Quite apparently, the facts
in the present case are different where the
deceased was last seen in the company of the
accused persons in the morning of 29-06-2004 and
his dead body was discovered in the early morning
of 01-07-2004.
Similarly, in the case of Sanjay
Thakran (supra) the circumstance of last seen
together could not be taken into account to fasten
the guilt on the accused as there was considerable
time gap between the persons seen together and
the proximate time of crime.
In any case, these
decisions do not lay down the ratio that in all cases
where the duration of time gap between the
accused persons seen in the company of the
deceased and the detection of the crime is of
considerable length the principle of last seen
theory cannot be invoked.
In the very case of
Sanjay Thakran (supra) it has been held that “in
all cases, it cannot be said that the evidence of last seen
together is to be rejected merely because the time gap
between the accused persons and the deceased last seen
together and the crime coming to light is after (sic of) a
considerable long duration.
There can be no fixed or

regard and it would depend upon the evidence led by the
prosecution to remove the possibility of any other person
meeting the deceased in the intervening period”.
It has
been further held that “if the prosecution proves that in
the light of the facts and circumstances of the case, there
was
no
possibility
of
any
other
person
meeting
or
approaching the deceased at the place of incident or before
the commission of the crime, in the intervening period, the
proof of last seen together would be relevant evidence.”
As discussed in detail earlier, the deceased
was seen in the company of the accused persons
continuously from 25-06-2004 until at least 9 a.m.
of 29-06-2004. It has come in evidence that they
had left Siliguri together on 29-06-2004 and
entered Sikkim in the Maruti Esteem Car bearing
registration no.MN 1K 2920 through the Melli
Check Post at about 6 p.m. of that day.
The
accused persons left Jorethang in the evening of
30-06-2004 in the very Maruti Esteem Car, M.O.I,
driven by the driver, P.W.12, and crossed Melli
Check Post at about 6 p.m. on the same day and
headed for Siliguri. The body of the deceased was
found in the early morning of 01-07-2004. These
are circumstances which we are found to have

been
well-established
Therefore,
the
by
reliable
circumstance
of
evidence.
the
deceased
having been last seen in the company of the
Appellant and Rudra Thapa, Accused No.1, in the
morning
of
29-06-2004
would
be
a
valid
circumstance appearing against the Appellant.
(xi)
The rest of the contentions placed on behalf of the
Appellant by Mr. N. Rai, in our view, are quite
insignificant and unsustainable and of no effect on
the
foundation
of
the
prosecution
case
and,
therefore, stand rejected.
23.
For all the reasons stated above, we find no
reason to interfere with the impugned judgment.
24. In the Result, the Appeal is dismissed.
25. No order as to costs.
26. Let a copy of this judgment along with the
original records of the case be transmitted to the Learned
Sessions Judge, South and West Sikkim at Namchi
forthwith.
Sd/-
( S. P. Wangdi )
Judge
17-06-2013
Sd/-
( Pius C. Kuriakose )
Chief Justice
17-06-2013

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