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Sikkim High Court · body

2002 DIGILAW 10 (SIK)

MANGAL SINGH SUBBA v. STATE OF SIKKIM

2002-08-29

RIPUSUDAN DAYAL

body2002
RIPUSUDAN DAYAL, C. J. ( 1 ) THIS appeal is directed against the judgment and order dated 19/4/2002 by the learned Sessions Judge, South and West, Sikkim whereby the appellant Mangal Singh Subba convicted under section 302 of the Indian Penal Code for committing the murder of his wife, Budhamati Lepcha and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 10,000. 00 and in default of payment of fine to undergo further imprisonment for six months. ( 2 ) THE deceased Budhamati Lepcha was first married to one Reshi Kapoor and thereafter nearly about one year prior to the date of the occurrence to the appellant Mangal Singh Subba. The appellant and the deceased used to reside together in the same house at Bara Samdong Busty, West Sikkim. The deceased died in the evening of 5th July 2001. The same evening, the appellant either by himself or through his brother Suk Bahadur Subba (PW-5) sent information to his father-in-law and other members of the family of the deceased and also the neighbours that the deceased was seriously III and they should visit the house immediately. They visited the house and found that the wife of the appellant had already died. They also found some marks of injury on the body of the, deceased. Suspicion, therefore, arose that the death was not natural and there was some foul play. On 6/7/2001 at around 15. 30 hours, Nay Tshering Lepcha PW-1 the father of the deceased lodged a complaint with the Kaluk Police Station. West Sikkim to the effect that foul play was suspected in the matter of the death of the deceased. Thereupon, UD case No. 6 (7) 2001 dated 6/7/2001 was registered under Section 174 of the Code of Criminal Procedure. Inquest was conducted on the body of the deceased on the same date, that is. 6/7/200 1 at 1800 hrs by Sub-Inspector Sonam Rinzing Shenga PW-15 who was the Officer-in-Charge of Kaluk Police Station and who subsequently investigated the case. He, vide his report Exhibit P-1. found the following injuries on the body of the deceased: injuries (I) injury on the right side of the chin present (II) injury on the neck are present (III) nail marks on neck with skin pilled present (IV) bruises present on left cheek below eye (V) ligature mark present on the front side of the neck. found the following injuries on the body of the deceased: injuries (I) injury on the right side of the chin present (II) injury on the neck are present (III) nail marks on neck with skin pilled present (IV) bruises present on left cheek below eye (V) ligature mark present on the front side of the neck. TIHe gave the probable cause of death as throttling. Thereafter, PW -15 sent Wireless message to the Sub-Divisional Magistrate, Gyalzing. Inquest was conducted by the Sub-Divisional Magistrate, Soreng. Shri J. M. Pradhan PW-13 under Section 176 of the Code of criminal Procedure on 7/7/2001 at 10. 15 a. m. Vide his report Exhibit P-2, he found the following injuries on the body of the deceased:6. Injury- Suspected to be strangulation/throttling marks are seen in front portion of the neck. Small injuries are also seen in front side of the neck. Bruises mark found in the right side of the jaw and left eye just above the eyelid. He further reported that the exact cause of death could not be ascertained. However, it was suspected to be by strangulation/throttling. In the 10th column regarding opinion sought for he mentioned: requested to ascertain whether the death is natural or homicidal and if homicidal whether the death is caused by strangulation/throttling or by other means and also opine the time of death. T thereafter, the dead body was taken by the Sub-Divisional Magistrate in, his custody and he brought the same to Namchi Hospital to be examined by Medico-Legal Expert. The autopsy report is Exhibit P-9. It shows that the body was brought to Namchi Hospital on 7/7/2001 at 5. 20 p. m. However, the autopsy started very late on 9/7/2001 at 3. 30 p. m. and concluded at 4. 30 p. m. The autopsy was conducted by Dr. K. B. Gurung PW-14 the Medico Legal specialist attached to the STNM Hospital who went to Namchi Hospital to conduct the autopsy. The Medico Legal expert found that all the organs of the deceased had putrified and due to the advanced stage of putrification cause of death could not be given. Thus due to the delay in conducting autopsy, the foul play suspected as per the inquest reports of PW-13 and PW -15 could not be confirmed or negatived, as the exact cause of death could not be found. Thus due to the delay in conducting autopsy, the foul play suspected as per the inquest reports of PW-13 and PW -15 could not be confirmed or negatived, as the exact cause of death could not be found. As per the evidence of Shri J. M. Pradhan PW-13, he forwarded the postmortem report to the Officer-in-Charge, Kaluk Police Station, PW-15 on 20/7/2001. Thereafter, on 4/8/2001 the UD case was converted into Kaluk P. S. Case No. 14 (08) 2001 under Section 302 IPC by recording formal F. I. R. Exhibit P-11 on that date. Thereafter, investigation was taken up by PW-15. The appellant was arrested on 7/8/2001 and since then he has been in custody. Statements of the witnesses were recorded resulting in the filing of the charge- sheet against the appellant. ( 3 ) DURING the trial fifteen witnesses were produced on behalf of the prosecution. There is no direct evidence in support of the prosecution case. The evidence produced by the prosecution is to the effect that injuries were found on the body of the deceased by several witnesses who saw the body of the deceased raising a suspicion that the death of the deceased was caused by the appellant. The learned trial court held that the following four circumstances were established at the trial (i) the accused and the deceased used to reside together in the house of the accused, (ii) the injuries were found on the person of the deceased, (iii) the accused used to ill-treat the deceased, and (iv) the accused gave different versions about the death of the deceased to different persons and that the accused did not offer any cogent explanation as to the cause of the death of the deceased under Section 313 of the Code of Criminal Procedure. The learned Sessions Judge held that these circumstances clearly point to the conclusion that it was the accused and none else who was responsible for the murder of the deceased Budhamati Lepcha. ( 4 ) SHRI N. Rai, learned counsel appearing on behalf of the appellant has submitted that the learned trial court while recording statement under Section 313 Cr. The learned Sessions Judge held that these circumstances clearly point to the conclusion that it was the accused and none else who was responsible for the murder of the deceased Budhamati Lepcha. ( 4 ) SHRI N. Rai, learned counsel appearing on behalf of the appellant has submitted that the learned trial court while recording statement under Section 313 Cr. P. C. , jumbled up several circumstances into one question and as such did not give proper opportunity to the appellant to explain the individual circumstances and, therefore, no inference can be drawn to the effect that the appellant failed to give any cogent explanation as to the cause of death of the deceased. Further, he has submitted that the evidence falls short of proving beyond reasonable doubt that the death of the deceased was caused on account of strangulation or throttling or any other act attributable to the appellant. Further, he has submitted that injuries found on the body of the deceased could have been caused by a fall of the deceased and that the appellant was not aware of the exact cause of death since he was away from home when the deceased suffered from the injuries found on her body. He has also submitted that the finding of the learned Sessions Judge that the appellant ill- treated his wife is not borne out from the statement of the deceaseds daughter, Passangkit Lepcha PW-3 and the learned Sessions Judge did not take into consideration the entire evidence of PW-3 and by reading only a truncated portion of her statement, he has reached a wrong conclusion. ( 5 ) AS regards the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure there is no doubt that the learned Sessions Judge did not properly record the statement of the appellant under Section 313. The learned Sessions Judge clubbed several circumstances into one question and expected the appellant to remember all of them and reply to each of them. To take only one example question No. 1 reads into more than one page and is to the following effect: it is in the evidence of PW-1 Nay Tshering Lepcha that you are his son-in-law being the husband of his eldest daughter Budhimaya Lepcha. According to him his daughter was first married to one Rishi Kapoor and he had got one daughter born through her. According to him his daughter was first married to one Rishi Kapoor and he had got one daughter born through her. Thereafter you married the said Budhimaya Lepcha. About 6 months ago (i. e. 6 months from the date of deposition which was the 3rd December, 2001) in the Nepali month of Ashar it was a Thursday at about 11. 00 p. m. one Chaprasi Kancha and your brother went to the house of this witness and told him that the deceased was seriously ill and that he should go immediately to her house. This witness follows those persons to your house. In your house he saw the dead body of his daughter Budhimaya which was laid on a bed covered with a cloth and beside her an oil lamp lit. As per this witness on the same day the deceased had visited him in his house and she offered him a cup of tea and thereafter proceeded to Kaluk Bazaar. When he saw the dead body he was shocked and could not believe how a healthy person like his daughter could have died so suddenly. On the following day the brothers daughter of this witness Pemkit Lepcha came and removed the cloth covering the dead body. She started crying saying that her sister (the deceased) did not die in a natural death but was killed by someone as marks of torture on her neck and face. This witness also looked at the dead body and found bluish mark on her face and neck and the blood, was coming out from the ears. When he closely examined the dead body he saw bluish marks on the elbows and on her legs. When this witness asked to you as to the cause of death of his daughter you replied that she died of Asthmatic ailment. But he does not believe it as bluish marks of violence were found on the person of the deceased and besides this she did not have any such asthmatic problem even before. This witness has further deposed that about 5/6 months after the re-marriage of his deceased daughter with you, you used to torture and assault his daughter very often. He has even stated that he was also assaulted by you once. That have you to say' the answer given to this question is as follows: it is not true. I am innocent. He has even stated that he was also assaulted by you once. That have you to say' the answer given to this question is as follows: it is not true. I am innocent. On that date I had gone out of my house. When I returned in the evening I found that my wife was dead. ' in view of several circumstances having been clubbed together in one question it is difficult to say as to what was not true according to the appellant. The appellant was not afforded a Just and fair opportunity to explain the circumstances against him by being put each circumstance separately in each separate question. However, it is clear from his statement that he pleaded to be innocent and that he took the plea of alibi by saying that he had gone out of his house and that he found his wife dead when he returned home in the evening. It is unfortunate that even evidence was also not recorded properly by the learned Sessions Judge and he did not care to read over the evidence to the witnesses after the same was recorded and there appear several typographical errors in the evidence. To take one example, statement of Tilaram Gurung PW-11 reads: about 8 months ago one night at about 8. 00/8. 30 A. M. the accused person came to my house informed me that his wife, the deceased, was lying seriously ill at his residence and suggested that I should go to his house. According to the witness, either the accused should have come in the morning at about 8. 00 a. m. or 8. 30 a. m. or should have come in the night at 8. 00 p. m. or 8. 30 p. m. The learned Sessions Judge should have been aware of his responsibility of seeing that, at least in a murder case, evidence is recorded properly and if there are any typographical errors they are corrected immediately after the evidence has been recorded after reading over the evidence to the witnesses. ( 6 ) IT is not only the Sessions Judge who has failed to conduct the trial properly, something wrong has also gone at the time of investigation resulting in the loss of a very valuable piece of evidence. ( 6 ) IT is not only the Sessions Judge who has failed to conduct the trial properly, something wrong has also gone at the time of investigation resulting in the loss of a very valuable piece of evidence. As stated earlier, the body of the deceased reached Namchi Hospital, as per the autopsy report Exhibit P-9, on 7/7/2001 at 5. 20 p. m. , but the autopsy was conducted on 9/7/200 1 at 3. 30 p. m. The reason given by the Medico legal expert is that he received the wireless message on 9/7/2001 at 11 a. m. The Investigating Officer PW-15 was present in the High. Court at the time of the hearing and on being asked as to how the delay had occurred in intimating the Medico-legal expert which resulted in undue delay in the conduct of autopsy which delay rendered the autopsy valueless, he replied that the message was sent to the Medico-legal expert on 7/7/2001 but it was the police wireless that caused the delay. The matter is serious enough and needs investigation by the Police Department so that necessary action is taken against the person at fault in order that such lapse does not recur in future. ( 7 ) IT is now well established that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established: (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused: (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else: and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [gambhir v. State of Maharashtra, (1982) 2 SCC 351]. [gambhir v. State of Maharashtra, (1982) 2 SCC 351]. ( 8 ) AS observed in George v. State of Kerala the purpose of preparing an inquest report under Section 174 (1) of the Code of Criminal Procedure is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating in what manner, or by what weapon or instrument, if any, such wounds appear to have been inflicted. It was held in Podda Narayan v. State of Andhra Pradesh that the object of the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. It was pointed out in Razik Ram v. J. S. Chouhan that the statement under Section 174 cannot be used as a substantive piece of evidence. At the most, it can be used only as a previous statement to corroborate or contradict the person making it, at the trial. Thus, the inquest reports cannot be treated as a substantive piece of evidence. Moreover, the inquest reports themselves do not state categorically as to what was the cause of death. They give only the probable cause of death as strangulation or throttling. Therefore it is to be seen whether the statement made by the witnesses give a definite cause of death. ( 9 ) THE first witness produced by the prosecution is Nay Tshering Lepcha PW-1 who is the father of the deceased. He has deposed that on the date of the occurrence at about 11. 00 p. m. , one Chaprasi Kancha and the brother of the accused came to his house and told him that the deceased was seriously ill and that he should go immediately to her house. Thereafter, he went to the house of the deceased. He found the body of the deceased laid on bed covered with cloth. An oil lamp was burning there. He further deposed that he was shocked to see the dead body of the deceased since the same day the deceased has visited his house and offered him a cup of tea and, therefore, he could not believe how a healthy person like the deceased could have died so suddenly. An oil lamp was burning there. He further deposed that he was shocked to see the dead body of the deceased since the same day the deceased has visited his house and offered him a cup of tea and, therefore, he could not believe how a healthy person like the deceased could have died so suddenly. Further, he stated that on the following day he along with R. B. Gurung of the same locality went to the house of the accused when his brothers daughter namely Pemkit Lepcha PW-2 also came and removed the cloth cover of the dead body and started saying that the deceased did not die a natural death but was killed by someone as there were some marks of torture on her neck and face. He also looked at the body and found bluish marks on her face and neck and blood was coming out from the ears. He also saw bluish marks on her elbows and legs. When he asked the appellant the cause of the death he replied that she had died of asthmatic ailment. The second witness is Smt. Pemkit Lepcha, the sister of the deceased who also reached the house of the deceased on hearing about the death of the deceased. She has deposed that when she removed the cover, she noticed bluish marks and violence on the face of the deceased and also throttling and cut marks on her neck. Further, she deposed that the injuries appeared to be produced by violent blows and the cut marks on her neck appeared to be produced by sharp edged fire wood. Thus, according to this witness the injuries appeared to have been caused by fire wood and also by throttling. She further stated thatt when she asked the appellant how the deceased had died, he replied that she died due to TChopua Bethat (a sort of ailment attacked by evil spirit ). Thus, whereas the PW-1 stated that the appellant gave the cause of death as asthmatic ailment this witness PW-2 stated that the cause given was Chopua Betha. Both the witnesses were admittedly present on 6/7/2001 at the same time near the body of the deceased. The learned Sessions Judge commented that the appellant gave different versions as to the cause of death to different persons. Both the witnesses were admittedly present on 6/7/2001 at the same time near the body of the deceased. The learned Sessions Judge commented that the appellant gave different versions as to the cause of death to different persons. The learned counsel for the appellant submitted that the statements of the witnesses PW-1 and PW-2 as to the different causes of death given by the appellant were not true inasmuch as the appellant could not have given two different versions to both the witnesses who were present at the scene of occurrence at the same time. I find considerable force in this argument and find myself unable to agree with the learned trial court that the appellant gave different versions to different persons. PW-3 Passangkit Lepcha is the daughter of the deceased from the deceaseds previous husband, on the day of the occurrence, she was in the house of her grandfather who is, PW1. On hearing about the death of the deceased. He went to the house of the appellant. She saw some bluish marks on the face of the deceased and injuries on her throat. She also stated that the deceased and the appellant used to often quarrel and the appellant used to beat the deceased. In the cross-examination, she deposed that the deceased used to consume alcohol and be under influence of alcohol and it was for this reason that there used to be quarrel between the appellant and the deceased, She further deposed in the cross- examination that the deceased used to drive away the appellant when she was under the influence of alcohol and sometimes the deceased used to fall down and get herself injured. Her statement falsifies the case of the prosecution that the appellant used to ill-treat the deceased. It is difficult to confirm the findings of the learned Sessions Judge that the appellant gave different versions about the cause of death to different persons and that the appellant used to ill-treat the deceased, PW-4 Gyan Tshering Lepcha is a cousin of the deceased he also went to the house of the appellant along with PW-1, According to his testimony also the appellant gave the cause of death as Chopua Betha, He also saw that there were bluish marks all over the face of the deceased and throttling marks with scratches over her throat. He also saw one injury mark below the chin of the deceased. According to his testimony also, it appeared as if the deceased had been killed by the appellant, Suk Bahadur Subba PW-5 is the brother of the appellant and stays with the appellant. He was tendered for cross-examination. In the cross-examination, he has stated that he had gone to inform the villagers that the deceased was lying ill. He also stated that the deceased used to take alcohol. PW-6 Ram Lepcha is a cousin of the deceased. He also went to the house of the appellant, He also saw some signs of throttling and violence present on the face of the deceased. He also saw bluish marks over her face and blood oozing out from both her ears and some signs of strangulation on her throat. In the cross- examination, he stated that he suspected that the deceased might have been killed by the appellant, Tilaram Gurung, PW-11 is the brother-in-law of the appellant. He has deposed that the appellant came to his house to inform him that the deceased was lying seriously ill and suggested that he should go to his house. Then he along with Lak Bahadur Limboo PW7 went to the house of the deceased. On inquiry the appellant told him that the deceased had died of the attack by evil spirit. Chopua Betha, Lak Bahadur Limboo PW-7 has corroborated his testimony and stated that he saw some scratch marks on the throat of the deceased. PW -8 Mrs. Sangmit Gurung is a cousin of the deceased. She also saw some scratch marks on the throat of the deceased and felt that the deceased must have been tortured and killed. PW-9 Buddha Raj Subba is the Panchayat President and PW-10 Birkha Bahadur Subba is the Panchayat Member. Buddha Raj Subba saw bluish marks and scratches over the throat of the deceased and bluish marks also over one of the eyes and blood oozing from both the ears. Some other bluish marks were also seen on the body of the deceased. Similarly, Birkha Bahadur Subba saw some scratch marks over the throat and the left eye and the blood oozing out from the ears. Some other bluish marks were also seen on the body of the deceased. Similarly, Birkha Bahadur Subba saw some scratch marks over the throat and the left eye and the blood oozing out from the ears. ( 10 ) IT would appear from the testimony of the witnesses that there were some marks and injuries on the body of the deceased and it was suspected by the witnesses that the death of the deceased had been caused on account of throttling or strangulation. But this evidence falls short of proving the exact cause of the death of the deceased. Furthermore, it is also clear from the evidence on record that the appellant either himself or through his brother intimated the father and other relatives of the deceased and also neighbours about the serious condition of the deceased. The conduct of the appellant was not of incriminating nature. For the delay in autopsy, the, appellant was not at all responsible. Though the prosecution has been able to raise suspicion against the accused, it has not been able to establish circumstances sufficient to complete the chain to warrant his conviction, as the circumstantial evidence is not incapable of explanation of any other hypothesis but that of the guilt of the appellant. As such the appellant is entitled to benefit of doubt. ( 11 ) IN the result, the appeal is allowed, the impugned judgment and order of the learned Sessions Judge is set aside and the appellant Mangal Singh Subba is acquitted of the offence under Section 302 IPC. He is in jail. He be set at liberty forthwith if not required in any other case. The Director General of Police shall either by himself or through some very senior officer conduct an enquiry to fix responsibility for the delay that resulted in the conduct of the autopsy causing loss of valuable piece of evidence and shall take action against the person at fault and shall submit report before the court within one month hereof. A criminal miscellaneous case be registered to monitor the action taken. Appeal dismissed. --- *** --- .