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Sikkim High Court · body

2004 DIGILAW 30 (SIK)

STATE OF SIKKIM v. SANGEETA SUBBA

2004-10-06

N.S.SINGH, R.K.PATRA

body2004
R. K. PATRA, J. ( 1 ) THIS government appeal is directed against the judgment dated 20/3/2004 passed by the Sessions Judge, South and West at Namchi, in Sessions Trial Case No. 2 of 2004, acquitting the respondent of the charge under section 302, IPC. ( 2 ) COUNSEL for the respondent raised two preliminary objections, (i) the appeal was filed beyond the period of limitation and (ii) that the Additional Public Prosecutor is not competent to file the appeal. Shri Pradhan, learned Public Prosecutor submitted that on the day (20/3/2004) the judgment was pronounced, the prosecution applied for certified copy of the judgment which was made ready on 1/4/2004. Since the appellant is entitled to the benefit of time requisite for obtaining certified copy, the period of limitation of 90 days ran from 1/4/2004 and expired on 28/6/2004 and the leave to appeal was presented on 7/7/2004 and thus there was a delay of only 8 days. The delay is unintentional and because of heavy work in the office the leave to appeal could not be filed within time. On considering the facts and circumstances, we are inclined to condone the delay. We order accordingly. Regarding the second objection, the learned Public Prosecutor stated that the state government in Law Department letter No. 274/ld/2004 dated 26. 6. 2004 instructed him to file leave to appeal against the impugned judgment of acquittal. Pursuant to the said instructions he who has been appointed as Public Prosecutor for the High Court has filed the leave to appeal. Sub-section (1) of Section 378 Cr. P. C. lays down that the state government may direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal passed by any court other than the High Court. Pursuant to the governments direction as indicated above, the appeal having been presented by the Public Prosecutor, we do not find any flaw in the matter. Accordingly the preliminary objections are overruled. ( 3 ) RESPONDENT was placed on trial to face charge under section 302 IPC on the allegation that she committed murder of her husband in the early hours of 31/12/2001 at village Lungchuk. The case of the prosecution is that the respondent and her husband Phagu Singh Subba (hereinafter referred to as the deceased) were residing with their two minor children in village Lungchuk. The case of the prosecution is that the respondent and her husband Phagu Singh Subba (hereinafter referred to as the deceased) were residing with their two minor children in village Lungchuk. The deceased was a habitual drunkard and under the influence of alcohol, he used to pick up quarrel with the residents of the locality without any justification. The appellant and the deceased were found often quarrelling with each other but no one in the locality intervened as it was their personal matter. In the previous night i. e. on 30/12/2001 at about 7. 30 pm their two daughters came to the house of PW-20 Dhan Maya Subba (sister of the deceased) and reported that their parents were quarrelling. PW-20 accordingly made the two children sleep in her house. On 31/12/2001 around 4 am, PW-17 Nar Bahadur Subba (paternal uncle of the deceased) heard PW-2 Bal Bahadur Subba shouting that quarrel was going on in the house of the deceased. Hearing the shouting PW-17 Nar Bahadur went to the house of one C. D. Subba to report to the police at Sombaria over telephone about the quarrel. As he could not contact the police over telephone he requested his friend PW-1 P. K. Subba who resides near the police station to intimate about the incident to Sombaria Police Station. PW-17 after thus talking to PW-1 returned from the house of C. D. Subba. On the way he met PW-18 Jit Bahadur Subba and PW-19 Kamal Subba who had also heard about the quarrel that had taken place in the house of the deceased. Accordingly, all the three went to the house of the deceased and found the respondent sitting outside the house on the parapet. The door was found open and they saw a man lying prostrated on the floor of the house. Thereafter PW 17 again came to the house of C. D. Subba and contacted his friend PW-1 P. K. Subba over telephone and requested him to inform the police that they had found the deceased lying dead. On the basis of above information received from PW-17, PW-1 P. K. Subba lodged the FIR at Sombaria Police Station. On the strength of the FIR police took up investigation and after its completion, charge sheeted the respondent under section 302 IPC leading to her acquittal. On the basis of above information received from PW-17, PW-1 P. K. Subba lodged the FIR at Sombaria Police Station. On the strength of the FIR police took up investigation and after its completion, charge sheeted the respondent under section 302 IPC leading to her acquittal. ( 4 ) THE prosecution in order to bring home the charge examined 38 witnesses out of whom 12 witnesses were merely tendered. The main witnesses to prove the charge are only seven and their evidence will be discussed hereinafter. ( 5 ) THERE is no dispute that the deceased had homicidal death. PW-14 is the doctor who conducted postmortem examination on the body of the deceased. He found the following ante- mortem external injuries1. Three penetrating incised wounds measuring 30 x 2 x 5 cms. , 25 x 2 x 4 cms. and 25 x 2 x 5 cms. placed over the parietal and temporal region running behind the coronal suture and criss crossing each other, resecting the skull, cutting the skull bones, with pieces of skull missing and exposing incised brain matter which was protruding out from the gaping opening. 2. Incised wound 8 x 1 x 1 cms. obliquely placed over the left parietal region 3 cms. in front of injury 1, resecting the scalp and cutting the outer table of the left parietal bone. 3. Incised wound 6 x 1 x 1 cms. obliquely placed over the left temporal region, resecting the scalp and cutting the outer table of the temporal bone. 4. Incised wound 4 x 1 x 1 cms. over the left frontal region resecting the scalp and cutting the outer table of left frontal bone. 5. Incised wound 1 x 1 x 1 cms. running horizontally across the face below both eyes and over the bridge of the nose cutting the nasal bone and outer table of the left maxilla. 6. 3 incised wounds 1. 5 x 5 x 5 cms. , 1 x. 5 x. 5 cms. and 1 x. 5 x. 5 cms running across the right middle ring and little finger over the middle phalanges resecting the skin tendons and part of the phalanges. 7. Incised wound 6 x 2 x 1 cms. over the lower part of the left forearm resecting the skin muscles and tendens in the area. 8. Incised wound 8 x 3 x 1 cms. 7. Incised wound 6 x 2 x 1 cms. over the lower part of the left forearm resecting the skin muscles and tendens in the area. 8. Incised wound 8 x 3 x 1 cms. over the left elbow posteriorly resecting the skin and tenderness. 9. Incised wound 5 x 2 x 1 cms. over the left scapula obliquely placed resecting the skin and outer table of the left scapula. All injuries were ante mortem and fresh at the time of death. On internal examination of the stomach the doctor noticed 100 ml of digested fluid material and there was smell of alcohol. According to him the cause of the death was shock as a result of multiple injuries produced by a sharp-edged heavy cutting weapon. ( 6 ) THERE is no eye witness to the occurrence. The fact however remains that at the relevant time the appellant and her deceased husband were the only two occupants in the house. There is absolutely no evidence nor is there any suggestion to any of the witnesses that there was a third person present in the house. ( 7 ) IT is in the evidence of PW-15 Suk Maya Subba (mother of the deceased), PW-20 Dhan Maya Subba (sister of the deceased) and PW-32 Dal Bahadur Subba (father of the deceased) that in the previous night i. e. 30/12/2001 at about 7 pm there was quarrel between the appellant and the deceased and their two minor children left the house to stay in the house of their maternal aunt. PW-17 Nar Bahadur Subba (paternal uncle of the deceased) deposed that after hearing PW-2 shouting in the early hours of the morning of 31/8/2001 that there was a quarrel going on in the house of the deceased, he went to the house of C. D. Subba to inform the Sombaria Police Station over telephone about the incident. PW-18 Jit Bahadur Subba in his evidence stated that he also heard PW-2 Bal Bahadur Subba shouting that there was quarrel going on in the house of the deceased. After telephoning PW-17 while proceeding to the house of the deceased he met PW-17 and PW-19 on the way. Then PW-17, PW-18 and PW-19 went to the house of the deceased and found the respondent sitting outside the house on a parapet and a man lying on the floor of the house. After telephoning PW-17 while proceeding to the house of the deceased he met PW-17 and PW-19 on the way. Then PW-17, PW-18 and PW-19 went to the house of the deceased and found the respondent sitting outside the house on a parapet and a man lying on the floor of the house. PW-18 stated that the man was lying on the ground with blood on his person. The aforesaid evidence clearly indicates that the deceased was alive till 4 am when there was quarrel between him and the respondent and within a short period the deceased was found dead in the house. As indicated above, there was no other person save and except the appellant and deceased in the house. In other words they were the only two persons found in the house at the relevant time and within a short time the husband was found dead being brutally assaulted and the wife (respondent) alone sitting on the parapet of the house. There is no explanation coming from the respondent as to how her husband was found killed in the house. Besides the above evidence, PW-3 wife of PW-2 Bal Bahadur stated in her evidence that the respondent shouted from her house at about 4 am of the day of the occurrence saying that she killed her husband. Although she was cross-examined nothing was brought out to discredit her testimony. There is also no reason as to why PW-3 would falsely implicate the respondent. The shouting of the respondent that she killed her husband may be taken as extra-judicial confession. In view of what has been stated above we have no hesitation to hold that it was the respondent who brutally assaulted the deceased to death. We set aside the impugned judgment. ( 8 ) THE question that arises for consideration is what offence did she commit. It is in the evidence of the prosecution that the deceased was a quarrelsome person and had frequent quarrels with his wife, the respondent. In the early morning of 31/12/2001 there was a quarrel between the respondent and the deceased. It might be that in consequence of quarrel she lost her self control and in a fit of anger assaulted the deceased to death. In the early morning of 31/12/2001 there was a quarrel between the respondent and the deceased. It might be that in consequence of quarrel she lost her self control and in a fit of anger assaulted the deceased to death. She might not have the intention to cause his death but the injuries inflicted on the deceased would indicate that she had the intention of causing such bodily injuries as were likely to cause death. Having regard to the totality of the background we are inclined to hold that the respondent committed an offence of culpable homicide not amounting to murder. We accordingly convict her under section 304 Part I 1pc and sentence her to undergo R. I. for seven years. It is needless to mention that she is entitled to the benefit of set off as provided under section 428 Cr. P. C. ( 9 ) THE government appeal is allowed in part. Appeal allowed. --- *** --- .