Arun Subba @ Arun Rai @ Stay vs State of Sikkim

S.P. Wangdi, ACJ

By filing the present appeal the appellant seeks to assail the judgment dated 28.03.2006 (hereinafter referred to as "the impugned judgment") of the learned Sessions Judge, Special Division - I (I/C), Sikkim at Gangtok in Sessions Trial Case No. 02/2004 by which he has been convicted and sentenced under sections 302/380/449/382 IPC.

The case of the prosecution in short is that an FIR was lodged by one Surya Kumar Subba on 14.10.2003, whereby it had been stated that one Arun Subba @ Arun Rai @ Stay, a Carpenter working in his house had murdered his wife Bhanu Bhai Subba and concealed the body underneath their bed and fled after committing the theft of a gold necklace, two pairs of ear ring and a hand gold chain and a finger ring. This led to the Ranipool Police Station Case No. 13(10)2003, Date 14.10.2003 under Sections 302/380 IPC being registered against accused and investigation taken up.

During the course of investigation and on inspection of place of occurrence at Lower Nandok, East Sikkim, the body of the deceased Bhanu Bhai Subba, aged 39 years, was found hidden under their wooden bed. After taking necessary photographs inquest over the dead-body was conducted in presence of witnesses and noted the injuries on the dead-body, which consisted of (i) Ligature mark round the neck, (ii)Blood oozing out from her mouth and (iii) Small cut mark and scratch mark present on her hand. The Investigating Officer also seized a blood stained nighty of the deceased and collected samples of blood and hair of the deceased in presence of witnesses. Later he seized the weapon of offence consisting of a yellow nylon string containing hair of the deceased in pursuance of the statement given by the accused u/s 27 of the Evidence Act, 1872. He further recovered clothes containing blood stains used by the accused to clean the blood of the deceased from the place of occurrence, which also was in pursuance of the statement given by the accused u/s 27 of the Evidence Act, 1872. Apart from these, vouchers of gold jewelleries of the deceased were seized from the deceased''s husband Surya Kumar Subba and recorded the statements of the available witnesses u/s 161 Cr. P.C.

On completion of the investigation, it was revealed that the accused Arun Rai ("appellant" hereinafter) was a "Mistree" engaged in the construction of a new house of the deceased Bhanu Bhai Subba at Lower Nandok, East Sikkim. The deceased was a work-charged employee under the Power Department, with her duty shift being from 2.00 p.m. to 6.00 p.m. daily. Her husband Surya Kumar Subba was a primary teacher in Sawraney Primary School and her children were students and all of them used to be away between 10.00 a.m. to 2.00 p.m. leaving the deceased alone in the house. She used to prepare food for the "Mistrees" and go for her duty after feeding them. On 14.10.2003, the appellant, taking the advantage of the deceased being alone, entered the bed room of the deceased and strangulated her to death with a nylon string and stole the gold jewelleries referred to above. After that the appellant wiped the blood of the deceased from the floor of the place of occurrence with the petticoat of the deceased and a towel and concealed them in the field along with the weapon of offence. He then concealed his own blood stained clothes in the toilet-room and changed into the clothes of his brotherin-law, Binod Subba. The stolen jewelleries were hidden by the appellant in the ventilation of the toilet-room in his brother-in-law''s house which were recovered and seized on the basis of the disclosure statement made by him u/s 27 of the Evidence Act, 1872. Having found a prima facie case under Sections 449/302/380 IPC against the appellant, charge-sheet was filed against him for his trial. The CFSL report received from the experts at CFSL, Kolkata was later filed with the supplementary charge-sheet.

The learned Sessions Judge, East and North Sikkim at Gangtok, upon consideration of the materials on record, framed charges against the appellant under Sections 449/302/380/382 IPC to which he pleaded not guilty and claimed trial.

On conclusion of the trial, the learned Sessions Judge, Special Division-I (I/C), Sikkim at Gangtok, who ultimately tried the case, having found the appellant guilty of the offences, convicted and sentenced him by the impugned judgment.

Before this Court, Mr. S.S. Hamal, learned Legal Aid Counsel on behalf of appellant confined his submissions to the following points only:

(1) The disclosure statements u/s 27 of the Evidence Act, 1872, being Exhibits 3 and 5, could not be relied upon as those had been recorded after the incriminating articles were recovered.

(2) The evidence of P.W. 1 is unreliable because as per him the appellant was wearing a blood stained shirt when he met the appellant returning to his house at Assam Lingzey from the construction site of the deceased, but in Court it was a vest that had been exhibited.

(3) The investigating agency had ignored the injuries sustained by the appellant as the blood stains found on the seized clothes could have been his. This could not be ascertained as only the blood sample of the deceased and the blood stained clothes were sent for examination by the CFSL.

(4) There is no evidence of the jewelleries, M.O. I to M.O. V, having been seized from the accused.

(5) The bite mark on the body of the appellant stated in the deposition of PW-18 has gone without being ascertained as to whether it was human or an animal bite.

Since the above are the only contentions raised on behalf of the appellant to assail the impugned judgment, we may confine our discussions to those only.

The first point raised on behalf of appellant, apparently the bulwark of the appeal, i.e., the disclosure statements of the appellant u/s 27 of the Evidence Act, 1872 being unreliable for having been recorded after the incriminating articles were recovered, does not appear to be sound. There are over-whelming evidence to the contrary. The first disclosure statement, Exhibit - 3, was witnessed by PW-4 Man Bahadur Subba and PW-5 Gyamtso Bhutia, who have most categorically stated that the recovery of gold ornaments, Exhibits M.O. I, M.O. II, M.O. III, M.O. IV and M.O. V and vest M.O. XI, were made from the toilet of the house of his brother-in-law, Binod Subba, at Jalipool, on being led by the appellant after giving his first disclosure statement u/s 27 of the Evidence Act, 1872 (Exhibit-3) in their presence. We may reproduce the relevant portion of the deposition of two witnesses below:

PW-4 Man Bahadur Subba

...During the investigation of this case, the accused made a statement before the Police in my presence and in the presence of another witness whose name I do not know but he is present in the Court today. The statement made by the accused in our presence was also reduced into writing by the Police.... My self and the other witness present had also signed on the said statement of the accused recorded by the Police. The accused had also signed the said statement in our presence. Ext. 3 is the same statement made by the accused to the Police in our presence and Ext. 3(a) is my signature. After the accused had made his statement as an Ext. 3, myself the other witness, the accused accompanied the Police to the house of Binod Subba at Jalipool and there the Police recovered and seized some gold ornaments and the wearing apparels of the accused from the toilet of the house of Binod Subba in our presence....

Cross-examined by the accused through Ld. Counsel Sri U. Ranpal.

... It is not a fact that the seizure Memo Ext. 4 was prepared by the Police in advance and my signature was obtained only later on. It is not a fact that Ext. 4(a) is not my signature....

PW-5 Gyamtso Bhutia

... The accused who is standing in the dock today made statement before the Police in connection with this case in my presence and it the presence of another witness who is a Subba.... The statement of the accused was also recorded by the Police. It was signed by the accused by myself and the other witness then present there.

Ext. 3 is the same statement of the accused which was then recorded by the Police and Ext. 3 (b) is my signature.

Consequent upon the accused making the statement as Ext. 3 the Police recovered the gold ornaments and wearing apparels of the accused from the toilet of the Vedio shop of Binod Subba at Jalipool. The gold ornaments were concealed on the ventilation of the toilet. The police seized the said gold ornaments and the wearing apparels of the accused after preparing a seizure Memo. Ext. 4 is the said seizure Memo and Ext. 4 (b) is my signature. Ext. MO.I is the same pair of gold ear rings, MO.II is the same pair of gold ear rings, Ext. MO. III is the same chain with locket, Ext. MO. IV is the same gold bracelet, Ext. MO. V is the gold ring. Ext. MO. X is the same pants, and Ext. XI is the same vest which were recovered and seized by the Police from the toilet of Vedio Shop of Binod Subba at Jalipool vide seizure Memo Ext. 4.

Cross-examined by the accused through Ld. Counsel Sri U. Ranpal.

... It is not a fact that the Ext. 3 was prepared by the Police without the accused person making the statement to the Police...

We may now consider the evidence of PW - 6 and PW - 7 as regards the other seized articles. Exhibit - 5 is the next disclosure statement of the appellant on the basis of which the nylon string, M.O. XIV was seized vide seizure memo Exhibit -6 after it had been dug out by the appellant himself from the field where he had concealed it. The other articles namely, petticoat -M.O. VIII, one underwear - M.O. XII, some hair strain with blood -M.O. XV and one towel M.O. VII, were also dug out by the appellant from another spot a few yards away from where the nylon string, M.O. XIV had been recovered and seized vide seizure memo Exhibit -7. These have been proved by PW -6 and PW -7, the relevant portions of whose deposition are reproduced below:

PW-6 Gopal Sharma

... The accused standing in the dock is the same persons (Identified) who was detained in the Ranipool P.S. in this case. At Ranipool P.S. the accused made a statement before the Police in my presence and in the presence of Smt. Chunki Bhutia...The statement made by the accused in our presence recorded by the police. Ext. 5 is the said statement. Ext. 5 (a) is my signature. The accused had also signed the said statement in our presence. Ext. 5 (b) is the signature of the accused which was signed in our presence. Consequent upon the accused making the above statement before us myself the other witness Smt. Chunki Bhutia accompanied the police team and the accused to the place where the accused had stated to have hidden the nylon string and the other items. We were let to the spot by the accused the spot where the item were hidden was a Dry field little above the house of S.K. Subba i.e. the place of occurance. The accused upon reaching the spot dug the loose soil and took out one yellow coloured nylon string (rope). The police thereafter seized the said nylon string after preparing the seizure memo which was also signed by myself and other seizure witness Smt. Chumki Bhutia. Ext. 6 is the said seizure memo and Ext. 6 (a) is my signature. At a radious of few yards from the place where the nylon string were recovered the accused dug another patch of soil from the said place the accused drew out one petty coat one underware some pieces of bangle, one towel. Alongwith the underware some hair strain with blood was also found warapped. The police seized the above stated items after preparing the seizure memo in my presence and in the presence of other seizure witnesses then present there. Ext. 7 is the said seizure memo and Ext. 7 (a) is my signature. M.O. VII is the same tawal. M.O. XII is the underware M.O. VIII is the petty coat, M.O. XV is the said hair which was found alongwith M.O. XII. All the above items were seized by the police vide Seizure memo Ext. 7. Ext. M.O. XIV is the same yellow coloured nylon string (rope) which was recovered and seized by the police on the basis of the disclosure statement of the accused vide seizure memo Ext. 6.

PW-7 Smt. Chunki Bhutia

...In my presence and in the presence of said Gopal Sharma the accused present in the dock (identified) then present in the Ranipool P.S. made a statement before the P.S. Ranipool.............. The accused in his statements told the police that he could lead the Police to the spot where he had hidden the above items. The Police recorded the said statement of the accused in our presence and myself and the other witness Gopal Sharma also signed the same as witnesses. The statement was also signed by the accused himself. Exhibit - 5 is the said statement of the accused. Exhibit 5/C is my signature and Exhibit 5/b is the signature of the accused which was signed in my presence. After making the statement Exhibit 5 the accused led the Police team and myself and other witness Gopal Sharma to the spot where he had hidden the items as disclosed by him in his statements Exhibit 5. The spot was a dry field little above the residence of S.K. Subba which was also the place of occurrence. At the spot the accused dug the ground and took out one nylon string. The Police seized the said nylon string after preparing a Seizure Memo. I also signed in the said Sizure Memo as a witness. Exhibit 6 is the said Seizure Memo which was prepared by the Police and Exhibit 6/b is my signature. M.O. XVI is the said nylon string which was dug out by the accused from the spot and seized by the Police vide Exhibit 6. From another spot nearby, the accused again dug the ground and pulled out items like petticoat, underwear, towel, some pieces of bangles. The Police also seized these articles after preparing a seizure Memo which has been signed by me as witness. Exhibit 7 is the said Seizure Memo and Exhibit 7/b is my signature. M.O. VIII is the said petticoat, M.O. XII is the said underwear, M.O. VII is the same towel. M.O. XIII is the same strains of human hairs which were also found there along with other items and where seized by the Police vide seizure Memo Exhibit-7.

These witnesses have remained firm in their cross-examination and nothing could be brought out by the defence to demolish or discredit their evidence in any manner whatsoever. The Investigating Officer has only corroborated their evidence and I find no reason to disbelieve him. In the above circumstances, the first contention raised on behalf of the appellant stands rejected.

As regards the second contention, PW-1 no doubt has deposed in his statement-in-chief that when he met the appellant on the fateful day, he was wearing a blood stained shirt, but in his cross-examination he has clearly stated that "When I first met the accused on the way he was wearing a vest, the colour of which I do not remember now". We find from the seizure memo Exhibit-4 that item 7 in the list of articles seized is entered as "vest" which has been exhibited as M.O. XI by the witnesses PW-6, PW-7 and the I.O. PW 20. Therefore, there is no manner of doubt that it was a blood stained vest that the accused-appellant had been wearing and not a shirt. In any case, this is a minor discrepancy which does not vitiate the foundation of the prosecution case.

I similarly hold that the contentions 3 and 5 are of no consequences since there exist unimpeachable evidence of the fact that the appellant had committed the murder of the deceased coupled with the categorical finding of PW-19 Pradeep Kumar, the Junior Scientific Officer of CFSL, Kolkata, who has in most unambiguous categorical terms has stated that "The blood group on the clothings and other exhibits marked by me as Ext. A to Ext-E-II all had the blood group AB" and further in his cross-examination he has confirmed this by stating that "The blood group found on the clothes of the deceased was AB and the blood group of the deceased which was found from the sample of the blood of the deceased sent for Expert opinion was also AB". Such being the clinching nature of the evidence, the contentions appear to be of no substance. As regards the question raised about the bite mark found on the right arm of the appellant is concerned, there can be no doubt that it is human as it has come in the evidence of PW-18, Ms. Chodenla Bhutia, the Medical Officer at STNM Hospital at Gangtok, that "The patient himself had informed me that it was human bites". In my view, far from aiding the appellant, the existence of such bite mark on his arm indicates most unerringly to there being a struggle by the deceased during the murderous assault made on her by the appellant.

The fourth contention on behalf of the appellant that there is no evidence of the seizure of the jewelleries, M.O. I to M.O. V from the appellant stand totally belied by the evidence of PW-4 and PW-5. From the portion of their evidence reproduced above read with that of the Investigating Officer PW-20, it stands established that those items were recovered from the ventilator in the toilet-room of the house of his brother-in-law, Binod Subba, at Jalipool where the appellant had concealed them and, that such recovery was made on the basis of the disclosure statement of the appellant, Exhibit-3 and Seizure Memo Exhibit-4, on being shown by him.

In the above circumstances, I find no merit in the appeal and is accordingly dismissed.

No order as to costs.

The records of the Court below be returned forthwith.