Chandra Bahadur Basnett vs State of Sikkim

Wangdi, J.—By filing this Appeal the Appellant seeks to assail the judgment dated 30-08-2011 passed by the Learned Sessions Judge, Special Division - II, East Sikkim at Gangtok in Sessions Trial Case No. 13 of 2010 (hereinafter referred to as the "impugned judgment") by which he was convicted and sentenced u/s 302 of the Indian Penal Code (in short "IPC") to undergo simple imprisonment for life and a fine of Rs. 3,000/-in default of payment of which to undergo further imprisonment for 2 (two) months.

2.1 The genesis of the case is a written FIR lodged on 21-01-2010 by one Head Constable Padam Bahadur Chettri, P.W.1, of Namcheybong Busty at the Pakyong P.S. whereby it was stated that his elder brother Jas Bahadur Chettri was found murdered by some unknown person with a sharp edged weapon at Lall Turning. As a consequence of this Pakyong P.S. Case No. 02(01)10 dated 21-01-2010 was registered and the case taken up for investigation.

2.2 During the course of investigation, the Investigating Officer inspected the place of occurrence and conducted inquest over the dead body and found cut injury on the right and left side of the neck. The blood stained soil and the controlled sample soil were collected from the place of occurrence and the body forwarded to the S.T.N.M. Hospital, Gangtok for postmortem examination. Secret sources were deployed in the village to collect information. The suspect, Chandra Bahadur Basnett who is the Appellant herein, was apprehended by the Police at Ranipool and brought to the Pakyong P.S. for interrogation. During the interrogation, the Appellant admitted to the commission of murder of the deceased Jas Bahadur Chettri in the evening of 20-01-2010 at about 1920 hrs. by assaulting him with a sharp edged weapon in the village on the C.C. footpath just above his house. He then disclosed that he had kept the weapon of offence, i.e., ''Bamphok'' (a sharp edged weapon), in the kitchen of his house and had concealed the blood stained black colored jacket worn by him at the time of the commission of offence in the ceiling of his house. This statement was duly recorded u/s 27 of the Indian Evidence Act, 1872 (in short "the Evidence Act") in presence of witnesses after which the investigation team along with Appellant and the witnesses, went to the house of the Appellant and recovered the weapon of offence and blood stained black colored jacket from the ceiling of the kitchen at the instance of the Appellant which were duly seized as Exhibits. Wearing apparels of the deceased including the viscera and the blood sample of the deceased seized at the mortuary of the S.T.N.M. Hospital were sent for C.F.S.L. analysis. In the postmortem report, the death of the deceased was stated to be due to multiple incised injury on his head and neck caused by sharp heavy cutting weapon.

2.3 The investigation revealed that on 20-012010, the Appellant Chandra Bahadur Basnett who was inside the toilet, heard Jas Bahadur Chettri shouting uttering obscene words which he thought was directed at him. When the deceased who was in a drunken state saw the Appellant, he sought his help to reach his home which the Appellant refused to comply and instead headed for his home. The deceased then started shouting again using filthy words which enraged the Appellant. In a fit of such rage he went straight to the kitchen of his house, picked up a ''Bamphok'', returned to the place and assaulted the deceased several times on his neck causing him to collapse on the C.C. footpath. The Appellant then dragged the deceased by catching hold of his feet and threw him in a ditch covered by bamboo bushes. The Appellant then went to his house, washed the weapon of offence and, after keeping it in the kitchen, went to the T.V. room and slept with one boy named Bhim Tamang, P.W.2, of the same village. In the early morning of the next day, i.e., 21-01-2010 at about 0230/0330 hrs., the Appellant most stealthily left his house unnoticed by his family members including the said Bhim Tamang in order to make his escape to Siliguri, West Bengal. He first went to Nandok Busty on foot to meet the Area MLA who gave him Rs. 100/-. The money being insufficient, he changed his plan and returned back home at Lall Turning, Namcheybong at about 1300 hrs. on the same day and pretended to help the villagers in the funeral of the deceased Jas Bahadur Chettri. He was later apprehended by the police at Ranipool Bazar and brought to the Pakyong P.S. for interrogation resulting in his admitting to the commission of the murder of the deceased by assaulting him with a sharp edged weapon.

Charge-sheet was accordingly filed against the Appellant u/s 302 IPC for trial.

The Appellant pleaded not guilty to the charge u/s 302 IPC framed by the Learned Trial Court and claimed for trial.

The Learned Trial Court upon completion of the trial found the Appellant guilty of the offence and accordingly convicted and sentenced him.

6.1 Before this Court, Mr. S. S. Hamal, Learned Legal Aid Counsel appearing on behalf of the Appellant submitted that the prosecution has failed to prove the case against the Appellant in as much as evidence brought by them were filled with contradictions. As per him, the entire case of the prosecution was based upon circumstantial evidence which individually were not proved and, that even if those are taken to have been proved, they do not form a chain leading to the sole hypothesis of the offence having been committed by the Appellant. The fundamental plea raised on behalf of the Appellant was that the charge against him was based solely upon the disclosure statement of the Appellant recorded u/s 27 of the Evidence Act and the confessions that were made by him under threat and duress of the police in the Pakyong P.S. In support of his contention Mr. Hamal drew the attention of this Court to the deposition of the second Investigating Officer PI Mahendra Subba, P.W.16, the relevant portion of which are reproduced below:

PI Mahendra Subba, second Investigating Officer, P.W.16

Cross-examination by Ld. Legal Aid Counsel Shri S. S. Hamal for accused

... It is true beside the disclosure statement of the accused, there is no eyewitness who has witnessed the incident. It is true my findings that on 20.01.2010, the deceased had gone to see his ailing brother who was shouting using abusive words in a drunken stage which annoyed accused is based on the statement given by accused. Similarly, my findings that the deceased sought help of the accused to reach home which was refused by the accused is also based on the statement of accused. My findings that thereafter the accused went to his house and brought a bamphok from his kitchen and assaulted several times on the neck of the deceased is also based on the statement of the accused. ....

6.2 It was submitted that there were no other evidence supporting the above facts. Under such circumstances, the confessional statement being hit by Sections 25 and 26 of the Evidence Act deserved to be discarded as being invalid in law.

6.3 It was then contended that the disclosure statements, Exhibits 5 and 6, could not have been relied upon firstly, for the reason that those statements were not been signed by the Appellant and, the consequential recovery of the incriminating articles made by the police stated to be at the instance of the Appellant, have not been supported by Elies Lepcha, P.W.7, and Paul Rai, P.W.8, who are said to be the witnesses to the Appellant to the disclosure statements and, the recovery of the incriminating articles, i.e., the ''Bamphok'' M.O. I and the blood stained black colored jacket M.O. II. Our attention was drawn to the following portion of their statements:-

Elies Lepcha, P.W.7

Cross-examination by Ld. Legal Aid Counsel Shri S. S. Hamal for accused

... I did not see police recording the statement of any person at the P.O. After identifying the body of the deceased, I returned home. On the same evening when I came to know that the accused was arrested and brought to the police station, I went to Pakyong P.S. at around 6 p.m. After staying in police station for about 5 minutes, I returned home. Thereafter, I did not go to the police station. It is true I did not meet the accused in police station. On 22.01.2010 I went to police station at around 9 a.m. as I was called by the police on the previous day. It is true I did not see from where M.O. I and II were taken out by the police from the house of the accused. It is true police showed me M.O. I and II saying that they had seized the same from the house of accused. Thereafter, I went home and I did not go to police station. It takes about 20 to 25 minutes to reach P.O. from Pakyong Police Station by foot. It is true Ext. 5 and 6 does not bear the signature of accused. It is true I cannot identify the hand writing in Ext. 5 and 6. It is true I cannot say who scribed Ext.5 and 6 but it was scribed by police and I do not know the rank and name of the police who recorded Ext.5 and 6. ....

Paul Rai, P.W.8

... Ext. 5 and 6, the statement of accused were recorded by the police in the house of accused and at that time, we were outside the house of accused and later the contents of Ext. 5 and 6 were read over to us by the police. Ext. 5(b) and 6(b) already marked are my signatures. M.O. I and M.O. II are the same bamphok and jacket shown to us by the police who also told us that they have seized the same from the house of accused. Ext.7 and 8 are the seizure memo vide which police seized M.O. I and M.O. II respectively and Ext.7(b) and 8(b) already marked are my signatures.

Cross-examination by Ld. Legal Aid Counsel Shri S. S. Hamal for accused

... It is true Ext.5 and 6 were not recorded in my presence and therefore I cannot say who subscribed Ext.5 and 6. It is true except the police, the contents of Ext. 5 and 6 were not read over to me before I signed. ....

6.4 As per Mr. Hamal the quality of evidence produced being such, the disclosure statements Exhibits 5 and 6 cannot at all be relied upon. The Appellant having made the disclosure statements and the incriminating articles M.O. I and M.O. II having been seized from the house of the Appellant at his instance cannot be said to have been proved by the prosecution beyond all reasonable doubts.

6.5 Alternatively, it was submitted that considering the circumstances under which the Appellant had committed the offence, charge against him ought to have been u/s 304 Part I IPC and not u/s 302 IPC. In support of his submission Mr. Hamal relied upon the evidence of the second Investigating Officer, P.W.16, by which it has been clearly established that the Appellant had caused the death of the deceased in a fit of anger on being gravely intimidated and provoked by the deceased. We may reproduce the relevant portion of the deposition of P.W.16 relied on by the Learned Legal Aid Counsel as under:

PI Mahendra Subba, second Investigating Officer, P.W.16

...

The investigation carried out revealed that on 20.01.2010 at around 1400 hours, Jas Bahadur Parajuli had gone to see his ailing brother in the same village in the evening around 1845 hours. The deceased reached below the place of occurrence, i.e., at Lal Turning. It was further revealed that the deceased who was on drunken behavior was loitering around on the roadside shouting and using filthy words which was heard by accused Chandra Bahadur Basnett who was in the toilet nearby. The accused felt that the deceased was scolding him. The deceased after knowing the accused person sought help to reach him home which accused refused. Thereafter, the accused left for his house on his own but the deceased again started shouting by using abusive words which annoyed the accused. In a fit of rage, the accused went to his kitchen house and lifted one sharp edged weapon, i.e., bamphok and assaulted the deceased on his neck area several times. When the deceased was on his way back to his house in a village footpath about 40-50 feet above Pakyong-Gangtok Main Road, it also revealed that the accused had mercilessly assaulted the deceased on his person several times even after the deceased collapsed on the C.C. footpath. ....

6.6 Reference was also made to the portion of the depositions of Sujata Parajuli, P.W.3, where she has stated "that the accused had a very cordial relationship with my deceased father-in-law (meaning the deceased)" and that of Harikala Basnett, P.W.5, who deposed that her son (meaning the Appellant) was not of a quarrelsome nature and that he had no enmity with the deceased.

Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, supporting the impugned judgment submitted that the inadequacies in the prosecution case urged on behalf of the Appellant could not be sustained as those were not the only evidence that were considered by the Learned Trial Court in convicting the Appellant of the charge. Apart from the fact that the prosecution had proved that the Appellant had made the disclosure statements Exhibits 5 and 6 beyond any reasonable doubt, the subsequent recovery of the incriminating articles were well-supported by the other evidence. P.Ws 7 and 8 have not denied the factum of such recovery and that the evidence of the second Investigating Officer, P.W.16 is unimpeachable. The recovery of the incriminating articles M.O. I and M.O. II having been established beyond any reasonable doubt, the fact that the Appellant had rendered the disclosure statements also stands established. Therefore, it was submitted by the Learned Additional Public Prosecutor, that the plea raised on behalf of the Appellant cannot be sustained.

8.1 We have given our thoughtful consideration to the rival submissions made on behalf of the parties, the evidence and the materials on the record. It is no doubt true that the prosecution case rests completely upon the circumstantial evidence. Since the principle plea raised on behalf of the Appellant is with regard to the reliability of the disclosure statements u/s 27 of the Evidence Act, Exhibits 5 and 6, in our view it would be appropriate to deal with this in extenso. Although P.Ws 7 and 8 who are said to be the witnesses to the disclosure statements and the recovery of M.O. I and M.O. II, they have not fully supported the prosecution as we find material contradictions in their examinations-in chief and cross-examinations. However, at the same time, we find that they have not categorically denied the factum of the Appellant having rendered the statements and also of the recovery of the incriminating articles M.O. I and M.O. II from the house of the Appellant. In order to appreciate this aspect, we may refer to the disclosure statements Exhibits 5 and 6, the translated version of which are as follows:

Exhibit 5

I am giving this true statement that, it is true that yesterday on 20/1/2010 at about 7 P.M. in the evening I killed Jas Bdr. Parajuli by hitting with a ''bamphok'' which I brought from my house. I have kept that ''bamphok'' in my house which I can show to the police and the witnesses.

Exhibit 6

This is my true statement that while committing murder of Jas Bdr. Parajuli at the night of 20/1/10, I was wearing a black Jacket which I have thrown after committing murder in the ceiling above my house and I can show the same to the police.

8.2 When we consider the above, the depositions of P.Ws 4 and 5 assume significance. Nar Bahadur Basnett, P.W.4, who is the father of the Appellant, has stated, inter alia, as follows in support of the recovery of M.O. I ''Bamphok'':-

Nar Bahadur Banett, P.W.4

... Thereafter Police came for enquiry and seized one ''bamphok'' from the kitchen room of my house. At the time of seizure the accused was also present and he had shown the said ''bamphok'' to the Police.

Cross-examination by the accused through ld. Legal Aid counsel Shri S. S. Hamal

It is true the ''bamphok'' that was shown to the Police by my son was all along kept in the kitchen. It is true that before the accused Chandra Bahadur Basnett showed the ''bamphok'' to the Police it was me who told my son Chandra Bahadur Basnett where the said ''bamphok'' was kept in the kitchen. It is true that if I would not have told my son Chandra Bahadur Basnett where the ''bamphok'' was kept in the kitchen he would not have been able to tell the Police where it was kept in the kitchen. It is true that the accused asked from me where the ''bamphok'' was kept in the kitchen. ....

6.3 As can be seen from the disclosure statement Exhibit 5 pertaining to the recovery of the ''Bamphok'' which in turn is relatable to the evidence of P.W.4, it has only been disclosed that the Appellant had kept the ''Bamphok'' in his house and not that he has concealed it in a particular place in the house. Therefore, the fact that the ''Bamphok'' was recovered in the house is, in our view, consistent with the disclosure statement. We may also consider the relevant portion of the evidence of Harikala Basnett, P.W.5, the mother of the Appellant, which are reproduced below:-

Harikala Basnett, P.W.5

... After the arrest of my son Police brought him to our house and seized ''bamphok'' from the kitchen room and some wearing apparels of my son which he had concealed on the ceiling of the house.

Cross-examination by the accused through ld. Legal Aid counsel Shri S. S. Hamal

It is not a fact that the ''bamphok'' which was seized by the Police from our kitchen was concealed. The said ''bamphok'' was in its usual place. ....

8.4 From the above, we find that the witness corroborates the seizure of the ''Bamphok'' from the house and, most unimpeachable is the recovery of the wearing apparels of the Appellant which he had concealed on the ceiling of the house. We find that the latter portion of the deposition has remained undemolished and, therefore, we do not find any reason to disbelieve the prosecution story of the Appellant having rendered the disclosure statements and the incriminating articles having been recovered from the house of the Appellant at his instance.

8.5 It is well-settled that the basic idea imbedded in this Section is the doctrine of confirmation by subsequent events. In the case of State of Karnataka Vs. David Razario and Another, it has been held that "the doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional of non-culpatory in nature but if it results in discovery of a fact, it becomes a reliable information".

8.6 We may also refer to the case of A.N. Venkatesh and Another Vs. State of Karnataka, wherein considering this aspect in the light of Section 8 of the Evidence Act it has been held as follows:

By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct u/s 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.). ....

[Emphasis supplied]

8.7 In a similar facts and circumstances one of us (S. P. Wangdi, J.) sitting singly in the cases of Son Bahadur Subba vs. State of Sikkim in Crl. A. No. 11 of 2011, Laxuman Mahaly vs. State of Sikkim in Crl. A. No. 7 of 2011 and Mamata Mahanto & Anr. vs. State of Sikkim in Crl. A. Nos. 6 and 8 of 2010 followed this principle and upheld the validity of the recovery.

8.8 The efforts of this Court in highlighting the evidence reproduced above is to reiterate the appreciation of the law pertaining to Section 27 of the Evidence Act. "The fact discovered" as would appear there under is not just the recovery of the object but, it embraces within it the place where object was concealed. It is in the light of this law that the statements of P.Ws 7 and 8 read with P.Ws 4 and 5 assumes significance.

8.9 As per Mr. Hamal, the only material on which the prosecution can connect the Appellant with the crime is the recovery of the incriminating articles M.O. I and M.O. II being the weapon of offence ''Bamphok'' and the blood stained black colored jacket of the Appellant respectively which, as per him, do not stand proved in view of the serious contradictions appearing in the evidence. Reference in this regard has been made to the case of Modan Singh vs. State of Rajasthan : AIR 1978 SC 1511. However, in that very decision it has been held that "if the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that the seizure witnesses do not support the prosecution version". In the present case also we do not find any reason to disbelieve the Investigating Officer. Therefore, the reliance placed on the case by Mr. Hamal stands utterly displaced.

8.10 We may in this regard also refer to the following portion of the case of David Razario (supra):-

... The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor (AIR 1947 PC 67 ), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra Vs. Damu Shinde and Others, ]. No doubt, the information permitted to be admitted in evidence is confirmed to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.

8.11 Under such circumstances, we are constrained to reject the plea raised on behalf of the Appellant in this regard and uphold the prosecution story of the disclosure statements having been made and the incriminating articles, ''Bamphok'' M.O. I and the blood stained black colored jacket, M.O. II having been recovered and seized at the instance of the Appellant.

8.12 We are conscious of the law that the disclosure statements cannot be the sole basis for conviction of an accused as it is not a substantive evidence but only corroborative. But we find from what follows hereafter, that there are other circumstances which, when considered with this evidence, form an unbroken chain leading to the sole hypothesis of the Appellant having committed the offence.

(a) The first circumstance that appears against the Appellant is his having left the house late in the evening of 20-01-2010, a fact which has been proved by Bhim Tamang, P.W.2 whose deposition has remained unshaken and undemolished.

(b) The next circumstance is the disappearance of the Appellant early in the morning of the next day, i.e., 21-01-2010, and thereafter appearing in the afternoon of the same day pretending to participate in the cremation of the deceased. This stands established from the evidence of Bhim Tamang, P.W. 2, the first Investigating Officer, Harka Bahadur Pradhan, P.W.15, the second Investigating Officer, Mahendra Subba, P.W.16.

(c) The Appellant making the statement u/s 27 of the Evidence Act after being apprehended by the Police and the subsequent recovery of the articles from his house at his instance is the third circumstance that stands established against him.

(d) The fourth circumstance which in our view clinches the case against the Appellant are the C.F.S.L. reports Exhibits 11 and 12 pertaining to the ''Bamphok'' M.O. I, the blood stained black colored jacket M.O. II, blood sample of the deceased M.O. VIII, the blood stained soil sample M.O. IX and controlled soil sample M.O. X lifted from the place of occurrence and the wearing apparels of the deceased M.O. III, M.O. IV, M.O. V, M.O. VI and M.O. VII which have been proved by the Forensic Experts P.Ws 12 and 13 that establishes that the blood stains contained on them belonged to the same group, i.e., of the deceased.

8.13 Mr. S. S. Hamal no doubt pleaded that in view of what has come out in the confessional statement of the Appellant read with his reply to question Nos. 14 and 34 clearly proved that the disclosure statements had been extorted from the Appellant on being tortured but, this in our view, would be relevant only so far as the inculpatory part of the statement is concerned and not as regards those that led to the discovery of the incriminating articles. The position of law is well-settled that Section 27 of the Evidence Act is an exception carved out to Sections 25 and 26 of the Evidence Act and, therefore, admissible in evidence.

8.14 Under the circumstances, we see no reason to differ with the views of the Learned Trial Court and accordingly, uphold the finding of the Trial Court that the Appellant is guilty of having caused the death of the deceased.

8.15 Having held so, we may now consider the alternative plea which Mr. Hamal has raised. Upon examination of the evidence of the second Investigating Officer, P.W.16, Sujata Parajuli, P.W.3 and Harikala Basnett, P.W.5, we find that the relationship between the Appellant and the deceased had been cordial with no enmity subsisting between them. From the evidence of the second Investigating Officer, P.W.16, we find that in the evening of 20-01-2010 the deceased was found to be in a drunken state and hurling abuses at the Appellant and that his repeated abuses on the latter''s refusal to help him so enraged the Appellant that he went to his house, picked up the ''Bamphok'', returned and hit the deceased with it causing his death thereby. This is a prosecution story which is admitted to have been stated by the Appellant albeit under torture. Therefore, we do not find any reason to doubt that the Appellant had reacted without any pre-meditation under a grave provocation on the part of the deceased.

8.16 By referring to the decision of State of Rajasthan Vs. Dhool Singh, the Learned Additional Public Prosecutor most strenuously argued that the nature and number of injuries caused to the deceased by the Appellant establishes the intention of the Appellant to cause his death and, therefore, as per him, the alternative plea raised on behalf of the Appellant could not be sustained.

8.17 It is no doubt true that the injury caused to the deceased indicates the severity of the assault that leads to the conclusion that the Appellant intended to cause the death of the deceased but this, as we have already held, was caused due to the grave and sudden provocation on the part of the deceased enraging the Appellant to react in assaulting the deceased resulting in his death which, in our view, would attract the provision of Part II of Section 304 IPC but certainly not Section 302 IPC.

8.18 We may refer to the cases of Surinder Kumar Vs. Union Territory, Chandigarh, and Manke Ram Vs. State of Haryana, referred to by Mr. Hamal where in similar circumstances the Hon''ble Supreme Court altered the charges from Section 302 IPC to Section 304 Part II IPC. We, therefore, hold that this is a fit case where the charge should be altered to one u/s 304 Part II IPC and accordingly stands altered so.

As regards the sentence we have duly considered the fact that the Appellant was of the age of 28 years at the commission of offence and now is about 30 years. It is also not the case of the prosecution that he is a habitual offender but rather a person of calm composure as revealed from the evidence of Harikala Basnett, P.W.5. Interest of justice would, therefore, be served if the Appellant is sentenced to undergo simple imprisonment for 7 (seven) years maintaining the fine of Rs. 3,000/-and further simple imprisonment of 2 (two) months in default of payment thereof as imposed by the Learned Trial Court. The Appellant shall be entitled to remission of the period of sentence already undergone.

In the result, the Appeal is allowed in part.

No order as to costs.

A copy of the judgment and the original records be sent to the Learned Trial Court forthwith for compliance.