Son Bahadur Subba vs State of Sikkim

S.P. Wangdi, ACJ.

This Appeal has been filed assailing the judgment of the Learned Sessions Judge, Special Division - II, East Sikkim at Gangtok dated 16-07-2011 (hereinafter referred to as the "impugned judgment") in Sessions Trial Case No. 21 of 2010 by which the Appellant have been convicted and sentenced for having committed an offence u/s 302 of the Indian Penal Code.

2(i) The prosecution case, in brief, is that on 07 -12-2008 at about 0730 hrs. a written complaint was received from Hajurman Subba, P.W.1 of Basilakha Busty, Pakyong, East Sikkim, to the effect that on 06 -12-2008 at about 1830 hrs. he had heard his son Son Bahadur Subba state that he would kill his other son Bikash Subba alias Laukey and that he had advised him that they should not fight. That in the early morning of 07-12-2008 his youngest son, Suresh Subba, P.W.4 who had gone to collect his scooter was heard shouting in panic from the road below their house that Bikash Subba had been killed and, when he went to the place he found his son Bikash Subba dead lying on the road in a prone position. Later, when Son Bahadur Subba was asked, he confessed that it was he who had killed him with stones. On the basis of this, the Officer-in-Charge, Pakyong P.S. registered a case u/s 302 IPC against the said Son Bahadur Subba and took up the case for investigation.

(ii) During the course of the investigation, the Investigating Officer, P.W.15 visited and inspected the place of occurrence and seized Exhibits consisting of three blood stained stones of varying sizes, recorded statement of accused Son Bahadur Subba u/s 27 of the Indian Evidence Act, 1872, necessary inquest inducted over the dead body of the deceased Bikash Subba and after completing the autopsy over the dead body it was handed over to the guardian. Apart from the varying sizes of blood stained stones, the I.O. also seized soil sample containing blood stains, controlled soil sample, wearing apparels of the deceased consisting of blood stained grey coloured shirt, blood stained blue coloured vest, blood stained black coloured pant, blood and hair samples of the deceased lifted from the place of occurrence and sent to the Director, CFSL, Kolkata, for chemical analysis and opinion. The medico-legal autopsy report indicated the cause of death being due to ante-mortem head injury.

(iii) Investigation revealed that earlier on 16-03-2008, the deceased Bikash Subba alias Laukey had assaulted his brother, accused Son Bahadur Subba with a ''Bamphok'' at Basilakha Busty and had absconded when a case u/s 326 IPC had been registered against him.

(iv) It was in the evening of 06-12-2008 that the deceased had returned to his village Basilakha Busty and later had an argument with the Appellant regarding the key of Scooter bearing Registration No. WB-74B/2711 owned by the youngest brother Suresh Subba, P.W.4. These two had been nurturing a strained relationship with a long enmity subsisting between them. At about 1930 hrs. in the evening of the same day an argument took place between them which led to the Appellant chasing the deceased. During the chase the Appellant threw at the deceased a stone weighing about 1/11/2 kgs. irregular in shape, sharp edged and grey in colour that hit him on the right side of his lower abdomen and back making him to fall on to the road. As he fell, the accused picked up another large grey coloured stone weighing about 5/6 kgs. with smooth surface on one side and sharp edged on the other and hit the victim on the head with it causing his death instantly on the newly constructed Basilakha road just below their house. On the next day, i.e., 07-12-2008, while on his way to pick up his scooter Suresh Subba, P.W.4, the youngest brother, found the deceased dead and lying in a prone position.

(v) On completion of the investigation charge -sheet u/s 302 IPC was filed against accused Son Bahadur Subba for committing the murder of his brother Bikash Subba.

Before the Learned Trial Court the accused pleaded not guilty to the charge and claimed for trial.

The Learned Trial Court on completion of the trial having found the accused guilty of the offence convicted and sentenced him by the impugned judgment.

5(i) Before this Court, the only submission of Mr. S. S. Hamal, Legal Aid Counsel appearing on behalf of the Appellant, was that the entire case of the prosecution was based upon circumstantial evidence, the most crucial of them being the disclosure statement Exhibit 5 of the Appellant which was inadmissible and unreliable as it has come in evidence that it was made after the incriminating articles had been seized. In support of this contention reliance was placed upon the decision of Vijender and Others Vs. State of Delhi, . It was further submitted that even the recovery was made from the police vehicle and not from the place of occurrence. In the alternative, it was submitted that the offence having been committed by the Appellant as a result of grave and sudden provocation on the part of the deceased, he could not have been convicted u/s 302 IPC but u/s 304 Part II IPC. That grave and sudden provocation is quite evident as it has come in evidence that it was the deceased who first assaulted the Appellant with a stone as he was being chased which angered the Appellant leading him to assault the deceased with uncontrollable rage. In support of this contention, Mr. Hamal, Learned Legal Aid Counsel appearing on behalf of the Appellant sought to place reliance upon the cases of -

(a) Rashi Malik vs. State of Orissa : 2007 (4) Cri 302 (Ori.);

(b) Laxmichand @ Balbutya vs. State of Maharashtra : 2011 (1) Cri 197 (SC); and

(c) State of Rajasthan vs. Har Lal : 2010 (3) Cri 431 (Raj.).

(ii) It was then submitted that in view of the settled principle of law that if two views are possible, the view in favour of the Appellant ought to be accepted and, in the present case, considering the nature of the evidence, there can be no manner of doubt that the circumstances do not form a chain to lead to the sole conclusion that the accused had indeed committed the offence and that there is a possible view that in fact he did not. That the latter view is established when it has come in evidence that the deceased was a quarrelsome person and did not enjoy goodwill in the village giving rise to a reasonable possibility of him being killed by some other person of the village. Reliance was placed in support of his contention to the decisions of State of U.P. Vs. Gambhir Singh and Others, ; Sambhaji Hindurao Deshmukh & Others vs. State of Maharashtra : 2008 (1) Cri 238 (SC) and also this Court''s decision in the case of State of Sikkim vs. Thukchuk Lachungpa and Another in Government Appeal No. 01 of 2009.

6(i) Mr. Karma Thinlay, Learned Additional Public Prosecutor on the other hand submitted that although the case of the prosecution is based upon circumstantial evidence the guilt of the Appellant have been fully established by each of the circumstances proved beyond reasonable doubt that form an unbroken chain leading to the sole conclusion of the Appellant having committed the murder of the deceased Bikash Subba. The Learned Additional Public Prosecutor submitted that the FIR was lodged by Hajurman Subba, P.W.1, who is the father of both the Appellant and deceased, wherein it has categorically mentioned that the Appellant had expressed his intention to kill the Appellant in the night of 06-12-2008 and that on the next day his youngest son, Suresh Subba, P.W.4 had found him dead. That on his enquiry the Appellant had confessed that he had killed the deceased by hitting him with a stone. This fact, as per the Learned Additional Public Prosecutor, has been corroborated by P.Ws 2, 4, 5, 7 and 8. It is stated that P.W.6, Em Bahadur Subba who is his maternal uncle, deposed that the accused had come to his house on 06-12-2008 in the evening to stay there during which time he told his mother P.W.5, Hangmaya Rani Subba, that he had committed a great mistake and started crying saying he had killed his brother Bikash Subba alias Laukey. Further in the following morning P.W.5 found the information to be true and that this statement has been corroborated by P.W.7, Harka Maya Subba, wife of PW.6, and P.W.8 Micheal Subba who is related to the Appellant as a cousin being the son of P.W. 5, the mother of the Appellant. As per the Learned Additional Public Prosecutor their evidence have remained substantially unshaken on being cross -examined and that of P.W.8 uncontroverted. The Learned Additional Public Prosecutor submits that all the witnesses being P.W.1 to P.W.11 are related to catch other and, therefore, although attempts had been made in retracting from their statements-in-chief, the substance of their evidence have remained firm and undemolished. It was further submitted that the P.Ws 12 and 13 who are the experts from the CFSL, Kolkata, have proved the CFSL reports Exhibits 6 and 7 and by their evidence it has been proved that the blood found on the sample soils, stones and the wearing apparels were found to be of human belonging to the same group while hair strands collected from stone Exhibit A was consistent with the hair sample, Exhibit G, and found to be from human scalp and similar with each other. Coupled with these is the report of the Medico-Legal Consultant, P.W.9 who opined that the cause of death as being ante-mortem head injuries.

(ii) Considering the clinching nature of the evidence there was no doubt that the Appellant had committed the murder of the deceased which as per the Learned Additional Public Prosecutor was gruesome one and, therefore, the Appeal deserved to be dismissed.

7(i) It may be observed at the outset that the Learned Counsel for the Appellant has raised only two grounds to assail the impugned judgment and have proceeded in the premises that the rest of the findings of the Learned Trial Court as having been accepted as correct. I may, therefore, deal with those two questions only.

(ii) The first of the ground raised is that the disclosure statement cannot be relied upon as it had been recorded subsequent to the incriminating articles, namely, three varying sizes of blood stained stones, had been seized by the Police. In substance, therefore, the seizure of those articles remained undisputed and also having regard to other evidence that have come on record, the submission does not appear to be correct. The disclosure statement Exhibit 5 was rendered by the Appellant before two witnesses, namely, Kishan Subba, P.W.10 and Bijay Subba, P.W.11. I may reproduce the relevant portions of their depositions as under:

Kishan Subba, P.W.10

I do not remember the date and month but in the year 2008 Police seized one scooter, Registration Certificate of the said scooter, Pollution Certificate of the said scooter, insurance Certificate of the said scooter, soil sample containing blood stain before us and prepared the seizure memo where myself and Bijay Subba has signed. The said items were seized by the Police from about 500 feet from the spot where the deceased Laukey alias Bikash was lying dead. Exbt. 4 is the seizure memo prepared by Police and Exbt. 4(a) is my signature. Exbt. 4 (b) is the signature of Bijay Subba. The said seizure memo was prepared by Police on seizing three stones. Exbt. 5 is the statement recorded by the Police given by accused. Exbt. 5 (a) is my signature. Exbt. 5(b) might be the signature of Bijay Subba.

Bijay Subba, P.W.11

Cross-examined by ld. P. P. Shri A. J. Sharma

... It is true that after recording the statement of the accused i.e., Exbt. 5 Police asked us to sign as witnesses. Exbt. 5 (b) is my signature, Exbt. 5 (a) is the signature of Kishan Subba, Exbt. 5 (c) is the signature of accused Son Bahadur Subba, Exbt. 5 (d) is the signature of Thana Officer..... It is true that in the house of Hajurman Subba accused Son Bahadur Subba stated to Police that he has killed Biklash alias Laukey with the stones and had thereafter taken us to the place of occurrence and identified the stones as the weapon of offence.

(iii) I may also refer to the deposition of the Investigating Officer P.W. 15, the relevant portion of which is reads as under: -

P. Dewan, P.W.15

... The accused was found at the spot and accordingly I arrested him. While interrogating the accused at the spot, he pointed the weapon of offence, i.e., stone at the spot itself by which he killed his brother Bikash Subba. The statement of accused was recorded U/S 27 of the Evidence Act. Thereafter, I sent him to Pakyong Thana. Before sending the accused to Pakyong Thana, I took the photographs of the accused at the P.O. wherein he has pointed out the stone used by him as weapon of offence......

....

... At the end, accused agreed to show the stone with which he killed his brother Bikash Subba. The above disclosure statement of accused was recorded by me.

(iv) It is also relevant to note that the disclosure statement Exhibit 5 has been duly signed by the Appellant. Although P.W.10 and P.W.11 have attempted to retract from their depositions-in-chief to the extent that the disclosure statement Exhibit 5 had not been made in their presence but already recorded before they signed on it, there is no denial of the disclosure statement having been recorded. The disclosure statement also stands corroborated by other evidence appearing on the records. Hajurman Subba, P.W.1, the father of the Appellant and the deceased, lodged the FIR Exhibit 1 with great promptitude as noticed by the Learned Trial Court informing categorically the fact that the Appellant on the previous night had expressed his intention to kill the Appellant and it was in the morning of the next day that his youngest son Suresh Subba, P.W.4 found that the deceased had indeed been killed leading to the registration of the case against the Appellant and the consequential rendering of the statement u/s 27 of the Evidence Act. The witnesses, namely, Santa Bir Subba, P.W.2, Aita Raj Subba, P.W.3, Suresh Subba, P.W.4 who are the brothers of the deceased in their depositions have in most unambiguous terms corroborated the statement of P.W.1. No doubt in their cross-examinations contradiction have been introduced yet there are other witnesses whose evidence belie such contradiction. From the deposition of Em Bahadur Subba, P.W.6 and his wife Harka Maya Subba, P.W.7, I find that in their examinations-in-chief they have stated that in the evening of 06-12-2008 when Hangmaya Rani Subba, P.W.5 the mother of the Appellant had came to stay in their house, the Appellant also visited them in the night and told his mother P.W.5 that "he had committed great mistake and started crying saying that he killed his brother Laukey @ Bikash (the deceased)" and that the accused had spent the night in their house. That they did not believe him but, on the following morning, when the mother P.W.5 returned from her house she informed them that what the Appellant had said in the previous night was true and that he had killed his brother, the deceased. It may be relevant to note that P.W.6 is the brother of P.W.5 and, therefore, the maternal uncle of the Appellant and the deceased. They have no doubt resiled from whatever they had stated when cross -examined by the Learned Defence Counsel but, the evidence of P.W.8 Michael Subba who is the son of P.Ws 6 and 7 and, therefore, related as a cousin to the Appellant and deceased, most categorically corroborates their statements which may be reproduced for the sake of clarity:-

Micheal Subba, P.W.8

.... The incident took place some time in the year 2009 towards its end. On the relevant day mother of the accused Hang Rani Subba came to our house and she spent that night in our house. In the evening at around 6.30 p.m. accused Som Bdr. Subba came to our house and at that time I was in my house. When accused came to our house he informed his mother in my presence that he had killed his brother Lauykey @ Bikash Subba. When the accused said so my mother and father were also present along with Hang Rani Subba. After giving the information the accused left the house and we remained in the house.

Cross-examined by the accused through Ld. Legal Aid counsel Shri S.S. Hamal

It is true that before the incident I have heard that the accused was suffering from mental disorder and was treated in the hospital. It is true that it was not in 2008 but in 2009 when the mother of the accused had come to our house and stayed with us. It was in 2009 and not in 2008 the accused had visited our house 6.30 in the evening. It is not a fact that when accused came to our house he did not informed his mother that he had killed his brother Laukey @ Bikash Subba..... [underlining mine]

As can be seen from the above the witness has not wavered in his cross-examination but has remained unshaken and firm.

(v) Upon consideration of the evidence discussed above, I do not find any reason to disbelieve the factum of the disclosure statement having been rendered by the Appellant leading to the recovery of the weapons of murder being the varying sizes of stones already referred to above. Apart from the signature of the Appellant appearing in the disclosure statement Exhibit 5 the firm evidence of the I.O. without any doubt establishes such recovery. It may also be noted that there is no dispute about those incriminating articles being seized. In the case of Modan Singh vs. State of Rajasthan : AIR 1978 SC 1511 while considering a similar circumstance as the present one it has been held as under: -

The only other material on which the prosecution can connect the appellant with the crime is the recovery of the fired cartridge, Ex. 9 and the seizure of the pistol, Ex.8 and the deposition of the ballistic expert, P.W.9. It is found that the witnesses who have been examined for attesting the seizure have not supported the prosecution version. On behalf of the defence it was submitted that the seizure witnesses were men of status in the village and their not supporting the recovery would be fatal to the prosecution. We would rather not place any reliance on the witnesses who attested the seizure memo. 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 seizure witnesses do not support the prosecution version.....

[Emphasis supplied]

(vi) In the present case also I do not see any reason to disbelieve the Investigating Officer when his evidence is so clear and categorical who, as we have seen, has been supported by the evidence of Micheal Subba, P.W.8.

(vii) The contention of the Learned Defence Counsel that the disclosure statement Exhibit 5 cannot be relied upon having been recorded after the incriminating articles had been seized, cannot be accepted firstly on the account of the fact that it has been established by evidence that the seizures were made subsequent to the recording of the disclosure statement. Secondly, in view of the law as regards the scope of Section 27 of the Evidence Act, I may refer to the decision of Suresh Chandra Bahri Vs. State of Bihar with Gurbachan Singh, wherein it has been laid down as under: -

The two essential requirements for the Application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbanchan Singh led PW 59 and others to the hillock where according to him he had thrown the dead body of Urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence.

[Emphasis supplied]

(viii) Considering the facts of the present case in the light of the above, there are enough evidence on record alluded to earlier that establish that the Appellant had, consequent to the disclosure statement Exhibit 5, led the I.O. and the witnesses to the place of occurrence and pointed out the incriminating articles. The factum of the disclosure statement having been made is confirmed by the recovery of the incriminating articles at the instance of the Appellant. In the above circumstances, I do not find any reason to reject the validity of the disclosure statement Exhibit 5. The contention, therefore, stands rejected.

(ix) Even assuming for a moment that the inadequacy pointed out as regards the disclosure statement is correct, the conduct of the Appellant would be relevant in the light of Section 8 of the Evidence Act and, in keeping with the decision of Suresh Chandra Bahri (supra), the factum of the recovery of the incriminating articles at the instance of the Appellant stands established rendering such inadequacy irrelevant and insignificant having no consequence on the merit of the prosecution case. I may also refer to the decision of A.N. Venkatesh and Another Vs. State of Karnataka, where the following has been held: -

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.). Even if we should that the disclosure statement made by the accused-appellants (Exts. P-15 and P-16) is not admissible u/s 27 of the Evidence Act, still it is relevant u/s 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence u/s 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible u/s 8 of the Evidence Act.

[Emphasis supplied]

(x) The alternative plea of the benefit of the offence having been committed due to grave and sudden provocation requiring alternation of the conviction to Section 304 Part II IPC from Section 302 IPC also cannot be accepted because it has been established that the Appellant had nurtured a deep grudge against the deceased and a long enmity subsisted between the two. It has come in evidence that the deceased had assaulted the Appellant once before with a "Bamphok", a sharp edged weapon and had absconded when a case u/s 326 IPC was registered against him. It is in the evidence of P.W.1, Hajurman Subba, father of the Appellant that the Appellant has expressed his intention to kill the deceased. It has also come in evidence that although it was the deceased who first assaulted the Appellant by pelting a stone, the Appellant had retaliated by throwing a larger stone which fell the deceased. The Appellant then picked up another large sized stone weighing about 5/6 kgs. and hit the fallen deceased on his head killing him instantly. These circumstances lead us to reasonable conclude that Appellant intended to put the deceased death. I am, therefore, inclined to agree with the Learned Additional Public Prosecutor that the action was willful and absolutely gruesome deserving no leniency at all.

In the result, the Appeal is dismissed.

No order to costs.

The records of the Court below be returned forthwith.