GATUK BHUTIA Vs. STATE OF SIKKIM
HIGH COURT OF SIKKIM
STATE OF SIKKIM
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(1.) Heard Mr. N. Rai, learned senior Counsel assisted by Ms. Jyoti Kharka, learned Counsel for the appellant Also heard Mr. Karma Thinlay, learned Additional Public Prosecutor and Mr. S.K. Chettri, learned Assistant Public Prosecutor appearing for the State.
(2.) This Criminal Appeal has been directed against the judgment and order dated 23-3-2009 passed by the learned Sessions Judge, East and North Sikkim at Gangtok in S. T. Case No. 36 of 2005 convicting the appellant under Section 302, IPC and sentencing him accordingly to undergo imprisonment for life and to pay a fine of Rs. 100/-.
(3.) At the very outset, Mr. Rai, the learned senior Counsel for the appellant, has submitted that he has the instruction not to cnallenge for conviction of the appellant for the offence committed by him. However, his limited argument is that keeping in view the facts situation emerged from the testimony of the prosecution witnesses as well as taking into consideration the mitigating circumstances as unfolded by the evidence of the eye-witnesses particularly P.W. 2 Mrs. Kavita Chettri, P.W. 3 Sand Chettri, P.W. 4 Ms. Laxmi Tamang, P.W. 5 Rinku Rai, P.W. 6 Passang Lhamu Sherpa and P.W. 9 Aita Hang Subba, the appellant may be convicted under Section 304, Part II, IPC instead of Section 302, IPC and accordingly, his punishment may be commuted from life imprisonment to lesser punishment. According to him, in the backdrop of the entire evidence upon which the prosecution has wholly relied upon, the offence committed by the appellant would not come within the purview of Section 304 of the IPC and it is, evidently, a case of conviction under Section 304, Part II, IPC.;
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