Decided on April 23,2010



- (1.) Homicide of Dawa Tamang was reported by a First Information Report. Accordingly, Sadar Police Station case was registered under Section 302, IPC against unknown persons. In course of investigation, pursuant to the said First Information Report, led to arrests, search and seizures. On completion of investigation, charge-sheet was filed against the appellant and against one Kishore Thapa. The appellant was the first accused and Kishore Thapa was the second. On the basis of the charge-sheet and supporting materials charges were framed against both the accused persons under Section 450 read with Section 34, Section 302 read with Section 34 and Section 380 read with Section 34 of IPC. In order to prove its case prosecution examined as many as 19 witnesses and produced many exhibits.
(2.) The trend of the evidence thus produced suggests that the deceased was in disturbed mind before his homicide. In course of a conversation with P.W. 5, which took place 7-8 days before his death, the deceased told that one of his friends called Dambar, who may not be the appellant, along with friends of Damber used to rag him and also used to ask for money from him. This conversation was overheard by P.W. 6. The death took place on 16th September, 2003. The deceased was a Stenographer working with the Government, had a Marufi Taxi and was living alone in a rented accommodation since he was a bachelor. At about 5.30 p.m. on 16th September, 2003 the driver of the deceased finding that the rented accommodation of the deceased was locked up, deposited the keys of the taxi as well as earnings therefrom with the neighbour of the deceased and left. On the morning of 17th September, 2003, the driver as usual went to the residence of the deceased and found the residence of the deceased locked up in the similar fashion. The same thing happened on 18th September, 2003 and the situation did not alter even in the morning of 19th September, 2003. The driver thus contacted the elder brother of the deceased, whereupon enquiries were made which revealed that the deceased did not attend office since 17th September, 2003. Accordingly, the brother of the deceased and the driver of the deceased went to Sadar Police Station to lodge a missing report of the deceased. However on the advice of Sadar Police Station, those two gentlemen returned to the rented accommodation of the deceased, met the landlord thereof and later on through an alternative entry behind the verandah of the rented accommodation of the deceased entered the same and discovered the dead body of the deceased.
(3.) Upon the arrest of the appellant and the accused No. 2, the accused No. 2 gave a statement before the police, which was witnessed by independent witnesses. The said statement was recorded in Nepali language. English translation whereof is as under: Translated Copy of the Disclosure Statement Under Section 27 of Evidence Act Disclosure Statement Under Section 27 Evidence Act. EXT 10 Date : 23-9-2003 Time: 14.00 hrs. Place : Sadar P. S. Gangtok. This is my true statement that on the night of 16-9-2003 I, Kishor Thapa and my friend Damber Chettri went to the rented room of Dawa Tamang below Lall Bazar and killed Dawa Tamang there and took away his hi-tech shoes from his house at about 10.30 p.m. I have hidden those shoes in my rented room at Upper Tathangchen. I will handover those Hi-tech shoes in front of the police and the witnesses from my house. Together with this, I have thrown away hammer having handle of iron pipe below Sheree Punjab Hotel above Arithang Road in the bush. I have thrown that hammer after killing Dawa Tamang and while returning with my friend Damber Chettri on the night of 16-9-2003. I can also take out that iron hammer before the police and the witnesses. Prepared by : (I.O.) P.M. Rai, P.I. O/C Sadar P.S. Gangtok. Sd/- 29-9-03 EXT. 10(b) Sd/- Kishor Thapa Kishor Thapa In presence of following witnesses : (1) Karma Loday Lepcha .... Sd/- 23-9-03 S/O Maa Tshering Lepcha R/O Upper Syari, E/Sikkim (Peon of A.G. Office) Ext. 10 (a) Ext. 10 (a) (2) Arjun Tamang .... Sd/- 23-9-03 S/O Shriman Tamang Upper Arithang (Near Lotus Lodge) Gangtok (L.D.C. of Law Dett.) Ext. 10(c). ;

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