BARIN GHOSH, C.J. -
(1.) BY the judgment and sentence under appeal, appellant has been convicted of the offence of cheating punishable under section 417 of I.P.C., the offence of murder punishable under section 302 of I.P.C. and the offence of concealing the dead body of the deceased punishable under section 201 of I.P.C.
(2.) IN a written report address to the Chief Judicial Magistrate, South and West, but filed before Namchi Police Station, one Laxmi Prasad of Phongla submitted that one Dil Kumari Chhetri, a spinster, gave birth to a still born child at Namthang Primary Health Centre, South Sikkim, fathered by appellant. It was reported that Dil Kumari Chhetri and appellant fell within prohibited degree of marital relationship. As a result, they were ostracized from the village society. Thereafter, though appellant visited the village, but Dil Kumari Chhetri was not seen. This report led to an enquiry when appellant was questioned. On such questioning, appellant allegedly revealed that he was falsely implicated by Dil Kumari Chhetri, villagers forced him to accept the girl and he, thus, wanted to take revenge by killing the girl. Holding out to Dil Kumari Chhetri that she will be taken to a safe place, appellant took her to Rangpo, East Sikkim, after her discharge from the Primary Health Centre and thereafter, towards Upper Tarkhola, West Bengal, strangulated her by his crepe bandage, threw her dead body in a pit and covered the same by leaves and branches of trees. This enquiry resulted in registration of Namchi Police station Case No. 01 (01) 2002 dated 1st January, 2002 against appellant. In course of investigation, a statement of appellant was recorded under section 27 of the Evidence Act. Information contained in the said statement, led to discovery of skeletal remains, hair band, threated etc. Bones thus recovered and blood samples of near relatives of Dil Kumari Chhetri, namely of Smt. Ganga Chhetri and Smt. Renuka Chhetri were sent to Central Forensic Science Laboratory, Kolkata for D.N.A. matching. In course of investigation, written report of Durga Prasad Chlletri dated 17.7.1999, written report (agreement) given by appellant dated 18.7.1999, written agreement given by appellant and social boycott paper dated 20.7.1999 were seized from Shri Ravi Chandra/Rabindra Chhetri, a member of Chuba Parbing Gram Panchayat. In course of investigation, papers and records pertaining to Dil Kumari Chhetri were also obtained from Namthang Primary Health Centre. In the disclosure statement, following statements were made :
"This is my true statement that about 3 years before in the year 1999 in the month of July/August, I was doing the wood work at Namchi. At that time the son of my elder uncle came to me and informed that a girl named Dil Kumari had become pregnant and had further delivered a still born child at Namthang Hospital and that women has identified that child is belonging to me. He further told me that my mother was severely ill.
Therefore, I went to see my mother. But when I reached there, I found that some villagers had gathered in the hospital and they forcefully handed over the girl to me. But since we were close relatives and could not marry each other, I was ostracised from the society and the village.
After being socially ostracized, since I was not allowed to stay in the village, I went to the doctor of that hospital and requested him to allow us to stay there for some days. After staying there 14 days, I took that girl away from Rangpo by telling her that I have a friend there and we will stay there for about 1/2 years. We took lift in a tax and got down at Tar Khola and from there I took her upwards telling her that we have to move upwards. On reaching some distance, I opened my crepe bandage and, strangulated her neck from behind and continued to strangulate and killed her. It was about 7.30/8 O'clock when I murdered her in the silent forest of Tar Khola. After that, I found there was a ditch at one place. I took the body of that girl to the ditch and covered the same with leaves and branches. I can still show that place as well as that ditch."
The disclosure statement was given on 2nd January, 2002 and on that day at Tar Khola forest, one purple colour hair band, thread/fabric, skull bone-three pieces (1)-upper portion of the head, (2)-facial portion of the head with eleven teeth and (3)-lower jaw with six teeth, 3 numbers rib bones, pelvis bone, 5 numbers other long bones and 3 numbers small bones were seized. The written report seized from Ravi Chandra/Rabindra Chhetri translated into English reads as follows :-
"To, The Gram Panchayat, Chopa Phong, Block Panchayat Phong, Dated : 17.7.1999 Sir, I, Durga Prasad Budhathoki, R/o Phong Bas Botey block beg to submit this report that. Subject : Sir today on 17.7.1999 on Saturday my wife's sister, Dil Kumari Chhetri has given birth to a child who is not alive and on being asked to Dil Kumari Chhetri by her brother-in-law Durga Prasad, it has been found that the said child belongs to Dilli Ram Basnet, S/o Baudhaman Basnet, R/o the same village. Therefore, we request you to take appropriate steps as per law by block Panchayat as well as village people immediately. This much, Yours faithfully, Sd/ Ext. P-2 (a)"
(3.) THE written report/agreement similarly seized from Ravi Chandra/Rabindra Chhetri, translated into English reads as follows :
"I, Durga Prasad, resident of Phong on 17.7.1999 submitted a report to Block Panchayat stating that my sister-in-law had given birth to a child at Hospital and therefore, we the resident of Phong and concerned panchayat after making inquiry to both Dilli Ram Basnet, son of Baudhaman Basnet, do hereby fix responsibility of Dil Kumari Chhetri to Dilli Ram Basnet from today onwards i.e., 18.7.1999 in presence of guardian, Block Panchayat and co-villagers."
This document was signed, amongst others, by appellant and Dil Kumari Chhetri.;