Decided on September 03,2010



- (1.) This appeal is directed against the judgment of the learned Sessions Judge, East and North Sikkim at Gangtok, dated 12-02-2009 passed in S.T. Case No. 9 of 2004, by which the appellant was convicted for commission of offences under Sections 302/34 of the Indian Penal Code (in short "IPC") along with one Damber Bahadur Chettri and sentenced to undergo simple imprisonment for life and pay a fine of Rs. 5,000/ - and in default of payment of fine to undergo further imprisonment for 6 months and both the sentences were to run concurrently.
(2.) The facts of the case material for the purpose of disposal of the appeal are that on a complaint lodged by one Dorjee Tamang, PW2, who is the brother of the deceased, that his younger brother Dawa Tamang had been found murdered in his home, the Sadar Police Station, Gangtok, registered a case under Section 302 IPC against unknown persons and taken up for investigation. On completion of the investigation, charge sheet was filed against one Damber Bahadur Chettri and Kishore Thapa, the appellant, under Sections 450/302/380/34 IPC. In the course of the investigation, it was revealed that on 16-09-2003 at about 5.30 p.m., Nawraj Rai, PW3, the driver of the deceased, who drove his Maruti taxi, deposited the keys of the vehicle and the day's earnings from the taxi with the neighbour of the deceased and left. In the morning of 17-09-2003, he went to the residence of the deceased as usual to collect the keys but found it locked from outside. The neighbour from whom enquiry was made about the whereabouts of the deceased expressed ignorance and, therefore, he left without collecting the keys. On his visit in evening of the same day, the driver found the residence of the deceased still locked. He found the door looked even in the morning of 18-09-2003. On 19-09-2003 when the same position persisted, the driver went to the house of the elder brother of the deceased to make enquiries. This led to their filing a missing report of the deceased at the Sadar Police Station, Gangtok where they were directed to look for the deceased at his residence. While doing so, they sought permission of the landlord of the house where the deceased was residing to break open the lock of the door but were told that they could do so only with the help of the police. The landlord, however, informed them that they could enter from an alternative route from behind the verandah of the residence of the victim. When the driver took that route and entered the residence of the deceased he could get foul smell emanating from inside and upon entering the bed room, the dead body of the deceased was seen lying on the floor covered with a quilt up to his neck. On seeing this, he rushed back and informed of what he had seen to the brother of the deceased and the landlord who were standing outside. Upon this, the brother of the deceased lodged a written FIR at the Sadar Police Station, Gangtok, regarding the incident.
(3.) After registering of a case, the Investigation Officer and the Officer-in-Charge of the Sadar Police Station, went to the residence of the deceased and broke open the lock in presence of respectable members of the locality and upon entering the room they found the body of the deceased lying in a pool of blood covered with quilt, blanket and pillows and was in an advanced state of putrefaction with foul smell emanating therefrom. During the inquest performed on the body, it was found that the neck of the deceased was tied with wires with lacerated punctured wound on his right temple and also lacerated wound on the forehead with his legs tied with a piece of cloth and blisters formed all over the body. Rigor mortis had set in over the entire body which was in a state of putrefaction and his eyes and tongue protruding. Various articles like the copper wire, flexible wire, a piece of printed cloth were seized from the place of occurrence. Sample of blood soaked in cotton was also collected from the place of occurrence. The body was thereafter forwarded to the S.T.N.M. Hospital for autopsy. Post-mortem report indicated that the cause of death was due to combined effect of ante-mortem head injury produced by blunt force and anter-mortem strangulation by ligature. A sample of blood of the deceased soaked on a cotton gauze was collected and seized from the Doctor.;

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