Santosh Hegde, J. -
(1.)The appellant herein, who was a Sub-Inspector of Police, Special Branch, Sikkim Police, along with one Rolland Christopher Chhetri (A-1) who was then a Sub-Divisional Police Officer in the Sikkim Police, was charged for an offence under Sections 364, 302, 201 read with Section 34, I.P.C. for committing the abduction and murder of one Dharma Dutt Sharma, and causing disappearance of evidence. A-1 died during the trial of the case, hence, the proceedings against him abated. The appellant on being found guilty by the Special Judge, Human Rights, South and West Districts, Sikkim, was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default to undergo further R. I. for a period of one year. For the offence under Section 364, I.P.C., the appellant was sentenced to undergo R. I. for 6 months and for the offence under Section 201 he was further sentenced to undergo R. I. for 3 years and to pay a fine of Rs. 5,000/- in default to undergo R. I. for 6 months. The learned Special Judge held that all the substantive sentences of imprisonment should run concurrently. He also directed that if the fine is realised the same be paid to the children, if any, of the deceased. An appeal against the said conviction and sentence to the High Court of Sikkim having failed, the appellant has preferred this appeal.
(2.)Briefly stated, the prosecution case is that on 12-2-1988 A-1 and A-2 came in search of the deceased and subsequently with the help of PW-5, they were able to contact the deceased near the house of the deceased and took him away in a jeep along with PW-5. It is stated that while going away with the accused persons and PW-5, the deceased possibly after apprehending some harm to himself, informed PW-3 to tell his wife that he was being taken by A-1 in his jeep. It is the further case of the prosecution that on the way PW-5 got down from the jeep and the jeep proceeded towards Chakung. The prosecution alleges that on the way the accused committed the murder of the deceased, took his body across the check-post towards Singla within the territory of State of West Bengal and dropped the body below the road near the forest quarters at Kerabari, and returned back to Naya Bazar. The above incident of the accused persons crossing the check-post was witnessed by PW-15, the Havildar in-charge of the check-post and their return to Naya Bazar was noticed by PWs-15 and 22 latter of whom by that time had come to the check-post. It is the further case of the prosecution that on the very same night of 12-2-1988, A-1 with his family visited the check-post at around 9.45 p.m. without there being any official reason for the same. The prosecution then alleges that on 13-2-1988 the appellant and A-1 visited the check-post in the morning at about 10 a.m. ostensibly on the ground that they wanted to give two torch-lights to the constables manning the check-post. It is further stated that on 13-2-1988 a group of about 20-25 people came to the check-post from Kerabari-Singla side out of which about 7-8 persons approached the check-post and asked PW-15 as to whose jeep it was which came to Kerabari side on 12-2-1988 evening and after being told that it was the jeep of A-1, one of the persons named Damber Singh Subba, a CPM leader of that area, told PW-15 to get A-1 to the check-post. Under the said instructions of D. S. Subba, PW-15 asked PW-22 also a Havildar at the check-post to bring A-1 which he did and on A-1 coming to the check-post, it is stated that he went along with D. S. Subba towards the forest headquarters along with PW-22 where it is stated that the people who had gathered, tried to gherao them. On seeing the same, said Subba, pacified the crowd and took A-1 to the house of one Kazi Lohagan where the prosecution alleges that A-1 admitted having brought the dead body from Naya Bazar side to Singla side and having dropped the same there. He allegedly assured the said Subba and others present that he would take care of the situation and he also allegedly gave a written statement to said Subba giving his version as to the existence of the dead body at that place. In the meantime on 12-2-1988 itself, PW-5 having suspected the intention of A-1 in taking the deceased in the jeep, sent a note to his superior intimating this fact vide his note Ex. P-2. The further case of the prosecution is that on 13-2-1988 at about 5.30 p.m., the appellant came to the office of PW-5 and on being inquired by PW-5 about the whereabouts of the deceased, the appellant allegedly told him that when the deceased was being taken away in the jeep at a place called -oom, A-1 got down from the jeep to ease himself. At that time, the appellant allowed the deceased to flee. It is the further case of the prosecution that again on 16-2-1988 the appellant met PW-5 and told him that as a matter of fact when deceased was running away, he fell down and injured himself and when they were bringing the injured person in the jeep for treatment at Jorethang, he died on the way, therefore, they took his body to Singla and dropped it there and later on 13-2-1988 they went back to Singla and disposed of the body with the help of O. C. Bijanbari (in West Bengal) and some other CPM workers for which he and A-1 paid money. The prosecution also alleges that on 14-2-1988 the appellant told PW-36 that when they were bringing a smuggler in the jeep from Darjeeling side to Sikkim side, the said person tried to escape from the jeep and in the process, fell down and died. It is the further case of the prosecution that until 20-2-1988 there was no official information about the incident of 12-2-1988 involving the deceased but on 20-2-1988 PW-47 who was the in-charge of the Police Station at Naya Bazar had reliable information as to the death of Dharma Dutt Sharma and the complicity of appellant and A-1. Consequently, he suo motu registered an FIR involving the appellant and A-1. The prosecution also relies on the evidence of PW-1, the wife of the deceased, who stated that a letter and other material objects like tobacco container, ID card, chappal recovered from the place where the dead body was thrown as that belonging to the deceased D. D. Sharma and also the fact of she having been told by the messenger who got the message from PW-3 that the deceased was taken away by A-1 in the Police jeep. It is based on this allegation that the appellant was tried by the learned Sessions Judge who in the absence of any eye-witnesses to the actual murder of the deceased, relying on a chain of circumstantial evidence, came to the conclusion that the prosecution has established the charge that was levelled against the accused and convicted the appellant. The circumstances relied on by the learned Sessions Judge are as follows :
"1. There was panchayat election going at the material time and that 12th February, 1988 was fixed as last date for filing of nomination papers.
2. Dharma Dutt Sharma had gone to Soreng to submit his nomination paper as a candidate.
3. Dharma Dutt Sharma obtained nomination paper.
4. Dharma Dutt Sharma returned back to Timberbong on 12th February, 1988.
5. On 12th February, 1988 the accused Rolland and the appellant were searching for the victim Dharma Dutt Sharma.
6. On 12th February, 1988 deceased Dharma Dutt Sharma had left Timberbong in Gypsy No. SKM 999 towards Soreng with the accused Rolland and the appellant.
7. The deceased Dharma Dutt Sharma was last seen in the company of the accused Rolland and the appellant and they abducted the deceased Dharma Dutt Sharma.
8. The appellant Mani Kumar Thapa was with the accused Rolland all along with from Soreng to Timberbong. The appellant opened the door and made the deceased to sit in the back seat and that the deceased left with both the accused Rolland and the appellant on the evening of 12th February, 1988 from Timberbong in the direction of Soreng.
9. Both the accused Rolland and the appellant were together while returning from Singhla side of West Bengal.
10. The accused Rolland and the appellant murdered the deceased Dharma Dutt Sharma and concealed the evidence of the murder."
(3.)In appeal, the High Court after discussing various case-laws and on appreciation of circumstantial evidence held that the presence of the appellant in the jeep along with A-1 in search of the deceased was established beyond all reasonable doubt and also found that the prosecution case of taking the deceased in the jeep on 12-2-1988 from the evidence of PWs-3, 5 to 9, 11 and 12 was held proved. From the evidence of PWs-15, 22 and 25, the High Court came to the conclusion that the identification of the appellant at Ramam check-post on 12-2-1988 was established beyond all reasonable doubt. The Court also accepted the evidence of PW-5 as to his presence in the company of the appellant and A-1 in the evening of 12-2-1988 and the apprehension entertained by PW-5 as to the taking away of the deceased on 12-2-1988, through the letters written by PW-5 to his superior as per Exs. P-2 and P-3 as also certain statements made by the accused to PW-5. The Court also relied on the stand taken by the accused in his statement made to the trial Court under Section 313, Cr. P. C., as also the conduct of the accused in giving different versions to different people in regard to the incident of 12-2-1988, and on that basis held the appellant guilty of the charges framed against him and confirmed the conviction and sentence imposed on him.