- (1.) This appeal is directed against the judgement and order dated 22/23.02.2005 passed by the learned Additional Sessions Judge, 2nd Court, Darjeeling in Sessions Trial No. 13/2004 arising out of Sessions Case no. 11/2004 convicting the appellants under Sections 302/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life with fine of Rs.3,000/- each and, in default of payment of fine, to undergo further R. I. for one year. The period of detention in jail custody, as under trial prisoners, was directed to be set off.
(2.) On 23/4/2004 at about 8.05 am, one Nirmala Thapa (stated to be the sister of the deceased) made a written report before the Inspector-in-Charge, Sadar Police Station, Darjeeling against the appellants herein alleging, inter alia, as follows: "Yesterday on 22/4/2003 at about 10.30 p.m., I heard some commotion/quarrel which made me come out to investigate. Our co-villager Budhibal Subba was seen shouting. I also heard my brother Sudarshan uttering "AI Raj". My sister-in-law also came out to find out what had happened. In the meantime, I went to the house of Raj and heard him uttering loudly that he was not afraid. Prior to the incident, my sister-in-law had seen from her window that Budhibal (appellant no.1) had entered and then gone out of the house. I then went to the street to take my brother from the road. He had sustained bleeding injuries caused by sharp cutting weapon. Raj Rai (appellant no.2) had killed him. The Doctor declared him dead in the hospital."
(3.) On the basis of the aforementioned written report, the concerned police instituted Darjeeling Sadar P.S. case No. 32 of 2003 dated 23/4/2003 under Section 302 of the Indian Penal Code and took up investigation. Charge sheet was submitted against the appellants and the case was committed to the Court of the learned Sessions Judge, Darjeeling whereafter it was transferred to the Court of the learned Additional Sessions Judge, 2nd Court, Darjeeling for trial and disposal. After receiving the records, charges were framed under Sections 302/34 of the Indian Penal Code against the appellants who pleaded not guilty and prayed for being tried. Finally, after exhausting the procedure laid down in the Code of Criminal Procedure, the impugned judgment was passed, convicting the appellants and sentencing them, as aforesaid. P.W. 1 is one Dhoma Thapa, who claimed to have known the appellants. She has stated that she had "heard" that Sudarshan Thapa had been murdered and, on the day of the murder, the accused Raj Rai had gone to her house and had her paid a sum of Rs.60/- being the value of nails which he had purchased from her on an earlier occasion. After receiving the money from Raj Rai, this witness along with her husband had gone off to sleep and Raj had also left her house but on the next morning, D. Gurung, Upa Pradhan, of the locality had come to their house and had told them that Sudarshan had been murdered. This therefore, is a witness who is a mere hearsay witness and is not an eye witness. P.W. 2 is Susmita Rai. She was declared hostile. P.W. 3 is one Dhiraj Rai who is a relative of the deceased and who claimed to have known the appellants. He said that he had "known" that Sudarshan had died and that Sudarshan was his brother-in-law. He also said that about one-and-a half years ago, Sudarshan had been murdered and that some days later, the police had come to his village and had asked him to put his signature on a blank sheet of paper. He identified his signature but, according to this Court, this witness can hardly be said to be sufficient for purposes of establishing the charges against the appellants. P.W. 4 is one Bikram Rai. He has stated that he knew the deceased Sudarshan who used to reside near his house and that Sudarshan had died a year back. He however, could not say as to how Sudarshan had died. In fact, he goes on to say that seven days after the death of Sudarshan, police had come to his residence and had taken his signature on a blank sheet of paper. He identified his signature. From a bare reading of his evidence, we are of the view that this witness cannot be said to be competent for purposes of establishing the charges against the appellants. P.W. 5 Smt. Rosi Thapa is the wife of the deceased. She is the only witness who has to be looked into with an element of seriousness because she is the person who has said that she knew the appellants. She has also given a description of the manner in which she "came to know" about the incident and about what the deceased had told her. She has stated that on 22/4/2003 at about 10.30 p.m. the sister of the deceased, namely, Nirmala Thapa (informantcum-P.W. 17) informed her that there was a quarrel going on below her house. She opened the window of her house and heard her husband saying with "Raj Raj". She then, came out of her house and found Buddhibal returning and she saw her husband lying on the road with grievous bleeding injuries on his chest, ear, neck and hand. On query, her husband Sudarshan told her that Buddhibal Subba alias Rai had caught hold of him and the other accused, namely, Raj Rai had assaulted him by a sharp double-edged weapon, namely, Chuppi. Thereafter, he became unconscious and, on being taken to the hospital, was declared dead. ;