STATE OF SIKKIM Vs. MILAN KUMAR DIYALI

JUDGEMENT

(1.) This Government Appeal is directed against the judgment dated 30th July, 2002 passed by the learned Sessions Judge, South and West at Namchi in Criminal Case No. 3 of 2000 acquitting the accused, Milan Kumar Diyall and Simon Biswakarma of the charges under Sections 302/201/34, IPC.

(2.) The case of the prosecution, in brief, is that in September, 1999 one Sonam Bhutia had taken seven Oxygen Cylinders from the firm "Tripti Steel Traders" located at 3rd Mile, Sevoke Road, Silligurl which deals in scrap business and is owned by one Sanjay Agarwal to Yuksom, West Sikkim. While taking the gas cylinders, the said Sonam Bhutia had also taken along with him one gas cutter boy who works for hire for the purpose of cutting scrap materials. Some days after they left, Sanjay Agarwal the proprietor of the firm got information that the said gas cutter boy was arrested by the police and had been detained in Yuksom Police out-post, West Sikkim. On receiving the information, the said Sanjay Agarwal deputed the deceased Binod Diyali who was employed as Manager in his firm to go to Yuksom to look into the matter. The deceased accordingly left for, Yuksom arid returned back to Sllliguri on the very next day bringing along with him the gas cutter boy after securing his release from the police outpost. Some time thereafter Pintu Agarwal (P.W.7), brother of the proprietor Sanjay Agarwal again deputed the deceased Binod Diyali to go to Yuksom, West Sikkim for the purpose of securing release of gas cylinders which were seized by Yuksom Police and giving him an amount of Rs. 10,000/- to meet necessary expenses for the purpose. The deceased accordingly left Silliguri for Yuksom on 16th November, 1999 in jeep bearing No. WB-73/5354 hired by him from one Promod Kamti of Silliguri. The said jeep was driven by one Simon Biswakarma, the accused No. 2. This time the deceased failed to return back to Siliguri for several days. When there was no news of him for a number of days his wife, Mrs. Monu Diyali (P.W.5) was apprehensive of his safety and started search for him. On 9th December, 1999, she lodged a missing report with Gyalshing Police Station. On receipt of the missing report, the concerned Officer-in-Charge of Gyalshing Police Station conducted a preliminary enquiry and registered P.S. Case No. 76(12)99 dated 12th December, 1999 under Section 365, IPC and took up investigation. Before he could make any headway, in the investigation, the case was transferred to Crime Branch, CID, Gangtok for further investigation. Consequently, the Dy. S. P., CID, Gangtok took over charge of further investigation on 18th December, 1999. After taking over the charge of investigation, the Dy. S.P. CID conducted a thorough interrogation of Simon Biswakarma, accused No. 2 and other available witnesses. The interrogation so conducted by him revealed that the deceased was shot dead by the accused No. 1 with the revolver on the way to Sakbari on 17th November, 1999 and the accused No. 2 had concealed the revolver, in the bed room of his friend Babloo Choudhury at Asram Para, Silliguri. On indiscreet interrogation the said Simon Biswakarma, accused No. 2 stated that he will be able to show the place and recover the said weapon from the place where he had concealed. Accordingly, the I.O. proceeded to Silliguri taking along with him the accused Simon Biswakarma. With the help of local police at Silliguri, the I.O. conducted search of the bed roorri of the said Babloo Choudhury on 20th December, 1999. During the search operation, the accused Simon Biswakarrna took out a revolver bearing No. A 31673 Webly and Scot from inside a sound box kept in the bed room of one Babloo Choudhuiy. The I.O. then seized the revolver duly preparing a seizure memo. The dead body of the deceased was later recovered from the bank of Teesta river at a place below Hanuman Mandir on 31A National Highway on 24th December, 1999. The dead body was identified by the relatives of the deceased from the wearing apparels. After the inquest was conducted by the police from Kalimpong Police Station, the dead body was sent to the Department of Forensic and State Medicine, North Bengal Medical Hospital where post- mortem examination was conducted by one Dr. Shyamal Lahiri (P.W.I9). On the basis of the materials collected in course of the investigation, the case which was originally registered under Section 365, IPC was converted into a case of murder and further investigation was carried on. The investigation revealed that on 16th November, 1999, the said jeep bearing No. WB-73/5354 had crossed Melli Check Post which is a border between Sikkim and West Bengal at 1320 hours and "had proceeded towards Jorethang. The investigation further revealed that on the same day in the night, the deceased Binod Diyali reached Yuksom Check Post in the same jeep accompanied by one B. Tshering Bhutia (P.W.21), P. B. Rai (P.W.20), Saran Kr. Tamang, I/C Reshi out-post (P.W.25), Krishna Bdr. Chettri, I/C Legship out-post (P.W. 11). The deceased had taken the persons accompanying him for assistance in securing release of the seized gas cylinders from the accused No. 1 who was the I/C at Yuksom Police out-post at the relevant time. However, the deceased and his party failed to get the release of the gas cylinders that evening. The accused No. 1 told the deceased to come on the next day saying that he will release the cylinders and will also avail of the same transport for going to his house as he was proceeding on leave. As told by the accused No. 1, the deceased again reported at Yuksom Police outpost on the next day, i.e., 17th November, 1999. On that day, the accused No. 1, Milan Kumar Diyali and the accused No. 2 driver Simon Biswakarrna were last seen together with the deceased Binod Diyali at Legship in a jeep proceeding towards Jorethang.

(3.) After completing the investigation, the I.O. filed charge-sheet against both the accused- respondents under Sections 302 / 201/34, IPC for their trial. On committal of the case to the Court of Sessions, the learned Sessions Judge (South & West) having found sufficient material framed charges against both the accused-respondents under Sections 302/201/34, IPC.