Crl. A./2/2006 of Raju Chhetri and ano Vs State of Sikkim on 16 September 2009

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THE HIGH COURT 0F SIKKIM : GANGTOK

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Crl. A. No.2 of 2006

•Raju Chettri,•S/o Late Dil Bahadur Chettri,R/o Dull Kaman, Dar].eeling,West Bengal2.Puran Rai,S/o Narshing Rai,R/o Bermiok Kaman,Darjeeling,West Bengal(Both at present kongyek Jail)

•.... Appellants

versus

St:ate of SikkimThrough the Chief Secretary,Government of Sikkim,Gangtok, East Sikkim.

..... Respondent

For Appellants :

For Appellants :Mr. N. Rai, Legal Aid Counsel with Ms.Jyoti Kharka, Advocate.For RespondentMr. J. 8. Pradhan, Public Prosecutor,Mr. Karma Thinlay, Additional .PublicProsecutor and Mr. Santosh Kumar Chettri,Assistant Public Prosecutor.

PRESENT : HON'BLE MR. JUSTICE A. H. SA.IKIA, CHIEF JUSTICE.HON'BLE MR. JuSTICE S. P. WANGDI, JUDGE.

Last date of hearing : 26-08-2009

DATE OF JUDGMENT = 16-09-2009

I I E2 £ M E E! I

Wanadi, J.

This appeal is directed against the judgment of theLearned Sessions Judge, Special Division-I dated 30.03.2004, .y.- _-±t=±

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passed in Sessions Trial Case No.4 of 2004, by which the appellantswere convict:ed under Sections 302/348,380/341 IPC and sentencedto undergo R.I. for life and to pay fine of Rs.2000/- u/S 302/134IPC and R.I. for seven years and to a fine of Rs.1000/-u/S 380 IPCagainst the appellants, directing that sentences shall runconcurrently.

2. Substance of the prosecut:ion case is that, in the weehours of 11.11.2003, at about 4.00 A.M., a patrol party consistingof C/1180 Man Bahadur Chettri and Home Guard Indra KumarChettri, saw the appellants near Krishi Bhawan at Tadong,proceeding downhill on foot with bags. Finding their movement tobe suspicious, they accost:ed them and when questioned, theappellants were unable to give reasonable answers. Upon theirsearch at the Tadong O.P. where they were taken by the patrolpart:y, the appellants were found Carrying gold ornaments and cash,thereby strengthening their suspicion of the appellants havingcommitted some offence. On being informed telephonically by theI/C Tadong O.P., the Duty Officer from Gangtok Sadar PoliceStation, proceeded to the O.P. and brought the appellants to theGangtok Sadar P.S. for necessary inquiries. At the Police Station,on being questioned, they revealed that they were the employeesof Sikkim Hotel situated near S.N.T. Bus Terminus, Gangtok andthat they had committed murder of the owner of the hotel and herdaughter. On such informat:ion, t:he police led by P.M. Rai, Officer-in-Charge, Sadar Police Station went to the hotel to conductpreliminary inquiries accompanied by the appellants. Finding the

hotel locked from outside they called for the local residents and thebuilding caretaker. On their arrival, the police entered the room ofthe lady owner of t:he hotel, after breaking the lock open in theirpresence, and found the floor and the door of the toilet which wasfound bolted from outside covered with blood stains. On openingt:he toilet door, they found a lady above 40 years of age lying deadin a pool of blood with multiple cut in].uries on her throat, head,hands and face. Another room which was found locked was openedwith a key in a bunch found ].ust outside that room and uponentering it which was found to be the 11/ room, an old lady agedabout 70 years was also found dead in a pool of blood with similarinjuries. The rooms were found ransacked and in a disarray. Thepolice thereafter suo-moto registered Sadar P.S. CaseNo.138(11)03 dated 11.11.2003 u/Ss. 302/380/341 IPC against theappellants and endorsed it to the I.0. for investigation.

3. As a part of the investigation, the Investigating Officervisited the place of occurrence where necessary photographs weretaken, rough sket:ch map of the place of occurrence was drawn andthe available witnesses acquainted with the fact:s and circumstancesof t:he case examined and their statements recorded u/S 161Cr.P.C. Statements u/S 27 Evidence Act, 1872 of both the accusedpersons were recorded on the basis of which weapons of offenceconsisting of two `chedos' (sharp edged heavy cutting knives usedin kitchens for cutting meat) and wearing apparels of both t:heaccused persons seized from t:he scene of crime. Inquest of thedead bodies u/S 174 Cr.P.C. of both the victims was conducted in 'e presence of witnesses after its necessary identification whereafterthe bodies were forwarded to the S.T.N.M. Hospital for post-mortem examination where the wearing apparels, hair and bloodsamples of the victims were seized in presence of witnesses andsent to CFSL, Kolkata, for its analysis and opinion.

4. Investigation carried out in the case revealed that on11.11.2003 at about 3.30 a.in. the appellants were intercepted atTadong, below Krishi Bhavan by a patrol party when they werefound walking in a suspicious manner carrying bags and goingdownhill towards Tadong. On being questioned, the appellantswere unable to give satisfactory explanation of their movement insuch odd hours of the morning. When they were searched at theTadong O.P., some gold ornaments and a large amount of cashwere found in their possession prompting t:he I/C Tadong O.P. toinform the Gangtok Sadar P.S. where they were later taken forinterrogation.

Investigation further revealed that in the evening of10.11.2003, approximately between 4.30 p.in. and 5.00 p.in. theappellants hatched a plan to commit murder of the two ladies,namely, Shoukyi, the mother, and Tsetenkyi, the daughter, underwhom they were working as servants, after dinner that night andloot them of their gold ornaments and cash. At about 9.00 p.in.after having dinner, when the two ladies retired in their TV room towatch programmes on the TV, the appellants also went to theirbeds in the room ad].acent and ].ust outside the room of the two c\,i

ladies. At about 9.15 p.in. when the daughter, Tsetenkyi, came outof the 11/ room t:o go to the toilet, t:he appellant No.1, namely, Ra].uK.C. Chettri, hit her on her head, throat and hands with a heavy`chedo' repeatedly, and slit her throat with a small sized `chedo'.On hearing her daughter's scream, the mother Shoukyi, came outof the room when she also was hit with t:he heavy `chedo'repeatedly on her hands and feet. When the accused personsfound t:he daughter still alive, they caught hold of her by her hairand slit her throat also. The unconscious mother also faced thesame fat:e of her throat being slit by the appellants. After havingmurdered the daughter, the appellants pushed the daughter back inthe toilet and bolted its door from outside. The appellants, knowingthat the victim ladies had in their possession gold ornaments andcash, ransacked all the rooms in its search and committed theft ofcash amounting to Rs.30,000/-and gold ornaments weighing about20 `tolas' and left the place from the main door and proceededtowards Siliguri via Tadong, when they were intercepted by thepatrol party and brought to t:he police st:ation.

6,In the aforesaid premises, t:he Investigating Officer found that a prima facie case u/Ss. 302/380/34 IPC was made outagainst the appellants. The medical report received from the STNMHospital further strengthened the case against t:heaccused/appellants as it. was found that in respect of the deceasedmother, t:he cause of the haemorrhage on account of which she ha`ddied was due to the incised wound on the neck caused by the sharpedged heavy cutting weapon and that the injuries were ante mortem sufficient to cause cleat:h in the ordinary course of nature.In the case of the deceased daughter also, it was opined by thedoctor that the cause of her death was due to multiple incisedwounds on the neck caused by a sharp edged heavy cutting weaponand that the injuries were ante mortem sufficient to cause death inthe ordinary course of nature.

Charge-sheet was accordingly filed against theappellants for their trial for committing murder of the two ladies,namely, Shoukyi, aged about 70 years and her daughter, Tsetenkyi,aged about 40 years with the intention to commit theft of cash andgold ornaments from their residence and for having committed theftin furtherance of t:heir common intention. Charge was framed bythe learned Sessions Judge, East and, North Sikkim at Gangtok,u/Ss. 302/34 IPC and 380/34 IPC against t:he accused persons,against which they pleaded not guilty and claimed to be t:ried. It ispertinent to note t:hat during the course of the trial, additionalcharge sheet u/S. 173(8) Cr.P.C. to bring on record the report ofCFSL, Kolkata was filed by the I.0. As per the report, the bloodstains found on the weapons, i.e., small and big `chedos', thewearing apparels of the deceased and the accused persons wereconfirmed as being human blood. The learned Sessions Judge, afterthe trial, in consideration of the materials on record, the evidenceand upon hearing the Counsels on behalf of the appellants and thelearned Public Prosecutor, convicted the appellants and sent:encedthem to undergo rigorous imprisonment for life and to pay a fine ofRs.2000/- for the offences u/S. 302/34 IPC and rigorous `\`)\, imprisonment for 7 years and fine of Rs.1000/-for the offence u/S.380 IPC against both the appellants directing that the sentencesshould run concurrently by her ].udgment dated 30.03.2006. Bythis appeal, t:he appellants seek to set aside that judgment whichshall hereafter be referred to as the impugned judgment forconvenience.

8`Before this Court, Mr, N. Rai, learned Advocate,appearing on behalf of t:he appellants, submitted that the basis ofthe entire prosecution case was the alleged disclosure st:atement,which is not valid in t:he eye of law, since as per him, it wasextracted by the police through the use of third decree method and,therefore, one of the essential requirements of a disclosurestatement of it being voluntary was found lacking. It wassubmitted that t:he use of third degree by the police was establishedby the medical report as the medical officer when examining theappellant No.1, Raju Chettri, found ``abrasion on the wrist (flox)size 1/2 cm x 1/2 cm approximately and on the rt:. forearm upper, size2 cm x 1/2 cm approximately''. As per the learned Counsel thoseinjuries were sustained by the appellant No.1, Raju Chettri, whenhe was under police custody and that the prosecution had failed toexplain as to how such in].uries could be sustained by the appellantwhile being under their custody and that in fact those in].uries gotinflicted on him by the police when he refused to sign on thedisclosure statements and some other blank papers when asked todo so by them. As per Mr. Rai, the disclosure statements of thetwo persons being identical both in language and grammar, serious

doubt arises as regards its authenticity. The disclosure stat:ementswhich appear to be more like a confessional statement cannot beheld to be valid. In support of his submission, Mr. Rai has reliedupon the following decisions:-

(i) Paulose & Others vs. State of Kerala reported•ir\ 1990 CRI. L. J. 100 (8);•ir\ 1990 CRI. L. J. 100 (8);

(ii) Jogendra Nath & Others v. State of Assamreported .ir\ 1977 CRI. L. J. 1309 (Gau.);reported .ir\ 1977 CRI. L. J. 1309 (Gau.);

(iii) Anter Singh v. State of Rajasthan reported .inAIR 2004 SC 2865 (paragraphs 11 to 18);AIR 2004 SC 2865 (paragraphs 11 to 18);

(iv) Md. Miayatullah v. State of Maharashtrareported in AJR 1976 SC 483 (paragraphs 11,14 and 17);reported in AJR 1976 SC 483 (paragraphs 11,14 and 17);

(v) Salim Akhtar @ Mota v. State of u.P. reportedin 2003 CRJ i. J. 2302 (paragraphs 8 to 10);andin 2003 CRJ i. J. 2302 (paragraphs 8 to 10);and

(vi) Babu Das v. State of M.P. rer]orted .in 2003Cri-.I,J. 2356 (SCJ (paragraph 4).Cri-.I,J. 2356 (SCJ (paragraph 4).

9. It was next contended on behalf of the appellants thatthe ornaments that were said to have been seized from theappellants were not proved t:o be so by the wit:nesses and,therefore, the ornaments produced in Court during t:he trial couldnot have been linked with the appellants. The I.0. admittedly didnot put identification marks on the seized articles during theinvestigation, which makes the identification of those articles inCourt doubt:ful. It was submitted that even if the recovery of theornaments was held to be valid, it could only be a proof of a caseu/S. 380 and not u/S. 302 IPC. Mr. Rai in support of thiscontention referred to and relied upon the case of Wagappa Dondipa Kalal v. State of Karnataka reported .in AIP` 1980 (SC)1753.

]0. It was next contended that the CFSL report beingdefective in law could not have been relied upon, in as much as itwas not sent by the Director or the Deputy Director or the AssistantDirector of the Forensic Science Laboratory as required u/S 293(e)Cr.P.C. which provides that it is only a report that is sent by suchauthorities t:hat do not require t:o be proved and that in all othercases reports have to be proved through the examiner. In thepresent case, as the CFSL report was proved by the InvestigatingOfficer and not by the examiner, it would not be admissible in lawand would amount only to be a hearsay evidence. It was furthersubmitted that the CFSL report could not link t:he appellants withthe crime as the report was not conclusive due to the degradedcondition of the blood samples and that the only conclusion that theexaminer could arrive at was that the samples were confirmed asbeing human blood. It was further submitted that the messengerwho was sent to reach the exhibits to the CFSL, Kolkata was alsonot examined.

]], Taking support of the ].udgment in the matter ofHardyal & Prem v . State of Rajasthan reported .in AIR 1991 SC269, it was submitted that the CFSL report should clearly indicat:ethat the blood stains tally with the blood of the deceased and thatthis fact necessarily needs to be proved. This not being done, theCFSL report loses its evidentiary value.

12. Referring to the evidence of PWs 6 and 7, who are the witnesses to the seizure of material Exhibits consisting of the gold ornaments, cash and other articles like rum bottle, yashika camera, walkman and walkman radio, etc., exhibited as MO IV

(collectively), MO V, MO VI, MO VII, MO VIII, MO IX, MO X, MO XI, MO XII, MO XIV and MO XVI, it was submitt:ed that their credibilitywas doubtful as their statements in Court and the one given bythem when the search and seizure were made, suffered frominherent contradiction. This as per the learned Counsel is obviousfrom the seizure memos exhibits Plo and Pll which indicates thetime of seizure as 6.25 a.in. and 6.10 a.in. while in the deposition,PW6 has stated it to be 6.30 a.in. and by PW7 as 6.00 a.in. to 6.30a.in. respectively. Such difference of time, as per the learnedCounsel, amounts to material cont:radictions in the evidence of thetwo wit:nesses and, therefore, deserves to be re].ected.

13. It was then contended t:hat the evidence adduced onbehalf of the prosecution no doubt casts a strong suspicion on theappellants having committed the offence, but lacks the necessaryproof of such commission. It was submitted that suspicion,however grave it may be, cannot take the place of legal proof. Mr.R`a.i rel.led upon the cases oF State of Punjab vs. BhE.fan Singh &Others reported .ir` AIR 1975 SC 258 anc] the case oF AshishBathen vs. St:ate of M.P. reFiorted .in 2002 CRI. L. I. 4676 (SC)which lay down the proposition of law.

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]4. It was then submitted that the prosecution has failed toestablish t:he essential requirements prescribed under the law forcases purely based on circumstantial evidence like the instant one.In the first instance it was submitt:ed that the facts which shouldconst:it:ute a chain leading to the only hypothesis of the appellantshaving committed the offence are not established. As per thelearned Counsel, the following facts vital for the prosecution havenot been proved: -

(i) The iron rod used for breaking open the lock onthe front door had not been produced andproved;the front door had not been produced andproved; ImEThe keys to the lock of the main door ought tohave been recovered from the appellants if thestory of the prosecution t:hat the appellants putthe lock from outside after commission of theoffence is to be believed to be true. The fact that:this was not done in the case casts a seriousdoubt in the prosecution case of the door of thehotel being locked from outside.have been recovered from the appellants if thestory of the prosecution t:hat the appellants putthe lock from outside after commission of theoffence is to be believed to be true. The fact that:this was not done in the case casts a seriousdoubt in the prosecution case of the door of thehotel being locked from outside.

(iii) The I.0. did not take finger prints from t:heweapon of offence.weapon of offence.

(iv) The house owner of the building was notexamined and not even cited as a witness at allby the prosecution.examined and not even cited as a witness at allby the prosecution.

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(v) PW9 being a friend of the deceased person is aninterested wit:ness and, therefore, his evidencecannot be believed.interested wit:ness and, therefore, his evidencecannot be believed.

(vi) The fact that PWs 9, 10, 11 and 15 did notrecognise the appellant No.1, Ra].u Chettri, castsdoubt in the prosecution case against him.recognise the appellant No.1, Ra].u Chettri, castsdoubt in the prosecution case against him.

(vii) The two bags containing the gold ornaments andcash and seized from the appellants were neverproduced during the trial and exhibited.cash and seized from the appellants were neverproduced during the trial and exhibited.

15. It was further contended that when we consider theevidence of PWs 9,10,11 and 15, the involvement of the appellantNo.2, Puran Rai, in the commission of the offence becomesdoubtful. As per t:he learned Counsel, the statement of PW9 has tobe viewed with a great deal of circumspection as she was a closefamily friend and, therefore, a partisan witness. Secondly, whenthe witness said ``it is true that I cannot say for cert:ain whether theaccused persons standing in the dock were still working in SikkimHotel as I had seen them two days prior to the incident only'', theprosecutions story that the appellants were the servants working int:he house of the deceased persons also becomes doubtful. It wascontended that the stat:ement of PW10 to the effect that ``It wast:here that I saw the accused Puran Rai working inside the kitchen.I do not know the other accused standing in the dock" and also thatof PWll when he said ``It is t:rue that I have seen the accused,Puran Rai, outside the hotel and also inside the hotel. It is truethat I have never seen the accused, Raju Chett:ri" makes it abundantly clear that the involvement of the appellant No.2 in t:hecommission of t:he offence is not at all established. This fact standsclearly established by the statement of PW15 also, when he madethe following st:atement:- ``On 10.11.2003 at around 2.00/2.30 p.in. Isaw the accused, Puran Rai in front of SikkimHotel.

I do not know the name of younger accused(Chota Ladka)."

±6. For the aforesaid reasons, it was submitted t:hat theimpugned judgment deserve to be set aside.

17. Supporting the case of the prosecution and thesoundness of the impugned judgment, Mr. J. 8. Pradhan, learnedPublic Prosecutor and also the Additional Advocate General,submitted that the prosecution had been able to establish the guiltof the appellants beyond all reasonable doubts by satisfying theparameters prescribed for proof of a case solely depending oncircumstantial evidence. As per the learned Public Prosecutor, ithas been fully established that:-

(a) The appellants on 11.11.2003 at about 3.30 a.in.were apprehended while walking down towardsRanipool on the National Highway near KrishiBhawan by PW1, constable, Man Bahadur Chettriand PW2, Home Guard, Indra Kumar Chettri whenthey were on patrol duty;were apprehended while walking down towardsRanipool on the National Highway near KrishiBhawan by PW1, constable, Man Bahadur Chettriand PW2, Home Guard, Indra Kumar Chettri whenthey were on patrol duty; (b)That they were carrying a bag each which isproved by PW1, PW2 whose statements were a corroborated by PW4, H. 8. Pradhan, ASI SadarPolice Station, on night duty at the relevant time;

(c) That the bags contained gold ornaments and cashas revealed from the evidence of PW1, PW2, PW3and PW4.as revealed from the evidence of PW1, PW2, PW3and PW4.

(d) The appellants revealed the fact about thecommission of them having murdered the victimsin their place of residence and the theft ofornaments, cash and other articles - PWs. 1, 2, 3,4 and PWs. 12 and 13.commission of them having murdered the victimsin their place of residence and the theft ofornaments, cash and other articles - PWs. 1, 2, 3,4 and PWs. 12 and 13.

ornaments, cash and other articles - PWs. 1, 2, 3, (e)The appellants had made the disclosure statementu/S. 27 of the Evidence Act, ext. XVI and ext.XVII on the basis of which the weapons of offenceext:. XIX and ext. XX and blood soaked wearingapparels of the appellants, exts. XXI, XXIV, XXVand XXVI were seized on being led and shown bythe police from the place of occurrence. This facthas been proved by the evidence of PW12,Lobzang Tenzing, and PW13, Tshering DorjeeBhutia who were the witnesses at the time whenthe disclosure statements were made by theappellants and also by the I.0. PW18 who tookdown the disclosure statements.

On the basis of the statement given by theappellants, the police led by PW3, P. M. Rai, .OCSadar PS., had made a preliminary enquiry at theplace of occurrence and upon entering theresidential quarters after breaking open theoutside lock, blood stains were found on the floorand on the toilet door. They also found the deadbody of a female aged about 40 years lying onthe floor of the toilet with severe cut injuries on (f)

her throat and that of an old lady aged about 70years lying on the floor also wit:h severe injurieson her feet with a pool of blood flowing from thedead body, and thereafter, the PW3, P. M. Rai,OC., Sadar P.S. drew up FIR, ext. 1 suo motuand cases registered against t:he appellants.These facts have been proved by PW3, P. M. Rai,OC Sadar P.S. whose statement standscorroborated by PW8, Pema Wangda Bhutia.

(9) Inquest was conducted by the I.0. PW18, PI D. M.Subba which has been corroborated by PW8,Pema Wangda Bhutia.Subba which has been corroborated by PW8,Pema Wangda Bhutia.

(h) The victim died on account of haemorrhage duet:o incised wound on the neck caused by sharpedged heavy cutting weapon and that the injurywas ante mortem. After the post mortem, the 10handed over the dead bodies to PW8, PemaWangda Bhutia vide exhibits XII and XIII. Thesefacts have been proved by the evidence of themedico legal expert Dr. S. D. Sharma, PW3 0CSadar P.S., P. M. Rai and PW8, Pema WangdaBhutia.t:o incised wound on the neck caused by sharpedged heavy cutting weapon and that the injurywas ante mortem. After the post mortem, the 10handed over the dead bodies to PW8, PemaWangda Bhutia vide exhibits XII and XIII. Thesefacts have been proved by the evidence of themedico legal expert Dr. S. D. Sharma, PW3 0CSadar P.S., P. M. Rai and PW8, Pema WangdaBhutia.

"

At the STNM Hospital morgue, the police seizedext. MO XXXII - gold earings of t:he deceased,Shoukyi, MO XXXIII - white purple colouredcheck cotton nighty and ext. MO XXXIV - a pieceof cloth soaked with blood of deceased, Shoukyi,in a plastic container.ext. MO XXXII - gold earings of t:he deceased,Shoukyi, MO XXXIII - white purple colouredcheck cotton nighty and ext. MO XXXIV - a pieceof cloth soaked with blood of deceased, Shoukyi,in a plastic container.

PW17 Suresh Babu, Assistant Director, CFSL,Kolkata vide Ext. XX opined that t:he hair samplefound in two Chedo/Bamphok (ext.M.O. No.XIXand XX) and sample collected from t:he deceasedKolkata vide Ext. XX opined that t:he hair samplefound in two Chedo/Bamphok (ext.M.O. No.XIXand XX) and sample collected from t:he deceased Tsetenkyi ext. 18 were consistent with humanhair and found to be similar with each other. Assuch these prove that the convict appellant hadused M.O. XIX and XX.

(k) PW17 also identified ext.XXII serologyexamination report as per his evidence all theext:s. M.O.Nos. XXI, XXII, XXIII and XXIV testedpositive for blood.examination report as per his evidence all theext:s. M.O.Nos. XXI, XXII, XXIII and XXIV testedpositive for blood.

The appellants were the employees of thedeceased persons. This fact has been proved byPW9, Lakpa Doma Bhutia, PW10, Ashok Gurungand PWll, Sambu Chettri.deceased persons. This fact has been proved byPW9, Lakpa Doma Bhutia, PW10, Ashok Gurungand PWll, Sambu Chettri.

PW9, Lakpa Doma Bhutia, PW10, Ashok Gurung (in) The appellants in their statements made u/S 313Cr.P.C. bluntly denied all circumstances put tothem and failed to give any explanation or leadany evidence to explain the circumstancesappearing against them.Cr.P.C. bluntly denied all circumstances put tothem and failed to give any explanation or leadany evidence to explain the circumstancesappearing against them.

]8. Each of the aforesaid circumstances have been proved beyond all reasonable doubt and those circumstances have formeda chain leading to the only hypothesis that the accused are guilty ofthe offence of the murder of the deceased, Shoukyi and Tsetenkyi,in the night of 10.11.2003 in furt:herance of their common intentionto commit those offences.

]9. It was further submitted that the charge u/S. 380/34I`PC framed against the appellants were also proved, as it appearsfrom the following: - PW-1 and PW-2 in their deposition have statedthat convict appellant when apprehended werecarrying bag each and when the said bag was a cy searched at O.P., it was found containing goldearrings and money, the evidence of PW-1 hasbeen duly corroborated by PW-2. Furt:her PW-6Tenzing Bhutia has also deposed and identifiedthe following items which was seized vide SeizureMemo Exbt.10 (at page 23 to 24):-

(i) M.O. IX - Cash recovered and seized byPolice from one of the t:wo bags.Police from one of the t:wo bags.

(ii) M.O.V-TwoGod bangles

(iii) M.O.VI-Goldchain

(iv) M.O. VII -Gold locket

(v) M.O. VIII, IX & X - has silver items andreligious beads.religious beads.

(vi) M.O. XI-Rum bott:les

(vii) M.O.XII -Yashika camera

(viii) M.O. XIII -Walkman

(ix) M.O. XIV -Anotherwalkman with radio

(x) M.O. XV - 5(five) numbers of AudioCassetteCassette PW-7 Nima Chungda (at pg.81 to 84) in hisevidence corroborated the said witnesses. He hasproved the Exbt.11 (at page 24 to 25) by whichfollowing items were seized.

(i) M.O. XVII - Rs.15,000/- (Rupees FifteenThousand) in different denomination.Thousand) in different denomination.

(ii) M.O. XVIII-Two ladieswatches.

The I.0., PW-18 also identified the aboveseizure memo stolen article i.e., M.O. V to XVIand XVIII.

20. It was thus submitted considering the evidence whichhave come on record, it stands firmly established and proved thatthe appellants have commit:t:ed the offence of murder and that oftheft of the stolen art:icles found in t:heir possession.

2J. Mr. Jagat Pradhan, learned Public Prosecutor, placedreJ.lance .in the case oF Ganeshlal vs. State of Rajasthan &Others reported in (2002j I SCC 73Z to support his contentionthat in a case raised on circumstantial evidence, the failure of theaccused to offer a satisfactory explanation to the incriminatingcircumstances appearing against him in his statement u/S. 313Cr.P.C. infer that he is guilty of the offence and would amount to acircumstance capable of inculpating him. Mr. Pradhan hasspecifically drawn the attention of this Court t:o the followingext:ract:s of the ].udgment:- ``Paral2

Where offence, more than one havetaken place has part of one transaction, recentun-explained possession of property belonging tothe deceased may enable its presumption beingraised against t:he accused that he is guilty notonly of offence of theft or dacoit but also of ot:heroffences forming part of that transaction.

Para 15In such case the explanation offeredby the accused for its possession of the stolenproperty assume significance. Ordinarily, purposeof Section 313 of the CRPC is to offer the accusedan opportunity of offering an explanation ofincriminating circumstance appearing inprosecution evidence against him. It is notnecessary for t:he accused to speak and explain.However, when the case raised on circumstantialevidences the failure of the accused to offer asatisfactory explanation for his possession of thestolen property though not incriminatingcircumstance by itself would yet enable and _:`...`.

inference being raised against him becausefact being in the explaining knowledge ofaccused it was for him to have offeredexplanation which he failed t:o do.

Para 16

This Court held t:hat a false answer offeredby the accused on his attention being drawn tosuch circumstance renders the circumstancecapable of inculpating him. The Court went on tosay that in situation like this such false answercan also be found providing a missing link" forcomputing chain of circumstantial evidences."

22. The case oF Joseph vs. State of Kerala reported .in f2002) 5 SCC ]97 was also cited, wherein it has been held thatt:ot:al denial and/or blunt denial provides a missing link to the chainof circumst:ances leading to the guilt of the accused. It has thusbeen submitted that there was no infirmity in the judgment of thelearned trial Court for `this Court to interfere and that the appealshould be dismissed.

23. We have heard the rival content:ions of the parties bothoral and those contained in their respective written submissions andexamined the entire evidence on record. It is an admitted positionthat the present case is purely based on circumstantial evidence.The law as regards the decision of a case based on circumstantialevidence is well-established by successive decisions of the SupremeCourt. One of such decisions is the case V/-nay D. rvagar vs. Srareof Ra/-asrflan reported in (2008J 5 SCC 597 where in paragraph9 the principle has been succinctly laid down which reads asunder:- ``9. The principle of law is well establishedthat where the evidence is of a circumstantialnature, circumstances from which the conclusion

of guilt is to be drawn should in the first instancebe fully established, and the facts, so established,should be consistent only with the hypothesis ofthe guilt of the accused. The circumstancesshould be of a conclusive nature and they shouldbe such as to exclude hypothesis than t:he oneproposed to be proved. In other words, theremust be chain of evidence so complete as not toleave any reasonable ground for a conclusionconsistent with the innocence of the accused andit must: be such as to show that within all humanprobability the act must have been done by theaccused."

The above being the established position of law we need notrefer t:o other cases which reemphasises the very same position.In the backdrop of the above, we may now examine the contentionswhich were raised by the counsel on behalf of the appellants set outearlier.

24. The Principal attack raised by Mr.N. Rai, Id. Counsel, againstthe prosecution case was the validity of the disclosure statementwhich as per him is the cornerstone of their case. As can be seenfrom the substance of this contension set out above, it is the caseof the appellants that t:he disclosure statement lacks the essentialrequirement prescribed under section 27 Evidence Act of it being avoluntary one. We are afraid that the submissions do not impressus. The use of force or coercion has not in any manner beenestablished by t:he appellants. On the other hand, the prosecutionhas been successful in firmly establishing that the appellants hadvoluntarily made the disclosure st:at:ements Exhibits 16 and 17through the Investigat:ing Officer PW18 who had recorded thedisclosure stat:ements, a fact corroborated by the PW12 and PW13in whose presence such statements were recorded. Their evidence a .i:`\....

have not been demolished on any of the material facts in theircross-examination. That apart, no such plea was taken by theappellants in their statements recorded u/S 313 Cr.P.C. On thecontrary, the several questions put to them on that issue have beenreplied by them simply by saying "it is not true". We may refer toquestions No.44, 47, 48, 49, 55, 56 and 57 in respect of theappellant No.1 and questions No.43 to 49 and 55 to 57 put to theappellant No.2. Consistent with the disclosure statements, theAppellants led the police to the place of occurrence where on beingshown by the Appellants the police recovered the incriminatingart:icles like the weapons of offence, M.O.XIX and M.O.XX videseizure memo Exhibit 14, the blood stains wearing apparels of theappellants, M.O.XXI to XXVI vide seizure memo Exhibit 14, greenand st:eel coloured locks and keys vide seizure memo Exhibit 15.Reference t:o t:he injuries on the body of the appellant No.2 as anevidence of the use of third degree by the police in extracting thedisclosure stat:ements do not in our view assist the appellants in theface of those glaring evidence.

25. in the case Of Lakshmi Singh vs. Stalte of Bihar reported in fl976j 4 SCC 394 while dealing with injuries on theaccused persons it has been held as under:-

"8. Non-exDlanat:ion of iniuries bv theProsecution will not affect the Drosecution casewhere iniuries sustained bv the accused are minorand superficial or.where the evidence is so clearand coaent, so independent and disinterested, soProbable, consistent and creditwort:hv. that itoutweiahs the effect: of the omission on the Dartof Drosecution to explain the iniuries. Asobserved by this Court in Rama/agan S/ngh v.Stare of B/bar prosecution is not called upon in all cases to explain the injuries received by theaccused persons. It is for the defence t:o Outquestions t:o the Drosecut:ion wit:nesses reaardinat:he iniuries of t:he accused Dersons. When that isnot done, there is no occasion for the Drosecutionwitnesses to explain anv iniurv on the Person ofar\ accused. ±r\ Hare Krishna Singh v. State ofB/ftar it was observed that the obligation of theprosecut:ion to explain the injuries sustained byt:he accused in the same occurrence may not arisein each and every case. In other words, it is notan invariable rule that the prosecution has toexplain the injuries sustained by the accused inthe same occurrence. If the witnesses examinedon behalf of the Drosecution are believed bv t:hecourt in Proof of quilt of the accused beyondreasonable doubt, Question of obliaat:ion ofProsecution t:o exDlain iniuries sustained bv theaccused will not arise. When the Drosecutioncomes with a definite case that: the offence hasbeen committed bv the accused and Droves itscase bevond any reasonable doubt, it becomeshardly necessarv for t:he Prosecution t:o aaainexDlain how and under what circumstancesiniuries have been inflicted on the Derson of theaccused. It is more so when the injuries aresimple or superficial in nature. In the case athand, trifle and superficial injuries on accused areof little assistance to them to throw doubt onveracity of the prosecution case."

The aforesaid decision has been cited with approval in thecase Of Shajahan and Others vs. St:ate of Kerala reported -in(2007J ]2 SCC 96 to reemphasise that position of law. Althoughthat was a case where right of self-defence had been set up by theaccused, yet the principle will certainly apply in equal force in thepresent case also. In fact, the situation is worse here because theplea of the statement being extracted under coercion, was not at alltaken by t:he appellants during the course of the trial.

26. The ot:her cases cited at the Bar on the point also donot assist the appellants as they are applicable on the factsobtaining in those cases and, therefore, clearly distinguishable. Inthe case Of Paulose and Others vs. State of Kerala reported .in]990 CRJ. i. J. ZOO the Single Bench of the Kerala High Courtfound that the trial Court had convicted the appellant only on thebasis of the statement that had been made with the object toinvoke Section 319(1) of the Cr.P.C. in violation of the proviso toSection 132 of the Evidence Act, when such statements pertain topersons other t:han the accused persons during the course of anenquiry into, or trial, an offence if from the evidence. It was heldthat the statement, even if it were to be accepted, no otherevidence, oral or documentary, were found available to show thatthe appellants were guilty of the crime. This is not the case at handwhere there are sufficient proven circumstances when read with thedisclosure statements form a complete chain leading to thehypothesis of the guilt of the appellant having committed theoffence.

27. I.n the case oF Jogendra Nath and Others vs. StateofAssam reported in ]977 CRJ..I. J.1309 the Division Bench ofthe Gauhati High Court has laid down that it is only a statementmade to a police officer by a person in police custody leading to thediscovery of the material objects in pursuance of the said statementthat will alone be admissible u/S 27 of t:he Evidence Act. Thefurther statements of the accused to the effect that they attackedand killed the deceased with certain weapons could not have been a admitted. It has also been reemphasised in that case that it is notpermissible for the Court to reject a portion of t:he confession andact upon the rest in all cases and that it can be done so only incases where there are ot:her acceptable evidence in the light ofwhich the inculpatory portion of confession can be acted upon. Weare in complete agreement with t:his view and following t:hatprinciple in the present case, it has been found that the prosecutionhas relied upon only that portion of .the disclosure statements thathave led them to the discovery of the incriminating articles likeweapons of offence and blood stained wearing apparels of theappellants. There being no conflict in the action of the prosecutionwith the proposition set out in that case reliance thereon on behalfof the appellants, in our view is misplaced.

28. ±n the case oF Anter Singh vs. State of R?jasthan

28. ±n the case oF Anter Singh vs. State of R?jasthan reported in AJR 2004 S.C, 2864 the Supreme Court has re-statedthe scope and ambit of Section 27 of the Evidence Act with whichthere can be no dispute. The requirement of that Section summedup in paragraph `16 of the judgment is a law which is binding uponthis Court. As already stated above, in the facts and circumstancesof the present case we find no digression from the said proposition.The disclosure statements made by the appellants and t:hediscovery of the incriminating articles on the basis thereon formwell-established link in the chain of circumstances unerringlypointing at.t:he guilt of the appellants of t:hem having committed t:hecrime. In paragraph 17 of the very same judgment, it has -Beenlaid down as follows:- ``17. As observed in Pulukuri Kottaya'scase (supra) it can be seldom happen thatinformation leading to the discovery of a factforms the foundation of the prosecution case. Itis one link in the chain of proof and the other linksmust be forged in manner allowed by law. Tosimilar effect was the view expressed in K.Chinnaswamy Reddy v. State of Andhra Pradeshand another (1962 SC 1788)."

The decision, t:here fore, is of no help to the appellants.

The c.aces Of Mohd. Miayatullah vs. State of Maharashtrareported .iri AIR 1976 S.C. 483 and Salim Akhtar alias Mota vs.Sfare of I/.P. reported in ZOOS CRJ, i. J. 2302 reiterat:es theprinciples of law laid down in the Anfer S/-ngA's case (supraj and,therefore, need not be alluded on.

29. 1n the case Of Babu Das vs. State of MadhyaPradesb reported in 2003 CRr. i. J. 2356 (S,C,J the SupremeCourt had found that the disclosure statements and the recoverymade consequent theret:o were based on unreliable evidence, whichis not the case in the facts and circumstances obtaining in the caseat hand and, t:here fore, is of no help t:o t:he appellants.

For the reasons aforesaid we have no hesitation in rejectingthe contention with regard to the sanctity of disclosure statementsin t:he present case.

30. The next plea wit:h regard to the inadequacy in theproof of the ornaments raised on behalf of the appellants do notappear to have any merit and therefore, unsustainable as theidentity of the ornaments as the ones seized from the appellantsduring the investigation stands clearly established and we do not find any reason to unset:t:le t:hat. PWs 6 and 7 who are thewitnesses to the seizure of the ornaments have remained firm intheir st:at:ement:s and could not: be shaken at: all in their cross-examination. They have corroborated in full measure the evidenceof PW18, the Investigating Officer, as regards the search andseizure of those ornaments. Under such circumstances, we find thatthe recovery of the ornaments which constitutes only one link in thechain of other circumstances stands proved by the prosecutionbeyond all reasonable doubt:s. In the case of A/agappa Dondt-paKalal vs. State of Karnataka reported .in AIR 1980 S.C. 1753relied on by Mr. N. Rai, learned counsel on behalf of the appellants,seizure of the ornaments which was found to be defective in law,was the only circumstance relied upon by the prosecution fromwhich the commission of offence by the appellant was sought to beinferred. This is not the case here. Therefore, this case is also ofno help t:o the appellants.

31. With regard to the infirmity in respect of CFSL reportpointed out by on behalf of the appellants, we do not find anysubstance as the Serological Report, Exhibit:s 20 and 22 wereprepared by one Mr. Suresh Babu who is the Examining Officer andalso the Assistant Chemical Examiner to the Government: of Indiawhich were forwarded by the Director, Central Forensic Laboratory,Kolkata, vide Exhibits 21 and 23 respectively. Quite contrary to thesubmission that the CFSL report was proved by t:he I.0„ it was thevery Assistant Chemical Examiner as PW17 who did so thereby fullycomplying with the provisions of Section 293(4)(e) Cr.P.C. The `-`-\7

submission being factually incorrect and mis-conceived is,therefore, rejected.

32. Relying upon the case of .fJardaya/ andr Prem vs.State of Rajasthan reported .in AIR 1991 S.C. 271 Mr. R.a.Isubmitted that there was no finding that the blood stains found onthe weapon of offence tallied with the blood stains of the vict:imsand, therefore, the vague finding that it contained human bloodwas not sufficient to link the appellants in any manner with theoffence. In our view, the submission is fallacious as the decision isclearly distinguishable in the facts and circumstances obtaining inthe case at hand. In the above case the circumst:ances set up bythe prosecution were found to be wanting in credible proof and,therefore, the only surviving evidence, i.e., the Serological Reportthat t:he blood stains found on the weapons of offence as beinghuman blood, was considered insufficient to convict the appellants.In the case under consideration, all other circumstances havingbeen fully established, the Serological Report that the blood stainsfound on the weapons of offence as being human blood assumesthe character of a corroborative piece of evidence and, therefore, alink in the chain of circumstances leading to the hypothesis of t:heappellants being guilty of the crime. Therefore, these contentions -raised by the Ld. Counsel fail to impress us and stands rejected.

33. The contradict:ions with regard to the time of recoverysought to be made out from the statements of the PWs 6 and 7 isof minor character, quite trivial having no consequences at all to the substance of the prosecution evidence wit:h regard to theseizure. This plea would not.be available to the appellants onanother account also. Section 145 Cr.P.C. prescribes the manner inwhich a previous stat:ement of a witness may be contradicted. Forconvenience we may usefully reproduce below Section 145

Cr.P.C.:-

"145. Cross-examination as to

previous statements in writing.-A

witness may be cross-examined as toprevious statements made by him in writingor reduced into writing, and relevant tomatters in question, without such writingbeing shown to him, or being proved; but, ifit is intended to contradict him by thewriting, his att:ention must, before thewritina can be Proved, be called to thoseDarts of it which are to be used for theDuroose of contradictina him."

As the necessary requirements of confronting the witnesseswith the contradictory statement as required 145 Cr.P.C. have notbeen complied with at the appropriate stage, it is now not open forthe appellants to raise the point. It is a settled position of law thatminor cont:radictions appearing in the evidence cannot vit:iat:e theprosecution case unless it affects the substance thereof. As statedalready, the prosecution witnesses have withst:ood the test of cross-examination and have given unfaltering statements with regard tothe search and seizure of the ornaments from the persons of theappellants. The contradict:ions indicated on behalf of the appellantsin our view, are trivial having not affect on the substance of the evidence. The principle of law laid down in the case of Bha/.anSingh (s;upra) anc] Ashish Bathen (supra) are well-establlshed.In the case under consideration it is a matter proven circumstancesand not suspicion that have formed a definite chain leading to theonly conclusion of the appellants having committ:ed the crime. Thesubmission is, therefore, rejected.

34. The next contention raised by Mr. N. Rai, learnedcounsel on behalf of the appellants, to the effect that theprosecution has failed to establish the circumstances in the mannerrequired under law do not impress us. Dealing with the differentcircumstances set out by him which, as per the learned counsel, theprosecution has failed to prove, it may be stat:ed that at the firstinstance, those circumstances in our view are not vital as submit:tedby the learned counsel, but are rather peripheral and quiteinsignificant on the face of the established material facts formingthe most essential links in the chain of circumstances leading to theguilt of the appellants of them having committed the offence.Dealing with the so called vital circumstances projected by thelearned counsel on behalf of the appellants, it is found that thecircumstances stat:ed in (i) and (ii) as it appears from the evidenceavailable on record appear to be fully established for the followingreasons:- (a) PW3, the Officer-in-Charge, Sadar Police Station,Gangtok, who was t:he person to break open the lock ofthe front door, has identified the two locks Exhibit 1 andGangtok, who was t:he person to break open the lock ofthe front door, has identified the two locks Exhibit 1 and Exhibit 2 and t:he bunch of keys Exhibit '3. There wasno denial to the locks and the keys havihg been seizedfrom the place of occurrence. Even the seizure of thosearticles has not been denied. The relevant evidence asit appears from the statement of PW-3 iss follows:- `` Re-examination by the Prosecution.

::::n'%ktsheat?tn::°s;.uE:i.Nf[?]TstMha:kshaa#:steel coloured lock which was found on themain door of the place of 6ccurrance andwhich had to be broken opeh for entry into:hoetjc:Lacoen?tfw°acscucrar::ec:.atT#edti#:omfaj[§being broken open.

Ext.No.II is the sameock which wasfound on the door leading to the living roomof the place of occurrenwhich I hadopened for entry thereinExt.No.Ill isthe same bunch of keys whI had noticelying on the table nearbyt:he P.O. andwith the help of one of theys in the saidbunch which the lockI was openedby me.

Re-cross exam. Bythe accused No.1through Shri. D.R. Thapa.

XXX

It is true that I did not|seize Ext:.I and11 and Ill.

It is true that one iron rod was usedIto break open the Ext[No.I by theconstable."

Under such circumst:ances, these !facts remainestablished. i PWs 12, 13 and 18 have in t|eir depositionscorroborated the above evidenceof}PW3 in mostcategorical terms.

(b) Circumstance (iii) to t:he effect that th: InvestigatingOfficer did not take finger prints from tire weapons ofoffence is of no consequence since wea|pons as beingthe weapons of offence have been broved by theprosecution beyond any reasonable ddubt as wouldappear from the disclosure st:atements Exhibits 10 and11 that have been proved by PWs 12, 113 and 18. Wefind from the unshaken evidence of t|ose witnessesthat they have no confusion at aH as to(the identity ofthe incriminating articles. I

(c) Circumstance (iv) indicated by Mr. N. R|ai on behalf ofthe appellants in our view is immaterialjand also of noconsequence. The prosecution has pr?duced reliablewitnesses to prove the facts which the hpuse owner alsowould have given evidence of if he had Peen cited as awitness. It is well-set:tled that it is not the quantity butquality of the evidence which is reldvant. In thepresent case, the house owner would[only]have been anadditional witnesses to the facts provedby the otherwitnesses of equal credibility. In such( circumstances,the house owner not having been citedias a witness isof no consequence to the prosecution cape.

(d) Circumstance (v) placed by learned coLnsel that PW9being a friend of the deceased personsan interested tis I

-J-

witness and, therefore, an unreliable vyitness, in ourview is not sust:ainable.

It is a set:t:led position of law thatevidence ofan interested witness need not: necessabe re].ected.All that is required in such a case wo`uldscrutinisethe evidence of such a witness with nlore care. On:::he::dr::I:ey'g'Lfv:tn'Sbyfotuhnedm:h:tt,:h:reerjs::b::taf::et::Courts to act on it:. I

in the case Of Ashok Kumar qhoudhary vs.State of Bi.haHeported in (2008H2| SC"73 thisestablished position of law has been reemphasised inparagraph 12 which being relevant is reproduced:

``12. Very recently in rvam4eo v. Sfafe of"#a,tea:raid:d#it:n:=oesf.cuasHn:C:!K!eT:i:Ee,awe:?:!ass:S:ai,:evidence, however, must be scrutihised carefully.If on such scrutiny, his evidenceis found to beintrinsically reliable, inherentlyprobable andwholly trustworthy, conviction cabe based onthe ``sole" test:imony of such:N:tness. CloserelationshiD of witness with the deceased orvict:im is noround to rehis ev'idence. On thecontrarv, close relat:ive of t:he deceased wouldnormally be most reluctant t:o 5Dare the realculDrit and falselv implicate an innocent one."

dec,s,oAnpsa:tnftr:ems:hmeeapbo:::'wth|::en:::i:tte::c::e:t::::hnea,tperr°epd:S't'::t°hfe':i:htreoTat'hnessf:rt::yde[Sotsa]:,I:Snheo:,:nw:

i

-a

clv

when we examine the evidence of P.W9e do not: findany infirmity in it. The witness PW9 hasno uncertainterms identified the appellants as the pFrsons workingas servants in Sikkim Hotel run by the| two deceasedladies. This part of the evidence has lot at aH beendemolished. Therefore, when we consider it along withthe evidence of PWs 10, 11 and 15, thfact that: theappellants were working as servantsrun bythe deceased persons stands firmly estat}lished (e) Circumstance (vi) indicat:ed by the l!arned counselIcannot be sustained for the reason that the evidence ofthe prosecution considered as a lwhole clearlyestablishes the complicity of the appel|ant No.1, Raju1Chettri, in the commission of the offence[

(f) Circumstance (vii) of the two bags containing the goldornaments and cash not being produced| in Court duringIthe trial is also in-consequence to the Prosecution caseas the existence of those bags stands,!fuHy proved byPWs 1, 2, 3 4, 6 and 7. It has never been the case ofthe appellants that the two bags did not exists at all. In.ifact:, when we consider the prosecutior evidence as awhole, the fact of the two bags containing ornamentsand cash has been substantially a¢mitted. Evenassuming t:hat what is being contended by Mr. Rai isaccepted to be true, we do not lhink that such inadequacy in the evidence would in any manner vitiatethe other evidence available on record ahd the omissionIwould be quite insignificant. The factlthat cash andgold ornaments and other articles we+e contained int:hose two bags have been categoricaHy] established bythe evidence of PWs 1, 2, 3, 4, 6, 7 and In the aforesaid circumstances, the defifiency in theprosecution evidence set out by the learned counsel iF not such thatwould vitiate the substance of the prosecution eviqence and thematerial circumstances which are found fully established asrequired under the law. I

35. We agree with the submission on behalf lof the learnedPublicprosecutorthateachofthecircumstancesapp|earingagainstthe appellants have been proved. We may add that fertain facts ofvital significance appearing in the statement of tie PW18, theInvestigating officer of the case, have not at all beer dealt with int:he cross-examination. By those statements, thei InvestigatingOfficer has most succinctly set out the substance of theinvestigation which would be useful to be rebroduced forconvenience. It reads as follows:- I

Investigating revdaled that thetwo accused persons were workingas cook andwaiter in t:he Hot:el run by the tdeceaseduEladies. Accused Raju Chettri was working as Cookand accused Puran Rai was working| as a Waiter.With the motive of committ:ing theft of cash andjewellery from the belongings bf the two deceased, accused persons on the evening of the:ncc::::5.p::::::jgaa,:i:nu::Sd°troevr::::e::atthteh:at#:floor of the Hotel as the two deceased ladies. Ont:he evening of the incident the' two accusedpersons with the common objecttheft: of cash and other valuables othe deceasedladies first caused injury on the hed of deceasedI::LenokfjeheYhfFant.Shoenhhae:rjcn°gmtehe°:I:je°sfTtsheetetn°k'j:::::hatgheedaTc°utsheedrpsehr::£jschaaTeca°uu5te:f]nh].::jer:°oTt:he head of the deceased Shouki,Fearing thatthe in].ured ladies may raise hue .a Ldcry t:he two::Ctuhseedtwe:S::::atsheedjr,£gjaetsh;j¥hs'[tht:ngw:::o:ecokf:;f:e;ns;e:rMej:r:s:o[rn:shae#n:dre:d95-}txfetT:hoe#e:f:a:#a'ar:h:WnEd¥constable of Tadong O.P. on early following daymorning.,, It is of significance tonot:e that none of the above statementshave been put to the test inthe cross-examination !f InvestigatingIOfficer thereby persuadingus to draw a presumption that thosestatements stand admitted.That apart:, the aforesaid statementshave been fully corroborated by the other witnessFs produced by.the prosecution which we do not find it necessary ito allude on asthey have already been dealt with in t:he foregoing paragraphs.

I

36. Considering the facts and circumstances, we are of theview that there is no merit in this appeal. I

37. In the result, the appeal stands dismissed.

38. Let: the records of the court below be returned forthwith.

`i\\:--( Justice A. H. Saikia )Chief Justice16-09-2009

Judge16-09-2009

\