Crl. A./8/2011 of State Of Sikkim Vs Rakesh Rai @ Vishal Rai @ Purna Rai an Ano on 20 April 2012

iN THE HiGH eouRT OF slKKiM

CRIMINAL JURISDICTION

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SGPG-1/Comp.4/High Courl / 1000 No§./13.08.2011

THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Appeal Jurisdiction)

DATED : 20-04-2012

CORAM

HON'BLE THE CllIEF JUSTICEMR. JUSTICE PERMOD KOHLI

HON'BLE MR. JUSTICE S. P. WANGDI, JUDGE

Criminal Aeal No.8 of 2011

State of Sikkim

•.. Appellant

Versus

Rakesh Rai @ Vishal Rai @ Puma Rai,S/o Hasta Bdr. Rai,R/o Gyalshing Kyongsa,West Sikkim.

Tenzing Tamang,

S/o Ram Bdr. Tamang,R/o Gyalshing Tikjek,West Sikkim.

... Respondents

For Appellant

: Mr. Karma Thinlay Namgyal,Addit:ional Public Prosecutor with Mr.S. K. Chettri, Assistant PublicProsecutor, Mr. Thinlay Dorjee Bhutiaand Mr. D. K. Siwakoti, Advocates.Addit:ional Public Prosecutor with Mr.S. K. Chettri, Assistant PublicProsecutor, Mr. Thinlay Dorjee Bhutiaand Mr. D. K. Siwakoti, Advocates.

For RespondentsShri N. Rai, Senior Advocate with Ms.Jyoti Kharka, Advocate.Jyoti Kharka, Advocate.

Wangdi' J.

I I E2 g H E H I

This Appeal is directed against the judgment dated 20-05-2011 passed by the Learned SessionsJudge, South and West Sikkim at Namchi in S.T. CaseNo.21 of 2004 (hereinafter referred to as the "impugned ].udgment'') by which the Respondents were acquitted ofthe offences under Sections 302/34 of the Indian PenalCode (in short ``IPC").

The case of the prosecution material fordisposal of the Appeal is that on 28-11-2003 at about0930 hrs. P.W.54, PI S. R. Shenga, the 0.C., KalukPolice Station, West Sikkim, received a telephonicinformation from the I/C Dent:am Out Post stating thatone unidentified body of a male had been found belowthe road near Liching Busty, West Sikkim, which led himto register Kaluk P.S. U/D Case No.11(11)03 dated 28-11-2003 under Sect:ion 174 of the Code of CriminalProcedure, 1973, (in short ``Cr.P.C.) and to take up itsinvestigation.

3fi-). The investigation led to the inspection of theplace of occurrence located at Dentam-Pelling Road atLiching Busty, about 1 k.in. from the 8. 8. LallSuspension Bridge at Dentam, where human teeth andblood were found and discovered a body of a maleperson lying about loo feet below the road which waslater identified as that of Sonam Dadul Bhutia, son ofKinzang Dadul Bhutia of Chumbong Busty, Gyalshing,West Sikkim. Inquest conducted over the body showed

injuries on the head wit:h the teeth of upper jaw missing.A `black chunni' was also found lying nearby the place ofoccurrence. This resulted in the U/D Case beingconverted into a Criminal Case vide FIR No.25(11)03dated 28-11-2003 under Section 302 IPC againstunknown person suo mofo and further investigationtaken up. A tooth and blood sample of deceased personfrom mortuary and, control sample of soil and thehuman teeth found at the place of occurrence wereseized in presence of witnesses and forwarded toC.F.S.L., Kolkata, for opinion through the Crime Branch,Sikkjm Police, along with some other items with whichwe are not concerned for the moment.

(i.I.) Investigation of the case revealed that in themorning of 27-11-2003, one Ms. Bina Subba, daughterof C. 8. Subba of Upper Bhaluthang Busty, West Sikkim,dressed in a kurta-pyjama, was proceeding to SardongBusty t:o see her elder sister P.W.23, Parvati Subba,carrying packets of ``Silam" when on her way at Pelling,at about 1430 hrs., she met accused Praveen Subba andaccused Abishek Rai wit:h whom she was familiar with.The accused Praveen Subba owning vehicle No.SK-04/4906 offered to drop her at Sardong Busty. When they were about to begin the ].ourney, two otherpersons, namely, P.W.20, Kailash Rai and P.W.19, DeoMan Subba, of Pelling also ].oined them and all of themproceeded towards Sardong Busty in the said vehicle.Later, when the deceased Sonam Dadul Bhutia, a goodfriend of accused Praveen Subba, heard of this, hefollowed them in a Commander Jeep bearing registrationNo.SK-04/4601 owned and driven by one DineshPradhan, P.W.21. It was said that the said Bina Subbawas known not to having a good moral character.

(/././.) While thus following, the deceased SonamDadul Bhutia found vehicle No.SK-04/4906 parked atChangay (a waterfall of tourist interest) with all itsoccupants in it. He then asked P.W.21, Dinesh Pradhanand the other two, P.W.20, Kailash Rai and P.W.19, DeoMan Subba, who were accompanying accused PraveenSubba, to return to Pelling, while he joined tlie saidPraveen Subba and Abishek Rai and the girl in thevehicle No.SK-04/4906 and proceeded towards Dentamwithout dropping the girl at Sardong Busty, which fell onthe way and, at Dentam they stopped and had beer,rum and momo in the hotel of one Navin Gurung, P.W.1.They left Dentam at about 1830 hrs. to return to Pelling in the same vehicle. When they reached Liching Bustysituated about 1/2 k.in. away from the 8. 8. LallSuspension Bridge, Dentam, Bina Subba desired to goout to attend the nature's call and got down from thevehicle. The deceased Sonam Dadul Bhutia also gotdown asking the accused Praveen Subba and AbishekRai to go back to Dentam to have food.

f/.vj On their way to Dentam, Praveen subba andAbishek Rai came across a Maruti Car with its numberplate start:ing with the word ``W" at the 8. 8. LallSuspension Bridge proceeding towards Pelling. Onreaching Dentam, they again had beer in the hotel ofP.W.1, Navin Gurung and started back towards Pellingand, on the way at the Dentam Forest Check Post, theymet one Padam Gazmer and P.W.2, Sanjeev Baraily.The four of t:hem instead of going to Pelling went toMangmo and turned back from the Dent:am SeniorSecondary School. In their conversation during thereturn journey, the accused Praveen Subba and AbishekRai commented that t:hey would kill Sonam Dadul Bhutiaif any harm was caused to Bina Subba. On reaching theplace where the deceased Sonam Dadul Bhutia and BinaSubba had got down, they found them missing and a unsuccessfully searched for them in the surroundingareas. On the following day, i.e., 28-11-2003, the deadbody of deceased Sonam Dadul Bhutia was found belowt:he road at the same place where he had been droppedand, the girl being untraceable. In the morning of 28-11-2003, accused Praveen Subba and Abishek Rai leftfor Siliguri in vehicle No.SK-04/4906.

fv) At the initial stage of the investigation, theaccused Praveen Subba and Abishek Rai were arrestedand vehicle No.SK-04/4906 seized. From the vehicleone wheel wrench, a wrench and one polythene bagcontaining pink coloured kurta and pyjama and twosmall packets of ``Silam" were recovered and dulyseized. Sample of the blood like stains found on thebody of the vehicle was also lifted and seized. Duringthe course of further investigation, it transpired that theMaruti Car which the accused Praveen Subba andAbishek Rai had crossed in the late evening of 27-11-2003 on their way to Dentam, was also seen on thesame day by P.W.17, Manorath Adhikari, P.W.16, Smt.Tshering Kee Chingapa, P.W.9, Sonam Dor].ee Bhutiaand P.W.18, Tashi Namgyal Bhutia near the 8. 8. LallSuspension Bridge at about 1600 hrs. and, also had a noticed the registration number of the vehicle as WNC-525. That Maruti Car No.WNC/525 had crossed the MelliCheck Post in t:he night of the same day at 2230 hrs.and had proceeded towards Siliguri, The car which waslater located at Siliguri was seized with the help of localpolice of Siliguri on 23-12-2003 and was found to havebeen purchased by the Respondent No.1, Rakesh Rai, inthe n.ame of his elder brother P.W.40, Man Bahadur Rai,and registered in Siliguri.

(vI) While at Siliguri, the Investigating Officerreceived a telephonic communication from P.W.46, PINima Chader Bhutia of Sadar P.S., Gangtok, informinghim that the missing girl, Bina Subba, had been foundmurdered by the Respondent No.1, Rakesh Rai andothers and her body disposed off somewihere near BaghPool at Siliguri leading him to proceed there forinvestigation where he met a team of Police from theGangtok SadaF Police Station headed by P.W.46, PINima Chader Bhutia. It is significant to note that thisteam had come to Siliguri, West Bengal, withRespondent No.1, Rakesh Rai, in their custody, inconnection with a case under Sect:ions 457/380 IPCunder Gangtok Sadar P.S. for recovery of a scoot:er and J'

car purchased by the accused with the stolen money.On being interrogated, the Respondent No.1, RakeshRai, disclosed that he and the other accused personshad killed Bina Subba and disposed of her body. Thedisclosure statement was recorded in presence of policedue to non-availability of independent civilian witnesses,there being none available at t:he place.

(vi.i.) The statement led to the recovery of the deadbody of Bina Subba about 300 feet below the road atPanidhara near Bagh Pool, Maruti Car WNC-525 from theBhaktinagar Police Station and from it one wheel wrenchall at the instance of the Respondent No.1, Rakesh Rai.A writt:en report was thereafter lodged at Matigara PoliceStation, Siliguri, which registered Matigara P.S. FIRNo.331/03 under Sections 302/201/34 IPC dated 24-12-2003 and, lat:er also arrested juvenile accused RoshanRai, Puma Bahadur Subba and Respondent No.2.Tenzing Tamang and forwarded to judicial custody.

fv/./-/-) On the basis of disclosure statement made by].uvenile accused Roshan Rai. one wheel wrench wasrecovered from the Singtam Khola. The disclosurestatement of Respondent No.2 Tenzing Tamang led tothe recovery of one bag containing one jacket, one cl,..., bottle of Horlicks, one wheel wrench, one ].ack lever, oneiron chain, one screw driver, one plier and one small bagfrom the house of P.W.35, Devi Maya Pradhan atDaramdin Bazar, West Sikkim.

f/*) Investigation revealed that Respondent No.1,Rakesh Rai, purchased Marut:i Car bearing registrationNo.WNC-525 from one Udai Ghosh of Rath Khola,Siliguri, and registered in Siliguri in the name of hiselder brother P.W.40, Man Bahadur Rai. ThatRespondent No.1, Rakesh Rai, ].uvenile accused RoshanRai, Puma Bahadur Subba and Respondent No.2,Tenzing Tamang usually stayed in the ``Himalayan RestHouse'', Siliguri.

fx) On 24-11-2003, the four accused personscrossed over to Sikkim from the Rangpo Check Post inthe same Maruti Car and reached Gyalshing viaSingtam, Rabong and stayed in their house at Gyalshingtill the morning of 27-11-2003. On 27-11-2003 at about1600 hrs., they reached Dentam via Jorethang,Sombaria, Soreng, Kaluk, Bermiok in drunken conditionsand stopped to t:ake rum near the 8. 8. Lall SuspensionBridge at Dentam. Aft:er drinking rum, they proceededto Singsore Bridge and from there drove back towards a Pelling. On their way to Pelling at about 1830 hrs., theycrossed Savari vehicle bearing No.SK-04/4906 near the8. 8. Lall Suspension Bridge and further on at Liching ata distance of a 1/2 k.in. away from the Bridge, they sawt:he deceased Sonam Dadul Bhutia and Ms. Bina Subbasitting by the road side. The accused persons thenstopped the vehicle and teased them which angered thedeceased Sonam Dadul Bhutia, causing him to slap theRespondent No.1, Rakesh Rai, and in order to frightenthe accused persons, he made a call to the Police on hismobile.

fx/-) Under such intimidation, the accused personsfled from the place in their Maruti Car but stopped at adistance of about 1/2 k.in. away and decided to kill thedeceased Sonam Dadul Bhutia. Picking up a ].ack lever,wheel wrench, shock absorber and a chain from the car,they returned on foot to the place of occurrence wit:h theintention to kill the deceased and on meeting thedeceased at about 1850 hrs. they repeatedly hit him onhis head, mout:h and face with the jack lever and wheelwrench causing his death on the spot. As a result of theassault, the deceased lost all his upper teeth. BinaSubba's attempt to int:ervene failed and her cry for help Oo a went in vain. The accused persons thereafter took themobile phone of the deceased person and threw hisbody below the road and after forcing the girl into theMaruti Car headed for Suiguri via Melli Check Post. Therecovery of `black chunni' from the place of occurrencewas a clear evidence of t:he girl having been kidnappedand forced away by the accused persons in their car.

(x/./-) Later, the four accused persons, namely,Respondent No.1 Rakesh Rai, I.uvenile accused RoshanRai, Puma Bahadur Subba and Respondent No.2,Tenzing Tamang, took the girl to Jalpaiguri where theRespondent No.1, Rakesh Rai and the girl Bina Subbastayed in ``Hotel India" as `Amit Rai' and `Sushma Rai' asper t:he entries in the hotel register while the othersstayed in ``Hotel Vishal" as `Suran Tamang', `BishalChettri' and `Bishnu Subba'. They checked out of thehotels on 02-12-2003 and went back to Siliguri alongwith the girl and stayed in the ``Himalayan Rest House"occupying rooms No.201 and 301. The RespondentNo.1, Rakesh Rai, later sold t:he Nokia mobile phone ofthe deceased Sonam Dadul Bhutia to one Pradeep Saha,P.W.30, through one Pradeep Roy, P.W.45, who in turnsold it to P.W.33, Abhi].it Ghosh, for Rs.2,200/-. The Respondent No.1, Rakesh Rai, also sold Maruti CarWNC-525 to P.W.38, Anil Chandra Roy, through thebroker P.W.30, Pradeep Saha and P.W.45, Pradeep RoyOf Siliguri.

fx/.t./.) Since the registration of the vehicle could notbe done in favour of the purchaser as it was in t:he nameof P.W.40, Man Bahadur Rai, the Respondent No.1,Rakesh Rai and Respondent No.2, Tenzing Tamang,returned to Gyalshing to fetch him for the purpose.When they returned to Siliguri with P.W.40, ManBahadur Rai, the registration of the vehicle still could notbe completed due to non-availability of his IdentityCard. P.W.40, Man Bahadur Rai, spent that night at t:he``Himalayan Rest House" with the accused persons wherehe met the deceased girl. While conversing wit:h t:hegirl, she disclosed her name as Bina Subba. When theRespondent No.1, Rakesh Rai, was asked about the girlhe disclosed that he had met her at Dentam with oneAgya (brother) and that they had murdered that personand brought the girl with them t:o Siliguri. On the nextday, P.W.40, Man Bahadur Rai, returned to Gyalshingbut, a few days later again ret:urned with theRespondents Rakesh Rai and Tenzing Tamang and completed the registration of the vehicle in the name ofthe purchaser P.W.38, Anil Chandra Ghosh. This factwas established by the seizure of the Electoral Card ofP.W.40, Man Bahadur Rai at Siliguri. When P.W.40 wentto the ``Himalayan Rest House'' in the evening with theRespondent No.1, Rakesh Rai, he did not find the girland as per his st:atement recorded under Section 164Cr.P.C., his brother the Respondent No.1, Rakesh Rai,had informed him that he had also murdered her andhad thrown her body below the road near Panidhara,Bagh Pool, Siliguri. While selling t:he vehicle, t:heaccused persons had retained the wheel wrench, ].acklever and other items.

fxi.vj On 22-12-2003 all the accused persons wentto SNT Office, Siliguri, leaving behind their bagcontaining their wearing apparels in the ``Himalayan RestHouse" which were subsequently seized. Later,Respondent No.1 Rakesh Rai was arrested by the teamfrom the Gangtok Sadar P.S. with the help of the localpolice of Siliguri, while the other three accused persons,namely, ].uvenile accused Roshan Rai, Puma BahadurSubba and Respondent No.2, Tenzing Tamang, escapedto Daramdin via Singtam, Rabong and Jorethang. On \

the way to Daramdin, thI.uvenile accused Roshan Raithrew one wheel wrencand a shock absorber (theweapons of offence)he Singtam Khola near the OldSteel Bridge.st:atement of juvenileaccused, Roshanhe recovery of the wheelwrench from the river.

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went to Soreng and thevenile accused Puma BahadurSubba to the houseP.W.35, Devi MayaPradhan, at Daramdjn.Waslater ].oined byRespondent No.2, Tenzin9i Tamang and juvenile accusedRoshan Rai, where they w re apprehended by the policefrom the Sombaria P.S.he disclosure statement of theRespondent No.2, Tenzingt Tamang, led to the recoveryof one bag containing a!)].ack lever, a wheel wrench(weapons of offence), onjacket, one bott:le of Horlicks,one plier, one chain, oneScrew driver and one small bagfrom the houseDevi Maya Pradhan, whichwere duly seized.

The fact:s and cumstances thus having beenmade out a prt.rnaunder Sect:ions302/364/201/34Respondent No.1, Rakeshmade out a prt.rnaunder Sect:ions302/364/201/34Respondent No.1, Rakesh Rai, juvenile accused Roshan Rai, Puma Bahadur Subbaand Respondent No.2, Tenzing Tamang, accusedPraveen Subba and Abishek Rai for committing murderof the decea.sed, Sonam Dadul Bhutia and furtherkidnapping and committing the murder of the deceasedgirl, Bina Subba and disposing off her dead body atSiliguri in order to conceal the evidence of murder andkidnapping, charge-sheet was filed against them fortheir trial in accordance with law.

The Learned Trial Court upon consideration ofthe materials on record found pr/.rna fac/.e case made outagainst all the accused persons of having committedoffences under Sections 302/34 IPC and accordinglyframed charges against them to which they pleaded notguilty and claimed for trial.

During trial the prosecution examined asmany as 48 witnesses out of the 54 named in thecharge-sheet having tendered 6 of them and, exhibiteda large number of documents and material exhibits insupport of their case and, the Learned Sessions Judgeupon consideration of the evidence on record, came tothe conclusion that the entire case being based uponcircumstantial evidence, the prosecution had failed to

link the chain of circumstances against the accusedpersons and, by the impugned judgment, acquittedt:hem.

7(/.). Before us, Mr. Karma Thinlay Namgyal,Learned Additional Public Prosecutor, assailing theimpugned judgment, submitted that the LearnedSessions Judge had failed t:o take into consideration theglaring evidence that proved the various circumstancesbeyond all reasonable doubts and that thosecircumstances formed an unbroken chain leading to theonly conclusion that the Respondents were guilty of themurder of the deceased Sonam Dadul Bhutia infurtherance of their common intentions to commit theoffence. It was submitted by the Learned AdditionalPublic Prosecutor t:hat the findings contained in t:heimpugned judgment is filled with contradictions and areperverse to the evidence on record. As per him,although the Learned Sessions Judge upheld the validityof statements under Section 27 of the Indian EvidenceAct, 1872, of the various accused persons and thei,--.,consequential recovery of the incriminating art:icles likethe weapons of offence, but fell in error in notconsidering t:hose as circumstances in the chain of a circumstances appearing against the accused persons.The Learned Additional Public Prosecutor emphasisedthat, having regard t:o the proved circumstances, it wasgravely erroneous on the part of t:he Learned Trial Courtto have held that the prosecution had failed to establishby evidence that t:he offence under Sect:ion 302 IPC wascommitted by them.

f/./-J It was further submitted that: the Learned TrialCourt fell in error in concluding that there was nowitness to identify the accused persons and connectthem to the crime, when ih paragraph 76 of theimpugned judgment it had been clearly noticed thatP.W.50, Smt. Bhim Sila Gautam, who runs a hotel inBermiok Bazar in West Sikkim stated that at about 3/4p.in. of 27-11-2003, 3/4 boys had come to her hotel in aMaruti Car bearing registration No.WNC-525 and hadbeer and that the Respondent No.2 was one of themalthough she was unable to identify the others. Incomplete conflict to t:his, t:he Learned Trial Court inparagraph 155 of the impugned judgment, erroneouslyconcluded that P.W.50 could not identify the accusedpersons.

f/-/-/-) It was then submitted that discarding theevidence of P.W.40, Man Bahadur Rai, firstly on theground that he was declared as a hostile witness and,secondly, that the voluntary nature of his statementunder Sect:ion 164 Cr.P.C. was made circumspect in viewof his deposition that he was under detention of thepolice in Kaluk P.S. duri.ng the period when he had madeit, is grossly erroneous and contrary to law. It wassubmitted that although the witness had been declaredhostile, his unshaken evidence most categoricallyincriminated t:he Respondents and, under the law ofevidence of a hostile witness need not necessarily bediscarded on the sole ground of him being declared so.So far as the voluntariness of the nature of thestatement under Section 164 Cr.P.C. rendered byP.W.40 is concerned, the Learned Additional PublicProsecutor by making reference to Exhibit 32, form forrecording confessional statement, submitted thatadequate precautions had been taken by the JudicialMagistrate, West Sikkim, t:o satisfy herself that thewitness was making the confessional statementvoluntarily devoid of any compulsion.

fi-vj In his evidence which as per him isunimpeachable, P.W.40 has in most categorical termsdisclosed about t:he purchase of the Maruti Car WNC-525in his name by the Respondent No.1 at Siliguri which helater sold to P.W.38, Anil Chandra Roy. That he alsodisclosed of the extra-judicial confession made to him bythe Respondent No.1 of his having committed themurder of the deceased Sonam Dadul Bhutia and of himhaving kidnapped the deceased Bina Subba. It was thussubmitted t:hat the re].ection by the Learned Trial Courtof such credible witness was grossly illegal and hadcaused grave pre].udice to the prosecution. TheAdditional Public Prosecutor then placed the followingcircumstances which as per him had been proved by theprosecution beyond any reasonable doubt:-

(i) The deceased Sonam Dadul Bhutia and Bina Subba had proceeded I:owards Dentam withPraveen Subba and Abishek Rai on 27-11-2003.This fact has been proved by P.W.19, Deo ManSubba, P.W.20, Kailash Rai and P.W.21, DineshPradhan.

(ii) A Maruti Car bearing registration numberalphabets ``WNC" was witnessed in the eveningalphabets ``WNC" was witnessed in the evening jill of 27-11-2003 by P.W.16, Tsering Kee Chingapa.This was corroborated by P.W.17, ManorathAdhikari, who was travelling with her. They hadalso noticed the vehicle parked near the DentamBridge and three boys sitting near it drinkingsomething out of plastic bottles. Thesewitnesses had identified the Maruti Car as MO-I.

(iii) That the Maruti car WNC-525 crossed the MelliCheck Post at 10:30 p.in. on 27-11-2003. Thiswas testified by P.W.12, C/1255 D. P. Subba,who proved the entry in the Check Post RegisterCheck Post at 10:30 p.in. on 27-11-2003. Thiswas testified by P.W.12, C/1255 D. P. Subba,who proved the entry in the Check Post Register MO-V. This fact has been corroborated byP.W.13, W/C 1811 Lhakpa Tsh. Sherpa, who wasalso at the Check Post at that time.P.W.13, W/C 1811 Lhakpa Tsh. Sherpa, who wasalso at the Check Post at that time.

(iv) The disclosure statement of Respondent No.1,Rakesh Rai, Exhibit 3, on the basis of which tyrelever MO-VI was recovered and seized frominside the Maruti Car WNC-525 vide SeizureMemo Exhibit 2 and t:he recovery of the deadbody of Bina Subba at his instance.Rakesh Rai, Exhibit 3, on the basis of which tyrelever MO-VI was recovered and seized frominside the Maruti Car WNC-525 vide SeizureMemo Exhibit 2 and t:he recovery of the deadbody of Bina Subba at his instance.

(v) The disclosure statement Exhibit 10 of theRespondent No.2, Tenzing Tamang, at whoseRespondent No.2, Tenzing Tamang, at whose instance the weapons of offence, namely, jacklever, MO-XIII and wheel wrench, MO-XII, wereseized at Daramdin vide Seizure Memo Exhibit11. This stands fully corroborated by t:heevidence of P.W.35, Devi Maya Pradhan, fromwhose house the seizures were made.

(vi) The disclosure statement of Roshan Rai, juvenileconvict, Exhibit 8 on the basis of which tyrelever/wheel wrench MO-VII was recovered fromthe river at Singtam vide Seizure Memo Exhibit7. P.W.27, Karzang Bhutia, has testifiedregarding the Seizure of Exhibit MO-VII videSeizure Memo Exhibit 7 from the Singtam riverbed which is corroborated by P.W.28, GangaRam Chettri. P.W.26, Dipu Sunar, was thedriver who recovered Exhibit MO-VII from theSingtam river has fully corroborated P.W. 27 andP.W.28-

(vii) The statement of Man Bahadur Rai, P.W.40,under Section 164 Cr.P.C. as disclosed in theextra-judicial confession made by theRespondent No.1 of having committed theunder Section 164 Cr.P.C. as disclosed in theextra-judicial confession made by theRespondent No.1 of having committed the murder of Sonam Dadul Bhutia at Dentam andalso of the girl Bina Subba.

(viii) Recovery of Nokia mobile phone, MO-VIII from P.W.33, Abhi].it Ghosh which was traced to TikamSharma, P.W.36, owner of the mobile shop`Mobile World' at Siliguri who had sold it to oneS. D. Bhutia.

(ix) Failure on the part of the Respondents to explainthe circumstances put to them under Section313 Cr.P.C.

(x) Admission of guilt by the juvenile convict:sRoshan Rai and Puma Bahadur Subba of thecommission of t:he offence and the resultantconviction by the Juvenile Justice Board.Roshan Rai and Puma Bahadur Subba of thecommission of t:he offence and the resultantconviction by the Juvenile Justice Board.

fvj The Learned Additional Public Prosecutorsubmitted that the above circumstances which standfully proved form an unbroken chain that leads to thesole hypothesis of the Respondents having committedthe murder of deceased Sonam Dadul Bhutia.

8f/.J, Relying upon the decision of sfafe of u.P, vs.Safi-sh .. (2005j 3 SCC 114, it was submitted that since

it has been demonstrated that the Learned Trial Courthas ignored admissible evidence, jt was permissible forthis Court to re-appreciate the evidence for the purposeof ascertaining as to whether any of the accused personsreally committed any offence or not. That from the factsand circumstances, there can be no manner of doubtthat there are compelling and substantial reasons forinterfering with the impugned ].udgment of acquittal ofthe Respondents. Reference was also made on thispoint to the cases of Kri-shna Ram vs. Sfafe ofRajasthan -. (2009) 11 SCC 708 and Brahm Swaroopand Another vs. State of uttar Predesh ', (2011) 6 SCC288.

fi.t-) To support his taking resort to the convictionof the two juvenile co-accused, Roshan Rai and PumaBahadur Subba, as one of the circumstances appearingagainst the Respondents, the Learned Additional PublicProsecutor, relied upon the ].udgment of Bi-shnu PrasadSinha and Another vs. State of Assam .. (2007) 11 SCC467 and Pancho vs. State of Haryana -. (2011) 10 SCCZ65, in which it has been laid down that it is permissibleto take a confession of a co-accused as a corroborativepiece of evidence considered in the light of the other a evidence appearing in the records and may use it to lendassurance to those evidence.

(/./-/-) It was thus submitted that in view of t:he factsand circumstances placed by him and the position of lawobtaining in cases of circumstantial evidence, this was afit case where this Court should interfere and, uponconsideration of the materials on records and by re-appreciation of the evidence, set aside the acquittal andconvict the Respondents for the offences chargedagainst them.

9(I.). Appearing on behalf of the Respondents, Mr.N. Rai, Learned Senior Counsel, urged that the matterunder consideration is an Appeal against acquittal andunder such circumstances, presumption of innocencewould naturally be attract:ed in favour of the accusedpersons and that the Courts would ordinarily notinterfere with their acquittal. It was further submittedthat t:he Learned Trial Court while passing the impugned].udgment has carefully analysed the entire evidence onrecord and that the view taken by it is certainly apossible and plausible view. Under such circumstances,it would not be in the interest of justice or in keepingwith the settled principle of criminal jurisprudence not to -a- reverse the decision of the. Learned Trial Court. On this I

proposition, the following decisions were referred to:- Arulvelu and Anor vs, State and Another .. 2010CRI.L.J.433(SC); ICRI.L.J.433(SC); I

I

Md. Ankoos and OtFlers vs. The Public Prosecutor,Ht-gA court ofA,p, : 2oio CRI.L.]. 861 (sc);Ht-gA court ofA,p, : 2oio CRI.L.]. 861 (sc); State of Flajasthan tvs. Talevar and Another .. 2.OL±CRI.L.J.3937(SC); iCRI.L.J.3937(SC); i

4. P¥£9a Begum vs. State of Karnataka -. AIR 20L± SC1585;1585;

5. Brahm Swaroop alhq Another vs. State of u.P. ..2011 CRI.L.J. 306 (SC);2011 CRI.L.J. 306 (SC);

6. ?oAoag"€::,I.:.. 4S6£:;e(sbF¥; Pqb/J-C prosecqro"Odes :

7. Harijan Megha Jesh? vs. State ofGujarat '. AIRL979SC 1566; ISC 1566; I

SAItNaRteL9°8f±sK€rLn4aLff.:=ri:ds.HemareddyandAnother..

SraD:?a.PP`an.a]n?c9`the`rs VS. State of Karnataka .. 2:oLoCRI.L.J. 2017 (SC).CRI.L.J. 2017 (SC).

I

(/./-) Mr. N. Rai emphasised the unsustainability of the recoveries made on |the basis of the statements1under Section 27 of the Evidence Act, made by theIRespondents and the deli|quent accused Roshan Rai astheir voluntariness in making them statements wereIiclearly suspect. It was)) further submitted that thedisclosure statementRespondent No.1,Rakesh Rai, would fallpurview of Section 27of the Eviden.ce Act, as its recorded on 23-12-2003, a when he was not in custody of the police and wasarrested only on 27-12-2003. The statement, therefore,can at best be considered as an illegal confessionrecorded by the police to make out a false case.

(/.;/-) The disclosure statement, Exhibit 10 of theRespondent No.2, Tenzing Tamang, similarly cannot beaccepted as one falling under Section 27 of the EvidenceAct, as the art:icles recovered as a consequence thereofwere not in his possession and was only in hisknowledge of the exist:ence of those articles in the houseof P.W.35, Devi Maya Pradhan, apart from the fact thatthose articles were not identified as being the weaponsof offence.

(i.vj That the contradictory statement contained inthe disclosure statement:s Exhibits 3, 8 and 10, falsifiesthe prosecution case and that the discovery of thearticles as a result of those statements is at best a weakevidence not wholly reliable and that conviction cannotbe based upon such evidence. In support of hissubmission, Mr. N. Rai sought to refer to and rely uponthe following decisions:-

I. Pulukuri Kottaya and otl.ers vs. Emperor.. A`IR 1947Privy Council 67;Privy Council 67; Oc)

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2.. Salim Akhtar alias Mota vs. State of utter pradeshAIR 2003 SC 4076;AIR 2003 SC 4076; Anter Singh vs. State of Rajasthan .. A:IR 2.004 SC2865;2865;

4. Siddl.que and etc. vs. State of Kerala., 2.006 CRI.L.I.1109 (Kerala);1109 (Kerala);

5. Jogendra Nath and others vs, The state of Assam '.1977 CRI.L.J. 1309 (Gauhati);1977 CRI.L.J. 1309 (Gauhati);

6. Krishan Mohar Singh Dugal vs. State of Goa '. A:IR1999 SC 3842; and1999 SC 3842; and

7. State of Haryana vs. Jagbir singh and Another.. AIR2003 SC 4377.2003 SC 4377.

fvj Relying upon the decision of this Court in Damber Bahadur Chhetri vs. State of Sikkim .. 2010CRJ.I.J. 3076 fsi-kki.mj, it was submitted t:hatconfessional statement of co-accused cannot be usedagainst anot:her co-accused.

fvi-) It was then submitted that the Learned TrialCourt had rightly refused to accept Exhibit 26, i.e., thestatement under Section 164 Cr.P.C., of Man BahadurRai, P.W.40, the elder brother of Respondent No.1,Rakesh Rai, as it also suffered from the same vice asthose of the Respondents as not being free from anyinfluence of the police, since it has come in his evidencethat during the period he rendered the statement beforethe Magistrate, he was under detention of the Kaluk P.S.and that he had made the statement: at the behest of the police. Such being the nat:ure of the statementswhere voluntariness, which is fundamental, is foundmissing, its re].ection by the Learned Trial Court cannotbe held to be invalid or unacceptable. Moreover,P.W.40, Man Bahadur Rai, resiled from his statement inCourt and that his statement recorded under Section161 Cr.P.C. during investigation is contradictory to theones contained in his statement under Section 164Cr.P.C. In support of his submission Mr. Rai relied upon t:he following decisions:-

T. Diwakara and Others vs. State of Karnataka ..2006 CRI.L.J, 4813 (Karnataka); Jayanti Bhattacharya and etc. vs. State of WestBenga/ : 2006 CRI.L.J. 3414 (Calcutta).

fvt-l.) Mr. N. Rai further went on to urge that theidentity of the questioned Maruti Car WNC-525 cannotbe accepted in law as being beyond reasonable doubt, inview of the differing colours stated by the prosecutionwitnesses while describing the one they had seen. Itwas submitted that while P.W.16 and P.W.17 havestated it to be of `steel gray colour', P.W.51 and P.W.53have stat:ed it to be `ash'. On the other hand, P.W.45Pradeep Roy who is the purchaser of the vehicledescribed it as it being of `sky blue colour'. It is,therefore, his submission that this part of t:he evidence a called for re].ection and was accordingly rejected by theLearned Trial Court.

(v/-/-/.) It was then submitted that the prosecutionst:ory also states about existence of another vehicle,namely, a white Savari, from which also t:he police hadrecovered one wrench and wearing apparels of a womanconsisting of a pink kurta and pyjama which t:heprosecution has failed to explain casting grave doubts asto the culpability of the Respondents, because as perhim the white Savari had been plied by the accusedPraveen Subba and Abishek Rai and not theRespondents.

fi.xj By referring to the prosecution story of theRespondents having stayed in the hotels at Siliguri, itwas submitted that from the Registers seized by thepolice it was quite evident that the entries were madeeither much earlier to the date of the incident or longperiod thereafter thereby creating grave doubts asregards the prosecution story of their involvement in thecommission of the offence.

fxj The seizure of the mobile phone as the onebelonging to the deceased Sonam Dadul Bhutia and of it having changed hands aft:er the alleged sale by theRespondent No.1, can at best be considered as a veryweak or a faint evidence to link it with the commissionof the offence by the Respondents and, therefore,cannot be accepted as a credible or a reliable evidenceagainst the Respondents.

fx/.J As per Mr. N. Rai, P.W.38, Anil Chandra Roy,was unable to identify the Respondents in the Court, theevidence also is not clear as to whether the girl who hada-ccompanied the Respondents was indeed Bina Subba orsomeone else, there being no clinching evidence at all inproof of this fact. Mr. Rai then submitted that in anycase no motive has been proved against theRespondents and that the prosecution evidence far frombeing reliable were scattered and devoid of anycoherence.

fxl-/-) It was submitted that in a case involvingcircumstantial evidence like t:he present one,circumstances from which the conclusion of guilt is to bedrawn should in the first instance be fully established,and the facts est:ablished should be consistent only withthe hypothesis of the guilt of the accused. There mustbe a complete chain of evidence leaving no room for any other conclusion. As per Mr. Rai, the prosecution hadnot been successful in proving the case within the scopeof this principle entitling the Respondents to acquittal onthe benefit of doubt. The decision in the case of ArtmBhanudas Pawar vs. State of Maharashtra '. 2008CRr,i.J. 1798 fscj was cited by Mr. Rai in support of hiscontention.

(x/-/./-J Relying upon the decision of Ashi-st Baffiamvs. State of Madhya Pradesl. .. 2002 CRI.L.J. 4676 (SC),Mr. Rai urged that when we consider the facts and theevidence of the present case it can undoubtedly bestated that a strong suspicion exists against theRespondents, but it is a settled position that suspicioncannot take the place of proof.

fx/-vj Under such circumstances, it was thesubmission of Mr. Rai t:hat as there was no error in theappreciation of evidence by the Learned Trial Court andthat the impugned ].udgment was well-considered andsound, it did not call for any interference by this Court.

]O(/.J. We have given anxious consideration to thesubmissions of the Learned Counsels for the parties, theevidence on the record and the impugned ].udgment as

we are conscious of the fact that we are dealing with acase under Section 378 Cr.P.C., i.e., Appeal againstacquittal. The scope and I.urisdiction while dealing withsuch Appeal, is now well-established. It is no doubt truethat the Respondents having had the benefit of acquittalby t:he Learned Trial Court, presumption of innocencewould lie in their favour. However, an Appellate Court'spower in such Appeal brings within its sweep the powerto review t:he entire evidence and come to its ownconclusion, but, in doing so, it not only is required toconsider every matter on record germane to thequestions of fact but, if it is to be held that the acquittalby the Trial Court was not justified, a duty also is castupon it to express .t:he reasons therefor. We may referto I:he decisions cited by the Learned AdditionalProsecutor in this behalf which are set: out below:- (;/',±n I:he case Of State of u.P. vs. Satish ..

f2005j 3 SCC J]4, it has been held as under:- "24. There is no embargo on the appellatecourt reviewing the evidence upon which an order ofacquittal is based. Generally, the order of acquittalshall not be interfered with because the presumpt:ionof innocence of t:he accused is further strengthened byacquittal. The golden thread which runs through theweb of administration of ].ustice in criminal cases isthat if two views are possible on the evidenceadduced in the case, one pointing to the guilt of theaccused and the other to his innocence, the viewwhich is favourable to t:he accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of ].ustice is prevented. A miscarriageof I.ustice which may arise from acquittal of the guiltyis no less than from the conviction of an innocent. Ina case where admissible evidence is ignored, a duty iscast upon the appellate court to reappreciate theevidence where the accused has been acquitted, forthe purpose of ascertaining as to whether any of theaccused really committed any offence or not. (SeeBAagwan S/.ngh v. State of M.P.) The principle to befollowed by the appellate court considering the appealagainst the ]..udgment of acquittal is to interfere onlywhen t:here are compelling and substantial reasons fordoing so. If the impugned ].udgment is clearlyunreasonable and relevant and convincing materialshave been unjustifiably eliminated in the process, it isa compelling reason for interference. These aspectswere highlighted by this Court in Shf.vajf. SaAabraoBobade v. State of Maharashtra, Ramesh BabulalDoshi v. State of Gujarat, Jaswant Singh v. State ofHaryana, Raj Kishore Jha v. State of Bihar, State ofPunjab v. Karnail Singh and State of Punjab v. PholaSingh.,, ±n t:he case oF Krishna Ram vs. State of(/I/I/', Rajasthan '. (2009) 11 SCC 708, the follow.ingproposition has been laid down:-

``15. There cannot be any quarrel with thesettled propositions of law that if on appraisal of theevidence and on considering relevant attendingcircumstances it is found that t:wo views are possibleone as held by the trial court for acquitting theaccused and the other for convicting the accused, insuch a situation, the rule of prudence should guide theHigh Court not to dist:urb the order of acquittal madeby the t:rial court. It is also equally well settled thatwhere the material on record leads to a sole andinescapable conclusion of guilt of the accused, thejudgment of acquittal will call for interference by theappellate court."

-v,

The principle laid down in the aforesaid cases have been reiterated and further expanded the scopeand ambit of the power of review in an Appeal against acquittal in the case of BraAm Swaroop and Ano[Aer vs.

a

State of uttar Pradesh .. (2011) 6 SCC 288 as Sat out under:- "33. It is well established in law that theappellate court should not ordinarily set aside ajudgment of acquittal in a case where two views arepossible, though t:he view of the appellate court maybe the more probable one. While dealing wit:h ajudgment of acquittal, the appellate court mustconsider the entire evidence on record, so as t:o arriveat a finding as t:o whether the views of the trial courtwere perverse or otherwise unsustainable. Theappellate court is entitled t:o consider whether inarriving at a finding of fact, the trial court had failedt:o take into consideration any admissible evidenceand/or had taken into consideration evidence broughton record cont:rary to law.

34. Similarly, the incorrect placing of theburden of proof may also be a subject-matter ofscrutiny by the appellate court. The court of appealmay not interfere where two views are possible forthe reason that in such a case it can be held thatprosecution failed to prove the case beyondreasonable doubt: and the accused is entitled tobeneFlit Of doubt. (V.ide Balak Ram v, State of U.P.,Allarakha K. Mansuri v. State of Gujarat, Raghunath v.State of Haryana, State of U.P. v. Ram Veer Singh, S.Rama Krishna v. S Rami Reddy, Sambhaji HinduraoDeshmukh v. State of Maharashtra, Arulvelu v. State,Perla Somasekhara Reddy v. State of A.P. and Ram. Singhv.StateofH.P.

38. Thus, t:he law on the issue can besummarised to the effect that in exceptional caseswhere there are compelling circumstances, and t:hejudgment under appeal is found to be perverse, theappellate court can int:erfere wit:h the order ofacquittal. The appellate court should bear in mind thepresumption of innocence of the accused and furtherthat the trial court's acquittal bolsters thepresumption of his innocence. Interference wit:h thedecision of the trial court in a routine manner, wherethe other view is possible should be avoided, unlessthere are good reasons for such interference."

It, therefore, follows from the above that in an I,, Appeal against acquittal, the Appellate Court has wide a

powers in exercise of which it is permissible to examinethe evidence on the records meticulously. The onlyfetter in reversing a decision is that, reasons ought to begiven while rendering the ].udgment as to why theacquittal has not been I.ustified, the paramountconsideration of the Court being to ensure thatmiscarriage of I.ustice is prevented. In the backdrop ofthe above principle of law, we may now examine thecase as t:o whether any int:erference is called for in thedecision of the Trial Court in acquitting the Respondents.

11. This is a case which is solely based uponcircumstantial evidence as is common in almos.t allcriminal cases where the offender ensures that theevidence against him is obliterated.

Z2. On careful examination of the impugnedjudgment, we find that the Learned Trial Court has notset out the circumstances which appear against theaccused persons and, therefore, naturally we do not findany reason for arriving at the conclusion as to why thosecircumstances have not been proved. We rather findthat it is replete with contradictions and conflicts apartfrom certain vital evidence, appearing against t:heaccused persons, clearly overlooked. In the portion of a the impugned judgment commencing from paragraph 26that contains analysis of the evidence, the Learned TrialCourt has found the evidence of all the prosecutionwitnesses unshaken but, the conclusion of the analysisappear to be quite vague and nebular on most of theaspects and, in others conflicting and contradictory. Inthe concluding portion of the impugned I.udgmentcommencing from paragraph 111, if we may call it so,we find that the Learned Trial Court has once againrepeated the evidence and, has re].ected most of themeit:her on grounds which are not supported by anyreason or on grounds t:hat are unsustainable on the faceof t:he evidence,

13. In order to illustrate the inadequacy, we deemit essential to consider in some detail the analysis of theevidence by the Learned Trial Court in the impugnedjudgment at the cost of prolixity of the judgment.While doing so hereunder, dealing with the facts of thecase and the det:ails of the evidence shall be avoided forthe sake of brevity being repetitive:-

(i) P.W.1, Navin Gurung, the owner of"Surya Hotel"

at Dentam, deposed of the fact that thedeceased Sonam Dadul Bhutia, one girl whose -a-- name he did not know, Praveen Subba and onei,Iboy with frail featulre, had come to his hotel ataround 4.00 p.in.of 27-11-2003 and left afterhaving food, onPayme[nt of t:he bill by the]deceased Sonam Dadul Bhutia and, that half anhour later, Praveen Subba returned to his hotelto have some beer. This wit:ness identified theaccused Praveen Subba.

(ii) P.W.2, Sanjeev Baraily, in his deposition stated\that in the last week of November, 2003, on a`Thursday at about" 6.30 p.in., while he and hisIfriends sitting by the fireside after the day's workiin a construction work site for the quarters of theForest Beat Office at Dentam, accused PraveenSubba and accused Abishek Rai came in a SavariJeep from the Dehtam side stopped near them11and offered beer.!l When they refused, theydrove on towards the Gyalshing side but, atabout 7.30/8.00 ;|p.in. the accused persons`Ireturned on the Savari Jeep again from theDentam side and asked them as to where themarriage house was. At the request of accusedIAbishek Rai, they accompanied them to Mangmo village where the marriage was supposed to bebut returned without attending it as the tyre ofthe vehicle got punctured. While returning aft:erchanging the tyre, he and his friends got out atthe Forest Check Post and the accused PraveenSubba and Abishek Rai cont:inued on.

(iii) P.W.3, Phulmaya chetri, deposed that one night a year ago, i.e„ in November, 2003, while in amake shift tent in the cardamom field, she heardmake shift tent in the cardamom field, she heard someone blowing whistle t:hree times andshouting that a man was killed from the sidewhere the dead body had been found but couldnot make out whether the voice was that: of amale or a female. This witness was not cross-examined.shouting that a man was killed from the sidewhere the dead body had been found but couldnot make out whether the voice was that: of amale or a female. This witness was not cross-examined.

(iv) P.W.4, Regmit Lepcha, in her deposition statedt:hat sometime in the evening of the month ofNovember, 2003, when she and her sister wereon the road to meet their mother who wascoming from Jorethang, a white Savari vehiclecame and stopped in front of them and one outof the two boys who were inside it asked them ifthey could give t:hem a lift which they declined.t:hat sometime in the evening of the month ofNovember, 2003, when she and her sister wereon the road to meet their mother who wascoming from Jorethang, a white Savari vehiclecame and stopped in front of them and one outof the two boys who were inside it asked them ifthey could give t:hem a lift which they declined.

They enquired as tto whether they had seen aiIboy and his girl friend in the vicinity of the placeand that when thety replied in the negative theyand were seen movingaround near theThis witness was notcross-examined.

(v) P.Ws. 5, 6 and!' 7, were tendered by theprosecution witnesses without ob].ections raisedfrom the side of th: accused.prosecution witnesses without ob].ections raisedfrom the side of th: accused.

(

(vi) P.W.8, Passang Lama, in his deposition statedthat on 27-11-2003, he was driving taxi JeepIthat on 27-11-2003, he was driving taxi JeepINo.SK-04/5086 fr6m Jorethang to Intek which is

beyond Dentam Bazar to drop passengers. Onreaching the Dentam Bridge at about 8.00 p.in.,I)reaching the Dentam Bridge at about 8.00 p.in.,I)he saw one white:Savari parked near it but didnot see who the occupants were.not see who the occupants were.

(

(vii) In his evidence, i.W.9, Sonam Dorjee Bhutia,stated that about' a year ago at around 4.00p.in., a Thursday, he saw one Maruti Car parkednear the Dentam"Bridge while returning homeistated that about' a year ago at around 4.00p.in., a Thursday, he saw one Maruti Car parkednear the Dentam"Bridge while returning homeifrom Hee-Patal and ic!entified the Maruti Car,MO-I as that one. Later at about: 6.30/7.00MO-I as that one. Later at about: 6.30/7.00

p.in., when he saw a vehicle moving aroundacross his house with its headlights on he cameout of his house to find out. The vehicle whichwas a white Savari stopped at the place wherehe was standing and someone from inside itasked him if he had seen a boy and a girl in andaround the place and thereafter proceededtowards Pelling.

(viii) P.W.10, Chandra Bdr. Subba, is the father of thegirl Bina Subba, who stated t:hat on 27-11-2003,she had gone t:o visit her elder sister at SardongBusty, West Sikkim, and was missing thereafter.That he learnt about her murder near theCoronation Bridge at Siliguri aft:er one month andthat he had gone to the place of occurrence on27-12-2003 and identified the dead body as thatof his daughter from the wearing apparels.girl Bina Subba, who stated t:hat on 27-11-2003,she had gone t:o visit her elder sister at SardongBusty, West Sikkim, and was missing thereafter.That he learnt about her murder near theCoronation Bridge at Siliguri aft:er one month andthat he had gone to the place of occurrence on27-12-2003 and identified the dead body as thatof his daughter from the wearing apparels.

(ix) P.W.11, Dhan Maya Subba, mother of thedeceased girl Bina Subba, corroborated thestatement of her husband P.W.10 of theirdaughter Bina Subba going to Sardong Busty tovisit her sister carrying two packets of ``Silam"and her wearing apparels.deceased girl Bina Subba, corroborated thestatement of her husband P.W.10 of theirdaughter Bina Subba going to Sardong Busty tovisit her sister carrying two packets of ``Silam"and her wearing apparels.

(x) P.W.12, D.P. Subba, who was a Constable atMelli Check Post testified t:hat on 27-11-2003iMelli Check Post testified t:hat on 27-11-2003ione Maruti Car bearing No.WNC-525 had crossedMelli Check Post at about 2230 hrs. from theJorethang side for Filiguri and proved MO-V, therelevant Check ipost Register, where t:hemovement of t:he Said vehicle was recorded atpage 40 marked MP-V/a.Melli Check Post at about 2230 hrs. from theJorethang side for Filiguri and proved MO-V, therelevant Check ipost Register, where t:hemovement of t:he Said vehicle was recorded atpage 40 marked MP-V/a.

(xi) P.W.13, Lakpa Tsh. Sherpa, a writer constableat the Check Post, corroborated the evidence ofP.W.12 and provefl MO-V as being the vehicleIIat the Check Post, corroborated the evidence ofP.W.12 and provefl MO-V as being the vehicleIImovementrelevant page 40where the entryof Maruti Car No.WNC-525entered by him aswhere the entryof Maruti Car No.WNC-525entered by him as

(xii) In his evidence,P.W.14, Constable DhaneyThami, identified Rakesh Rai and stated that on22-12-2003, he had accompanied O/C Kaluk P.S.to Siliguri in connection with t:he Kaluk P.S.murder case. On 23-12-2003, he was informedby his O/C that O/C Sadar P.S. was bringingaccused Respondent No.1, Rakesh Rai, to theCoronation Bridge in connection with a murderThami, identified Rakesh Rai and stated that on22-12-2003, he had accompanied O/C Kaluk P.S.to Siliguri in connection with t:he Kaluk P.S.murder case. On 23-12-2003, he was informedby his O/C that O/C Sadar P.S. was bringingaccused Respondent No.1, Rakesh Rai, to theCoronation Bridge in connection with a murder case and was suspected to have some link withthe Kaluk P.S. murder case and that when theywere waiting at the Coronation Bridge, O/CSadar P.S. arrived with the Respondent No.1,Rakesh Rai, at about 4.00/5.00 p.in. where theO/C Kaluk P.S. interrogated him. During theinterrogation, Rakesh Rai made a disclosurestatement in his presence and the presence ofthe staff of Sadar P.S. whereby he stated thatabout 20/25 days ago, he and the RespondentNo.2, Tenzing Tamang, accompanied by hisbrother went from Jorethang to Gyalshing viaSoreng and Dentam by Maruti Car bearingNo.WNC-525. On their way they found SonamDadul Bhutia with one girl near the DentamBridge. When the accused, Rakesh Rai, calledout to the said Sonam Dadul Bhutia, he gotannoyed and shouted at the accused, RakeshRai. They then drove on to a place nearby andparked the vehicle and then ret:urned back to theplace of occurrence and assaulted and killedSonam Dadul Bhutia with a tyre lever and tookaway the girl to Siliguri and kept her in the``Himalayan Rest House''. After 2/3 days, they

brought the girl in the said Maruti Car and killedher by hitting with a tyre lever near theCoronation Bridge at Panidhara and t:hrew herbody below the road. The accused RespondentNo.1, Rakesh Rai, showed the place where thebody of the girl had been thrown which was60/70 ft. below the road. He proved Exhibit 3,her by hitting with a tyre lever near theCoronation Bridge at Panidhara and t:hrew herbody below the road. The accused RespondentNo.1, Rakesh Rai, showed the place where thebody of the girl had been thrown which was60/70 ft. below the road. He proved Exhibit 3, the disclosure statement given by theRespondent No.1, Rakesh Rai, and MO-VI, thetyre lever seized vide Exhibit 2.Respondent No.1, Rakesh Rai, and MO-VI, thetyre lever seized vide Exhibit 2.

(xiii) P.W.15, D. 8. Subba, a Sub-Inspector ofDarjeeling Police, corroborated P.W.14 asregards the recovery of the dead body on thebasis of the report received from O/C Kaluk P.S.He identified Respondent No.1, Rakesh Rai, asthe one who pointed out the dead body of BinaSubba and the fact of the disclosure statementmade by him to the O/C Kaluk P.S.Darjeeling Police, corroborated P.W.14 asregards the recovery of the dead body on thebasis of the report received from O/C Kaluk P.S.He identified Respondent No.1, Rakesh Rai, asthe one who pointed out the dead body of BinaSubba and the fact of the disclosure statementmade by him to the O/C Kaluk P.S.

(xiv) P.W.16, Tsering Kee Chingapa, a teacher inPelling Senior Secondary School, deposed thaton 27-11-2003 at about 4.00/5.00 p.in., whilereturning from school to her residence atDent:am, she saw a Maruti Car bearingPelling Senior Secondary School, deposed thaton 27-11-2003 at about 4.00/5.00 p.in., whilereturning from school to her residence atDent:am, she saw a Maruti Car bearing a registration number beginning with "WNC"parked near the Dentam Bridge and 3/4 boyssitting near it drinking something out of plasticbottle and she identified the Maruti Car, MO-I, asthe one seen by her.

(xv) P.W.17, Manorath Adhikari, the Junior Engineer, P.W.D., Dentam, who was travelling with P.W.16, corroborated her statement andidentified Marut:i Car, MO-I, and its colour as``ash colour''.identified Marut:i Car, MO-I, and its colour as``ash colour''.

(xvi) P.W.19, Deo Man subba, testified of the girl BinaSubba having travelled with accused PraveenSubba and others on 27-11-2003 who were laterfollowed by deceased Sonam Dadul Bhutia in thevehicle of Dinesh Pradhan, P.W.21. He alsostated that he and Kailash Rai, P.W.20, hadreturned to Pelling in the vehicle driven byDinesh Pradhan, P.W.21, while the deceasedSonam Dadul Bhutia went with accused PraveenSubba who had driven the vehicle along withaccused Abishek Rai and Bina Subba towardsDentam.

(xvii) P.W.20, Kailash Rai and P.W.21, DineshPradhan, corroborated the st:at:ement of P.W.19,Deo Man Subba.Pradhan, corroborated the st:at:ement of P.W.19,Deo Man Subba.

(xviii) Similarly, P.W.22, Tshering Bhutia, testified ofthe fact:s stated by the P.Ws.19, 20 and 21, ashaving been informed by those facts by P.W.20,Kai[ash Rai.the fact:s stated by the P.Ws.19, 20 and 21, ashaving been informed by those facts by P.W.20,Kai[ash Rai.

(xix) P.W.23, Parvati Subba, deposed of her sisterBina Subba found missing since 27-11-2003, theBina Subba found missing since 27-11-2003, the day she had left house to visit her and, of herhaving informed the police for help in tracingher.having informed the police for help in tracingher.

(xx) P.W.26, Dipu Sunar, a driver by profession,stat:ed that on 02-01-2004, O/C Kaluk P.S.brought one small boy near Singtam Bridge, EastSikkim, who disclosed to the O/C that he threw atyre lever and a shock absorber into the riverfrom the Bridge and that on the request of theO/C he recovered the tyre lever from the riveridentified by him as MO-VII.stat:ed that on 02-01-2004, O/C Kaluk P.S.brought one small boy near Singtam Bridge, EastSikkim, who disclosed to the O/C that he threw atyre lever and a shock absorber into the riverfrom the Bridge and that on the request of theO/C he recovered the tyre lever from the riveridentified by him as MO-VII.

(xxi) In his deposition, P.W.27, Karzang Bhutia,testified that one Roshan Rai gave a disclosuretestified that one Roshan Rai gave a disclosure st:at:ement under Section 27 of the Evidence Actto the O/C Kaluk P.S. in the Kaluk P.S. in hispresence and in the presence of one Ganga.RamChettri, P.W.28, stating that he and his friendshad killed one boy at Dentam and took the girlwho was with him t:o Siliguri and also killed herat Siliguri with a wheel wrench which he threwinto the river at Singtam and that he could showthe place from where he had thrown it. After t:hestatement was recorded, at the request of O/Cthey accompanied the O/C, Kaluk P.S. and the].uvenile accused Roshan Rai to Singtam wherethe juvenile accused Roshan Rai pointed out theplace from where he had thrown the wheelwrench which was later extricated from the riverwith the help of a diver. The wheel wrench wasidentified by him as MO-VII.

(xxii) P.W.28, Ganga Ram Chettri, corroborated theevidence of P.W.27, Karzang Bhutia on allmaterial particulars but the Learned Trial Courtfound that he was confused in his cross-examination.

(xxiii) P.W.29, Narayan Barman, a Constable in theDarjeeling Police Station, witnessed the seizureof one Nokia mobile phone, MO-VIII from t:hepossession of Abhi].it Ghosh, P.W.33, in hisresidence at Mahananda Para, Siliguri, on 08-01-2004 by PI S. R. Shenga, P.W.54, the I.0. of thecase. He identified MO-VIII as the cell phone soseized vide Seizure Memo Exhibit 9.

(xxiv) P.W.30, Pradeep Saha, a motor cycle mechanicrunning a workshop at Sevoke Road, Siliguri, deposed that in the month of

November/December, 2003, Pradeep Roy,P.W.45, a fellow mechanic, brought a Nokiamobile phone belonging to his friend `Purna' forsale as he was in need of money and that hepurchased it for Rs.2100/-with the assurance byP.W.45 that its documents would be delivered by2/3 days but, were not made over as assured.The mobile phone was sold by him a week laterto one of his customers for Rs.2200/- andidentified the cell phone MO-VIII and theaccused Rakesh Rai as `Purna' from whom hehad purchased it. He further went on to depose a that a month and half later `Purna' brought oneMaruti Car bearing registration No.WNC-525 forsale regarding which he informed Pradeep Roy,P.W.45, fixing the price of the vehicle atRs.45,000/-. He paid Rs.5,000/- as advancetowards cost of the vehicle to `Purna' who leftthereaft:er leaving the Maruti Car in t:heworkshop. He then sold t:he car to one relativeof Pradeep Roy for Rs.45,000/- and a few dayslater `Purna' came to his workshop to collect t:hebalance amount. He identified accused TenzingTamang, Respondent No.2, as the person whohad accompanied the said `Purna'. In his cross-examination, he stated t:hat all payments weremade through Pradeep Roy, P.W.45 and t:hat thecolour of the Car was `blue'. He further statedthat he had seen the documents of the vehiclewhich showed that it belonged to the brother of`Purna'. In his cross-examination, he confirmedthat that he had purchased t:he cell phone, MO-VIII, and identified `Purna' to be Rakesh Rai,Respondent No.1 and also Tenzing Tamang,Respondent No.2 as the one who hadaccompanied him.

a

Although, the Learned Trial Court has notcommented on the quality of the evidence ofP.W.30, it can be clearly inferred from itsanalysis that it was found to be firm andunshaken.

(xxv) As per the deposition of P.W..31, S. N. Agrawal,on 03-01-2004 when he was on his way toRinchenpong from his home at Kaluk Bazar, hemet the O/C Kaluk P.S. who requested him toaccompany him to Kaluk P.S. where he wasinformed that the Respondent No.2, TenzingTamang, who w.as in police custody wanted tomake a statement to which he should stand as awitness. The statement of Respondent No.2 wasaccordingly recorded by the O/C Kaluk P.S. in hispresence. in which it was stated that on a dayand dat:e which he could not remember when healong with one Roshan Rai, Rakesh Rai andPuma Subba were going from Dentam towardsPelling they met one girl and a boy near the riverat Dentam. They along with Rakesh Rai andRoshan Rai killed the boy by hitting him with awheel wrench and then took the girl away to

Siliguri and, subsequently killed her also andthrew her dead body below the road near theBagh Pool by the side of ``Panidhara''. Laterwhen Rakesh Rai, Respondent No.1, wasarrested, he and his two friends ran' away toKalimpong and from there Puma Subba went t:oDaramdin while he and Roshan Rai went: toSoreng. In a red bag that he was carrying therewas a bottle of Horlicks, one jack lever and onewheel wrench which he kept in the houseP.W.35, Devi Maya Pradhan at Daramdin, theaunt of Puma Subba. He identified Exhibit 10 asthe disclosure statement of accused TenzingTamang. Then he proceeded from the Kaluk P.S.to Daramdin where the police recovered andseized the bag from the house of P.W.35 videSeizure Exhibit 11 and identified MO-IX as thered coloured adidas bag, MO-X as the jacket,MO-XI as the bottle of Horlicks, MO-XII as thewheel wrench, MO-XIII as the jack lever, MO-XIVas one chain, MO-XV as screw driver and MO-XVIas the pliers.

a

(xxvi) . P.W.32, Kalyan Bhowmik, a Constable from theKotwali Police Station, deposed that on 07-01-2004 he was called to `Hotel India' situated atKadamtala, Dist:rict Jalpaiguri, where the Officersfrom the Sikkim Police seized one Register fromthe hotel in the presence of himself and one NarBahadur Tamang, P.W.44 and identified MO-XVIII as the Register so seized vide SeizureMemo Exhibit 12.Kotwali Police Station, deposed that on 07-01-2004 he was called to `Hotel India' situated atKadamtala, Dist:rict Jalpaiguri, where the Officersfrom the Sikkim Police seized one Register fromthe hotel in the presence of himself and one NarBahadur Tamang, P.W.44 and identified MO-XVIII as the Register so seized vide SeizureMemo Exhibit 12.

(xxvii) P.W.33, Abhijit Ghosh, deposed that in themonth of January, 2004, he purchased one Nokiacell phone from Pradeep Saha, P.W.30, forRs.2200/-which he identified as MO-VIII.month of January, 2004, he purchased one Nokiacell phone from Pradeep Saha, P.W.30, forRs.2200/-which he identified as MO-VIII.

(xxviii) P.W.34, Sarajit Mazumder, who runs a Hotel-cum-Lodge, namely, `Vishal' at Kadamtala,Jalpaiguri, deposed that sometime in the lastpart of 2003 or 2004, one Police Officer fromSikkim seized the Register of his hotel from thepossession of his Assistant Manager andident:ified MO-XVIIIA as the said Register seizedvide Seizure Memo Exhibit 12 wherein heidentified the signatures shown to him.cum-Lodge, namely, `Vishal' at Kadamtala,Jalpaiguri, deposed that sometime in the lastpart of 2003 or 2004, one Police Officer fromSikkim seized the Register of his hotel from thepossession of his Assistant Manager andident:ified MO-XVIIIA as the said Register seizedvide Seizure Memo Exhibit 12 wherein heidentified the signatures shown to him.

(xxix) P.W.35, Devi Maya Pradhan, in her depositionstated that police from the Gyalshing P.S. cameto her house on 29-12-2003 and arrested Bishalthe son of her sister. Later in the afternoon, twoboys Roshan and Tenzing came in search of hernephew regarding which she informed the policeby telephone. The police later arrested the twoboys who identified themselves as Roshan andTenzing. That the two boys had come in searchof her nephew carrying a red bag with themwhich she found below the cot while sweepingthe floor but chose .to leave it undisturbed. On03-01-2004, the police personnel came to herhouse along wit:h the boy named `Tenzing' whopointed out the bag below the cot as his and wasseized by the police with the articles inside.

(xxx) P.W.36, Tikam Sharma, the owner of ``MobileWorld" at Siliguri, stated that cell phone, MO-VIII, was the one sold to one S. D. Bhutia on 17-05-2003.

(xxxi) P.W.37, Dr. S. D. Sharma, the Medico-Legal Expert who conducted the post:-mortemexamination on the body of the deceased,examination on the body of the deceased, Sonam Dadul Bhutia. Apart from giving thedetails of the nature of the in].ury, he opined thatthe cause of death was shock as a result: ofmultiple in]-uries on the face and head producedby `blunt weapons' and identified Exhibit 13 asthe medical autopsy report seized vide SeizureMemo Exhibit 17.

(xxxii) P.W.38, Anil Chandra Roy, stated that hepurchased Maruti Car WNC-525 for Rs.45,000/-through the intervention of his friend. LaterPradeep Mondal brought the owner of thevehicle, P.W.40, to the office of the RTO, Siliguriwhich was later seized by the police on 21-12-2003 from the possession of his younger brotherNarayan Roy, P.W.39. He identified MO-I as thesame Marut:i Car which he purchased from ManBahadur Rai, P.W.40, through Pradeep Mondal.He identified P.W.40 as the person who hadcome to the RTO Office, Siliguri.

(xxxiii) P.W.39, Narayan Roy, corroborated his brotherP.W.38, Anil Chandra Roy and its seizure by thepolice from his possession vide Exhibit 19.

a

(xxxiv) P.W.40, Man Bahadur Rai, deposed that hisbrother Rakesh Rai, Respondent No.1, purchaseda Maruti Car in his name for the sale of which hehad submitted a xerox copy of his Voter IdentityCard marked `X' in the RTO Office at Siliguri. Hestated that Respondent No.1, Rakesh Rai, andthe Respondent No.2, Tenzing Tamang, hadcome to Gyalsing in that Maruti Car and in themorning of the next day, he had accompaniedthem to Siliguri where they went to hotel``Himalayan Rest House" and stayed theretogether with Puma Subba and his youngerbrother Roshan Rai. As per this witness duringhis three visits in connect:ion with theregistration of the vehicle at Siliguri, he did notmeet any other person except Respondent No.1and Puma Subba.

It has been observed by the LearnedTrial Court that, in his cross-examination thiswitness stated that he had given the statementunder Section 164 Cr.P.C. to the JudicialMagistrate, West, on being advised by t:he policeand that he had been to Gyalshing Court only a once and further, that he was detained in thepolice custody for 16 days, This observat:ion of the Learned Trial Courtgives us an impression that it found thestatement of the witness under Section 164Cr.P.C. unreliable as not being voluntary butgiven under the influence of the police.

(xxxv) P.W.41, Dipankar Debnath, Proprietor of``Himalayan Rest House'', Pradhan Nagar,Siliguri, deposed that in the month of December,2003, one Rai came with his friends and stayedin his hotel. That the said Rai used to come andreside his hotel and as he could not pay Rs.100/-he left his bag behind which was later seized bythe police. The police also seized `check-in' and`check-out' Register of his hotel identified as MO-XIX in which the accused had entered hisaddress as 12th Mile, Kalimpong and business asthe purpose of his visit.``Himalayan Rest House'', Pradhan Nagar,Siliguri, deposed that in the month of December,2003, one Rai came with his friends and stayedin his hotel. That the said Rai used to come andreside his hotel and as he could not pay Rs.100/-he left his bag behind which was later seized bythe police. The police also seized `check-in' and`check-out' Register of his hotel identified as MO-XIX in which the accused had entered hisaddress as 12th Mile, Kalimpong and business asthe purpose of his visit.

(xxxvi) P.W.42, Dinesh Ra].bor, the Manager of the hotel``Himalayan Rest House" by pointing out to theRespondent No.1, Rakesh Rai, stated that heused to frequently stay in the Rest House and``Himalayan Rest House" by pointing out to theRespondent No.1, Rakesh Rai, stated that heused to frequently stay in the Rest House and corroborated the evidence of P.W.41 in allmaterial particulars. That he did not rememberthe date when the Respondent No.1, Rakesh Rai,brought one girl with him along with his friendsand stayed in his hotel and identified theRespondent No.2, Tenzing Tamang, as theperson who used to come along with RespondentNo.1, Rakesh Rai and stayed in his hotel.material particulars. That he did not rememberthe date when the Respondent No.1, Rakesh Rai,brought one girl with him along with his friendsand stayed in his hotel and identified theRespondent No.2, Tenzing Tamang, as theperson who used to come along with RespondentNo.1, Rakesh Rai and stayed in his hotel.

(xxxvii) P.W.43, Ashok Ghosh, the former Manager of the``Himalayan Rest House" corroborated theevidence of P.W.42 and by identifying RakeshRai as the person who used to visit his hotel and,that during his last visit to the hotel he had comewit:h his friends and a girl. He identified the`check-in' and `check-out' Register of the hotelMO-XIX and further stated that they used to saythat they were dealers in the business ofcrockery and that they were from Kalimpong.``Himalayan Rest House" corroborated theevidence of P.W.42 and by identifying RakeshRai as the person who used to visit his hotel and,that during his last visit to the hotel he had comewit:h his friends and a girl. He identified the`check-in' and `check-out' Register of the hotelMO-XIX and further stated that they used to saythat they were dealers in the business ofcrockery and that they were from Kalimpong.

(xxxviii) P.W.44, Nar Bahadur Tamang, a constable fromthe Jalpaiguri P.S., identified the seizure ofRegister of the `Hotel Vishal' MO-XVIIIA.the Jalpaiguri P.S., identified the seizure ofRegister of the `Hotel Vishal' MO-XVIIIA.

(xxxix) P.W.45, Pradeep Roy, identified RespondentNo.1 as `Purna Rai' and corroborated theevidence of P.W.30 Pradeep Saha, P.W.33,Abhijit Ghosh and P.W.36, Tikam Sharma,regarding the sale of mobile phone MO-VIII andalso P.W.30, Pradeep Saha, P.W.38, AnilChandra Roy, P.W.39, Narayan Roy and P.W.40,Man Bahadur Rai, with regard t:o the factspertaining the Maruti Car WNC-525 and t:hat thecar was recorded in the name of Man BahadurRai, the elder brother of Puma Rai.

(xl) P.W.46, Nima Chader Bhutia, PI Gangtok SadarP.S. deposed t:hat he had arrested Rakesh Rai,Respondent No.1, in connection with a t:heft caseand during investigation it was revealed that theaccused had purchased Maruti Car bearingNo.WNC-525 `ash' in colour and one scooterbearing No.WB-74/C-1018 with the stolenmoney and that he had murdered one boy atDentam, West Sikkim, and kidnapped a girlwhom he later murdered near the Bagh Pool,District Dar].eeling, West Bengal. On 23-12-2003when the police party led by him with the

(xli)

(xlii) accused person in custody were on their way toSiliguri for recovery of the car and a scoot:er,they met O/C Kaluk P.S., P.W.54 PI S. R.Shenga, near Bagh Pool. PI Shenga interrogatedthe. Respondent No.1, Rakesh Rai, at the BaghPool and, as per the disclosure statement madeby the Respondent No.1, the body of the victimgirl was recovered on being shown by him.

P.W.47, Sonam Bhutia, a Constable posted atRangpo P.S., stated that on 13-02-2004,P.W.54, S. R. Shenga, seized one `in-coming'and one `out-going' Register of the RangpoCheck Post and identified MO-XX and MO-XXIrespectively as those Registers for the period 24-11-2003 to 26-11-2003 and 24-11-2003 to 29-11-2003 respectively.

It was noted by t:he Learned Trial Courtthat the witness stated that he did not makeentries in MO-XXI on 28-11-2003 till midnight.

P.W.48, Bal Bahadur Subba, test:ified of the I.0.conducting inquest for t:he dead body of thedeceased, Sonam Dadul Bhutia, at the place ofoccurrence on 28-11-2003 and that besides him one Born Bahadu+, Chettri, resident of BangtenBusty was also present during the inquest, Thewitness gave the details of the injuries that he11noticed on t:he dead body which was lying in adry field. Apart from this, he also identified\(various articles th'at were recovered from thedead body vide Seizure Memo Exhibit 23. Healso stated that the I.0. seized sample of theblood wit:h the soil, MO-XXX, four numbers of1teeth and one `black chunni' with white lining,MO-XXXI, near the road about 100 ft. above the!1dead body vide Seizure Memo Exhibit 24.

I

I

It was noted by the Learned Trial CourtIthat in his cross-examination the witnessIadmitted that he did not see any injury on the1lips and nose of the deceased but, there was`injury on the places of the mouth where theteeth had fallen ahd had found the place where(Ithe dead body was recovered was slopy and oneIcould sustain injury if he fell. However, t:he restIof the evidence as per the Learned Trial Court`remained unshaken.

(xliii) P.W.49, K. R. Rai, a Police Constable, was ableto identify only the accused Rakesh Rai. TheLearned Trial Court found that his evidence waswith regard to the accused Rakesh Rai beingt:aken to Siliguri to recover a stolen scooter andthey having found O/C Kaluk Police Stationwaiting at Bagh Pool on the way. That thedisclosure statement of the accused Rakesh Raiwas recorded by the O/C S. R. Shenga, P.W.54,in his presence and in the presence of ConstableDhaney Thami, P.W.14, by which he stat:ed thatabout 23/24 days ago when he travelled fromSiliguri in his Maruti Car bearing registrationNo.WNC-525 to Jorethang, he met his friendTenzing Tamang and they travelled together toSoreng. He corroborated P.Ws.14,15 and 53, asregards the rest of the material evidence inrespect of the incident at Dentam when theRespondents had killed a boy and later the girl atBagh Pool. He identified Exhibit 3 as thedisclosure statement made by the RespondentNo.1. They found the Maruti Car parked in theBhaktinagar P.S. which the accused pointed outand from its boot the accused himself took out -

(xliv)

(xliv) and pointed out one tyre lever MO-VI having theinscription `Kalpana' on it as being the one usedby him and his friend in assaulting the deceasedSonam Dadul Bhut:ia and I:he girl which the O/CKaluk P.S. seized vide Seizure Memo Exhibit: 2.

The Learned Trial Court noted that thewitness in his cross-examination admitted thatMO-VI was not described by its length andcircumference and such tyre lever could bepurchased by anyone having a car and that MO-VI was not sealed and packed. The rest of theevidence-in-chief as per the Learned Trial Courtcould not be demolished.

P.W.50, Smt. Bhim Sila Gautam who runs a hotelin Bermiok Bazar, West Sikkim, stated that int:he afternoon of 27-11-2003 at about 3.00/4.00p.in., a Maruti Car No.WNC-525 came to herhotel in which 3/4 small boys were travelling.Those boys took beer in the hotel and identifiedRespondent No.2, Tenzing Tamang, as one ofthem but could not identify the others.

P.W.51, Mahendra Sharma, a Home Guard,posted in Kaluk P.S. st:ated that on 22-12-2003, the I.0., S. R. Shenga seized a number ofarticles from the room of the ``Himalayan RestHouse" at Siliguri of which one DipankarDebnath, P.W.41, was the Manager. He identifiedthose articles consisting of one Reebok shoe,MO-XXI, one pair of leather shoes, MO-XXII, fournumbers of ].eans pants, collectively MO-XXIII,four numbers of towels, collectively MO-XXIV,one black vest, one red vest, one brown sweaterand one half vest, collectively MO-XXV and oneauto reverse cassette player, MO-XXVI whichwere found packed inside MO-XX. Apart fromthis, the `check-in' and `check-out' Register ofthe hot:el MO-XIX was also seized in his presenceand in presence of P.W.53, Head Constable S. K.Chettri, vide Seizure Memo Exhibit 21. Hefurt:her went on to depose that on the followingday, i.e., 23-12-2003, the 10 also seized onereceipt from MVI, Siliguri in respect of vehicleNo.WNC-525, Exhibit 20, one Electoral IdentityCard marked `X', one `ash' coloured Maruti CarNo.WNC-525 and three of it:s keys vide Exhibit25.

(xlvi)

(xlvii) P.W.52, Mrs. K. C. Barphunga, Chief JudicialMagistrate, South & West Sikkim at Namchi,deposed of her having examined two witnessesunder Section 164 Cr.P.C., namely, P.W.2,San].eev Baraily and another Padam Gazmeremarked Exhibits 28 and 29 respectively. Latershe also recorded the statement of P.W.40, ManBahadur Rai marked Exhibit 26.

The Learned Trial Court noted that thiswitness admitted that unlike Exhibits 1 and 30,being the st:atements of P.W.2 and PadamGazmere respectively, Exhibit 26 relating toP.W.40, Man Bahadur Rai, did not reflect: thespecific questions put to the witnesses beforerecording the statements but, found that thestatements were voluntarily made.

P.W.53, Siva Kumar Chettri, st:ated that on beinginstructed by the O/C Kaluk P.S. on 28-11-2003,he went t:o Melli P.S. in the same evening andbrought the accused Praveen Subba and AbishekRai along with a Savari vehicle bearingregistration No.SK-04/4906 to Kaluk P.S. late inthe night and that the following morning the O/C

seized the vehicle wit:h the articles found inside itin his presence vide Seizure Memo Exhibit 33.The seized articles consisted of a kurta-pyjamacollectively marked MO-IV, two small packetscontaining `Silam' marked MO-II and MO-Ill, awheel wrench marked MO-XXXII which wasfound below the seat of the driver, one wrenchmarked MO-XXXIII, the vehicle Savari SK-04/4906, its keys, route permit of the Savarivehicle and the blood like stains removed withcotton found on the outer body of the saidvehicle. He further stated that he and HomeGuard Mahendra Sharma, P.W.51, were taken bythe I.0. Shenga, P.W.54 to Siliguri forinvestigation of the case and that on 22-12-2003, the I.0. seized a number of articlescontained in a bag from a room of the``Himalayan Rest House" particulars of whichhave been set out above having also been statedby P.W.51 and, therefore, need not be repeated.He also testified of the I.0. seizing thedocuments of the Maruti Car WNC-525 from theMVI, Siliguri on 23-12-2003, also deposed by t:heP.W.51 vide Exhibit 19.

It was noted by the Learned Trial Courtthat his evidence could not be demolished incross-examination.

(xlviii) P.W.54, S. R. Shenga, who is t:he InvestigatingOfficer gave his detailed finding of the case andnarrat:ed the entire story assimilated from theevidence collected by him. While doing so, hecorroborated with all the material evidence givenby the various prosecution witnesses.

The Learned Trial Court noted that in hiscross-examination he had denied to thesuggestion that he had instruct:ed and persuadedP.W.40, Man Bahadur Rai and P.W.2, SanjeevBaraily, to give statements under Sections 164Cr.P.C. and that: he admitt:ed of the accusedPraveen Subba, Abishek Rai, Kailash Rai, DeoMan Subba and Bina Subba proceeding fromPelling to Dentam and the deceased followingthem in t:he vehicle driven by one DineshPradhan, P.W.21 and that he met them atChangay falls. He also admitt:ed of the fact thataccused Deo Man Subba, P.W.19 and KailashRai, P.W.20, returning to Pelling with Dinesh

--=i----

Pradhan, P,W.21 and accused Praveen Subba,

--=i----

Pradhan, P,W.21 and accused Praveen Subba, Abishek Rai, the deceased and Bina Subbaproceeding to Dentam where they had lunch andsome alcohol. That he also admitted of the factthat Bina Subba got off from the vehicle whilereturning from Dentam to attend to the call ofnature and the deceased also got down askingAbishek Rai and Praveen Subba to ret:urn toDentam and, that when the latter two did notfind the deceased and t:he girl where they hadbeen dropped, they ret:urned to Pelling. Thatwhen the disclosure statement Exhibit 3 of theaccused Rakesh Rai was recorded, no policepersonnel were present.

14fl-). It may be noted that in its analysis theLearned Trial Court found that none of evidence of theprosecution witnesses could be demolished exceptnoting certain aspects in respect of some of them which,in our view, are inconsequential as the substance ofthose evidence have remained unshaken even on thefinding of the Learned Trial Court:. As regards theevidence of P.Ws. 8, 9 and 11, except for the barenarration of their deposition, we find that the Learned a Trial Court has not stat:ed anything at all which lead usto conclude that no infirmities were found in them and,indeed even on our own scrutiny of those, we find none.

fl-l) After having dealt with the scope and ambit ofSections 302/300/34 IPC and Sections 24, 25, 26 and27 of the Evidence Act, the Learned Trial Courtthereafter appears to have examined the effect of theevidence in the light of those provisions.

(i.;t-) While dealing wit:h the disclosure statementExhibit 3 of the accused Respondent: No.1, Rakesh Rai,we find that I:he Learned Trial Court rejected theargument of the defence counsel, that on 23-12-2003when the disclosure statement was recorded, he was notin custody of the police and was arrested only on 27-12-2003, on a categorical finding that the accusedRespondent No.1, Rakesh Rai, was already in custody ofthe Gangtok Sadar P.S. in connection with Sadar P.S.Case No.135(03)03 dated 30-10-2003. This finding isobviously based upon the evidence of the I.0., P.W.54,S. R. Shenga, who has stated that `` ...... disclosurestatement exhibit-3 was recorded by me when he wasalready arrested in connection with Sadar P.S. CaseNo.135(03) dat:ed 30-10-2003 under Section 457/380 I

P C and was being taken for the recovery of stolenarticles .......... ''. And of, P.W.46, Nima Chader Bhutia,the then second Officer-in-Charge, Gangtok Sadar P.S„who has stated in his evidence has deposed that `` ........Sadar Police Station Case No.136(10)03 dated 30-10-2003 under sections 457/380 of the Indian Penal Codewas endorsed to me by the Officer-in-Charge, SadarPolice Station, Gangtok for investigation. During thecourse of t:he investigation I arrested suspected accusedRakesh Rai on 22-12-2003 .......... " This as per theLearned Trial Court remained undemolished in cross-examination thereby upholding the validity of thedisclosure statement.

f/-vj The Learned Trial Court further appears tohave accepted the validity of the disclosure statementsExhibit 3 of the Respondent No.1, Rakesh Rai, Exhibit 10of the Respondent No.2, Tenzing Tamang and Exhibit 8of the juvenile convict Roshan Rai, but observing thatthose would be relevant only to the fact discovered andnot the self incriminating parts of the statements asbeing hit by Section 27 of the Evidence Act.

fvJ While dealing with the question as to whetherthe prosecution had been able to lin`k the crime of murder with the accused persons, the Learned TrialCourt noted the following as the only infirmities, rest ofthe evidence having found to be unimpeachable:-

(i) The evidence of P.W.14, Dhaney Thami,witness to the disclosure statement, wasnot accepted which as per the Learned TrialCourt had already been discussed in detailearlier.witness to the disclosure statement, wasnot accepted which as per the Learned TrialCourt had already been discussed in detailearlier.

(ii) That P.W.16 and P.W.17, Tsering KeeChankapa and Manorath Adhikarirespectively, had identified the Maruti Caras steel gray colour having registrationNo.WNC-525 parked on the road nearDentam Bridge but the Learned Trial Courtfound that her evidence did not throw an.ylight on the prosecution case.Chankapa and Manorath Adhikarirespectively, had identified the Maruti Caras steel gray colour having registrationNo.WNC-525 parked on the road nearDentam Bridge but the Learned Trial Courtfound that her evidence did not throw an.ylight on the prosecution case.

(iii) The evidence of P.W.19, Deo Man Subbawas found to be of no support to thewas found to be of no support to the prosecution case. Similarly, P.Ws. 20, 21, 22, 23, 26, 27, 34 and 39, did not supportthe prosecution case.the prosecution case.

(iv) The evide.nce of p.W.40, Man Bahadur Rai, was rejected because he was declared a hostile by the prosecution and that in hiscross-examination he had admitted that hewas taken to the Court by the Police and had given t:he statements before theMagistrate and the police as advised bythem. His evidence was found worthless asthe voluntary nat:ure of the statement underSection 164 Cr.P.C. was found circumspect.

(v) P.W.50, Bhim Sila Gautam, co'uld not identify the accused persons.

(vi) That P.Ws. 16 and 17, although had seenthe stolen Maruti Car were unable toidentify the accused persons.the stolen Maruti Car were unable toidentify the accused persons.

(vii) Although, P.W.36, had stated that he sold mobile phone, MO-VIII, to S. D. Bhutia,which was identified by P.Ws. 30 and 33 aswhich was identified by P.Ws. 30 and 33 as the one sold to them by Respondent No.1,Rakesh Rai, his evidence was foundunreliable as the documents of its purchasewere not furnished.Rakesh Rai, his evidence was foundunreliable as the documents of its purchasewere not furnished.

(viii) That the sale of vehicle bearing registrationNo.WNC-525 by the Respondent No.1 toNo.WNC-525 by the Respondent No.1 to P.W.30, Pradeep Saha, has not supportedthe prosecution case as -the prosecution case as - (a) different colours have been stated withregard to the Maruti Car;regard to the Maruti Car;

(b) none could identify the occupants ofthe vehicle or that they were linkedwith the crime; andthe vehicle or that they were linkedwith the crime; and

(c) some witnesses have seen the vehiclecoming from Dentam-Pelling whileothers had seen it near the Bridge.coming from Dentam-Pelling whileothers had seen it near the Bridge.

(ix) That there was no evidence whatsoever tolink with the accused persons except thedisclosure statement of accused Nos.3 andlink with the accused persons except thedisclosure statement of accused Nos.3 and 4, i.e., the Respondents No.1 and 2, respectively, which, however, cannot beadmitted in evidence due to the bar createdadmitted in evidence due to the bar created by law and that the entire case is basedupon circumstantial evidence.upon circumstantial evidence.

]5(/.J. The Learned Trial Court has discarded theevidence of P.W.14, Dhaney Thami, witness to thedisclosure st:atement of the Respondent No.1, Exhibit 3,only on the ground that the disclosure statement wasevidence of P.W.14, Dhaney Thami, witness to thedisclosure st:atement of the Respondent No.1, Exhibit 3,only on the ground that the disclosure statement was a held to be unacceptable for the reasons alreadydiscussed in detail. This, in our view, is in clear conflictwith the finding of the Learned Trial Court at paragraph107 of the impugned judgment where it has been heldas under:- "107. P.W-14 Dhaney Thami has stated that the tyrelever was seized by the O.C Kaluk P.S in hispresence and in the presence of another personwhich he ident:ified as M.O-VI. The said weaponof offence was shown by the accused RakeshRai himself from inside the Maruti car. Therecovery of this article was not demolished inhis cross examinat:ion."lever was seized by the O.C Kaluk P.S in hispresence and in the presence of another personwhich he ident:ified as M.O-VI. The said weaponof offence was shown by the accused RakeshRai himself from inside the Maruti car. Therecovery of this article was not demolished inhis cross examinat:ion."

f/./-) The evidence of P.W.16 and P.W.17, werefound inconsequential by the Learned Trial Court holdingthat they did not throw any light on the prosecutioncase. While arriving at this conclusion, the LearnedTrial Court appears to have completely lost sight of thefact that the case is based upon circumstantial evidenceeven on its own findings and appears to have failed toappreciate that the evidence of t:hose two witnesses isrelevant to the fact that: a Maruti Car was seen about thetime when in the vicinity of the place where thedeceased Sonam Dadul Bhut:ia had been killed and thegirl Bina Subba kidnapped, and that they have beencorroborated by other evidence quite glaring in therecords which are set out hereunder:- (a) The evidence of P.W.50, Bhim Sila Gautam,who deposed that at about that time on thatday a group of boys had come in a Maruti CarNo,WNC-525 and had beer in her hotel atBermiok, one of whom was identified by thewitness as Respondent No.2, with whom shewas familiar as a daily wager;who deposed that at about that time on thatday a group of boys had come in a Maruti CarNo,WNC-525 and had beer in her hotel atBermiok, one of whom was identified by thewitness as Respondent No.2, with whom shewas familiar as a daily wager; (b) The evidence of P.Ws.12 and 13, theconstables at the Melli Check Post whodeposed of t:he fact that WNC-525, thequestioned Maruti Car, had crossed the MelliCheck Post and proceeded towards Siliguri;constables at the Melli Check Post whodeposed of t:he fact that WNC-525, thequestioned Maruti Car, had crossed the MelliCheck Post and proceeded towards Siliguri;

(c) The evidence of P.Ws.30, 38, 39 and 45, whohave deposed of the purchase of the MarutiCar from the Respondent No.1 although in thename of P.W.40, his brother; andhave deposed of the purchase of the MarutiCar from the Respondent No.1 although in thename of P.W.40, his brother; and (d) The evidence of seizure witnesses, P.Ws.14,15, 49 and 53 which have been dealt withearlier in exfenso and, therefore, need not berepeated.15, 49 and 53 which have been dealt withearlier in exfenso and, therefore, need not berepeated.

fl.l.l.) Apart from the above, there are otherevidence I:hat are relevant and corroborate the aforesaid evidence. They are:

(a) The disclosure statement of Respondent No.1, Rakesh Rai, Exhibit 3, who led the police at Bhaktinagar P.S. and took out the weapon ofoffence being a tyre wrench from the luggageboot of the Maruti Car parked there; andoffence being a tyre wrench from the luggageboot of the Maruti Car parked there; and

(b) The evidence of P.W.54, the I.0. S. R. Shengaand P.W.39, Narayan Roy who have statedthat the vehicle was seized by the TrafficPolice of the Bhaktinagar P.S. from Salugara,Siliguri.and P.W.39, Narayan Roy who have statedthat the vehicle was seized by the TrafficPolice of the Bhaktinagar P.S. from Salugara,Siliguri.

The recovery of the t:yre wrench from the MarutiCar at the Bhaktinagar P.S. on being shown by theRespondent No.1 as per t:he Learned Trial Court standsestablished at paragraph 107 of the impugnedjudgment, where it has been clearly stated that ``t:herecovery of this article was not demolished in his crossexamination''.

In our view, considering the entire facts andcircumstances, the rejection of the evidence of P.W.16

a

(..i,).

and P.W.17 by the Learned Trial Court on the ground asstated above is grossly erroneous and perverse. Thereasons why their evidence did not support theprosecution case have not been st:ated.

(/.v) We have indicated that the evidence ofP.Ws.19, 20, 21 and 22, which, as per the finding of theLearned Trial Court, remained undemolished in cross-examination, are relevant only to the fact of thedeceased Sonam Dadul Bhutia and Bina Subba travellingtogether on 27-11-2003 and having got out at theDentam Bridge and having disappeared thereafter.

The evidence of P.W.23, Parvati Subba, sister of the deceased Bina Subba, is relevant beingcorroborative of the prosecution case I:hat the deceasedBina Subba had left on that day for Sardong Busty tomeet her as stated by P.W.10 and P.W.11, their parents.

(v) The statement of p.W.26, Dipu sunar, provesthe fact that the juvenile convict Roshan Rai had shownthe place at: Singtam Bridge where he had thrown thetyre lever into the river which he retrieved by diving,thereby corroborating the evidence of P.W.27, KarzangBhutia and P.W.28, Ganga Ram Chettri who are the -oO

witnesses to the disclosure statement of the I.uvenileconvict Roshan Rai at the Kaluk P.S., Exhibit 8. Thisevidence has remained firm and unshaken.

fvi.) The evidence of P.W.24, Sarajit Majumdar,supports the prosecution story of the four accusedpersons going to Siligiiri on 28-11-2003 and stayingunder pseudonymous names in `Vishal Lodge' as foundin the hotel register MO-XVIIIA vide Seizure MemoExhibit 12. The evidence of P.W.39 corroborates theevidence of P.W.38 as regards the purchase of theMaruti Car WNC-525 by him from P.W.40 and theseizure of t:he vehicle from his possession by theBhaktinagar P.S.

(vt-I.) The approach of the Learned Trial Court inrejecting the evidence of P.W.40, in our view, is clearlycontrary to law and the materials on record. In the firstinstance, it is a settled principle of law that t:he evidenceof a hostile witness need not necessarily be discarded.All that the Court is required to do is to be morecautious and explore corroborations for reassurance.The plea taken by the witness in his cross-examinationought to have been considered in the light of the glaringevidence of t:he Chief Judicial Magistrate, P.W.52, whose oO

a evidence sets out the details of the procedure followedby her as prescribed by law. We may reproduce therelevant portion of her evidence which are as follows:- `` ............... „..„„. Thereafter on 31.12.2003the I.0 again submitt:ed another application prayingthat the statement: of witness Man Bdr. Rai also berecorded in connection with t:he same case. Exhibit-31 is the said requisition and exhibit. 31/a is mysignature. The witness Man Bdr. Rai was thereaft:erasked several questions as per the prescribed formatto ascertain the voluntary nature of his statement andinformed he was not bound to make any suchstatement. He was then giving two days time toreflect after which he was directed to appear on2.1.2004, if he is still desired to give his statement.Exhibit- 32 consistingof (sic) of 3 pages are t:hequestions put to him bearing my signatures markedexhibit- 32/a & b. Said Man Bdr. Rai thereafterappeared on 2.1.2004 after which I recorded hisstatement on oat:h. Exhibit- 26 consisting of 3 pagesis his statement bearing his signature already markedexhibit-26/a to c are the singautures (sic) of Man Bdr.Rai and exhibit- 26/d is my signature. Exhibit:- 26/e isalso my signature undere (sic) the memorandumprepared by me.

fvi;f) We have examined Exhibit 32, the form forrecording confessional statement, which sets out thespecific questions put by t:he Magistrate and the answersgiven by P.W.40, Man Bahadur Rai which reads asunder:- "FORM FOR RECORDING CONFESSION STATEMENTBEFORE JUDICIAL MAGISSTRATE IST CLASS. WEST SIKKIMAT GYALSHING.

STATEMENT OF p,w/AedMan Bdr. RaiU/S 164 Cr.P.C.

1. Aeed/Witness Man Bdr. Rai S/O llasta Bdr. Rai,Age 3Z !5 brought by aDDears on hls own of Kyongsa,West Skin before me at my court at 3£3Q hours to have a statement recorded. A letter memo No. _dated 31/12/04 from I.0. Shri S. R. Shenga, KalukP.S, Pf which is attached to the record.

2. Witness is placed in oustody of peon Kalu Bhutiaand S.I/Head constable !c d(rcctcd t:a lccivc theprcrr,i=c=. I have satisfied myself that there is nopolice man in the Court or in any place where theproceeding could be seen or heard except with peon,not concerned in the investigation of the crime as arenecessary to guard the witness.

Q.(1). I am a Magistrate and have no concern withthe police. Have you understood ?

Answer: YES.

Q.(2). Have you any complaint of ill treatment againstthe police or other person responsible for bringing youto the court ?

Answer: NO.

Q.(3). I desire t:o examine you. Do you concent (sic)to it ?

Answer: N.A.

The result of examination is this namely/- Q.(4). Do you wish to make any statement ?

Answer: YES.

Q.(5). Do you want to consult an Advocate of yourchoice before proceeding any furt:her ?

Answer: NO.

Q.(6). You are not bound to make a statement orthere is no compulsion that you should make asstatement. Have you understood ?

Answer: YES.

Q.(7). If you make a statement then it: will be takendown and it may be used against you as evidence.Have you understood this ?

Answer: YES.

Q.(8). Have the police or any other person threatenedyou to make a stat:ement ?

Answer: NO.

Q.(9). Have the police or any other person promisedyou that lesser punishment will be awarded toyou/accused if you make a stat:ement or that accusedwill be acquitted?

Answer: NO.

Q.(10). Have the police or any other person givenyou any allurement t:o make statement ?

Answer: NO.

Q.(11). Are you are under pressure of the police tomake statement U/S 164 Cr.P.C. ?

Answer: NO.

Q.(12). Do you still desire to make statement ?

Answer: YES.

Q.(13). When did it first occur to you that you shouldmake statement and why did it occur to you ?

Answer: From this moming. I want to state allt:hat I know and all that I have heard about themurder.

Q.(14). Why are you making a Statement ?

Answer: Because they, Rakesh, Roshan, Tenzingand Puma Bahadur Subba have committed a murder.

Q.(15). Are you making your statement voluntarily ?

Answer: YES.

Q.(16). Before you make any statement you aregiven 2_ days/Mcr,th time for reflection. You will notkeep in t:ouch with the police. Have you understcodall this ?

Answer: YES.

P.W. is informed that he is given 2_ days/Mcnthtime for reflection. He/Sf}e is further informed that hewill not mixed around with any police or any otherperson and is accordingly sent home on his own, Heshall again appear before me on 2.1.2004 at 09.30a.in.

Sd/-

SIGNATU RE Sd/-JUDICIAL MAGISTRATE(WEST) DATED 31/12/04"

a

*,

Apart from the above, even in the deposition

made before the Court, he gave the following statementon being cross-examined by the Additional PublicProsecutor and the Counsel for the Respondents:- "X.X.X. Bv the learned P.P. Shri J. a. Rai.

In connection with this case police recorded my161 statement:. My stat:ement was also recorded bythe Judicial Magistrate, West at Gyalshing underSection 164 Cr. P.C. I had signed on the statementrecorded by Judicial Magistrate, West at Tikzuk.,Exhibit- 26 consistina of fiveDaaes is the saidstatement Given bv me to the Judicial Maaistrate,West in connection with this case and exhibit-26/a,b,& c are mv sianat:ures thereon. The exhibit-26 is mv true statement that: I had Given to theJudicial Maaistrate, West at Tikzuk, in connection withthis case. Marked `A' consisting of three pages is mysstatement recorded by the Investigating Officer,under Section 161 Cr. P.C. It is my true statement.The same fact I had stated to the Judicial Magistrate,West: at Tikzuk."

"X.X.X. bv the accused Nos. 1 & 2 throuah ld.Counsel Shri Bandhan Rai,Counsel Shri Bandhan Rai,

...................... It: is true that I gave mystatement before the Magistrate under theadvise (sic) of t:he police.It is not a fact that Police instructed me as towhat I was to state before the Maaistrate.............. „ It is true that oath wasadministered to me by the Magistrate beforerecording my stat:ement:. It is not a fact t:hatmv deDosition todav is false."

[underiining mine]

x,

x,In view of the above, reject:ion of thestatement on the ground of it being made under threator coercion of the police and, therefore, not voluntary appears to be baseless and also in complete disregard ofthe law. Under Section 80 of the Evidence Act there isa presumption of genuineness of a document producedas record of evidence. Section 80 which we may reproduce for convenience reads as under:- ``80. Presumption as to documents produced as record of evidence.- Whenever any document isproduced before any Court, purporting to be a recordor memorandum of the evidence, or of any part of theevidence, given by a witness in a judicial proceedingor before any officer authorized by law to take suchevidence, or t:o be a st:at:ement: or confession by anyprisoner or accused person, taken in accordance withlaw, and purport:ing to be signed by any Judge orMagist:rate, or by any such officer as aforesaid, theCourt shall presume- that the document is genuine; that anystatements as to t:he circumstances underwhich it was taken, purporting to be madeby the person signing it, are true, and thatsuch evidence, statement or confessionwas duly taken."

x,I,±n the case oF Madi Ganga vs. State of Orissa : AIR 198] SC J]65 we find support of this proposition

where it has been held as under:-

"5 ......................... The leamed Magistratehas put to the accused all the necessary questions tosatisfy himself that the confession was voluntary. Hehas also appended the necessary certificate. We donot acceDt Shri Jain's submission that the learnedMaaistrate should have been examined as a wit:ness.Section 80 of the Evidence Act makes the examinationof the Maoist:rate unnecessarv. It authorises the Courtto Dresume that the document is aenuine, that anvstatements as to the circumstances under which itwas taken are true and that such confession was trulvtaken in accordance with law. Shri Jain submitted thatif the Magistrate had been examined as a witness, theaccused might have been in a position to show, bycross-examination that the confession recorded by theMagistrate was not voluntary. The Maaistrate hasaDDended a cert:ificate that he was satisfied t:hat the cly [onphasis supplfed]

It, therefore, follows from the above that in thepresent case the entire exercise in examining theMagistrate who recorded the statement Exhibit 26 wasan exercise in futility as no circumstances had beenbrought out to justify calling the Magistrate as a witness.We find from Exhibit 32 that the Learned Magistrate hadput all the necessary questions to the accused to satisfythat the confession was voluntary and has alsoappended the necessary certificate.

fx/-/.) Apart from the above, the finding that p.W.50,Bhim Sila Gautam, could not identify the accusedpersons is grossly contradictory to her own finding atparagraph 76 of the judgment where it has been notedt:hat the witness identified accused No.4 (TenzingTamang), i.e., Respondent No.2, in t:he present Appeal,as one of the accused although she was unable toidentify the others.

fx/././.) On the evidence of P.Ws.16 and 17, theLearned Trial Court appears to have overlooked the factt:hat the evidence of these two witnesses is not as regards the identification of the accused persons butthat of the Maruti Car, relevance of which has alreadybeen discussed at length earlier and, therefore, need notbe repeated.

(x/-v) The re].ection of the evidence as regards themobile phone MO-VIII by P.W.36 having been sold tothe deceased S. D. Bhut:ia on the ground stated, in ourview, is unacceptable in law considering theoverwhelming evidence of P.Ws.30, 33, 45 and 36, andapparently in conflict with the Trial Court's own findingthat their evidence stood undemolished in cross-examination.

fxlr) These apart, we notice that the finding isbereft of any material particulars and obviously vague.In order to appreciate this, we may reproduce below therelevant portions of the impugned judgment dealing withthe disclosure statements of the various accusedpersons:- \\104.

Exhibit-3 is the disclosure statement of theaccused Rakesh Rai dated 23.12.2003. It: isargued by the defence counsel that the allegedst:atement was recorded on 23.12.2003 but hewas arrested only on 27.3.2003. On pain ofrepetition it is clear from the discussion thatcustody is a question of fact and not of law.The moment an accused person comes into thehands of a police officer his movement:s are restricted and he is no longer at liberty. Whensuch a condition is reached, it tantamounts tobeing in the custody of t:he police. The evidenceof the I.0 clears the air with regards to thestat:us of the accused Rakesh Rai as t:o whetherhe was in custody or not. The I.0 has stated``In fact this disclosure statement Exhibit-3 wasrecorded by me when he was already arrestedin connection with Sadar P.S case No.135(03)03 dated 30.10.2003 under Section457/380 of the I.P,C and was being taken forthe recovery of stolen articles." Thus theaccused was already in police custody.

105. The st:atement of t:he accused is recorded in theNepali vernacular which roughly translatedwould be t:hat:-about 23/24 days ago he wentfrom Siliguri in his vehicle WNC 525 Maruti caralone to Jorethang. At Jorethang he metTenzing Tamang thereafter they both proceededt:o Soreng and from Soreng they went towardsDentam to look around ``Sunguray pool". Thatthey were returning towards Geyzing when aftercrossing the Dentam Bridge about half akilometer from the bridge and towards Pellingthey saw one boy and girl sitting. It was around7 p.in. As the boy looked like his driver friendSonam from Pelling he called out to him whoresponded by using abusive words andassaulted the accused. Quickly the accused andTenzing got: into his vehicle and after reaching acurve on the road they parked their vehicle,took out a t:yre lever and went towards theplace where t:he boy and girl were sitting. Thenwith the tyre lever first Ra.kesh Rai assaultedthe deceased and thereafter Tenzing Tamangassaulted the deceased then they took the girlto Siliguri Himalayan Hotel in t:he same vehicleand kept her. After 2/3 days they took her inthe vehicle near the ``Baghpool" and bot:h ofthem killed her with the tyre lever and threwher below t:he road. That if the dead body wasstill there he could show them. He had sold thevehicle and if the vehicle is available he couldshow the tyre lever also."

106. Exhibit-10 is the disclosure statement: ofaccused Tenzing Tamang which roughlytranslated would be that:-on a day and dat:e hedid not remember he met Roshan Rai, RakeshRai, Puma Subba and they went in Rakesh Rai'sMaruti car and when they traveled (sic) fromDentam pool they saw one girl and boy sitting.That boy was then killed by him, Rakesh Rai andRoshan Rai with a wheel wrench and shocker byaccused Tenzing Tamang which roughlytranslated would be that:-on a day and dat:e hedid not remember he met Roshan Rai, RakeshRai, Puma Subba and they went in Rakesh Rai'sMaruti car and when they traveled (sic) fromDentam pool they saw one girl and boy sitting.That boy was then killed by him, Rakesh Rai andRoshan Rai with a wheel wrench and shocker by -oQ

_a assaulting him, That the girl was t:aken andlater near ``Baghpool" `he and Rakesh Raiassaulted her with a jack lever and killed herand her dead body was thrown below the road.That the vehicle of Rakesh Rai had I.ack leversone wheel wrench and one shocker. Lat:erRakesh told riim that he had purchased one tyrelever but helldid not see it. After two days ofkilling the girl Rakesh sold his vehicle but nott:he wheel w`rench. Then one day Rakesh wasarrested in !Siliguri while the three of themescaped to Kalimpong and stayed there. Hewas carrying a red bag inside which t:here wasone ].acket, pne horlicks bottle, one I.ack leverand one wheel wrench, From Kalimpong theyall came to Soreng via Singtam. He and Roshanstayed at Soreng whereas Puma went to hismaternal aunt's house at Daramdin. Afterstaying in Soreng when. he and Roshan weregoing to Daramdin he put Roshan's small blackbag also inside his bag and carried it:. Onreaching Daramdin in t:he house of Pumamaternal aunt he and Roshan were arrest:ed bythe police. The bag that he was carrying wasleft in the house of the said aunt with the abovearticles which he said he could show the police.

(

107. P.W-14 Dhahey Thami has stated that the tyrelever was seized by the O.C Kaluk P.S in hispresence and in the presence of another personwhich he identified as M.O-VI. The sa,id weaponof offence was shown by the accused RakeshRai himself from inside t:he Maruti car. Therecovery of this article was not demolished inhis cross exainination.lever was seized by the O.C Kaluk P.S in hispresence and in the presence of another personwhich he identified as M.O-VI. The sa,id weaponof offence was shown by the accused RakeshRai himself from inside t:he Maruti car. Therecovery of this article was not demolished inhis cross exainination.

)

108..Pn.t:-3feDr!j#rsaunndarrewc:;etrt:dMr:6e.L]¥ht:edjtvyer:lever. P.W-27 Karzang Bhutia also witnessedthe recovery!'of MO-VII the wheel wrench takenout from the:'river on the basis of t:he st:at:ement:of the accused Roshan Rai. The evidence of thesaid three !l witnesses have already beendiscussed in detail earlier.lever. P.W-27 Karzang Bhutia also witnessedthe recovery!'of MO-VII the wheel wrench takenout from the:'river on the basis of t:he st:at:ement:of the accused Roshan Rai. The evidence of thesaid three !l witnesses have already beendiscussed in detail earlier.

I

110. Thus in the instant case the disclosuresstatement: of t:he accused Dersons are relevantonly to the fact discovered i.e the tyre leverfrom the vehicle WNC 0525 and the articles keDtin the baa as stat:ed bv Tenzina Tamana whichinclude M.O-IX to M.O-XVII from the house ofDevi Maya Pradhan. The other self incriminating _a statements cannot be taken into evidence beinghit by the provisions of Section 27 as discussedearlier.„

[underlining mine]

(xv/.J When, therefore, the validity of the disclosureIistatements and the consequential recoveries have beenfound to be established, we are at a loss to understandIas to how the Learned Trial Court has held that thosecannot be admitted in evidence. Obviously, they aremutually conflicting and the Learned Trial Court,\therefore, has fallen in error in holding so.

(xvi-t-) We are conscious of the law that mereidiscovery of fact as a consequence of a disclosureistatement under Section i27 of the Evidence Act is notrelevant and that its relevance must be established byiother`evidence. Keeping this position of law in view, wefind that even if we are to discount: the evidenceiregarding the recovery, t does not detract from t:heother well-established circumstantial evidence which wefind beyond reproach.

16f/-), This leads us to anot:her aspect of the caseifaintly raised by Mr. N. Rai, Learned Senior Counsel forthe Respondents as regards the recovery of the tyreIlever which we find necessary to address as being of _c?

a some significance. On the basis of the disclosurestatement of the Respondent No.1, Exhibit 3, that ofthe Respondent No.2, Exhibit 10 and of the juvenileconvict Roshan Rai, Exhibit 8, we find that there arethree tyre levers that were recovered, namely, MO-VI,MO-VIII and MO-VII respectively, from different places,i.e., MO-VI from the luggage boot of the Maruti CarWNC-525 at the Bhaktinagar P.S„ MO-VII from the bagconcealed under the bed in the house of P.W.35 atDaramdin Bazar and, from the river bed at Singtam MO-VII. We find that it is not clear as to which of theseweapons were used to assault the deceased SonamDadul Bhutia and Bina Subba. The question that wouldthen arise for consideration is as to whether thisdeficiency is such as to vit:iate the ent:ire case of theprosecution. In our view, it is not for the reasons statedhereafter.

(i-/.j Application of the doctrine of probability is notforeign to criminal cases. In Murray's English Dictionarytaken from the Law of Evidence by Sarkar, 17th Edition,2010, probability means ``the appearance of trut:h orlikelihood of being realised which any statement or•event bears in the light of present evidence''. In the -CP

a

case Of State of u.P. vs. Krishna Gopal -. AIR 1988 SC

2]54, it has been held as follows:

\\13-..................

It is trit:e that where the eye-witnesses'account is found credible and trustworthy, medicalopinion pointing to alternative possibilities is notaccepted as conclusive. Witnesses, as Banthamsaid, are the eyes and ears of ].ustice. Hence theimportance and primacy of the quality of the trialprocess. Eye witnesses' account would require acareful independent assessment and evaluation fortheir credibility which should not be adverselypre].udged making any ot:her evidence, includingmedical evidence, as the sole touch-st:one for thetest of such credibility. The evidence must be t:estedfor its inherent consistency and the inherentprobability of the story; cctnsistency with theaccount of other witnesses held to be credit-worthy;consist:ency with the undisputed facts t:he 'credit' ofthe witnesses; their performance in t:he witness-box; their power of observation etc. Then theprobative value of such evidence becomes eligible tobe put into the scales for a cumulative evaluation.

A person has, no doubt, a profound right notto be convicted of an offence which is notest:ablished by the evidential standard of proofbeyond reasonable doubt. Though this standard is ahigher standard, there is, however, no absolut:estandard. What degree of probability amounts to'proof' is an exercise particular to each case.Referring to of probability amounts to 'proof' is anexercise the inter-dependence of evidence and t:heconfirmation of one piece of evidence by another alearned author says: (See "The Mathematics ofProof 11" : Glanville Williams : Criminal Law Review,1979, by Sweet and Maxwell, p.340 (342)).

``The simple multiplication rule does not apply if theseparate pieces of evidence are dependent. Twoevents are dependent when they tend to occurtogether, and the evidence of such events may alsobe said to be dependent. In a criminal case, differentpieces of evidence directed t:o establishing that thedefendant did the prohibited act with the specifiedstate of mind are generally dependent. A juror mayfeel doubt whether t:o credit an alleged confession,and doubt whet:her to infer guilt from the fact that thedefendant fled from I.ustice. But since it is generallyguilty rather than innocent people who makeconfessions, and guilty rather than innocent peoplewho run away, the two doubts are not t:o be multiplied together. The one piece of evidence may confirm theother."

together. The one piece of evidence may confirm theother."

Doubts would be called reasonable if they arefree from a zest for abstract speculation. Lawcannot afford any favourit:e other than truth. Toconstitute reasonable doubt, it must be free from anover emotional response. Doubts may be actual andsubstantial doubts as to the guilt of the accusedperson arising from the evidence, or from t:he lackof it, as opposed to mere vague apprehensions. Areasonable doubt is not an imaginary, trivial or amerely possible doubt; but a fair doubt based uponreason and common-sense. It must grow out of theevidence in the case.

The concept:s of probability, and the degreesof it, cannot obviously be expressed in terms ofunits to be mathematically enumerated as to howmany of such units constitute proof beyondreasonable doubt. There is an unmistakablesubjective element in the evaluation of the degreesof probability and the quant:urn of proof. Forensicprobability must, in the last analysis, rest on arobust: common sense and, ultimately, on thetrained intuitions of the I.udge. While t:he protectiongiven by the criminal process to the accusedpersons is not to be eroded, at t:he same time,uninformed legitimisation of trivialities would makea mockery of administ:ration of criminal justice."

/'/'/',We may also note the appreciation of lawenunciated in the case of „a/ay Kunar Gangu/y vs. Dr.Sukumar Mukherjee and Others .. (2009) 9 SCC 221..- We may also note the appreciation of law ``110. Kunal had not only obtained opinion of alarge number of experts, he examined some of themincluding Dr. Anil Shinde PW 9, Dr. Udwadia PW 10and Dr. Salil Kumar Bhattacharya PW 11. Therespondents did not examine any expert. They,however, relied upon some authorit:ies to which wehave referred to heretobefore. The onus of proof,therefore, on a situation of this nature shifted to therespondents.

111. While we say so we must place on recordthat we are not oblivious of the fact that t:he principleof res ipsa loquitur may not be strictly applicable in acriminal case, although certain authorit:ies suggestapplication of the said principle.

a

L±2. In Spring Meadows Hospital v. HariolAA/uwa//.a this Court has held as under: (SCC p.47,para 10)

"10, Gross medical mist:ake will alwaysresult in a finding of negligence. Use of wrongdrug or wrong gas during the course ofanaesthetic will frequently lead t:o the impositionof liability and in some situations even theprinciple of res ipsa loquitur can be applied.Even delegation of responsibility to another mayamount to negligence in certain circumstances.A consultant could be negligent where hedelegates the responsibility to his junior wit:h theknowledge that the I.unior was incapable ofperforming of his dut:ies properly."

However, .in Rattan Singh v. State of Punjab th.is Courthas held: (SCC p.720, para 3)

``3. This, however, does not excuse theaccused from his rash driving of a `blindLeviathan in berserk locomotion'. If we mayadapt t:he words of Lord Greene, M.R.: `Itscarcely lies in the mout:h of the t:ruck driverwho plays wit:h fire to complain of burnt fingers'.Rashness and negligence are relative concepts,not absolute abst:ractions. In our currentconditions, the law under Section 304-A IPC andunder the rubric of negligence, must have dueregard to the fatal frequency of rash driving ofheavy duty vehicles and of speeding menaces.Thus viewed, it is fair to apply the rule of resipsa loquitur, of course, with care. Conventionaldefences, except under compelling evidence,must break down before the pragmatic Courtand must be given short shrift. Looked at fromthis angle, we are convinced that the presentcase deserves no considerat:ion on the questionof conviction."

113. tr\ 8. Nagabhushanam v. State ofKarr}afaka this Court held as under: (SCC p.734, para12)

``J2. Reliance placed by Mr Kulkarni onSyad Akbar v. State of Karnataka .is natapposite. It proceeded on t:he basis t:hat doct:rineof res ipsa loquitur st:ricto sensu would not applyto a criminal case as its applicability in an actionfor injury by negligence is well known. In SyadAkbarthis Court opined: (SCC p. 41, para 30)

`30. Such simplified and pragmaticapplication of the notion of res ipsa _a loquitur, as a part of the general mode ofinferring a fact in issue from anothercircumst:antial fact, is subject to all theprinciples, the satisfaction of which isessential before an accused can beconvicted on the basis of circumstantialevidence alone. These are: F/.rsf/y, all thecircumstances, including the objectivecircumstances constituting the accident,from which the inference of guilt is t:o bedrawn, must be firmly established.Second/y, those circumstances must be ofa det:erminative tendency pointingunerringly towards the guilt of t:heaccused. Thj.rd/y, t:he circumstances shouldmake a chain so complete that theycannot reasonably raise any otherhypothesis save that of the accused'sguilt. That is to say, they should beincompatible with his innocence, andinferentially exclude all reasonable doubtabout his guilt.' "

There cannot, however, be any doubt whatsoever thatin the civil appeal the said principle is applicable. Ithas clearly been held by this Court that the onus ofproof would shift on the respondents."

'v,

Again in the case of Ram Bt.hari. Yadav vs.State of Bihar and Otl.ers `, AIR 1998 SC 1850 -lt hasbeen held that the probative value of evidence is theweight to be given to it which has to be judged havingregard to the facts and circumstances of each case.

rvJWe also find that in the case of "anga/

Hansada vs. The State ...1985 CFel.L.J. 1589 (Orissa) Ithas been held that ``it is not necessary in every case thatthe weapoTi of attack must have to be recovered in acase of murder and non-recovery of the weapon of attack would not affect the other evidence if found to bereliable and acceptable''.

17. There is another aspect of the matter thatrequires consideration which is more for t:he purpose ofreminding ourselves of the scope of Section 27 of theEvidence Act. In this context, we may reproduce apassage From the dealis.ion of Bodhrdy alias Bodba andOthers vs. State of Jammu & Kashmir -. (2002) 8 SCC45 which reads as under:- "18 .......... It would appear that underSection 27 as it stands in order to render the evidenceleading to discovery of any fact admissible, theinformation must come from any accused in custodyof the police. The requirement of police custody isproductive of extremely anomalous results and maylead to the exclusion of much valuable evidence incases where a person, who is subsequently taken intocustody and becomes an accused, after committing acrime meets a police officer or voluntarily goes to himor to the police station and st:ates t:he circumstancesof the crime which lead to the discovery of the deadbody, weapon or any ot:her material fact, inconsequence of the information thus received fromhim. This information which is otherwise admissiblebecomes inadmissible under Section27 if theinformation did not come from a person in the custodyof a police officer or did come from a person no`t in thecustody of a police officer. The statement which isadmissible under Section 27 is the one which is theinformation leading to discovery. Thus, what isadmissible being the information, the same has to beproved and not the opinion formed on it by the policeofficer. In other words, the exact information given bythe accused while in custody which led to recovery oft:he articles has to be proved. It is, therefore,necessary for the benefit of both the accused andprosecution that information given should be recordedand proved and if not so recorded, the exactinformation must be adduced through evidence. Thebasic idea embedded in Section 27 of the Evidence Act:is the doctrine of confirmation by subsequent events.

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The doctrine is founded on the principle that if anyfact is discovered as a search made on the strength ofany information obtained from a prisoner, such adiscovery is a guarant:ee that t:he informat:ion suppliedby the prisoner is true. The information might beconfessional or non-inculpatory in nature but if itresult:s in discovery of a fact, it becomes a reliableinformation. It is now well settled t:hat recovery of anobject is not discovery of fact envisaged in t:hesect:ion. Decision of Privy Council in Pu/ukur/.Kofayya v. Emperor is the most-quoted authority forsupporting the interpretation t:hat the "factdiscovered" envisaged in the sect:ion embraces theplace from which the object was produced, theknowledge of t:he accused as to it:, but t:he informationgiven must relate distinctly to that effect:. (See Stateof Maharashtra v. Damu Gopinath Shinde), No douhi,the information permitted to be admitt:ed in evidenceis confined to that portion of the information which"distinctly relates to the fact thereby discovered". Butthe information to get admissibility need not be sotruncated as to make it insensible orincomprehensible. The extent of information admittedshould be consistent with understandability. Merestatement that the accused led the police and thewitnesses to the place where he had concealed thearticles is not indicative of the information given."

18. Considering the above proposition of law, wemay now deal with the question before us. We havefound that the weapon of offence allegedly used is ``tyrelever/wheel wrench". The nature of the injury found onthe body of the deceased as indicated in the inquestreport Exhibit 4 and the autopsy report Exhibit 13 and,the opinion of the Medico-Legal Expert, P.W.37, Dr. S.D. Sharma, to the effect that the death as being causedby shock due to multiple in].uries on the face and headproduced by ``blunt weapon'', clearly leads one toreasonably infer, by application of the doctrine of probability, that one or all of those weapons were used.This, in our view, is sufficient to set at rest the question.We are reassured of this when we find the othercircumstantial evidence, with which we shall dealhereunder, quite reliable and acceptable.

Igf/.J, We find that sect:ion 34 IPc has been invokedin the present case, there being four persons involved inthe commission of the offence. The underlying principleof Section 34 IPC is that common intention between theparticipants in the crime is an essential element and,such intention implies a pre-arranged plan and acting inconcert pursuant to a pre-arranged plan. It is, however,also a settled position that a common intention maydevelop at the spur of the moment in course of thecommission of the offence. Whether all the persons whomade some overt attack as a result of which somemembers of the prosecution party died, shared thecommon int:ention to do so would be a question of factand it is difficult to give any direct proof of existence ofsuch common intention and, can only be inferred fromcircumstances. In this regard, we may usefully refer tothe case Of Ram Asrey vs. State of U.P. .. 1993 Supp (4)218. I.r\ the c:ace Of Balram Singh and Another vs.

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State of Purtyab ., AIR 2003 SC 2213 the law as regards Section 34 IPC has been reiterated reads as under:

"14. The argument of learned counsel that onfact:s of this case the High Court could not haveinvoked S. 34 to convict t:hese appellants, seems tobe based on the decisions of this Court in Badruddinv. State of U.P. (1998 (7) SCC 300) and RamashishYadav and others v. State of Bihar (1999 (8) SCC.555). In those cases, on facts and not:icing the natureof involvement of t:he accused conviction underS. 341.P.C. was found t:o be improper, hence, setaside the said conviction, but in regard t:o theapplicability of S. 34, it was held that all that theprosecution has to establish is that t:here was a priorconcert or meeting of minds between the accusedpersons and such prior concert or meeting of mindsmay be determined from the conduct of t:he offendersunfolding itself during the course of action and thedeclaration made by them just before mounting t:heattack. This Court in those cases also held that thecommon intention can also be developed at the spurof the moment but there must be pre-arrangement.orpre-meditated concert:. In the instant case it is theprosecution case that at the time of the incident whendeceased and P.W. 1 were walking towards theirhouse the accused persons out of which A-1 and theappellants herein were armed with deadly weapons,with the help of acquitted accused persons, waylaidthe deceased. The prosecution says that while A-1attacked the deceased, P.W. 1 was prevented by theappellants herein from preventing the said attack onher father and when P.W. 2 came to t:he spot andt:ried to help his father, he was also assaulted with aview to thwart his effort to protect his father. Thisitself goes to show that when these accused personsgathered in front of the house of A-1 and proceededt:o assault t:he deceased, all of them had shared thecommon intention of causing death of the deceased.Though these appellants did not assault the accused itis clear t:hat the manner in which they were armedand the manner in which they prevented P.Ws. 2 and3 from prot:ecting their father by causing themgrievous injuries also shows that this attack on P.Ws.2 and 3 was aimed at ensuring that A-1 was doneaway with, and the deceased did not get sufficientprotect:ion, therefore, we are of the considered viewthat t:he High Court having acquitted the 3 of accusedpersons was justified in invoking S. 34 to uphold theconviction of the appellants herein."

(ii) 1n I:he case Of Pandurang and Others vs.State of Hyderabad : AIR 1955 SC 2]6 it has been heldthat "all that is necessary is either to have direct proofof prior concert, or Proof of circumstances whichnecessarily lead to that inference" [underliningsupplied]. This law has been followed in the caseAlakunta Narsimloo and Others vs. State of AndhraPradesh : 1994 CRI.£J. ]721 (A.Pj in which a Bench ofAndhra Pradesh High Court has held that when a murdertakes place, and when there are more than one accused,it is not necessary for the prosecution to lead evidenceas to which accused has dealt which blow on what partof the body of the deceased. Any inquiry into thequestion as to who among the accused has dealt thefatal blow is clearly not warranted. We are persuaded toagree with this proposition of law. Therefore, havingregard to the legal position alluded to above, we haveno hesitation in holding that the Respondents would beliable under Section 34 IPC also.

20, The detailed analysis of the reasons given bythe Learned Trial Court in the impugned judgment hasbeen necessitated in order to satisfy the requirement oflaw that ordinarily, in an Appeal against acquittal, t:his a Court ought not to interfere, except in circumstancesthat are compelling and where it is to be ensured thatthere is no failure of I.ustice. We have already set outthe ambit and scope of the powers of an Appellate Courtin an Appeal against acquittal in the opening part of thisjudgment and, therefore, need not be repeated for thesake of brevity.

2Z. It can be seen that from the discussions asregards t:he analysis and conclusion of the evidence ofthe Learned Trial Court, the impugned judgment isbereft of any coherence but rather scatt:ered. Although,it has been correctly found by the Learned Trial Courtthat the case is solely based upon circumstantialevidence, neither do we find any circumst:ances set outby the prosecution nor has the Trial Court made anyeffort to do so, by which it has arrived at the conclusionin paragraph 159 of the impugned judgment that theprosecution had failed to link the chain of circumstancesto the accused by any evidence.

22. In such a situation, this Court perforce had toundertake the onerous task of examining the entire caseas done hereinbefore in order t:o find out as to whetherthe prosecution has been successful in establishing the a charges against the Respondents in the light of theevidence on record and, as to the correctness of thefindings of the Learned Trial Court contained in theimpugned judgment on some of the aspects which, inour view, are vital.

23. Upon consideration of the matter in the lightof the facts and circumst:ances discussed above, we findthat the following circumstances appear to have beenproved against the Respondents which include the onesset out by the Additional Public Prosecutor which are asunder:-

(i) On 27-11-2003, the deceased Sonam DadulBhutia and Bina Subba had travelled towardsDentam with the accused Praveen Subba andaccused Abishek Rai.

(a) This fact stands established by t:he evidence of Navin Gurung appearing as P.W.1, San]-eev Baraily,P.W.2, Ms. Regmith Lepcha, P.W.4, Passang Lama,P.W.8, Sonam Dorjee Bhutia, P.W.9, Chandra BahadurSubba, P.W.10, Dhan Maya Subba, P.W.11, Deo ManSubba, P.W.19, Kailash Rai, P.W.20 and DineshPradhan, P.W.21.

(b) While the evidence of p.W.1, Naving Gurung,P.W.2, San].eev Baraily, P.W.19, Deo Man Rai, P.W.20,

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Kailash Rai and P.W.21,i Dinesh Pradhan, are directevidence to the fact of the deceased Sonam DadulBhutia and Bina Subba travelling to Dentam fromPelling, the evidence of the others, namely, P.W.4,Regmith Lepcha, P.W.9, Sonam Dorjee Bhutia, P.W.10,IChandra Bahadur Subba,I P.W. 11, Dhan Maya Subba I

corroborate them.

(ii) On 27-11-2003 Sonam Dadul Bhutia followedaccused Praveen Subba and others to Dentam It was in a white::Savari Jeep No.SK-04/4906belonging to and driven by Praveen Subba, the accusedNo.1, that the deceased bina Subba along with P.W.19,Deo Man Subba, P.W.20, Kailash Rai and accusedAbishek Rai, had travelle`d towards Dentam while theIdeceased Sonam Dadul Bhutia followed them in a)vehicle bearing registrati6n No.SK-04/4601 driven byP.W.21, Dinesh Pradhan land caught up with them atIChangay. As per the `evidence of P.W.21, DineshPradhan, the deceased Sonam Dadul Bhutia, got out of\his vehicle and boardedi'the one driven by PraveenSubba, accused No.1, and proceeded towards Dentam,while Deo Man Subba, P.W.19 and Kailash Rai, P.W.20,boarded his and returned to Pelling. These facts havealso been deposed by the accused No.1, Praveeen Subba, P.W.19, Deo Man Subba and P.W.20, Kailash Rai and P.W.21, Dinesh Pradhan, thereby fully corroboratingP.W.21. The evidence of other prosecution witnessesreferred to above are corroborative of the aforesaid fact.

(jii)P.W.1, Navin Gurung saw accused PraveenSubba and others in his hotel on 27-11-2003at Dentam P.W.1, Navin Gurung, owner of ``Surya Hotel" atDentam Bazar, West Sikkim, deposed that at about 4.00

p.in. of 27-11-2003, the deceased Sonam Dadul Bhutia,one girl whose name he did not know, the accused No.1Praveen Subba and a boy having frail.feature had cometo his hotel and had beer, rum and cigarette, etc., spentabout 35/45 minutes and, after payment of the bill bythe deceased Sonam Dadul Bhutia, they left. Half anhour later, accused No.1 Praveen Subba ret:urned againto his hotel and after having some beer left by a Savarivehicle parked in front:.

(iv) P.W.2, San].eev Baraily and his friends sawPraveen Subba and Abishek Rai twice in thelate evenina of 27-11-2003 in a Savari vehicle P.W.2, Sanjeev Baraily, a worker engaged in theconstruction works at the forest beat office at Dent:am,deposed of the fact that in the last week of November,2003 at about 6.30 p.in., accused Praveen Subba and a

Abishek Rai with beer bottle in their hands had come ina Savari Jeep from the Dentam side and later at about7.30/8.00 p.in. the Savari Jeep was.again seen comingfrom the Dent:am side and asked about a house wherethe marriage was taken place. They asked him and hisfriends to accompany them in search of it at villageMangmo but, returned without being able to attend themarriage. He identified t:he accused persons in Court.

(v) P.W.4, Ms. Regmith Lepcha saw accusedPraveen Subba and Abishek Rai in a whiteSavari vehicle at 7.15 p.in. on 27-11-2003 andlater movina around near the Dentam Bridcie P.W.4, Ms. Regmith Lepcha, deposed that at theend of November, 2003, on a Thursday at about 7.15p.in., she was on the road side with her sister waitingfor their mother who was returning from Jorethang whena white Savari Jeep came and stopped in front of themand the two boys who were in the vehicle offered them a lift which they refused. These boys introducingthemselves as `Praveen Bhutia' and `Abishek Lepcha'and, asked whether they had seen a boy and his girlfriend in the vicinity of the place. When they informedthem that they did not see them they proceeded onsaying they were required to attend the birthday party of their friend and were seen moving around near theBridge.

(vi) P.W.8, Passang Lama saw one white Savarivehicle near the Dentam Bridae at 8.15 D.in.

P.W.8, Passang Lama, a driver by profession, whilereturning driving a taxi jeep from Jorethang to Intekwhich is across Dentam Bazar, saw one white Savarivehicle near Dentam Bridge at about 8.15 p.in. but didnot see its occupants.

(vii) A whilte savari vehicle came to the house ofSonam Doriee Bhutia at 6.30/7.00 D.in.

P.W.9, Sonam Dorjee Bhutia, deposed that he sawa Maruti Car parked near the Dentam Bridge at about4.00 p.in. on a Thursday. On that day at about6.30/7.00 p.in., a white Savari vehicle came to hishouse and asked him if he had seen one boy and a girlin and around the place and left thereafter heading forPelling.

(viii) The evidence of P.W.10, Chandra BahadurSubba and P.W.11, Dhan Maya Subba, the parents ofthe deceased Bina Subba is relevant to the ext:ent thattheir daughter Bina Subba had left her house forSardong busty to visit her sister carrying two packets of ``Silam" and a pair of kurta-pyjama and that thesearticles MO-II, MO-Ill and MO-IV respectively, identifiedby P.W.11, Dhan Maya Subba, were the ones carried bytheir daughter Bina Subba on t:hat fateful day.

(ix) A Maruti Car was seen Darked near the Dentam Bridae by Sonam Dorjee Bhutia, P.W.9 at about4.00 p.in. on a Thursday about a year ago (thedeposition having been recorded on 06-11-2004) andidentified MO-I parked outside the Court building as theone seen by him.

(x) P.W.16, Tsering Kee Chankapa, a schoolteacher, Peeling Senior Secondary School, West Sikkim,saw a Maruti Car with steel arav colour bearinareclistration number beainnina with alDhabets ``WNC"near the Dentam Bridae on 27-11-2003 in the eveningat about 4.00/5.00 p.in. while returning from work toher home at Dentam.

(xi) P.W.17, Manorath Adhikari, a Junior Engineer,P.W.D. at Dentam who was travelling with P,W.16 aJSQsaw the Maruti Car WNC-525. Both P.W.16 and P.W.17identified Maruti Car, MO-I parked outside as the onethat they had seen.

(xii) P.W.50, Bhim sila Gautam, who runs a hotelat Bermiok Bazar, West Sikkim, stated that on 27-11-2003 at about 3.00/4.00 p.in. a Maruti Car bearincireaistration No.WNC-525 in which 3/4 small boys weretravellina came to her hotel and the boys had some beerand ident:ified the Respondent No.2, Tenzing Tamang, asone of them who, as per her, was a daily wager.

(xiii) Maruti Car registration No.WNC-525 crossedthe Melli Check Post at 2230 hrs. for Siliauri.r P.W.12, C/1255 D. P. Subba posted at Melli CheckPost on 27-11-2003, deposed that at about 2230 hrs.one Maruti Car No.WNC-525 crossed Melli Check Postfrom the Jorethang side and reported to W/C LakpaTshering Sherpa, P.W.13, who made the entry in theRegister. The Marut:i Car thereafter was allowed to passthrough the gate and on his enquiry the driver of theMaruti Car informed him that he was travelling fromJorethang and was going to Siliguri. He identified theCheck Post Register MO-V and MO-V/a at page 40 as theentry of Maruti Car WNC-525. P.W.13, WC/1811 LakpaTsh. Sherpa corroborated the evidence of P.W.12.

(xiv) The disclosure statement of Respondent No.1,Rakesh Rai and recovery of tyre lever fromthe Maruti Car WNC-525Rakesh Rai and recovery of tyre lever fromthe Maruti Car WNC-525

The disclosure statement of Respondent No.1,Rakesh Rai, marked Exhibit 3 on the basis of which thetyre lever MO-VI was recovered from the luggage bootof the Maruti Car No.WNC-525 in the premises ofBhaktinagar P.S., Siliguri, on being shown by theRespondent No.1. These fact:s were proved by P.W.14,D. Thami. P.W.49, K. R. Rai, who had also accompaniedthe Investigating Officer of the case and ot:hers toSiliguri during the investigation fully corroborates theevidence of P.W.14. He identified the Respondent No.1and is one of the wit:nesses to the recovery of the deadbody of Bina Subba at the instance of the RespondentNo.1. P.W.53, Siva Kumar Chhetri, Head Constable ofGyalshing P,S., another member of the teamaccompanying the I.0., is a witness to the recovery ofthe Maruti Car WNC-525, MO-I from the BhaktinagarP.S., Siliguri vide Seizure Memo Exhibit 25.

(xv) The disclosure stat:ement of ResDondent: No.2,Tenzina Tamana, marked Exhibit 10, rendered in thepresence of P.W.31, S. N. Agarwal and, the recovery ofjack lever, MO-XIII, and wheel wrench, MO-XII, andsome other articles from the house of Devi MayaPradhan, P.W.35, the aunt of juvenile convict Puma _a Bahadur Subba at Daramdin vide Exhibit 11. Theserecoveries were made on being led to the place and\shown by the Respondent.;No.2, Tenzing Tamang, as perevidence given by P.W.31 land P.W.35.

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The disclosure statement Exhibit 8 of Roshan(xvi) (a)Rai, the juvenile convlct, vyho ls the younger brother ofRespondent No.1, and 'the recovery of the tyre\lever/wheel wrench, MO-VII, from the river at Singtamrirvide Seizure Memo Exhibit 7 on being shown by theFjuvenile convict Roshan Rai. These facts have been„stated by P.W.27, Karzang Bhutia, who witnessed0Roshan Rai giving the disclosure statement at the Kaluk`P.S. and later the recovery of the Exhibit from t:heSingtam river.

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(b) P.W.29, Ganga Ram Chettri who was withP.W,27 corroborates the evidence of the latter and,P.W.26, Dipu Sunar, corroborates the fact of recovervExhibit MO-VII from the Place in the Sinatam riverwhere the objects were thrown as pointed out by theI].uvenile convict Roshan Rai as it was he who had divedinto the river to retrieve itjr a The statement under Section 164 Cr.P.C.(xvii)aiven bv P.W.40, Man Bahadur Rai, the elder brother ofthe Respondent No.1,. Rakesh Rai, who has categoricallytestified of the fact of the Respondent No.1 havingpurchased in his name the Maruti Car WNC-525 and, theextra-judicial confession made by the Respondent No.1to him at the ``Himalayan Rest House'' of him havingcommitted the murder of Sonam Dadul Bhut:ia atDentam. This witness has further deposed of the sale ofthe Maruti Car by the Respondent No.1 to one AnilChandra Roy.

Anil Chandra Roy appearing as P.W.38, PradeepSaha as P.W.30 and Pradeep Roy as P.W.45 havecorroborated this fact.

(xviii) The Respondents and, the juvenile convictsRoshan Rai and Puma Bahadur Subba, stayedin the ``Himalayan Rest House" Siliguri from09-12-2003 to 21-12-2003.

(a) It has come in the evidence of DipankarDebnath, P.W.41, the proprietor of the ``Himalayan RestHouse'', that in the month of December, 2003, on `Rai'(the witness pointed at Respondent No.1, Rakesh Rai),had come with his three friends and stayed in his hoteland as per the entries at SI. No.2049 of the hotelregister MO-XIX they had stayed from 09-12-2003 to 21-12-2003 in Room No.201. Mention also was made oftheir having stayed in the hotel on other dates which, inour view, is not relevant for the purpose of this case. Itis, however, pertinent to note that as per the witness,the Respondent No.1 used t:o get his name recorded as``Bishal Rai". It is also in his evidence that theRespondent No.1 was unable to pay Rs.100/-and hadleft his bag, identified as MO-XX, in the hotel which werelater seized by the police along with its contents. Theevidence has remained firm in cross-examination.

(b) P.W.42, Dinesh Rajbor, Manager of the``Himalayan Rest House'', Siliguri in his evidence hasunequivocally corroborated P.W.41 and also identifiedRespondent No.1 as t:he one who has stayed in his Hotelas "Bishal" and the Respondent No.2 as the one whoused to accompany the Respondent No,1 during theirstay in t:he Hotel. Their evidence have further beencorroborated by P.W.43, Ashok Ghosh, the formerManager of the ``Himalayan Rest House" and also provedt:he relevant entries in the Hotel Register MO-XIX.

(c) The evidence of P.Ws. 41, 42 and 43,pertaining to the Respondent No.1 and three othershaving stayed in the `Himalayan Rest House' during the period 09-12-2003 to 21-12-2003 assumes significanceas it was during that period that the sale transaction ofMaruti Car WNC-525 took place and that, as per theevidence of P.W.38, he took delivery of the vehicle on21-12-2003 in order to go to Salugara, Siliguri, inconnection with the marriage of his younger brother,Narayan Roy, P.W.39 from whom it was seized by t:heBhaktinagar P.S. on that day along with its documentswhich included a xerox copy of Voter Identity Card ofP.W.40 marked `X' and receipt in .the name of hisbrother, P.W.38, Exhibit 20.

(d) That the accused checked out from the hotel``Himalayan Rest House" on 21-12-2003 is significant inview of the arrest of the Respondent No.1, Rakesh Rai, aday after i.e., 22-12-2003 as revealed from the evidenceof PI, Nima Chader Bhutia, P.W.46.

(xix) (a) The recoverv of the hotel reaisters of `HotelIndia', `Vishal Lodae' and the `Himalavan Rest House'being MO-XVIII, MO-XVIII/A and MO-XIX respectively.The entries made in `Hotel India' and `Vishal Lodge'show that the four accused persons, namely, theRespondents No.1 and 2, and the I.uvenile convicts,Roshan Rai and Puma Bahadur Subba, had checked in on 28-11-2003 onwards and stayed there for a numberof days. The seizure of the hotel register of `Hotel India'Exhibit MO-XVIII has been proved by Constable KalyanBhowmik, P.W.32, of Kotwali P.S., West Bengal, andConstable Nar Bahadur Tamang, P.W.44 of JalpaiguriP.S. The hotel register Exhibit MO-XVIII/A in respect of`Hotel Vishal' has been proved by P.Ws.34, 32 and 44.

(b) This circumstance has to be considered in thelight of the fact that the deceased Sonam Dadul Bhutiaand Bina Subba went missing from the evening of 27-11-2003 and on 28-11-2003 Sonam Dadul Bhutia wasfound dead. Further that in the night of 27-11-2003,the Maruti Car WNC-525 which had been seen in t:hevicinity of the place where the body of the deceased wasfound, had crossed Melli Check Post and as per theevidence of P.W.12 it was heading for Siliguri.

(xx) Seizure of Maruti car WNC-525 at siliauri.

Next is the seizure of Maruti Car WNC-525 from thepossession of P.W.39, Narayan Roy at Salugara, Siligurion 21-12-2003 by the Bhaktinagar P.S. Then on 23-12-2003, the I.0. S. R. Shenga, P.W.54, seized it from theBhaktinagar P.S. in presence of P.W.14, Dhaney Thami,P.W.15, D. 8. Subba of` Darjeeling P.S., P.W.49, a constable K. R. Rai, and P.W.51, Home Guard MahendraSharma of Kaluk P.S. and P.W.53 Head Constable S. K.Chettri, Gyalshing P.S.

(xxi) The Maruti car WNC-525 was purchased by theRespondent No.1 in the name of his brother,P.W.40, Man Bahadur Rai and sold to P.W.38,Anil Chandra Roy bv the ResDondent No.1.

These facts have been proved by the evidence ofP.W.30, Pradeep Saha who purchased the car byadvance payment of Rs.5,000/- for the price fixed atRs.45,000/- through the broker and fellow mechanicPradeep Roy, P.W.45; By the evidence of P.W.38, AnilChandra Roy, the act:ual purchaser of the Maruti Car,dealing with the broker P.W.45 who brought the ownerof the vehicle, P.W.40 in the office of `the RTO, Siligurifor the necessary documentary formalities; By t:heevidence of P.W.39, Narayan Roy, who corroborates oft:he fact of purchase stated by P.W.38, Anil ChandraRoy, and the seizure of the vehicle from him by theOfficer-in-Charge, Bhaktinagar P.S. from his possessionfor the Seizure Memo Exhibit 19.

(xxii) Recovery of Nokia mobile phone belonging toS. D. Bhutia The evidence of P.W.36, Tikam Sharma, considered in isolation is no doubt quite vague as to whether or not a the ``S. D. Bhutia" to whom the mobile phone was soldwas indeed the deceased ``Sonam Dadul Bhutia" or not.However, the evidence of P.W.30, clears this doubt aswe find that it was the Respondent No.1, Rakesh Rai,who had sold the very mobile phone to him throughP.W.45, the middleman, who in turn sold it to P.W.33,Abhi].it Ghosh, from whose possession the mobile phonewas ultimately seized. Considering the entire evidence,it stands established that the mobile phone belonged t:othe deceased Sonam Dadul Bhutia.

(xxiii) The iuvenile convicts Roshan Rai and PumaBahadur Subba, abscondinci after the arrest ofRespondent No.1 an.d later being apprehended by t:heO/C Kaluk P.S. at Daramdin.

(xxiv) Recoverv of the dead body of Bina Subbabased on the disclosure statement of Exhibit 3 ofRespondent No.1 and being identified as Bina Subba byP.W.10 and P.W.11 who are her parents.

(xxv) Extra-iudicial confession made bv ResDondentNo.1 to his brother, P.W.40 in the `Himalayan RestHouse', Siliguri, during the period of sale andregistration process of the Maruti Car when he a

categorically disclosed of him and the other threeaccused persons having killed t:he deceased SonamDadul Bhutia near the Dentam Bridge on 27-11-2003,and their kidnapping of deceased Bina Subba andsubsequent killing her also at Panidhara near Bagh Pool,Siliguri.

(xxvi) (a) The nature of the iniurv sustained bv t:hedeceased Sonam Dadul Bhutia found in the inquestreport Exhibit 4 and the autopsy report Exhibit 13 whichare reproduced in seriatim as under:- "Inquest ReDort Exhibit 4

8. Injuries on the body:-one Big in].ury in head,one injury on fore head, oneinjury near rt. eye brow,in].ury on right ear, brusheon both eyes, tooth ofupper ].aw was found missing.

10. Probable cause of death:- Probably due t:oin].ury/in].uries caused in head.

Medical AutoDs\/ ReDort Exhibit 13

(1) +riangular contused laceration with clotted blood 2 x 2 x 1 cms over the right side of the forehead2 cms away from the midline with depressedcommutted fracture of t:he frontal bone, withsurrounding contused grazed abrasion in anarea of 8 x 6 cms.2 cms away from the midline with depressedcommutted fracture of t:he frontal bone, withsurrounding contused grazed abrasion in anarea of 8 x 6 cms.

(2) Irregular contused abrasion in an area of 2 x 1cms on the left Cheek.cms on the left Cheek.

(3) Superficial irregular contused laceration in anarea of 1 x 1 cms adjacent to the lateral angleof the right eye.area of 1 x 1 cms adjacent to the lateral angleof the right eye.

-a

(4) Irregular contused abrasion in an area of 2 x 1cmsoverrjg[tcheek.cmsoverrjg[tcheek.

(5) Contused laceration of the right ear lobe,horizontally placed dividing the ear lobe into twohalves at the level of tragus.horizontally placed dividing the ear lobe into twohalves at the level of tragus.

i

(6) Extravasation of blood in the upper eyelids ofbot:h eyes with sub-con].unctival haemorrhage.bot:h eyes with sub-con].unctival haemorrhage.

(7) Multiple small lacerations with surroundingcont:usions ih an area of 6 x 6 cms on the leftside of face. ,,cont:usions ih an area of 6 x 6 cms on the leftside of face. ,,

(8) Contused abrpsion in an area of2x 2 cms.

(9) Multiple contused lacerations of both upper andlower lips with commutted fractures of thealveolar margins of both maxilla and mandibleanteriorly and loss of three in unison t:eeth eachof both maxilla and mandible. One mobile(uprooted left upper canine) found in the mouthand preserved.lower lips with commutted fractures of thealveolar margins of both maxilla and mandibleanteriorly and loss of three in unison t:eeth eachof both maxilla and mandible. One mobile(uprooted left upper canine) found in the mouthand preserved.

(10) Multiple cont:used abrasions in an area of 7 x 6cms. on the right side of the chin.cms. on the right side of the chin.

(11) Contused laceration 10 x 1 cms over the parietalregion, behind the fronto parietal suture withdepressed commutted fracture of t:he underlyingbones and pieces of the bone found embeddedin the brain. Iregion, behind the fronto parietal suture withdepressed commutted fracture of t:he underlyingbones and pieces of the bone found embeddedin the brain. I

All injuries are ante-mortem and fresh beforedeath.,, (b) The cause of death as per opinion of the Medico-Legal Expert Dr. S.` D. Sharma, P.W.37, is said to have been shock as a result of multiple injuries on theface and head produced by blunt force.

(c) He has deposed that injuries no.1 to 5 and 7(to 11 can be produced by a blunt weapon such as the\one marked MO-VI, i.e., the tyre lever.

(xxvii) That the opinion in the c.F.S.L. reDort Exhibit40 report of the DNA test of the teeth found at the placeof occurrence Exhibit `8' and, Exhibit `F'', i.e„ the toothpreserved by the Medico-Legal Expert during theautopsy of Sonam Dadul Bhutia that the source ofExhibit `F' and Exhibit `8' is the deceased Sonam DadulBhutia.

(xxviii) Failure of the Respondents to explain thecircumstances when put to t:hem under Section313 Cr.P.C, and choosina to Give blunt denials.

(a) In spite of clear evidence, the RespondentNo.1, Rakesh Rai, even denied that the Maruti Car,Exhibit MO-I, was purchased in the name of his elderbrother P.W.40, Man Bahadur Rai. It is a settledposition of law that in a case of circumstantial evidenceresorting to giving such false or blunt denials isconsidered as an additional circumstance appearingagainst: the Respondents. There are catena of decisionsto support this view, but it would be sufficient: to cite thefollowing:- (b) In the case of Affab Ahmadr Anasart. vs. Sfa[eof Ufrarancha/ : f20Ioj 2 SCC 583 it has been held asunder:

``58. This Court further notices that this Court•ir\ Vasa Chandrasekhar Rao v. Ponna Satyanarayanaand Geetha v. Sfafe of Kamafaka while explainingthe law relating to circumst:antial evidence has ruledthat where circumstances proved are put to theaccused through his examination under Sect:ion 313 oft:he Code and the accused merely denies the same,then such denial would be an additional link in thechain of circumstances to bring home the chargeagainst the accused.

59. As indicat:ed earlier, it is proved by cogentand reliable evidence that the appellant hadcommitted rape on t:he deceased and thereaftermurdered her. Here in this case, the incriminatingcircumstances proved were put to the appellant whilerecording his statement under Sect:ion 313 of theCode of Criminal Procedure. In his furt:her statement,recorded under Section 313, the appellant has merelydenied the same. Therefore, such denial on the part ofthe appellant and failure to explain the circumstancesproved will have to be treated as an additional link inthe chain of circumst:ances to bring home the chargeagainst the appellant. The circumstances provedestablish the guilt of the appellant beyond reasonabledoubt."

(c) We may also refer to the case of Joseph vs.

State of Kerala ', (2000) 5 SCC 197, where.ln thefollowing has been stated:

``14 .................. Durina the time of auestioninaunder Sect:ion 313 Crpc, the aDDellant instead ofmakina at least an attemDt to exDlain or clarifv theincriminatina circumstances inculDatina him. andconnectina him with t:he crime bv his adamantattitude of total denial of evervt:hina when thosecircumstances were brouaht to his not:ice bv the Courtnot onlv lost the oDDort:unity but stood self-condemned. Such incriminatina links of facts could, ifat all, have been only exDlained bv the aDnellant, andbv nobody else, they beinci Dersonallv and exclusivelvwithin his knowledae. Of late, courts have, form thefalsity of the defence plea and false answers given tocourt, when questioned, found the missing links to besupplied by such answers for completing the chain ofincriminating circumstances necessary to connect theperson concerned with the crime committed (seeSfafe of waAarasthra v. Su/lash). That missing link t:oconnect the accused-appellant, we find in this caseprovided by the blunt: and outright denial of every one cP

a

and all the incriminating circumstances pointed outwhich, in our view, wit:h sufficient and reasonablecertainty on the facts proved, connect the accusedwith t:he death and the cause for the death of Gracy.[underllnlng supplled]

(xxix) Another circumstance of significanceappearing against the Respondents is the admission ofthe iuvenile accused Persons, namely, Roshan Rai andPuma Bahadur Subba, of having committed the offencesunder Sections 302/201/34 IPC and their conviction ofthose charges.

24fi.j. To sum uptheabove, we find that- (a) the circumstances (i) t:o (viii) under paragraph23 est:ablish that the deceased Sonam DadulBhutia and Bina Subba had proceeded23 est:ablish that the deceased Sonam DadulBhutia and Bina Subba had proceeded towards Dentam and had stayed back atChangay near the Dentam Bridge, WestSikkim;Changay near the Dentam Bridge, WestSikkim;

(b) the circumstances commencing from (ix) to(xxviii) establish that the Respondentsaccused persons along with the two ].uvenileconvicts had come across the couple and thatthere was an altercation between themleading to the accused persons killing the(xxviii) establish that the Respondentsaccused persons along with the two ].uvenileconvicts had come across the couple and thatthere was an altercation between themleading to the accused persons killing the ``0

deceased by hitting him with a tyre wrenchand thereaft:er throwing his body below the road;

(c) that the accused persons fled to Siliguri in the late night of th6 same day taking Bina Subbawith them and stayed there in a hotel;with them and stayed there in a hotel; (

(d) that the accused persons killed Bina Subba atSiliguri. Although, in the present case, we arenot dealing with a murder of the girl BinaIiSiliguri. Although, in the present case, we arenot dealing with a murder of the girl BinaIiSubba it assumes relevance to the extent thatit was indeed !'Bina Subba who was withdeceased Sonam Dadul Bhutia in the eveningof the fateful date as revealed by the evidenceof p.Ws.10,11 and 23.it was indeed !'Bina Subba who was withdeceased Sonam Dadul Bhutia in the eveningof the fateful date as revealed by the evidenceof p.Ws.10,11 and 23.

(e) that the Respondent No.1 thereafter sold the(I\(I\Maruti Car and !'checked out of t:he hotel on21-12-2003 and was arrested on 22-12-200321-12-2003 and was arrested on 22-12-2003

in connection with a case under Sections380/457 by the Sadar P.S., Gangtok;380/457 by the Sadar P.S., Gangtok; I

`C)

(/./.J The circumstances, therefore, stand provedbeyond any reasonable doubt and those circumstancesform a complete chain that unerringly leads to the onlyconclusion and none other than the Respondents along(with the juvenile convicts Roshan Rai and Puma BahadurISubba have committed t:he murder of Sonam DadulBhutia in the evening of 27-11-2003.

25, Having held in the manner aforesaid, it maybe noted that most of the points urged by the Learned(Counsel have been met While dealing with the variousIaspects leaving aside some of them of which, theexistence of another vehicle, namely, a white Savari, is(Ian important question that calls for consideration. We\have held that the incident as regards the white Savari(vehicle is relevant only t6 fact of the deceased Sonam`Dadul Bhut:ia and Bina Subba having travelled t:owardsDentam and that they had got off together from it at.Changay at Liching Busty near the Dentam Bridge. anddisappeared thereafter. That the deceased Bina SubbaItravelled in the vehicle is proved by the recovery of thepink kurta-py].ama which she was carrying in a bag withItwo packets of ``Silam" tot visit her sister. It is not thecase of the defence nor thF prosecution that the wearing cP

apparels were worn by the deceased Bina Subba. It isalso not their case that the wheel wrench recoveredfrom the vehicle was the weapon of offence. It has beenestablished that after being unsuccessful in finding thedeceased couple in the night of 27-11-2003 the accusedPraveen Subba and Abishek Rai returned to Pelling.The effort to create a doubt as to the involvement of theRespondents in the commission of offence, in our view,is mis-placed and, therefore, stands rejected.

26. Doubt was also expressed as to the identity of the Maruti Car WNC-525 in view of the differing coloursstated by the prosecution witnesses. In our view, thisquestion is not so grave as to affect the substance of theprosecution evidence. The various witnesses who havedescribed the colour of the vehicle are P.W.15 as perwhom it was `steel gray', P.W.16 as `ash colour', P.W.30as `blue', P.W.45 as `sky blue' and P.W.46 as `ashcolour'. These descriptions in any case do not detractfrom the fact that each of the witnesses had ident:ifiedthe Maruti Car Exhibit MO-I when shown to them duringthe course of their examination. The colours in any caseare quite uniform and not conflicting as they are almost ___i of the same shade. The contention, therefore, standsrejected.

___i

of the same shade. The contention, therefore, standsrejected.

2J.The other ob]-ection raised by the LearnedDefence Counsel as regards the statement of P.W.40,Man Bdr. Rai, having resiled from statement andcontradictory to his statement recorded under Section161 Cr.P.C., appears to be quite unsustainable as we donot find any element of retraction in the statement ofthe witness as is apparent from his statement in cross-examination extracted earlier. Moreover, theconfessional statement made by P.W.40 is not the soleevidence which we are relying upon but, is beingconsidered as one of the corroborative piece of evidenceto the other evidence on record. The law as to theextent of proof of a confession has been enunciatedmost succinctly in the case of Subramani-a Goundan vs.

7lfie Sfafe of "adras : AIR 1958 SC 66 where it hasbeen held as under:- ``14 ................. The standards of thecorroboration in the two are quite different. In thecase of the person confessing who has resiled from hisstatement, general corroboration is sufficient while anaccomplice's evidence should be corroborated inmaterial particulars. In addit:ion the court: must feelt:hat t:he reasons given for the ret:raction in t:he case ofa confession are unt:rue."corroboration in the two are quite different. In thecase of the person confessing who has resiled from hisstatement, general corroboration is sufficient while anaccomplice's evidence should be corroborated inmaterial particulars. In addit:ion the court: must feelt:hat t:he reasons given for the ret:raction in t:he case ofa confession are unt:rue."

In the present case, we do not find any reasonstated by the witness for his retraction. We rather findthat in his cross-examination he has re-emphasised thefact in categorical terms that he had given thestatement before the Magistrate on his own will andvolition and that what is recorded in Exhibit 26 reflectshis true statement. The submission, therefore, st:andsrejected.

28. As regards the plea of failure of theprosecution to prove motive against the Respondentsraised by the Learned Senior Counsel, we are of theview that this deficiency by itself is not sufficient toweaken the case of the prosecution, as we find that thecircumstances established by evidence are sufficient forus to hold t:hat the Respondents are guilty of theoffence. It is a settled position of law that motive is notan ingredient for an offence under Section 302 IPC.Moreover, in the case of the Sfafe of "adhya Pradeshvs. Digvijay Singh .. AIR 1981 SC 1740, .it has also beenheld as follows:- ``18. It may be that the prosecution was notable to prove the motive for the crime, but that couldnot possibly matter when the circumstantial evidenceon the record was sufficient to prove, beyond anydoubt, that it was the respondent and no one elsewho intentionally caused the death of Smt. Tulsa Bai."

In view of the above, we do not find any substancein this argument and, therefore, stands rejected.

29. There were also a few other points urged onbehalf of the Respondents but, we find theminsignificant and peripheral. So far as the decisionscited by the Learned Counsel for the Respondents areconcerned, we have no hesitation in accepting those butare not applicable to the facts and circumstances of thecase. We are rather inclined to accept that the LearnedTrial Court has ignored admissible evidence which hasgiven rise to compelling and substantial reason for thisCourt to interfere with the impugned ].udgment ofacquittal of the Respondents.

30. In the result, the Appeal is allowed and herebyquash and set aside the impugned ].udgment.Consequently, we convict the Respondents for theoffences under Sections 302 and 34 IPC but uphold theacquittal of the accused Praveen Subba and accusedAbishek Rai for want of any evidence against them.

31. As regards the sentence, on carefulconsideration of the entire facts and circumstances, wefind that although the accused persons are quite young, they appear to be habitual offenders particularly, theRespondent No.1, Rakesh Rai. The cold blooded andheartless manner in which the deceased was killed bythem, in our view, renders t:hem undeserving of anyleniency. This is compounded by the fact that they haveproved themselves to be undesirable influence to theyoung ].uvenile accused persons who have since beenconvicted by the Juvenile Just:ice Board.

32. Considering all these, interest of justice wouldbe met if the Respondents-convicts are sentenced toundergo rigorous imprisonment for life and to pay a fineof Rs.20,000/- each. Failure to pay the fine shall entailfurther imprisonment of six months against each ofthem.

33. A copy of this judgment and the records of theTrial Court be transmitted forthwith to the Learned TrialCourt for compliance.

|j,-`

( Permed Koh|i ) LChief Justice20"-2012Judge20".2012

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