JUDGMENT :

Shampa Dutt Paul, J.

1. The death reference and the Criminal Appeal arises out of the judgment and order dated 27.01.2020 and 28.01.2020, passed by the learned Sessions Judge, Kalimpong in Sessions Trial No. 04 of 2018 arising out of Sessions Case No. 07 of 2018, convicting the appellant Surjey Bhujel for commission of offence punishable under Section 302 of the INDIAN PENAL CODE and sentenced to death (capital punishment) and also sentenced to pay a fine of Rs. 1,00,000/- (Rupees One Lakh) in default to suffer rigorous imprisonment for five years.

2. Prosecution Case:-

The prosecution case initiates from the written complaint dated 03.02.2018 lodged at 08.15 hrs by (PW 1) Smt. Nima Dolma Tamang:-

“I Nima Dolma Tamang, W/o. Tarzen Tamang residing of Dalgoan, Jaldhaka P.S., District Kalimpong would like to request you that today on 03.02.2018 approximately about 8.30 in the evening I got an information that my sister Junita Lama, 28 years old, D/o. Ajay Lama and her children 1) Akrit Bhujel 8 years old, 2) Atith Bhujel 6 years old were murdered by my brother-in-law”s brother Surjee Bhujel, S/o. Dhan Bahadur Bhujel at the house at Dara goan, Vhasmay with a sharp weapon and when I reached the place of occurrence I saw the dead body of all the three in a dreadful condition. The incident had taken place at about 8 o”clock in the evening.

Therefore I request you that the culprit Surjee Bhujel be inflicted with rigorous punishment which is my humble request.”

3. The case in brief:-

The opinion of witnesses and police officer as to cause of death was murder. (PW 18) Sub-Inspector of Police posted as officer in charge, Jaldhaka P.S. took up the investigation, visited the place of occurrence (P.O.), prepared rough sketch map with index of the P.O. (Ext 19 and 19/1) and recorded the statements of witnesses, arrested the accused, who took the police to a jungle in Bhasmay gaon (about 100 meters away from the P.O.), where as per the instruction of the accused, he recovered one Iron made sharp cutting knife namely “Bamfak” from the said jungle and seized the same. The “Bamfak” was stained with blood. On 07.02.2018 between 15.25 hrs and 15.45 hrs, the I.O. went with the accused and force to Murti Khola, below the bridge near Sombaredhara, Kumai Tea Estate and recovered the wearing apparels of the accused from below the Bridge in wet condition and seized the same. Statements under Section 164 Cr.P.C. was recorded of witnesses Rajen Bhujel (PW 6) and Dhan Bahadur Bhujel (PW 8). Charge sheet was submitted under Section 302 IPC against the accused. The post mortem report of deceased Junita Bhujel (28 years), Akrit Bhujel (8 years) and Athit Bhujel (6 years) show that the cause of death was the deep cut in the neck and excessive bleeding which is “homicidal” in nature. All the deaths were caused by deep cut in the neck.

The case was committed to the Court of Sessions on 15.05.2018. Charge was framed under Section 302 of the INDIAN PENAL CODE against accused Surjay Bhujel on 26.06.2018 to which the appellant pleaded “not guilty” and claimed to be tried.

In course of trial, prosecution examined 18 witnesses and exhibited documents and material evidences.

On conclusion of trial, the Session/Trial Judge by the judgment under appeal convicted the appellant and sentenced him to death for committing the murder of his sister in law, Junitha Bhujel (28 years) and her sons Akrit Bhujel (8 years) and Athit Bhujel (6 years).

4. The reference and appeal

The present death reference is for confirmation of the death sentence imposed by the Trial Court.

The appeal by the convict is for setting aside the judgment and order under appeal and reference.

The Death reference and the appeal have been heard analogously.

The prosecution has examined the following 18 witnesses.

5. Evidence for the prosecution

Prosecution witness no.1 (PW 1) Nima Dolma Tamang has depose