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HIGH COURT OF SIKKIM
RIPUSUDAN DAYAL
OIL BAHADUR TAMANG - Appellant
Versus
STATE OF SIKKIM - Respondents
Criminal Appeal 16 Of 2001
Decided On : JULY 5, 2002
(ii) Criminal Procedure Code, 1973 — Section 164 — Judicial con-fession — If it consists of excul-patory and inculpatory portions, whole of the statement has to be tendered in evidence — Reliance may be placed on inculpatory por-tion if there is evidence on record to justify such a course — Excul-patory part could be rejected if found unbelievable by evidence on record. (Paras 9 & 10)
(iii) Evidence Act, 1872 — Sec-tion 32 — Dying declaration — Once court is satisfied that dying declara-tion is true and voluntary it can be sufficient to hold conviction even without any further corroboration. (Para 11)
(iv) Indian Penal Code, 1860 — Sections 302/449 — Appellant, a driver under suspension, convicted for murder of DIG — Case based on circumstantial evidence — PW 3 saw appellant entering into the house before incident of stabbing — PW 5 saw appellant coming out of house just after incident of stabbing — Deceased after stabbing named appellant as person who had stabbed him and his dying declaration recorded by Magistrate in Hospital also in presence of doctor — Appel-lant made judicial confession and exculpatory part found unbelievable by other evidence — Conviction called for no interference — How-ever after the incident, mother and wife of appellant had died and two minor sons of appellant were ren-dered destitutes, fine part of sentence set aside while maintaining substan-tive sentence of life imprisonment. (Paras 13 & 14)
Result: Appeal dismissed with modifi-cation in sentence.
( 1 ) THIS appeal is directed against the judgment dated 18-8-2001 by the learned Sessions Judge, East and North sikkim rendered in Criminal Case No. 4 of 1998 whereby the appellant DI1 Bahadur tamang was convicted under Sections 302 and 449 of the Indian Penal Code arid the order dated 3-9-2001 whereby he was sentenced to rigorous imprisonment for life and a fine of Rsi 5. 000/- and in default of payment of fine to undergo further rigorous i m prison men t for six months for the offence under Section 302 of the Indian Penal Code and also to undergo rigorous imprisonment for a period of four years with a fine of rs. 1,000/- and in default of payment of fine to undergo further rigorous Imprisonment for two months under Section 449 of the Indian penal Code. Both the sentences were directed to run concurrently.
( 2 ) THE deceased A. K. Shrestha. was at. the time of the occurrence posted as Director, fire Services and was In the rank of deputy Inspector General in the Sikklm Police. The appellant was posted as driver under the deceased and was under suspension at that time. The prosecution case, in brief, is that on 8-9-1996 in the morning at about 3 1 a. m. , the appellant committed house trespass by entering into the house of the deceased A. K, Shrestha at Development area, Gangtok in order to commit his murder and stabbed the deceased in the abdomen, which resulted in his death at the hospital and he thereby committed the offences under Sections 302 and 449 of the indian Penal Code. F. I. R. No. 164 (9)96 (Ext. P 19) was recorded at the Sadar Police Station on 8-9-1996 at 11. 40 hrs. under Sections 452/307 on having received telephonic information from Mrs. Ganga Pradhan pw-4 of Development Area to the effect that her uncle A. K. Shrestha had been stabbed in his abdomen by driver Dil Bahadur tamang of the Sikkim Fire Service at his residence and had been brought to STNM hospital in a very critical condition. Ganga pradhan PW-4 is the niece of the deceased and resided in a house adjacent to the house of the deceased. The Offiecr-in-Charge, sadar Police Station, Shri Sonam Bhutia, pw-20 endorsed the case for investigation to Sub-Inspector D. T. Simick, PW-22 who, on taking up the investigation proceeded to the S. T. N. M. Hospital Gangtok to see the victim. At the hospital he found amongst others the Superintendent of Police, East, Mr. S. D. Negi who gave verbal direction to the former to hand over investigation of the case to the S. D. P. O. Mr. Prabin Gurung. PW-19. Thereupon, Prabin Gurung took up the investigation. When he took up the investigation, the deceased had already expired and the case was, therefore, converted into one under Sections 449/302, IPC, He conducted inquest on the body of the deceased. Thereafter, he proceeded to the residence of the deceased. There he seized one bed sheet stained with blood and several other articles. He also seized the dagger (P-II) with one side saw-edge measuring about 10" In length with ivory handle stained with blood from the door step of the lounge of residence of the deceased. The appellant was arrested on the same day and he volunteered to disclose that he had thrown the scabbard of the weapon of offence near Sukha Pool near the residence of l. B. Chettri at Sichey busty. Accordingly, his statement (Ext. P-2) under section 27 of the Evidence Act was recorded and the scabbard (Ext. P-1) was recovered and seized vide Exhibit P-3. Thereafter, confessional statement (Ex. t. P-13) was niiade by the appellant under Section 164 of the Code of Criminal Procedure on 26-9-1996 before shri P. W. Paljor, the then Judicial Magistrate, pw-16. Dying declaration of the deceased was recorded by the District Magistrate, East, Shri Govind Mohan PW-18 and the same is Exhibit P10. Test identification parade was conducted on 24-9-96 by the then Judicial Magistrate. Shri P. W. Paljor. PW-16 wherein Jabardhan Rai PW-3 and jagat Bandhu Pradhan PW-5 identified the appellant. Twenty two
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