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2020 Supreme(Sikk) 11
IN THE HIGH COURT OF SIKKIM : GANGTOK
ARUP KUMAR GOSWAMI, J.
Deepak Rai Son of late Bhim Bahadur - Appellant
Versus
State of Sikkim, Represented by and through Chief Secretary, Government of Sikkim, Tashiling, Gangtok - Respondent
Crl. A. No.14 of 2019
Decided On : 14-09-2020
For the Appellant :Mr. Zangpo Sherpa, Advocate
For the Respondent: Mr. S.K Chettri, A.P.P
The importance of conducting a Test Identification Parade (TIP) and the impact of faulty investigation on the benefit of doubt in favor of the accused.
Headnote:
Section 326 IPC - Attempt to Murder - Section 307 IPC, Section 325 IPC - The court discussed the evidence presented by the prosecution witnesses and the contradictions in their statements. It highlighted the importance of conducting a Test Identification Parade (TIP) and the impact of faulty investigation on the benefit of doubt. The court also emphasized that identification in court should not form the basis of conviction.
Fact of the Case:
The appellant was acquitted of the offence under Section 307 IPC but convicted under Section 326 IPC for causing grievous hurt to the injured person. The court found that the prosecution failed to prove that the appellant was the one who caused the injuries, leading to the setting aside of the conviction and sentence.
Finding of the Court:
The court found that the prosecution's evidence was not sufficient to establish the appellant's guilt beyond reasonable doubt.
Issues: The key issues revolved around the identification of the appellant, contradictions in the witnesses' statements, and the impact of faulty investigation on the benefit of doubt.
Ratio Decidendi: The court emphasized the importance of conducting a Test Identification Parade (TIP) and highlighted that identification in court should not form the basis of conviction. It also discussed the impact of faulty investigation on the benefit of doubt in favor of the accused.
Final Decision: The conviction and sentence of the appellant under Section 326 IPC were set aside, and the appellant was set at liberty.
JUDGMENT :
Arup Kumar Goswami, J.
This appeal is preferred under Section 374(2) Cr.P.C against the judgment dated 30.05.2019, whereby, while acquitting the appellant of the offence under Section 307 IPC, he was convicted under Section 326 IPC, and the Order of Sentence dated 30.05.2019, whereby he was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 1000/-, in default of the payment of fine, to undergo further simple imprisonment of one month.
2. One Dhiren Rai had filed a First Information Report (FIR) before the Station House Officer, Namchi on 19.08.2017 stating that at around 01.00 AM, his friend Raja Mukhia had come to his place and had verbally informed him that one of their friends, namely, Pranay Rai, was assaulted by unknown person at Dambudara on 18.08.2017 at around 11.00 pm and as a result of the same he had sustained cut injuries on the right side of neck and that he had been referred to Central Referral Hospital (CRH), Manipal, Tadong, Gangtok. On receipt of the FIR, Namchi Police Station Case No.41/2017 was registered under Section 325 of the IPC and the case was endorsed to Sub-Inspector Sunil Rai for investigation. The investigation had commenced and the appellant was arrested on 21.08.2017. On conclusion of investigation, finding that a prima facie case under Section 325 IPC was made out against the appellant, charge-sheet was submitted on 27.11.2017.
3. During trial, the learned Chief Judicial Magistrate, South Sikkim, on being satisfied that, prima facie, there is material for the offence of attempt to murder under Section 307 IPC and accordingly, sent the records to the Court of learned Sessions Judge, South Sikkim, and accordingly, Sessions Trial Case No.03/2018 was registered.
4. After hearing the learned Counsel for the parties, finding, prima facie, materials against the appellant under Section 307 IPC, charge was framed accordingly. Charge being explained to the appellant, he pleaded not guilty and claimed to be tried. During trial, prosecution examined 12 witnesses while defence adduced no evidence. When examined under Section 313 Cr.P.C, the appellant claimed that he is innocent and that he had been falsely implicated.
5. PW-1 is the injured person. PW-2 is the brother of injured. PW-7 is Medical Officer of CRH, Manipal, Tadong, who had examined the injured on 19.08.2017. PW-8 and PW-9 are seizure witnesses of Exhibit-4. PW-9 was, however, declared hostile. PW-11 was the Station House Officer (SHO) of Namchi Police Station at the relevant time who had received the FIR. PW-12 is the Sub-Inspector of Namchi Police Station who is the Investigating Officer of the case.
6. PW-1, PW-2, PW-3, PW-4, PW-5 and PW-10 had attended a party organized in connection with opening ceremony of Third Eye Pub and Bar, Namchi. According to the prosecution, the incident occurred when PW-1 and PW-2 were returning home after attending the party. PW-6 is the Proprietor of Third Eye Pub and Bar.
7. The learned Sessions Judge recorded that evidence of PW-1, PW-2, PW-3 and PW-4 makes it clear that they had seen the appellant during the opening ceremony of Third Eye Pub and Bar and that evidence of PW-1 demonstrates that he was assaulted by the appellant with a broken beer bottle on his neck. It was also held that evidence of PW-1 with regard to injuries sustained by him is corroborated by the evidence of PW-2, PW-4 and PW-5. Reliance was also placed on the evidence of PW-7, who had proved one Wound Certificate (Exhibit-1), to conclude that injury sustained by injured was grievous in nature.
8. Having regard to the evidence of PW-1 and PW-2, the learned Sessions Judge, however, concluded that it cannot be said that the appellant had attempted to murder PW-1.
9. Mr. Zangpo Sherpa, learned Counsel for the appellant has submitted that prosecution has miserably failed to prove the guilt of the appellant. He has contended that there are material contradictions in the evidence of prosecution witnesses g
