Point of Law: Once the Prosecution bases its case on Section 27 of the Evidence Act then necessarily the procedure laid down therein must be followed to the hilt, as the liberty of an individual is at stake.

JUDGMENT :

MEENAKSHI MADAN RAI, J.

1. The instant matter pivots around the death of the victim, one Purna Kumar Gurung, aged about 34 years, working as a Lab Attendant under the Human Resource Development Department, in a school at Khecheopalri, West Sikkim. He is alleged to have been murdered by the appellant on the intervening night of 16-04-2016 and 17-04-2016 on a road half a kilometer away from his residence situated at 13th Mile, Thingling, West Sikkim. The appellant was charged under Sections 302, 392 and 427 of the Indian Penal Code, 1860 (for short “IPC”). To each count of charge the appellant pleaded “not guilty.” The learned trial Court on consideration of the entire Prosecution evidence furnished before it, convicted the appellant as charged vide the impugned Judgment dated 29-11-2017, in Sessions Trial Case No. 03 of 2016 and vide assailed Order dated 30-11-2017 sentenced him to undergo imprisonment for life under Section 302 of the IPC, rigorous imprisonment of 10 years under Section 392 of the IPC and rigorous imprisonment of 2 years under Section 427 of the IPC. The sentences of imprisonment were ordered to run concurrently. Sentences of fine were also imposed with default sentence of imprisonment. Assailing the Judgment and the Order on Sentence, the appellant is before this Court.

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(i) Learned counsel for the appellant while meticulously walking this Court through the evidence of the Prosecution Witnesses put forth the arguments that the Prosecution case is inter-alia based on the “last seen together theory” built around the evidence of PW-2, a Police personnel, whose evidence by itself is debatable as PW-2 was himself travelling in the direction opposite to that allegedly taken by the victim and the appellant. That, the Prosecution effort was to convince the Court that the appellant was motivated by greed on seeing the victim in possession of a substantial amount of money, and the alleged recovery of a sum of Rs. 71,000/- (Rupees seventy one thousand) only, from the appellants residence was said to be adequate ground not only to prove robbery but also murder. However, only PW-2 deposed that the deceased was in possession of a bundle of currency notes, uncorroborated by other witnesses who were assembled at the Hotel where they were playing cards. PW-2 however was not made a witness to the recovery of the money or for identification of the currency notes. The ownership of the currency notes is not proved as no forensic tests were conducted to verify this aspect. The money recovered was in the denomination of Rs. 1,000/- (Rupees one thousand) only, whereas PW-3 the victim's mother deposed that she had handed over currency notes to the victim in the denomination of Rs. 500/- (Rupees five hundred) only and Rs. 1,000/- (Rupees one thousand) only. None of the currency notes alleged to have been seized from the appellant had blood stains. That, the evidence of PW-14 and PW-19 reveals that the Police seized M.O.V. wallet of the deceased, from the accident site, containing Rs. 11,000/- (Rupees eleven thousand) only, and a gold ring. If robbery was the motive it is unfathomable as to why the appellant would not have taken the money in the victim's wallet and his jewellery. Motive is unproved as the appellant was financially stable as established by the evidence of PW-19 who deposed that the appellant, a Contractor, had encashed two bills amounting to Rs. 5,00,000/- (Rupees five lakhs) only and Rs. 4,42,000/- (Rupees four lakhs and forty-two thousand) only, some time before his arrest, negating any requirement for commission of robbery. Hence, this stance of the Prosecution cannot be countenanced. That, in Tarseem Kumar vs. The Delhi Administration, AIR 1994 SC 2585 the Hon'ble Supreme Court has held that in a case of circumstantial evidence, motive for committing crime assumes importance which has not been established in the instant case. Strength was also drawn on this aspect from the ratio of State of Rajasthan