Gauhati High Court
Page No.# 1/12 vs The State Of Assam And Anr on 6 March, 2026
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/12
GAHC010081522023
2026:GAU-AS:3361-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./176/2023
LILA CHETRY
S/O LATE JITT BAHADUR CHETRY,
RESIDENT OF VILLAGE DHEKIAJAN, PS DIGBOI DIST. TINSUKIA, ASSAM,
786171
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY PP ASSAM
2:SRI MILON THAPA
S/O LATE PRATAP THAPA
RESIDENT OF KHERJAN NEPALEE GAON
PS DIGBOI
DIST TINSUKIA
ASSAM 78617
Advocate for the Petitioner : MR. B CHETRI, MR. U DAS
Advocate for the Respondent : PP, ASSAM,
:::BEFORE:::
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON’BLE MR. JUSTICE KAUSHIK GOSWAMIAdvocates for the appellant : Mr. B. Chetri.
Mr. U. Das. ... Advocates.
Page No.# 2/12
Advocates for the respondents : Ms. B. Bhuyan, Addl. P.P., Assam.
Date of hearing & judgment : 06.03.2026
JUDGMENT & ORDER
(M. Zothankhuma, J)
1. Heard Mr. B. Chetri, learned Amicus Curiae for the appellant. Also heard
Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam for the State.
2. This appeal has been filed against the judgment dated 08.02.2023 passed
by the learned Additional Sessions Judge (FTC-I), Margherita, in Sessions Case
No.24(M)/2017, by which the appellant has been convicted under Section 302
IPC and sentenced to undergo rigorous imprisonment for life, with a fine of
Rs.5,000/-, in default, to suffer rigorous imprisonment for 6 (six) months under
Section 302 IPC.
3. The appellant’s basic case is that the oral dying declaration of the
deceased, which was heard only by PW-1 (informant), while the evidence shows
that there were other prosecution witnesses present with PW-1 at the relevant
time, could not be the basis of convicting the appellant under Section 302 IPC.
4. Mr. B. Chetri, learned counsel for the appellant submits that PW-1 did not
make a mention in the FIR submitted by him that the deceased had made a
dying declaration in the FIR or in his statement under Section 161 Cr.P.C.. He
also submits that the Investigating Officer (I/O) of the case, i.e. PW-8, in his
Page No.# 3/12testimony, had also not made any mention of PW-1 having ever spoken of the
deceased having given a dying declaration. He thus submit that when there is
no basis for convicting the appellant, the conviction and sentence of the
appellant under Section 302 IPC by the learned Trial Court is liable to be set
aside.
5. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand
submits that the evidence of PW-1 was enough to convict the appellant under
Section 302 IPC, subject to this Court finding it truthful. She also submits that
the weapon used for the offence, i.e, wooden stick was recovered from the
residence of the appellant. Further, the appellant being on the run, the same
showed the guilty mind of the appellant. She accordingly submits that the
impugned judgment should not be interfered with.
6. We have heard the learned counsels for the parties.
7. The conviction of the appellant by the learned Trial Court as the person
who had murdered the deceased, is on the ground that the deceased had, prior
to his death, given an oral dying declaration to PW-1, where he had implicated
the appellant as the person who had assaulted him. Further, the appellant was
not available in his house when the police went in search of him after the
incident. Thirdly, the police seized the bamboo, which was alleged to be the
murder weapon. The learned Trial Court thus held that first circumstantial
evidence thus proved that the appellant had killed the deceased.
8. The prosecution case in brief is that an FIR dated 17.09.2016 was
Page No.# 4/12submitted by PW-1, who is the uncle of the deceased. The FIR which was
addressed to the Officer-in-charge, Digboi Police Station stated that on
16.09.2016 at about 10 O’clock in the night, one Sri Dipak Thapa came to the
house of the deceased and woke him up and then both went to Dhekiajan
village for some reason. A little later, the appellant who had been lying in
ambush on the road, assaulted the deceased and injured him seriously.
Thereafter, an ambulance was called and the deceased was admitted in I.O.C
Medical at Digboi. The deceased however died while under treatment. The FIR
was registered as Digboi P.S. Case No.154/2016 under Section 302/34 IPC.
9. After investigation of the case, the I/O (PW-8) started the investigation
and the 2nd I/O, i.e. PW-9 submitted the charge-sheet, wherein a prima facie
case under Section 302/34 IPC was found against the appellant. Dipak Thapa,
who had woken up the deceased and taken him to Dhekiajan village was
however discharged, as the Police did not find sufficient evidence against him to
implicate him in the murder case.
10. The learned Trial Court thereafter framed charge under Section 302 IPC,
to which the appellant pleaded not guilty and claimed to be tried. The learned
Trial Court thereafter examined 9 (nine) prosecution witnesses and after
examining the appellant under Section 313 Cr.P.C, convicted him under Section
302 IPC.
11. As stated earlier, the reason for conviction of the appellant was primarily
on the basis of the oral dying declaration given by the deceased to PW-1, who
was also the informant. PW-1 in his evidence stated that he was at his home at
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the time of the incident, i.e. around 8/9 p.m on 16.09.2016, while the house of
the deceased was 100/150 metres away from his house. On hearing a
commotion and that the deceased had been assaulted by the appellant, he
rushed to the spot and found the deceased lying on the road in an injured state,
about ½ k.m from his house. On asking him the reason, the victim told him that
the appellant had assaulted him. However, the voice of the victim died down
soon after that. PW-1 stated that his elder brother Dhan Bahadur Thapa, Dil
Bahadur Thapa (PW-2), Lok Bahadur Thapa (PW-3) and several other persons
were near the victim. They took the victim in an ambulance and the Doctor
declared the victim dead.
12. It is interesting to note that only PW-1 seems to have heard the oral dying
declaration of the victim, though PW-2 & PW-3 amongst others, were also
present during the relevant period of time, when the dying declaration had been
given. The above being said, PW-2 and PW-3 have stated that they saw the
victim lying in an injured state and that the victim was not able to speak. In
fact, the evidence of PW-2 shows that he was the second person, after his
brother Himalaya, to reach the spot where the victim was lying on the road, as
his evidence is to the following effect :
“When I had reached the spot, I found brother Himalaya there.”
However, the said Himalaya has not been made a witness in the case.
When PW-2, who had reached the spot where the victim was lying in an injured
position just after his brother Himalaya and had stated that the victim was not
able to speak, the statement of PW-1 in his evidence that the victim had given
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an oral dying declaration does not appear to be true.
13. It is interesting to note that PW-1 in his FIR has not made any mention of
the oral dying declaration allegedly made to him by the deceased. Even in the
statement made by PW-1 under Section 161 Cr.P.C, he has not made any
mention of any oral dying declaration being made by the victim/deceased. The
evidence of the two I/Os i.e, PW-8 & PW-9, also does not contain any statement
to the effect that PW-1 had told them that the victim had made an oral dying
declaration, implicating the appellant as the person who had assaulted the
victim. All the above facts do not inspire our confidence regarding the evidence
of PW-1, that the victim had made an oral dying declaration implicating the
appellant as the person who had assaulted the deceased.
14. It is interesting to note that while it was one Dipak Thapa who had woken
the deceased and taken him at about 10 O’clock in the night of 16.09.2016 to
Dhekiajan village and the deceased was found soon after in an injured condition
on the road and expiring soon after, the role of Dipak Thapa has not been
clarified by the respondents. Neither was he made prosecution witness nor
defence witness. The Charge-sheet only states that as there was no sufficient
evidence against the accused Sri Dipak Thapa, he should be discharged from
the case.
15. There is no eyewitness with regard to the person who had assaulted the
deceased. The last scene theory in the present case could probably apply to Sri
Dipak Thapa. He could have thrown light as to whether he had left the company
of the deceased prior to the deceased being assaulted and as to whether he
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knew how and who had assaulted the deceased. Unfortunately, everything in
that direction is met with a blank wall of silence.
16. In the case of Matru Alias Girish Chandra vs. State of Uttar
Pradesh, reported in (1971) 2 SCC 75, the Supreme Court has held that
mere absconding by itself does not necessarily lead to a firm conclusion of a
guilty mind. Even an innocent man may feel panicky and try to evade arrest
when wrongly suspected of a grave crime which is the instinct of self-
preservation. The act of absconding is no doubt a relevant piece of evidence to
be considered along with other evidence, but its value would always depend on
the circumstances of each case. It further held that normally the Courts are
disinclined to attach much importance to the act of absconding, treating it as a
very small item in the evidence for sustaining conviction. It can scarcely be held
as a determining link in completing the chain of circumstantial evidence which
must admit of no other reasonable hypothesis than that of the guilt of the
accused.
17. In the case of Surendra Mishra Vs. State of Jharkhand reported in
(2011) 11 SCC 495, the Supreme Court had held that the act of the accused
in running away from the scene of the crime subsequent to the commission of
the offence, clearly suggest that he knew that whatever he had done was wrong
and illegal.
18. Though in terms of the judgment of the Supreme Court in Surendra
Mishra (supra), the act of the appellant not being in his house could be
assumed that he had ran away, which suggested that he knew he had done
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something wrong or illegal, the other view is that he was not in his house for
whatever reasons that may be known to the appellant only. Sri Dipak Thapa,
who had been discharged by the police, may have been able to clarify certain
aspects of this case. Thus, in our view, there is a break in the chain of
circumstantial evidence. In any event when there are two views available with
respect to a certain fact, the view in favour of the accused would have to be
taken by the Criminal Courts.
19. In the case of Chetan Vs. State of Kartanaka, reported in (2025) 9
SCC 31, the Supreme Court reiterated it’s earlier decision in the case of Matru
Alias Girish Chandra (supra). As the evidence of the act of absconding
would always depend on the circumstances of each case which can be
considered under the provisions of Section 8 of the Evidence Act, 1872, we do
not find the absence of the appellant from his house on the night of the incident
to be a link proving the guilt of the appellant. Further, it is settled law that
suspicion, however grave it may be, cannot take the place of proof.
20. The above being said, a perusal of the answers given by the appellant
during his examination under Section 313 Cr.P.C shows that he has denied killing
anyone, besides denying the recovery of any bamboo stick from his house. He
also stated that he did not have any quarrel with the deceased at any time. He
also stated that he had gone to the market which has not been disproved by the
prosecution.
21. The bamboo stick that had been allegedly recovered from the house of the
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appellant has not been sent to the Forensic Science Laboratory for examination,
to prove that it was the weapon used to kill the deceased. The alleged seizure
of the same in the house of the deceased does not prove anything.
22. On considering all these factors, we do not find any common thread or
complete chain of events leading to a conclusion that it was only the appellant
who could have killed the deceased and no other person/s. We are accordingly
of the view that the prosecution has not been able to prove the guilt of the
appellant beyond all reasonable doubt. In fact, it cannot be said that the
deceased had made any oral dying declaration prior to his death, as the same
was not heard by any other person except PW-1, even though PW-1 was not the
first person at the scene of the crime.
23. In the case of Kamal Khudal vs. State of Assam, reported in (2022)
20 SCC 654, the Supreme Court has held that a dying declaration, oral or
written, before it could be relied upon, must pass a test of reliability as it is a
statement made in the absence of the accused and there is no opportunity to
the accused even to put it through the fire of cross examination to test is
genuineness or veracity. The Court has, therefore, to subject it to close scrutiny.
But once the Court is satisfied that it is a truthful version as to the
circumstances in which the death resulted and the persons causing injuries, the
law does not expect that there should be corroboration before it can be relied
upon. However, if there are infirmities and the court does not find it safe to base
any conclusion on it, without some further evidence to support it, the question
of corroboration arises.
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24. Paragraph-23 of the Kamal Khudal (supra) is reproduced hereinbelow,
as follows :
“23. We may refer to one of the decisions of this Court in the case of
Heikrujam Chaoba Singh v. State of Manipur, reported in (1999) 8
SCC 458, wherein in para 3 this Court observed as under:
“3. An oral dying declaration no doubt can form the basis of
conviction, though the Courts seek for corroboration as a rule of
prudence. But before the said declaration can be acted upon, the
Court must be satisfied about the truthfulness of the same and that
the said declaration was made by the deceased while he was in a fit
condition to make the statement. The dying declaration has to be
taken as a whole and the witness who deposes about such oral
declaration to him must pass the scrutiny of reliability.”
25. The Apex Court, in Nanhar v. State of Haryana, reported in (2010)11
SCC 423, held that –
“The dying declarations should be such, which should immensely strike to
be genuine and stating the true story of its maker. It should be free from
all doubts and on going through it, an impression has to be registered
immediately in mind that it is genuine, true and not tainted with doubt”.
26. In the case of State of U.P. -vs.- Ram Sapar Yadav, reported in
(1985) 1 SCC 552, the Court held that if the Court is satisfied that the dying
declaration is true and voluntarily it can base conviction on it without
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corroboration.
27. In the case of Rasheed Beg -vs.- State of M.P., reported in (1974) 4
SCC 264, the Supreme Court held that where the dying declaration is
suspicious, it should not be acted upon without corroborative evidence.
28. In the case of Ram Monorath -vs.- State of U.P., reported in (1981)
2 SCC 654 the Supreme Court observed that, a dying declaration which suffers
from infirmity cannot form the basis of conviction.
29. On considering all the above judgments, it is quite clear that an oral dying
declaration can be accepted to be truthful, provided that the same should strike
one to be genuine, true and not tainted with doubt. In the present case, it is
surprising that only PW-1, who had appeared before the injured victim, after
PW-2 and his brother Himalaya had already reached the place of
occurrence/incident, was the only one who happened to hear the oral dying
declaration. This in our view is not believable and we accordingly hold that no
oral dying declaration could be given by the deceased/victim, as PW-2 had
stated that the victim could not speak. As such, the conviction on the basis of
the oral dying declaration, as one of the links in the chain of circumstantial
evidence, is not acceptable to us. Consequently, we hold that the conviction,
and sentence of the appellant under Section 302 IPC is not sustainable in law.
Accordingly, the appellant is acquitted from the charge framed against him
under Section 302 IPC. The impugned judgment dated 08.02.2023 passed by
the Additional Sessions Judge (FTC-I), Margherita, in Sessions Case
No.24(M)/2017, by is hereby set aside. The appellant is to be released
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immediately from judicial custody, if not wanted in any other case.
30. The appeal is accordingly allowed.
31. Send back the TCR.
JUDGE JUDGE Comparing Assistant