Gauhati High Court
Page No.# 1/18 vs The State Of Assam Ana Anr on 7 April, 2026
Page No.# 1/18
GAHC010021212024
2026:GAU-AS:5193-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/40/2024
DIPU NARZARY
S/O-ANSAIGWRA NARZARY, R/O-VILLAGE-DIMALGAON, P.S.-
KOKRAJHAR, ASSAM
VERSUS
THE STATE OF ASSAM ANA ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:SRI PRADYUT KR. BRAHMA
S/O-LT. HARENDRA BRAHMA
R/O-KOKRAJHAR
W/NO.10
P..O.-KOKRAJHAR
P.S.-KOKRAJHAR
DISTRICT-KOKRAJHAR
PIN-78337
Advocate for the Petitioner : MS S MEDHI,
Advocate for the Respondent : PP, ASSAM, MR S A REEYAZ(R-2),MR. R K MUSHAHARY(R-2),J
U AHMED(R-2)
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER (CAV)
Page No.# 2/18
Date : 07-04-2026
1. Heard Ms. S. Medhi, the learned counsel for the appellant. Also heard
Mr. B. Sharma, the learned Additional Public Prosecutor appearing on behalf
of the State respondent.
2. This is an appeal u/s 374 Cr.PC challenging the impugned judgment dated
11.08.2023 and the order of sentence dated 14.08.2023 passed by Court of
learned Sessions Judge, Kokrajhar in Sessions Case No. T1/24/2021
(corresponding to G.R. Case No. 625/2021), convicting the accused/appellant
for the offence u/s 304 Part II and u/s 324 IPC and sentenced to undergo R.I
for 10 years u/s 304 Part II of IPC and to pay a fine of Rs. 10,000/- with default
stipulation and also sentence to undergo to 3 years R.I for offence committed
u/s 324 IPC along with a fine of Rs. 1,000/- with default stipulation.
3. In brief the case of the present appellant is that an FIR dated 20.05.2021
is lodged by the informant Sri Pradyut Kr. Brahma before the Officer Incharge,
Kokrajhar P.S. alleging inter alia that on 19.05.2021 at around 9:30 PM while the
informant’s brother-in-law Sibu Prasad Brahma went to close the main gate, the
accused/appellant assaulted Sibu Prasad Brahma with a sharp weapon due to
which he died at MRM Hospital, Kokrajhar. It is further alleged that the
accused/appellant also assaulted one Ashok Boro with sharp weapon causing
grievous injury on his person. On the basis of the FIR a case has been
registered under Kokrajhar P.S. Case No. 380/2021 u/s 120(B)/302 IPC and the
investigation was accordingly started. After completion of investigation charge-
sheet is also laid against the present accused/appellant u/s 120(B)/324/302 IPC
to face the trial.
4. After filing of the charge-sheet the case is accordingly committed before
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the learned Sessions Judge and accordingly relevant copies were provided to
the accused/appellant and finding a prima facie case, charge is also framed
against the accused-appellant u/s 302/324 IPC. The prosecution has examined
as many as 10 nos. of witnesses including informant, MO and I/O. The
accused/appellant pleaded not guilty, but has not adduced any evidence in
support of his case. The statement of the accused/appellant also recorded u/s
313 Cr.PC to which he pleaded not guilty. After recording of the evidence and
hearing argument put forward by the learned counsels for both sides, the
learned Sessions Judge, Kokrajhar had passed the judgment & order dated
11.08.2023 convicting the accused/appellant u/s 304 Part II/324 IPC and
thereby sentenced to undergo R.I for 10 years u/s 304 Part II of IPC and to pay
a fine of Rs. 10,000/- with default stipulation and also sentence to undergo to 3
years R.I for offence committed u/s 324 IPC along with a fine of Rs. 1,000/-
with default stipulation.
5. Being aggrieved and dissatisfied by the judgment & order passed by the
learned Sessions Judge, Kokrajhar the present appeal has been preferred by the
accused/appellant.
6. It is submitted by Ms. Medhi that the judgment & order had been passed
in a very mechanical manner without any application of mind and without
appreciating all the facts and circumstances and thus the learned Court below
had erred in law as well as facts and hence the judgment & order passed by the
learned Sessions Judge is liable to be set aside. It is submitted that the learned
Sessions Judge did not appreciate the evidence of both PW- 3 and PW-5, who
were considered to be the eye-witnesses in the prosecution case and the vital
witnesses of the prosecution i.e. the wife of the appellant and the girl named
Jaba who was the reason behind the entire incident were also not examined by
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the prosecution. Due to non-examination of those vital witnesses by the
prosecution also creates reasonable doubt in the veracity of the prosecution
case.
7. She further submitted that the accused/appellant was apprehended from a
house at Runikhata under Bhur Tiniali village in Chirang district and distance
from the place of occurrence to Runikhata is about 50 to 60 kilometers. But,
there is no such explanation as to how the accused was arrested from the
house of a person from Runikhata. But, surprisingly the house owner is not
examined by the prosecution and the knife which was alleged to be the murder
weapon also not sent for forensic examination by the prosecution. Apart from
that there are many contradictions in the evidences of PWs and thus the
prosecution could not prove the case beyond all reasonable doubt to convict the
accused/appellant u/s 304 Part II and 324 IPC. She further submitted that one
of the victim i.e. PW-4, who is stated to be present at the relevant time of
incident, but his evidence is also cannot be considered as admittedly it was very
dark and no one can be seen from 10 to 15 metres distance and thus though he
claimed himself to be the victim or eye-witness in the prosecution, but his
evidence also cannot be relied upon. More so as per the Post Mortem Report the
deceased died for hypotension and shock, cardio pulmonary arrest. Thus, the
Post Mortem Report also does not support the ocular evidence, wherein it is
alleged that the accused/appellant had assaulted the deceased with a sharp
knife causing bodily injury, for which he died.
8. Ms. Medhi further submitted that there was no intention on the part of the
accused/appellant to kill the deceased and only after a quarrel, at the spar of
the moment, the entire incident had happened. Ms. Medhi accordingly
submitted that there is no eye-witness to the prosecution case and the
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witnesses who are claimed to be the eye-witnesses of the prospection i.e. the
PW-3, PW-4 and PW-5 are also not consistent in their evidence and from the
evidence of PW-4 it reveals that he was at a 10-15 meters far from the place of
incident. She accordingly submitted that without proper appreciation of the
evidence on record the order of conviction has been passed by the learned
Sessions Judge, Kokrajhar and hence the same is liable to be set aside and
quashed.
9. Mr. Sharma, the learned Additional Public Prosecutor submitted in this
regard that there are sufficient incriminating materials on the basis of which the
conviction has been passed by the learned Sessions Judge after proper
appreciation of evidence. There is nothing to disbelieve that PW-3, PW-4 & PW-
5 who are the eye-witnesses to the prosecution and apart from that the PW-4
also sustained sharp cut injury on his person while he tried to resist the
accused/appellant. Initially the case was registered and charge-sheeted u/s 302
IPC but, at the time of passing the judgment the learned Sessions Judge had
arrived at a decision that it may not be a case of murder and accordingly
convicted the appellant u/s 304 Part-II IPC. In paragraphs 59 & 60 of the said
judgment, the learned Sessions Judge had described as to why the charges u/s
302 is converted to Section 304 Part II under which the appellant is convicted.
10. Mr. Sharma further submitted that the medical evidence also fully
corroborates the ocular evidence wherein the allegation has been brought
against the accused/appellant that he assaulted the deceased with knife causing
penetrative as well as stab injuries on several parts of the body of the victim.
Apart from that he also assaulted the PW-4, the another victim of this case, who
also sustained grievous injury on his person caused by sharp object. Mr. Sharma
accordingly submitted that there is no need of any interference in the judgment
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and order passed by the learned Sessions Judge, Kokrajhar and the present
appeal is liable to be dismissed.
11. Hearing the submissions made by learned counsel for both sides, I have
also perused the case record, the judgment passed by the learned Sessions
Judge and the evidence recorded there under to arrive at the just decision. The
PW-8 Dr. Anmol Kr. Sah had conducted the post-mortem examination of the
deceased on 20.05.2021 at about 1.05 PM who was brought in the R.N.B. Civil
Hospital, Kokrajhar in connection with the present case and found the following
injuries on his person.
“Bluish face and pale body, a puncture mark (penetrating wound) In the medial aspect
of left pectoralis minor tendon nearly 2 X 1.5 cm (sutured) wound, penetrating to left
lung and major vessel (left sub clavian vein), left side lung collapsed and hemothorax
present, rigormortis present (not well developed), cold clammy body.
Echymosis in the body not properly developed on the dependent parts. Both cuvital
vein puncture mark (IV excess) noticed.
Conclusion: left anterior chest penetrating wound, left lung collapsed, left hemothorax
(views unclotted blood), left sub clavian vein penetrated (puncture) noticed, rigor mortis
developing.
In his opinion, the death is ante mortem in nature, due to left side chest penetrating
wound leading to hemothorax, hypotension and shock, cardio pulmonary arrest. Time
since death is nearly 12 to 18 hours. Ext. P/3PW8 is the P.M. Report wherein
Ext.P3(1)/PW8 is his signature.”
12. So from the evidence as well as the Medical Report of the Doctor it is seen
that death is caused due to left side chest penetrative wound leading to
hemothorax, hypotension and shock, cardio pulmonary arrest. There found
several penetrative wounds in the various parts of the body including the
penetrative wound in the left lung and major vessels for which the left side lung
was also collapsed and hemothorax is present. Though it is stated that there
was pulmonary arrest but from the report it is seen that pulmonary arrest was
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caused only due to shock, haemorrhage and penetrative wound in the left side
of the chest, which also penetrated the left lung of the present deceased. Thus,
there cannot be any dispute that the deceased died due to sustaining of
penetrative injury on his various parts of the body and admittedly the death is
homicidal in nature.
13. So it is to be seen as to how he sustained such injuries on his person or
who is responsible for causing such kind of injury to the deceased and in the
same time it is also seen that PW-4 is another victim who also sustained sharp
cut injury on his person.
14. As per the FIR, it is the accused/appellant caused the injuries to the
deceased on the night of incident. So let us scrutinise the evidence-on-record of
all the PWs.
15. PW-1 is Pradyut Kr. Brahma, the informant in this case and from his
evidence it is seen that on receipt of an information from his sister-in-law that
the deceased was stabbed by someone and he has been taken to MRM Hospital,
Kokrajhar, immediately he went to the hospital and got the information of death
of the deceased Sibu Prasad. Thus, it is seen that the PW-1 lodged the FIR only
on receipt of information from his sister-in-law and he has not seen the
occurrence or has no personal knowledge about the same.
16. PW-2 is the elder brother of the deceased, who deposed that the house of
the deceased is adjacent to his house and on day of incident at about 9:30 PM,
when he was to his courtyard, one person came to the house of deceased Sibu
and Sibu went along with the said person. But, after sometime he heard hue
and cry on the road and on hearing hue and cry he immediately rushed to the
place of incident and saw that someone has stabbed his brother. Thereafter he
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was immediately taken to MRI Hospital and on the next day he came to know
that the accused has stabbed his brother.
He denied to the suggestion in his cross-examination that the accused has
not committed the offence and he did not know the accused.
17. PW-3, one of the vital witnesses of the prosecution, has deposed that she
used to reside in the house of the deceased Sibu Prasad at Kokrajhar town. At
about 1 year ago she went to the marriage ceremony of one of her friend with
Neha at Dauliguri village in a temple. After solemnising of the marriage they all
celebrated marriage party in her room. In the said party, the accused was also
present along with his wife where he kissed one girl, namely, Joba and his wife
was furious and also slapped the accused. Thereafter the accused also got
angry and he assaulted his wife. However, the persons in her room intervened
and all the persons went to their home accordingly. But, after sometime the
accused again came back to her room and enquired about his wife and at that
time her roommate Indira was also present. Some quarrel took place between
the accused and Indira and then the accused showed a small folding knife of
4/5 inches, attached to his bike key ring and threatened both of them.
Thereafter, both the PW-3 and her friend Indira fled away. During that time, said
Indira met the deceased Sibu and his friend and she narrated the whole
incident. The deceased told her to hide for a while and he assured that he
would talk with the accused. The PW-3 was present at a little distance from the
house of deceased Sibu, when an altercation took place between the deceased
and the accused and in that altercation the accused suddenly stabbed the
deceased with his knife. Both PW-3 and Indira saw the incident while the
accused stabbed the deceased with a knife. The deceased was immediately
taken to the hospital by his friend. But, in the same night they heard that Sibu
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died in hospital.
In her cross examination she disclosed that the occurrence took place at
about 10 PM and the place of occurrence was dark. She saw the entire incident
from about 20/30 meters far from the place of occurrence. She also admitted
that the deceased was not present in the party. She further denied all other
suggestions put by the defence that she is not the eye-witness nor the accused
stabbed the deceased and she gave some false evidence in favour of the
deceased as she was residing in his house, at the time of incident.
18. PW-4 is also one of the victims who was present at the time of incident
along with the deceased. As per him on the day of incident at about 6:30 PM
the deceased called him over phone to come to his house for a discussion on a
contract wok. They had a discussion till 9:45 PM and he was supposed to go to
his home and the deceased was supposed to go to open the gate, thereafter a
lady came and told that there was some problem in her house and requested
the deceased to solve the problem. Then the deceased told him to accompany
with him to the house of the lady and when they stepped forward from about 8
to 10 meters from the gate of the deceased the accused came and stabbed the
deceased with a knife. PW-4 tried to stop the accused and he also injured him
by his knife and started running. Both the deceased and PW-4 tried to chase the
accused and fled away. Thereafter PW-4 saw the stab injuries on the chest of
the deceased and immediately took the deceased to MRM Hospital at Kokrajhar
where he got admitted and the doctor started the treatment of both of them.
But, the deceased died at about 12 midnight in the hospital.
In his cross-examination he stated that PW-4 could identify the accused at
the police station and the lady who asked for help was present at the time of
incident. She was alone. He further submitted that he has no enmity with the
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accused and denied to the suggestion that he is the person who killed the
deceased when the deceased tried to inflict injuries.
19. PW-5 is one of the friend of PW-3 who used to stay in a same rented
house of the sister of the deceased. She deposed that on the day of incident
there was a marriage party in the room of Risima, PW-3. The accused and his
wife were also present in the said marriage party and the marriage party was
over at 8:30 PM when the accused again came to their room and tried to assault
her along with Risima, for which they went outside the room. Then they wanted
to go to police station but, on the way they met the deceased Sibu and then
they narrated as to what has happened and also told him that the accused
wanted to assault them. At that time the PW-4 Ashok Boro was also present
along with the deceased. In the meantime accused came there and when the
deceased tried to intervene, the accused stabbed him on his chest with a knife
and accused also inflicted injury to Ashok Boro i.e. PW-4. She then immediately
returned to her home. Later on she heard that the deceased was taken to
hospital where he died in the same night.
From her cross-examination it reveals that she saw the incident at a
distance of 20 ft. and at the time of incident the light of the bulbs outside the
house of the deceased was burning and it was running on inverter as there was
no electricity.
20. PW-6 is also one of the friends of PW-5 who deposed that she did not
attend the marriage party. But, at about 9:30 PM on the day of incident PW-5
Indira came to her house and told her that the accused inflicted injury on Sibu
(deceased).
21. PW-7, another M/O who examined the friend of the deceased i.e. PW-4 on
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the night of incident at about 11 PM and on examination he found incised
wound present in the left arm in its lateral aspect and he opined that the injury
was simple, caused by sharp weapon.
22. PW-9 deposed that on the day of incident she also attended the marriage
party in the room of Risima (PW-3) when the accused touched one girl called
Joba and on that his wife got furious and slapped the accused. Quarrel broke
out between the accused and his wife. However, with the intervention of the
neighbouring people the quarrel was stopped and they went to their own house.
She also stated in her cross-examination that PW-3 & PW-4 stayed in the
rented house of the deceased in two separate rooms.
23. PW-10 , S.I. Ganga Phukan is the Investigating Officer who received one
phone call from one Sujit Kr. Brahma informing that an unknown person injured
his maternal uncle by a chopper. Accordingly, a G.D. Entry has been made and
immediately he rushed to the place of occurrence at Kokrajhar town and in the
meantime the O/C, Kokrajhar P.S. along with TSI Biswajit Medhi and WPC
Hemlata Nath along with other staff also arrived at P.O. Thereafter they
proceeded for the enquiry, visited to the house of the accused Dipu Narzary.
But, Dipu was not found available in his house when one Risima informed that
the accused might have gone to Runikhata under Chirang district. Thereafter,
they proceeded to Runikhata and informed the matter to Runikhata P.S. and
along with the police officer from Runikhata P.S. they went to Bhur Tiniali where
they found the accused in the house of one person and accordingly his mobile
handset, bike, knife etc. were seized in presence of the witnesses. Accordingly,
they apprehended the accused and brought him to Kokrajhar P.S. on next day
i.e. 20.05.2021 and one Pradyut Kr. Brahma accordingly lodged a written FIR in
the police station in connection with the said incident. After registering of the
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FIR he was entrusted with the investigation and accordingly he started with
investigation, visited the P.O., recorded the statement of witnesses, drew the
sketch map and post-mortem examination of the deceased was also done in the
R.N.B. Civil Hospital and thereafter the accused was arrested and he was also
sent to police custody.
From his cross-examination it reveals that the place of seizure is
mentioned as Runikhata under Chirang district, which is 3/4 kilometres far from
Runikhata P.S. and date of seizure is also mentioned as 20.05.2021 at 2:20 AM.
It also reveals from his evidence that the distance from Kokrajhar P.S. to the
place of seizure is about 50 to 60 kilometre. Mausumi i.e. wife of accused and
Risima also accompanied him when he proceeded to Runikhata. But, he did not
record the statement of the person from whose house the accused was
apprehended. He also admitted in his cross-evidence that he did not record the
statement of the nearby neighbouring people, as they were not even present at
the time of the investigation.
24. From the testimonies of PWs it is seen that PW-1 is the informant in this
case who had received all the information from his sister-in-law and lodged the
FIR. But, he is not the eye-witness to the prosecution case. PW-2 is the elder
brother of the deceased, who stayed in the adjacent house of the deceased and
on the night of the incident he also saw one person coming to the house of the
deceased on a car and after sometime he heard hue and cry on the road and
saw someone stabbing his brother, who was immediately taken to the MRM
Hospital. Thus, PW-2 also claimed himself to be the eye-witness of the
prosecution and it is seen that PW-3, PW-4 & PW-5 are the eye-witnesses to the
prosecution case and the accused stabbed the deceased n their presence and
they claimed that they have seen the incident of stabbing by the
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accused/appellant to the deceased. More so, PW-4 is also one of the victims
who also sustained stab injury on his left hand when he tried to stop the
accused from stabbing the deceased/victim. The ocular evidence of the PW-4
also completely corroborates the medical evidence of PW-7 who examined the
PW-4 in the night of incident when he brought the deceased to MRM Hospital,
Kokrajhar.
25. PW-6 is not an eye-witness but, she supported the case of the prosecution
to the extent that on the day of incident there was a marriage party in the room
of PW-3 and she got the information in the night itself from PW-5 that the
accused inflicted stab injury on Sibu. PW-9 also claimed her presence in the
room of PW-3 Risima where a marriage party was organised and she was also
present when there is a quarrel between the accused and his wife. Thus, she
also corroborated the case of the prosecution to the extent that there was
marriage party in the room of PW-3 wherein a quarrel broke down between the
accused and his wife and later on she came to know that the deceased died.
26. Further from the evidence of the doctor i.e. PW-8 it is seen that the ocular
evidence of the prosecution witnesses completely corroborates the medical
evidence wherein he found stab injury on the deceased’s body which punctured
the lung and some major vessels and hemothorax was also found at the time of
examination. The only point raised by the defence is that the doctor also opined
that there was a hypotension and shock and pulmonary arrest. But, from the
opinion of the doctor it is very much evident that the death was caused due to
penetrating wound on the left side of the chest which even penetrated the lung.
However, subsequently due to shock, the person may had the cardio pulmonary
arrest. But, the cause of injury found was ante mortem in nature and he found
that out of injury on his chest, which also penetrated the lung, leading to
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hemothorax. Thus, the medical evidence completely corroborates the ocular
evidence of PW-3, PW-4 & PW-5, who are eye-witnesses of the prosecution and
saw him stabbing with a knife. There is nothing to disbelieve PW-3, PW-4 & PW-
5 who categorically deposed that accused came in front of the house of the
deceased when the PW-3 & PW-5 went for help and to settle the matter as they
were chased by accused and threatened to kill them. This part of evidence also
could not be rebutted by the prosecution and there is complete corroboration
with the other victim PW-4 who was very much present at the time of incident
along with the deceased. His presence in the house of the deceased is also not
disputed and more so, he is one of the victims who also sustained sharp cut
injury on his left hand, while he was trying to restrain the deceased.
27. It is also not a case of the defence that due to a previous grudge or
enmity these PWs who are stated to be the eye-witnesses of the prosecution
could depose falsely against the accused/appellant. Rather from the evidence it
is seen that on the day of incident a marriage party was organised in the room
of PW-3 where the PW-5 and PW-9 were also present. It also reveals that
during the marriage party for some misbehaviour with a girl called Joba the
quarrel broke out and only in searching the wife of the accused, the accused
threatened both the girls i.e. PW-3 and PW-5. It is also evident that on the day
of incident when the deceased approached the accused for settlement of the
matter, the entire incident had happened where the deceased was murdered by
the accused/appellant. There is not such contrary or major omission even in the
evidences of PWs to disbelieve them, especially PW-3, PW-4 & PW-5, who are
also the eye-witnesses to the prosecution case.
28. The learned counsel Ms. Medhi during argument has raised the issue that
the prosecution failed to examine some of the vital witnesses i.e. the wife of the
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accused and the girl called Joba who was misbehaved by the accused and the
house owner from whose house the accused/appellant was apprehended. But,
from the facts of the case it is seen that they are not so vital for the prosecution
case and the quarrel between the husband and wife for misbehaviour with a girl
called Joba may not be so relevant to the incident which has occurred, wherein
a person died out of stab injury caused by the accused/appellant.
29. During argument Ms. Medhi the learned counsel for the appellant also
raised the issue that the accused got arrested only from a place called
Runikhata which is about 50/60 kilometers from the Kokrajhar police station.
But, from the evidence of the PW-10 i.e. the I/O, it is seen that the police
officers from the Kokrajhar P.S. went to the place called Runikhata getting an
information of his presence on the night itself and apprehended the
accused/person in the midnight from one house at Runikhata. From the seizure
list also it is seen that the seizure list was prepared at about 2:20 AM on
20.05.2021 and it is quite obvious that the incident took place in the night of
19.05.2021. Thus, the date and time of the seizure also supports the case of the
prosecution that the accused was apprehended from a far distance from police
station at Runikhata and in the dawn of 20.05.2021 the seizure list was
prepared and the accused got apprehended.
30. It is a settled law that the evidence of the injured victim should be kept in
a higher pedestal and the deposition of the injured witness should be relied
upon unless there are strong grounds for rejection of his evidence. In case of
Abdul Sayeed & Ors. Vs. State of Madhya Pradesh, reported in (2010)
10 SCC 259, it has been held that:-
“where a witness to the occurrence has himself has injured in the incident, the testimony of such
a witness is generally considered to be very reliable, as he is a witness that comes with a built –
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in guarantee of his presence at the scene of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate someone.”
31. In the instant case also it is seen that PW-4 is one of the witnesses who
was present along with the deceased in the day of incident. He also sustained
stab injury on his left hand when he tried to restrain the accused/appellant in
assaulting. Further from the discussion of the PWs it is seen that there is
nothing to disbelieve the PW-4 or there is no evidence that due to some
previous enmity with the accused/appellant he deposed falsely against him to
disbelieve him. Thus there is no reason to disbelieve the evidences of PW-4
along with PW-3 and PW-5, as stated above.
32. Thus from the discussion made above it is seen that the prosecution could
establish that the accused/appellant caused the injuries on the deceased as well
as the PW-4 by using his knife and thus for the said injury the deceased died in
the hospital. Initially the case was registered u/s 302 IPC and the charge is also
accordingly framed under the said section. But, while passing the order, the
learned Sessions Judge had held that it may not be a case u/s 302 IPC. But, it is
an offence committed u/s 304 Part-II IPC and accordingly the accused was
convicted u/s 304 Part-II IPC along with 324 IPC for voluntarily causing hurt to
PW-4 with a sharp object. While convicting the accused/appellant u/s 304 Part-
II, the learned Sessions Judge while passing the judgment & order it is held that
the case falls under Exception 4 and accordingly convicted him u/s 304 Part-II
IPC.
33. Exception 4 of Section 300 IPC read as under:
“Exception 4 – Culpable homicide is not murder if it is committed without premeditation
in a sudden fight in the heat of passion upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or unusual manner.”
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34. To invoke Exception 4 of Section 300, 4 (four) requirements must be
satisfied, namely; (i) it was a sudden fight, (ii) there was no premeditation, (iii)
the act was done in a heat of passion, (iv) the assailant by not taken any undue
advantage or acted in a cruel manner. The number of wounds caused during the
occurrence is not a decisive factor but what is important is that the occurrence
must have been sudden and unpremeditated and the offender must have acted
in a fit of anger. But, the offender must not have taken any undue advantage or
acted in a cruel manner.
35. The Hon’ble Supreme Court in the Case of Anil Kumar Vs. The State of
Kerala (Criminal Appeal No. 2697 of 2023) has held that “the exception
clearly in unequivocal term states that it would be applicable where culpable
homicide is committed not only without premeditated mind in a sudden fight or
quarrel but also without the offender taking ‘undue advantage’ of the situation.”
36. Here in the instant case also it is seen that there was no such pre-
meditated mind of the accused/appellant to commit murder of the deceased
and it was only due to a sudden fight the accused/appellant inflicted injuries on
the chest of the deceased with a knife which he was carrying and it also reveals
that the entire incident had happened in a heat of passion and there is no
evidence on record that the accused had taken any undue advantage or acted in
a cruel manner. Further, it also reveales that there was no premeditated plan to
cause death of the deceased by the accused/appellant. In the same time it is
also fact that there is no previous grudge or enmity with the deceased to
commit murder of the deceased and the entire incident had happened suddenly
in a heatof passion.
Page No.# 18/18
37. In view of above, this Court also is of the opinion that the learned Sessions
Judge has rightly passed the order of conviction not u/s 302 IPC but, u/s 304
Part-II IPC along with 324 IPC.
38. Considering the decision made above, this Court is of the opinion that the
learned Sessions Judge has made no error while passing the judgment of
conviction u/s 304 Part-II and Section 324 IPC and hence no interference is
required in the judgment & order passed by the learned Sessions Judge,
Kokrajhar in Sessions Case No. T1/24/2021 (corresponding to G.R. Case No. 625
of 2021).
39. With the above observations, the criminal appeal stands dismissed and
disposed of accordingly.
Sharmil
Digitally signed by Sharmila Das Sarkar
DN: c=IN, o=Personal,
postalCode=781005, l=Kamrup Metro,
st=Assam, street=House No 27 Christian
Basti, Dispur, Dispur Assam India 781005
a Das
Micro Gym, title=2736,
2.5.4.20=c9084fbea146a0355c872b8a1f9
2b9033471836998cbf83e30f11fcc6ddd4
593,
serialNumber=36cfb08e0b51e270eadc7
JUDGE
Sarkar
a95babe60f2889c30c65872c5ba85f1b37
aab1f95a5,
[email protected],
cn=Sharmila Das Sarkar
Date: 2026.04.08 14:04:31 +05’30’
Comparing Assistant
