Gauhati High Court
Page No.# 1/3 vs The State Of Assam And Anr on 6 April, 2026
Author: Nelson Sailo
Bench: Nelson Sailo
Page No.# 1/30
GAHC010263562023
2026:GAU-AS:5036-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./474/2023
DAINEISANG PUDAITE
S/O SRI KHUNZUL PUDAITE,
VILL.- P. HNACHANGJAL, P.O.- DITTOKCHERA, P.S.- HARANGAJAO, DIST.-
DIMA HASAO (ASSAM), PIN- 788818.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY P.P., ASSAM.
2:BABUL ACHARJEE
S/O LT. SATISH CHNADRA ACHARJEE
VILL.- KAYANG DESUWALI BASTI
P.O.- DITTOKCHERA
P.S.- HARANGAJAO
DIST.- DIMA HASAO (ASSAM)
PIN- 788818
Advocate for the Petitioner : MR. B BARUAH, MR U RONGPI
Advocate for the Respondent : PP, ASSAM, MR. B K SEN (R-2),MR A HUSSAIN (R-2),N HASAN
(R-2)
BEFORE
HON’BLE MR. JUSTICE NELSON SAILO
HON’BLE MR. JUSTICE PRANJAL DAS
Date on which judgment is reserved: 12.02.2026 & 13.02.2026
Date of pronouncement of judgment: 06.04.2026
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Whether the pronouncement is of the
Operative part of the judgment : N/A
Whether the full judgment has been
Pronounced : Yes
JUDGMENT & ORDER (CAV)
(Mr. Pranjal Das, J)
Heard Mr. B. Baruah, learned counsel for the appellant. Also heard
Mr. R. R. Kaushik, learned Additional Public Prosecutor, Assam for the
State respondent and Mr. B. K. Sen, learned counsel for the respondent
No. 2.
2. The instant criminal appeal has been filed by the convict appellant
Daineisang Pudaite against the judgment dated 27.09.2023 and
sentence and order dated 05.10.2023 passed by the learned Sessions
Judge, Dima Hasao, Haflong in Sessions Case No.28/2015, whereby, the
convict appellant has been convicted under Sections 302/341 IPC and
sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- in
default to undergo further imprisonment for 6(six) months.
3. The prosecution case in brief, which was before the learned Trial
Court was that an FIR was lodged on 31.03.2015 by one Babul Acharjee at
the Harangajao police station in district of Dima Hasao alleging that on
28.03.2015 at about 9.00 P.M. one Doya Hmar of Hrangchal along with
two of his associates confined his brother Haradhan Acharjee and severely
assaulted him.
4. Upon receipt of the FIR, Harangajao P.S. Case No. 04/2015 was
registered under Sections 341/325/34 IPC and investigation started.
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Subsequently, the victim of the alleged assault died and after completion
of investigation, the I/O submitted charge-sheet against the present
convict appellant and three other accused persons, namely Pangin Hmar
@ Gin, Khupming Houlong and Routsang Murte under Sections
341/302/34 IPC and showing the other three accused persons as
absconders.
5. Subsequently, after committal of the case and other formalities
charges were framed against the present convict appellant by the learned
trial Court on 14.02.2019 under Sections 341/302 IPC. The charges being
denied, led to commencement of the trial, during which, the prosecution
examined 9(nine) witnesses.
6. After completion of prosecution evidence, the convict appellant was
examined under section 313 Cr.P.C., which was followed by defence
evidence, during which, the defence adduced the evidence of two
witnesses. After completion of the trial, the learned Trial court convicted
and sentenced the appellant as already stated above. Aggrieved by the
same, the present appeal has been filed.
7. Mr. Baruah, the learned counsel for the appellant submits that the
impugned judgment suffers from infirmity and that conviction of the
appellant was recorded on mistaken identity. It is submitted that the victim
was alive for two and a half months but dying declaration though recorded
was not exhibited. It is submitted that P.W-1 in his testimony did not state
his father’s name and address and that P.W-1 could be some other person
also. It is submitted that during the investigation, no Test Identification
Parade (TIP) was held. It is submitted that P. W. 3 reveals in his testimony
that he does not know the identity of the accused and that the testimony
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of P.W-4 is mere hearsay.
8. It is reiterated and submitted that witnesses have not stated about
the appellant’s father’s name and address and that nowhere in the
evidence, it has been revealed that the name of the appellant is Daya. It is
submitted that P.W-7 who was the M.O. was re-examined after three
months. It is submitted that there is nothing in the prosecution evidence
as to who gave the fatal blow. It is submitted that there were other
assailants but the role of the appellant is not supported by evidence and
that the nature of the incident is not revealed from the prosecution’s
evidence.
9. It is submitted that the alleged statement of the victim before the I.O.
was on 04.06.2015 and death took place on 16.06.2015. It is submitted
that the prosecution has not been able to discharge its burden in the
criminal trial and therefore, the impugned judgment and order requires
interference through this appeal.
10. On the other hand, Mr. R.R. Kaushik, the learned Additional P.P.
submits that from the testimony of P.W.-1 and P.W.-3, it is revealed that
the victim knew the accused and that P.W.-1 and P.W.-3 knew the accused
as Doya. It is submitted that it is also revealed from the examination
under section 313 Cr.P.C. that the appellant is known as Doya.
11. The prosecution submits that the dying declaration in this case can
be relied upon and it is submitted that the incident had taken place in
Ditokcherra Market. The prosecution reiterates that from the testimony of
P.W-1, P.W-3 and his examination under section 313 Cr.P.C, the identity of
the appellant as Doya is revealed.
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12. Mr. B.K. Sen, the learned Counsel for the informant supports the
contentions of the prosecution and further submits that the convict
appellant namely Daineisang Pudaite @ Doya are one and the same
person. In this context, it is submitted by Mr. Sen, the learned counsel for
the informant that the victim and the accused belong to the same village
and therefore, the identity of both the names is cogently proved. In
support of his contentions, the learned counsel for the appellant cites the
following decision:-
(i) State of H.P. Vs. Prem Chand (2002) 10 SCC 518.
13. In support of his contentions, the learned counsel for the convict
appellant cites the following decisions:-
(i) Ajmal Vs. State of Kerala (2022) 9 SCC 766,
(ii) Irfan @ Naka Vs. The State of Uttar Pradesh in Criminal Appeal
Nos. 825-826 of 2022,
(iii) Hem Singh @ Hemu Vs. State of Haryana (2009) 6 SCC 748,
(iv) Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan
(2013) 5 SCC 722,
14. Similarly, in support of his contentions, Mr. R.R. Kaushik, the learned
Additional P.P. submits the following decisions :-
(i) Kalipado Gope Vs. State of Bihar (1986) 0 Supreme (Pat) 314,
(ii) Prasad Pradhan and Another Vs. State of Chhattisgarh (2023)
11 SCC 320,
(iii) State of Rajasthan Vs. Kishore (1996) 8 SCC 217,
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(iv) Neeraj Kumar @ Neeraj Yadav Vs. State of U.P. & Ors. 2025
LiveLaw(SC) 1171.
Discussion and Decision
15. The prosecution case is mostly based on multiple dying declarations
and medical evidence. Before taking up the testimony of the prosecution
witnesses, we first look at the medical evidence adduced during the trial.
As per the prosecution story, the victim was initially injured due to assault
by the appellant and others. And in this regard, P.W.-9 Dr. Sudipan Dey
from the Silchar Medical College Hospital testified that on 31.03.2015, he
was posted at the SMCH in the Department of Orthopaedics, and on that
day, he prepared a medical report on the basis of hospital records on
police requisition, of Haradhan Acharjee. The report has been exhibited as
Ext-P14 and his signature as Ext- P14(1). In cross-examination, he stated
about one cervical spine injury on the patient and no other injuries.
16. It has emerged from the testimony of P.W.-1 that the victim
underwent treatment in SMCH, Silchar after the incident, and thereafter, in
GMCH, Guwahati and he returned home from there and a week later, he
expired. The autopsy was done by Dr. Netromoni Kakati, who adduced
evidence during the trial as PW-7. In his evidence, he stated that on
16.06.2015, while being posted at Silchar Medical College in the
Department of Forensic Medicine, he conducted post-mortem examination
on the dead body of Haradhan Acharjee in connection with Katighora PS
GD Entry No. 474 dated 15.06.2015. Upon external examination, he found
a bed sore of size 12cm x 10cm to 8cm x 6cm. He found the vertebra
contused at the level of C5 to C7 and transverse fracture present on the
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cervical sixth vertebra. The brain was found to be congested and spinal
cord was found to be contused at the level of C4 to C7. In his opinion
regarding that, PW-7 stated that death was due to shock, resulting from
injury present in the cervical vertebra and that the injury was ante mortem
and caused by blunt force impact. He proved the medical report as Exhibit
P12 and his signature thereon as Exhibit P12(1), P12(2).
17. In cross-examination, he stated that the injury mentioned was an old
one and there were no other injuries. He also stated that such an injury
can also be caused if a person falls on a hard surface from a height of
about 10 feet. There was re-examination of PW7, the autopsy doctor, but
no further cross-examination. In such re-examination, PW7 stated that the
injury found on the body of the deceased by way of contused vertebrae at
the level of C5 to C7 and transverse fracture present on cervical sixth
vertebra is fatal. He further stated that as there is fracture of the cervical
sixth vertebra, it is sufficient to cause death of the deceased.
18. Thus, from the medical evidence, it appears that the victim suffered
an ante mortem injury on the cervical region caused by blunt force impact
and the said assault on the cervical region caused contusion of the
vertebrae in the cervical region and fracture of the sixth vertebrae and
such injury was held by the medical opinion to have been fatal for the
victim.
19. Now, the next question is as to who caused that assault and injury
upon the victim, resulting in his death though not immediately after the
incident of assault, and as to whether the appellant and others implicated
were responsible for the same. The question is whether during the trial,
the prosecution succeeded in proving that the appellant was responsible
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for causing the injury on the victim, eventually leading to his death. Before
proceeding further, it may be mentioned herein that in the FIR, the
allegation of assault was against Doya Hmar along with two others.
20. After completion of investigation, the Investigating Officer submitted
chargesheet against 4 (four) persons, including the appellant. The other
three persons namely Paugin Hmar, Khupming Huolong and Routsang
Murte were shown as absconders. The learned Trial Court made efforts to
procure the attendance of these absconding persons and eventually issued
proclamation and attachment. However, these three persons could not be
found and they continued to be absconding. Eventually, on the basis of
the report of proclamation and attachment and upon examination of the
Executing Officer, these three absconding accused were declared as
proclaimed absconders and the case filed with regard to them. The trial
proceeded only against the present appellant and he was convicted and
sentenced thereby resulting in the instant appeal.
21. There are no eyewitnesses to the alleged incident of assault of the
victim. The case is based on circumstantial evidence. Before proceeding
further, Para 153 of the seminal Judgment on Circumstantial Evidence in
Sharad Birdhichand Sarda Vs. State of Maharashtra reported in
(1984) 4 SCC 116 may be reproduced herein below:-
“153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be said to be
fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned “must or should” and not “may be” established. There is not only a
grammatical but a legal distinction between “may be proved” and “must be or
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should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State
of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]
where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused must be and not
merely may be guilty before a court can convict and the mental distance
between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be consistent only with the hypothesis
of the guilt of the accused, that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be
proved, and
(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been
done by the accused.”
22. In this paragraph, the Hon’ble Supreme Court has summarized the
principles pertaining to proof by circumstantial evidence in a criminal trial.
Therefore, the evidence on record produced during the trial in the instant
case have to be appreciated and tested on the touchstone of these
fundamental principles of circumstantial evidence to determine as to
whether the learned Trial court was correct in holding that the prosecution
successfully proved its case during the trial.
23. PW-1 is Benu Madhab Das. During his deposition, he identified the
accused at the dock as Doya Hmar. From the testimony of PW1, it is
revealed that he used to work together with the victim Haradhan
Acharjee, and on the next morning of the incident, he along with Rajesh
Mishra went to the house of the victim and called him out for usual work
but found him in an injured condition. PW-1 stated that Haradhan told him
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that he was badly assaulted on the night before by Doya Hmar and two of
his associates at Ditokcherra Bazar and they threw him into a ditch and he
was brought back by his elder brother, Babul Acharjee, the next morning
of the incident. PW-1 further testified about the victim being taken to
SMCH, Silchar at the suggestion of the police and thereafter he was taken
to GMCH at Guwahati and later, on the advice of the doctor at GMCH,
Guwahati, Haradhan Acharjee was brought back home. He further testified
that a week after reaching his home from GMCH, Haradhan Acharjee died.
24. In cross-examination, he stated that the victim named Doya Hmar is
the perpetrator of the assault on him and PW-1 also stated that he knew
Doya Hmar from before the incident. He denied the suggestion that Doya
Hmar was not involved in the incident. He admitted in cross-examination
that he is not an eyewitness and his knowledge about the incident is
based on what he heard from the victim.
25. The statement of PW-1 about being told by the victim that he was
assaulted by Doya Hmar and two associates can be taken to be an oral
dying declaration. In our law, for a dying declaration to be admissible, it is
not necessary that the person making the declaration should be under an
expectation of death. All that is required is that the statement should
pertain to circumstances pertaining to his death. Ideally, a dying
declaration should be recorded before a Magistrate and certified by a
Doctor. However, it is not the law that dying declarations made in less than
ideal conditions would not be admissible if they are otherwise found to be
trustworthy.
26. PW2 Rajesh Mishra, who was referred to by PW-1, also testified that
when he went to the house of the victim, he told him that on the previous
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night he was badly assaulted by Doya Hmar and two of his associates. In
cross-examination, he stated that the victim was in an injured condition
and he reiterated that the victim told him that Doya Hmar and two of his
associates were behind the attack.
27. Therefore, the aforesaid testimony of PW-2 corroborates the
testimony of PW-1 and the statement purportedly made by the victim
before PW-2 about being assaulted on the previous night by Doya Hmar
and his two associates is also in the nature of an oral dying declaration.
28. PW-3 Babul Acharjee is the brother of the victim and he testified that
the incident took place on 28.03.2015. And on the next day, in the wee
hours of 3 am, one Karobi Rai telephoned him stating that his brother
Haradhan Acharjee was crying behind Kalibari at Ditokcherra Bazar. PW-3
stated that on hearing this, he along with his another brother Amal
Acharjee went to the spot and found his victim brother in an injured
condition lying by the side of the ditch and he was brought to the house.
PW-3 stated that upon being asked, his brother Haradhan Acharjee told
him that Doya Hmar and two of his associates threw him into the ditch, as
a result of which he became unconscious and after he regained sense, he
cried for help.
29. PW-3 is also the informant and he lodged an FIR before the
Ditokcherra outpost which he exhibited as Ext-1 and his signature thereon
as Ext- 1(1). He testified that about two and a half months from the date
of the incident, his victim brother died at his residence after undergoing
treatment at Silchar Medical College Hospital as well as Guwahati Medical
College Hospital. PW-3 stated that his brother died due to the internal
injuries sustained by him because of the attack on him by Doya Hmar. In
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cross-examination, he explained the delay in lodging the FIR, as due to
attending to his injured brother and his treatment. He stated that he knew
Doya Hmar from before the incident. PW-3 testified in his cross-
examination that it was revealed by his victim brother that Doya Hmar and
his associates were under the influence of liquor at the time of the
incident. He denied the suggestion that accused Doya Hmar present in the
dock was not the culprit.
30. The testimony of PW-4, Abdul Jalil is not very significant as he has
only stated about seeing the dead body in the house of Bana Bihari
Acharjee and he stated that he knew that the victim was a patient and
stayed there for about two months. In cross-examination, he admitted
that he does not know the cause of the death of the victim.
31. Thus, from the testimony of the informant PW-3 also, the statement
of the victim by way of a dying declaration emerges inasmuch as the
victim had clearly told PW-3 who was his brother that he was thrown into
the ditch by Doya Hmar and his associates. This statement of the victim
before PW-3 would also be in the nature of the oral dying declaration.
32. PW-5 Bana Bihari Acharjee is another brother of the victim and he
also stated about the incident having taken place on 28.03.2015. He
stated that after 15 days of the incident, his another brother Babul
Acharjee brought his victim brother at his house after being discharged by
the authorities of GMCH. PW-5 stated that on being asked by his brother,
he stated that on 28.03.2015, he was badly assaulted by Doya Hmar along
with two others at Dittockcherra from where he was shifted to Harangajao
PHC, then to SMCH, Silchar and then finally to GMCH, Guwahati. PW-5
stated that after about two months of treatment also, he could not recover
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from the injuries sustained and succumbed to his injuries at his residence.
In cross-examination, he admitted that he did not know Doya Hmar.
33. It is important to note that from the testimony of PW-5 also, an oral
dying declaration of the victim emerges. PW-5 testified about being clearly
told by his injured brother that on 28.03.2015, he was badly assaulted by
Doya Hmar and two others at Dittockcherra.
34. PW-6, Rekmat Ali Mazarbhuiya, a police official testified that on
15.06.2015, while being attached at Katigorah PS, his OC received an
information from Babul Acharjee that on 29.03.2015, his brother Haradhan
Acharjee was assaulted by some miscreants at Dittockcherra and later, he
was admitted at SMCH, Silchar from where he was referred to GMCH,
Guwahati. He stated that after some recovery, he stayed at his brother’s
house at Katigorah while continuing treatment, but he succumbed to his
injuries subsequently. GD entry No. 474 dated 15.06.2015 was made and
that he was instructed to conduct an inquest on the dead body of the
deceased. He proved GD entry No. 474 as Ext-10 and as Ext-10(1) as the
signature of the then OC, Katigorah PS, Nitai Chandra Singha stating that
he knew the signature. He proved the inquest report as Ext-11 and his
signature as Ext-11(1). In cross-examination, he stated that he got
information about the assault upon the victim and later his death after two
and a half months while staying at his brother Babul Acharjee’s residence.
35. PW-8 is the main Investigating Officer of the case and he is Gunajit
Pathak. He stated in his deposition that on 31.03.2015 while being posted
at Ditokchera outpost as I/C, he received an information from Babul
Acharjee that his brother Haradhan Acharjee was seriously assaulted by
one Doya Hmar of Nachangchol village along with two other persons, as a
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result of which he became unconscious and he was thrown into a
roadside. PW-8 stated that upon getting this information, he made GD
Entry vide Dotokcherra OP GD Entry No. 1189 dated 31.03.2015. At that
time, Babul Acharjee also lodged a written FIR which was forwarded to
the OC, Harangajao PS and registered as Harangajao PS Case no. 04/2015
under section 341/325/34 IPC. PW-8 was endorsed to investigate. He has
testified about the steps of investigation. He proved the sketch map as Ext
P-13 and his signature as Ext P-13(1). He stated that he visited SMCH for
recording statement of the victim but could not do so as he was not in a
position to depose at that time. He stated that after his release from
SMCH, he visited and recorded the statement of the victim at his original
house at Katighora.
36. However, we find that unfortunately that statement of the victim
recorded by the IO was not exhibited during the trial. He proved the
medical record as Ext-14. During the course of investigation, he came to
know that the victim had expired due to the injury sustained on his person
on 15.06.2015. After completion of investigation, he submitted
chargesheet which he exhibited as Exhibit P-15 and his signature thereon
as Ext P-15(1). In cross-examination, he stated that the date of incident
was 28.03.2015. He admitted that the identification of the accused was
not conducted. He denied that the victim and the witnesses had not stated
the name of the accused. He denied that Doya Hmar is not involved in the
incident and that he is not the person named by the victim and witnesses
or that he was innocent.
37. Upon perusing the prosecution evidence, we find that the medical
evidence clearly indicated a homicidal death due to ante mortem blunt
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force injury on the cervical region which led to fractures of the sixth
cervical vertebra which has been medically opined to be fatal, resulting in
the death of the victim. The medical evidence thus clearly proves that the
death of the victim was a homicidal death.
38. Regarding the identity of the assailant, it has emerged from the
testimony of PW-1, PW-2, PW-3, PW-5 that these witnesses were reported
to and told by the victim upon being asked, that he was assaulted by Doya
Hmar and his two associates. The statements of the victim before these
witnesses as revealed by the testimony of these witnesses can be taken as
oral dying declarations as already stated. Unfortunately, the statement
before the I.O. was not brought into the record during the trial. Therefore,
the contents of the said statement before the I.O. of the victim is not part
of the testimony. Nevertheless, the testimony before PW-1, PW-2, PW-3
and PW-5 are consistent with one another and constitute oral dying
declarations, unanimously revealing about the victim stating that he was
assaulted and injured by Doya Hmar and his two associates.
39. Out of these witnesses, PW-2 is not a family member and not a
related witness. PW-2 is an independent witness and even he has stated
about the victims making such an oral dying declaration. With regard to
the law of oral dying declaration, a reference may be made to the decision
of the Hon’ble Supreme Court in the case of Kamal Khudal v. State of
Assam, reported in (2022) 20 SCC 654. The relevant Para 22, 23 and
24 may be reproduced herein below:-
“22. The law regarding the nature, scope and value as a piece of evidence of
oral and written dying declarations is now fairly well settled by various judicial
decisions of this Court. 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
Page No.# 16/30absence of the accused and there is no opportunity to the accused even to put
it through the fire of cross-examination to test its 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.
23. We may refer to one of the decisions of this Court in Heikrujam Chaoba
Singh v. State of Manipur [Heikrujam Chaoba Singh v. State of Manipur, (1999)
8 SCC 458 : 1999 SCC (Cri) 1460] , wherein in para 3 this Court observed as
under : (SCC p. 461)
“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.”
24. “Truth sits upon the lips of a dying man.”
— Matthew Arnold
The whole idea of accepting a statement in the name of dying
declaration comes from a maxim “nemo moriturus praesumitur mentire” which
means that a man will not meet his maker with a lie in his mouth. It is
believed that when a man is at the point of death and when every expectation
of this world is gone, it hushes away every motive of lie.”
40. We have not found any inconsistency in the oral dying declarations
and as already mentioned, they are all on identical lines about the victim
being assaulted and injured by Doya Hmar and his two associates.
Therefore, together with the medical evidence and the oral dying
declarations, it can be said that on the day of the incident on 28.03.2015,
the victim Haradhan Acharjee was assaulted by Doya Hmar and his
associates and though the victim died two and a half months after the
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incident, but the medical opinion clearly reveals that the injury was a fatal
one and the victim could not succeed in recovering from the same and
died as a result of the injuries.
41. Now the most important question is whether Doya Hmar is the
appellant Daineisang Pudaite. One of the most important contentions of
the learned counsel for the appellant is that that Daineisang Pudaite is not
Doya Hmar and therefore, he has been wrongly implicated as the assailant
in this case. It is important to note that charges under 341/302 IPC were
framed on 14.02.2019 during the trial against accused Daineisang Pudaite.
PW1 has mentioned the name of the accused in the dock as Doya Hmar.
42. PW-3 Babul Acharjee interestingly identified the accused in the dock
at the time of his deposition as Doya Hmar alias Daineisang Pudaite. PW-3
as mentioned earlier is the informant of the case and brother of the
deceased. In his examination-in-chief he has also stated that the victim
died due to internal injuries sustained by him because of the attack on him
by accused Doya Hmar alias Daineisang Pudaite.
43. PW-5 has also stated about coming to know from his victim brother
that he was assaulted by Doya Hmar. From cross-examination it is clear
that PW-5 does not know the accused.
44. PW-8, the IO stated that he got the information about the victim
being assaulted by one Doya Hmar. Later in the examination-in- Chief, he
stated that he arrested the accused namely Daineisang Pudaite. It may be
mentioned herein that during the trial, after examination of the accused
under section 313 CrPC the defense adduced the evidence of two
witnesses.
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45. Interestingly, DW-1, Khupkai Hmar, stated about knowing the
accused standing in the dock and identified his name as Daineisang
Pudaite. He also stated about the accused and himself belonging to Hmar
community. He stated that the accused name is Daineisang Pudaite and he
does not know if he has any other name and that they all know him as
Daineisang Pudaite in the village. In cross-examination, he expressed
ignorance as to whether villagers called Daineisang Pudaite as Doya also.
However, DW-1 then goes on to state in his cross-examination that the
name of the accused is not Doya thereby contradicting himself.
46. DW-2 Lalremsang Khobung also identified the accused in the dock as
Daineisang Pudaite and stated about knowing him since childhood. He
also testified about all of them knowing the accused as Daineisang Pudaite
and expressing ignorance as to whether he has any other name. He also
stated in cross-examination that he does not know whether villagers call
him Doya also. DW-2 also contradicted himself in subsequent part of the
cross-examination when he denied that the name of the accused is Doya.
From the testimony of the defense witnesses, it emerges that they
identified the accused at the dock as Daineisang Pudaite stating that they
know him by that name only. In cross-examination both the DWs
expressed ignorance as to whether the villagers call him Doya also, but
again went on to deny that his another name is Doya, thereby
contradicting themselves. DW-1 and DW-2 identified the accused in the
dock as Daineisang Pudaite, while PW-1 identified him as Doya Hmar.
47. PW-3 identified the accused in the dock as Doya Hmar alias
Daineisang Pudaite. The examination of the accused under section 313
CrPC was conducted in two phases. The first examination was on
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09.02.2023 and the second examination on 21-07-2023. On the second
day, the Court addressed the issue of name and identity. To the questions
of the Court, the accused stated that he does not have any other name
but he belongs to the Hmar community. To another question, he stated
that there is no other person in the village by the name Daineisang
Pudaite alias Daya. He also stated that people of the Ditokcherra market
used to call him Daya but in his village he is known as Deineisang and
sometimes also as Sanga. Thus, it emerges from this point of the
examination of the accused that he belongs to Hmar community and he is
also known as Daya in the Ditokcherra market and that there is no other
person in his village by the name Daineisang Pudaite.
48. It is very important to note that the incident took place in the
Ditokcherra market and PW-1, PW-3 and PW-5 mentioning about the
accused as Doya Hmar. PW-1 stated about being told by the victim that he
was assaulted by Doya Hmar and two others near the Ditokcherra market.
While PW-1 and PW-2 identified the accused as Doya Hmar, PW-3
identified him as Doya Hmar alias Daineisang Pudaite. DW-1 and DW-2
identified the accused in the dock as Daineisang Pudaite. In his own
examination under Section 313 CrPC, apart from stating to be belonging to
Hmar community, he has stated that he is also known as Daya in the
Ditokcherra market and it is the same Ditokcherra market which is the
area where the incident took place.
49. Thus, on the basis of these evidence, we have no doubt in our mind
that the person who was arrayed as the accused or as being the assailant
and who faced trial and was convicted is none other than Daineisang
Pudaite who was also known as Daya or Doya in the area of Ditokcherra
Page No.# 20/30
market. Therefore, on the basis of the evidence on record, we come to the
considerable finding that on the fateful day on 28.03.2015, the victim was
assaulted by Daineisang Pudaite, who was also known as Daya or Doya in
that area and his associates acting together in concert. And, as a result of
the assault, the victim suffered injury fracture of the cervical sixth
vertebra, which as per the medical opinion was fatal and led to the death
of the victim.
50. The decision in Ajmal (supra), relied on by the appellant side,
discusses inter alia the distinction between a murder and culpable
homicide, not amounting to murder. The Court in that decision discusses
the principles laid down in the seminal judgment of State of AP versus
R. Punnayya reported in (1976) 4 SCC 382. In the aforesaid decision
of Ajmal (supra), the Hon’ble Supreme Court also referred to the case of
Mohd. Rafiq Vs. State of M.P. reported in (2021) 10 SCC 706, in
which there is a discussion of the judgment of Pulicherla Nagaraju Vs.
State of A.P. reported in (2006) 11 SCC 444. In Para 29 of
Pulicherla Nagaraju (supra), the Court has discussed the distinction
between murder and culpable homicide not amounting to murder, and
enlisted a non-exhaustive list of circumstances from which the intention to
cause death can be gathered. The said relevant Para 29 of Nagaraju
(supra), may be reproduced herein below:-
“29. Therefore, the court should proceed to decide the pivotal question of
intention, with care and caution, as that will decide whether the case falls
under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant
matters- plucking of a fruit, straying of a cattle, quarrel of children, utterance
of a rude word or even an objectionable glance, may lead to altercations and
group clashes culminating in deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in such cases. There may be no
Page No.# 21/30intention. There may be no pre-meditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may be cases of murder
where the accused attempts to avoid the penalty for murder by attempting to
put forth a case that there was no intention to cause death. It is for the courts
to ensure that the cases of murder punishable under section 302, are not
converted into offences punishable under section 304 Part I/II, or cases of
culpable homicide not amounting to murder, are treated as murder punishable
under section 302. The intention to cause death can be gathered generally
from a combination of a few or several of the following, among other,
circumstances : (i) nature of the weapon used; (ii) whether the weapon was
carried by the accused or was picked up from the spot; (iii) whether the blow
is aimed at a vital part of the body; (iv) the amount of force employed in
causing injury; (v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight; (vi) whether the incident occurs by chance or
whether there was any pre- meditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger; (viii) whether there was any
grave and sudden provocation, and if so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows. The above list of
circumstances is, of course, not exhaustive and there may be several other
special circumstances with reference to individual cases which may throw light
on the question of intention.”
51. In the case of Lakshmi (supra), the Hon’ble Supreme Court has
discussed the law pertaining to dying declaration made to a police officer
and held that though, it is desirable for a dying declaration to be made
before Magistrate, but if the exigencies of the situation so requires, such a
dying declaration can be recorded by police official also and that itself
would not make it inadmissible. The relevant Para 29 may be reproduced
herein below:-
“29. A dying declaration made to a police officer is admissible in evidence,
however, the practice of dying declaration being recorded by Investigating
Officer has been discouraged and this Court has urged the Investigating
Officer availing the services of Magistrate for recording dying declaration if it
was possible to do so and the only exception is when the deceased was in
Page No.# 22/30such a precarious condition that there was no other alternative left except the
statement being recorded by the Investigating Officer or the police officer
lateron relied on as dying declaration. In Munnu Raja v. State of Madhya
Pradesh, AIR 1976 SC 2199: (1976 Cri LJ 1718) this Court observed –
“Investigating Officer are naturally interested in the success of the
investigation and the practice of the Investigating Officer himself recording a
dying declaration during the course of an Investigation ought not to be
encouraged.” The dying declaration recorded by the Investigating Officer in
the presence of the doctor and some of the friends and relations of the
deceased was excluded from consideration as failure to requisition the services
of a Magistrate for recording the dying declaration was not explained. In Dalip
Singh v. State of Punjab, AIR 1979 SC 1173: (1979 Cri LJ 700) this Court has
permitted dying declaration recorded by Investigating Officer being admitted in
evidence and considered on proof that better and more reliable methods of
recording dying declaration of injured person were not feasible for want of
time or facility available. It was held that a dying declaration in a murder case,
though could not be rejected on the ground that it was recorded by a police
officer as the deceased was in a critical condition and no other person could
be available in the village to record the dying declaration yet the dying
declaration was left out of consideration as it contained a statement which was
a bit doubtful.”
52. The decision in Irfan @ Naka (supra) also delves into the law of
dying declaration. The relevant Para 60, 61, 62 and 63 may be reproduced
herein below:-
“60. Since time immemorial, despite a general consensus of presuming that
the dying declaration is true, they have not been stricto-sensu accepted, rather
the general course of action has been that judge decides whether the
essentials of a dying declaration are met and if it can be admissible, once
done, it is upon the duty of the court to see the extent to which the dying
declaration is entitled to credit.
61. In India too, a similar pattern is followed, where the Courts are first
required to satisfy themselves that the dying declaration in question is reliable
and truthful before placing any reliance upon it. Thus, dying declaration while
carrying a presumption of being true must be wholly reliable and inspire
confidence. Where there is any suspicion over the veracity of the same or the
evidence on record shows that the dying declaration is not true it will only be
considered as a piece of evidence but cannot be the basis for conviction alone.
Page No.# 23/30
62. There is no hard and fast rule for determining when a dying declaration
should be accepted; the duty of the Court is to decide this question in the
facts and surrounding circumstances of the case and be fully convinced of the
truthfulness of the same. Certain factors below reproduced can be considered
to determine the same, however, they will only affect the weight of the dying
declaration and not its admissibility: –
(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? “Rule
of First Opportunity”
(iii) Whether there is any reasonable suspicion to believe the dying declaration
was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or
leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly observe the
incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation / fiction of the
dying person’s imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth
and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the
deceased to make a dying declaration?
63. It is the duty of the prosecution to establish the charge against the
accused beyond the reasonable doubt. The benefit of doubt must always go in
favour of the accused. It is true that dying declaration is a substantive piece of
evidence to be relied on provided it is proved that the same was voluntary and
truthful and the victim was in a fit state of mind. It is just not enough for the
court to say that the dying declaration is reliable as the accused is named in
the dying declaration as the assailant.”
53. In Hem Singh alias Hemu (supra), the Hon’ble Supreme Court
inter alia has discussed about the issue of identification in Court and
Page No.# 24/30
emphasized the principle that Courts ordinarily do not give much credence
to identification made for the first time in Court and that too after a long
time.
54. Raj Kumar Singh (supra), relied on by the appellant side, has
summarised some of the important principles pertaining to examination
under section 313 CrPC. The relevant Para 41 may be reproduced herein
below:-
“41. In view of the above, the law on the issue can be summarised to the a
effect that statement under Section 313 CrPC is recorded to meet the
requirement of the principles of natural justice as it requires that an accused
may be given an opportunity to furnish explanation of the incriminating
material which had come against him in the trial. However, his statement
cannot be made a basis for his conviction. His answers to the questions put to
him under Section 313 CrPC cannot be used to fill up the gaps left by the
prosecution witnesses in their depositions. Thus, the statement of the accused
is not a substantive piece of evidence and therefore, it can be used only for
appreciating the evidence led by the prosecution, though it cannot be a
substitute for the evidence of the prosecution. In case the prosecution
evidence is not found sufficient to sustain conviction of the accused, the
inculpatory part of his statement cannot be made the sole basis of his
conviction. The statement under Section 313 CrPC is not recorded after
administering oath to the accused. Therefore, it cannot be treated as an
evidence within the meaning of Section 3 of the Evidence Act, though the
accused has a right if he chooses to be a witness, and once he makes that
option, he can be administered oath and examined as a witness in defence as
required under Section 315 CrPC. An adverse inference can be taken against
the accused only and only if the incriminating material stood fully established
and the accused is not able to furnish any explanation for the same. However,
the accused has a right to remain silent as he cannot be forced to become a
witness against himself.”
55. Upon perusing the said decisions and coming back to the facts of the
instant case, we find that the dying declarations in question in the instant
case have been made before private witnesses being PW-1, PW-2, PW-3
Page No.# 25/30
and PW-5, and out of these PW-2 happens to be an independent witness.
Though the IO as PW-8 has also stated about recording the statement of
the victim prior to his death, but, he has not testified regarding the
contents of the said statement as already discussed nor has that
statement been exhibited.
56. On the touchstone of the principles governing dying declarations that
have emerged from the aforesaid decisions, we do not find infirmity in the
multiple dying declarations of the instant case. As far as identification is
concerned, the witnesses have cogently identified the accused as Doya
Hmar during their deposition with one of the witnesses PW-3 identifying
him as Doya Hmar alias Daineisang Pudaite. Though TIP was not
conducted in the instant case, we have not found infirmities in the
identification of the accused as Doya Hmar by the witnesses during their
deposition.
57. As already discussed, from the testimony of PW-3, the evidence of
PWs and some of the materials that have emerged from the examination
of the accused under section 313 CrPC, his identity as Daineisang Pudaite
was also known as Doya and the accused belonging to the Hmar
community have emerged. In our considered view, it cannot be said that
the examination of the accused under Section 313 CrPC have filled up the
gaps in the prosecution case. Rather, his identification as Daineisang
Pudaite alias Doya Hmar has emerged from the testimony of PW-3 and
also indicated from the testimony of the defence witnesses and the
revelations in the Section 313 CrPC statement has only fortified the aspect
of identification.
58. With regard to the aspect of materials emerging from examination
Page No.# 26/30
under section 313 CrPC, the prosecution has relied upon the decision of
Kalipado Gope (supra). The relevant paragraph 11 may be reproduced
herein below:-
“11. The contention that the circumstances in which they were identified were
not put to the accused persons in their examination under S.313 of the Criminal
P.C. cannot be accepted. It is not necessary that all the natural probabilities and
all reasonable inferences, such as might arise from the evidence, must be
exhausted and put to the accused persons while recording their statement
under S.313 of the Criminal P.C. The onus is upon the accused persons to prove
that by reasons of his not having been examined as required by S.313 of the
Criminal P.C. he has been prejudiced. No such prejudice has been caused to the
accused persons in this case. They never raised any objection at the time when
the test identification parade was held that they had been shown to the
witnesses before they were put up for identification in the test identification
parade. It was not so raised either at the time when they were examined under
S.313 of the Criminal P.C. Therefore, it has not been shown as to how they were
prejudiced. The identification was held after observing all the necessary
requirements in law and no infirmity could be pointed out.”
59. Paragraph 11 of the judgment in Kishore (supra) relied on by the
prosecution pertaining to dying declaration may be reproduced herein
below:-
“11. It is settled law by series of judgments of this Court that the dying d
declaration, if after careful scrutiny the court is satisfied that it is true and free
from any effort to induce the deceased to make a false statement and if it is
coherent and consistent, is no legal impediment to form such dying declaration
the basis of conviction, even if there is no corroboration vide Tarachand Damu
Sutar v. State of Maharashtra; Kusa v. State of Orissa; Meesala Ramakrishan v.
State of A.P.; Goverdhan Raoji Ghyare v. State of Maharashtra and Gangotri
Singh v. State of U.P.”
In the said decision, the Hon’ble Supreme Court has held that if the
dying declaration is found to be trustworthy and consistent, there is no
impediment to base a conviction upon such dying declaration.
Page No.# 27/30
60. In Meharban & Ors (supra), the Hon’ble Apex Court has held that a
failure to bring on record any evidence regarding motive does not
necessarily weaken a prosecution case though existence of the same may
strengthen the same.
61. In the instant case, though the motive for the appellant as assailant
assaulting the victim is not clear and, did not emerge from the evidence,
but, in view of the other prosecution evidence, which has been found to
be reliable, the non-proof of any motive would not materially damage the
prosecution case.
62. In Prasad Pradhan (supra), the Hon’ble Supreme Court has again
discussed the distinction between culpable homicide not amounting to
murder and murder. The relevant Para 31 may be reproduced herein
below:-
“31. There can be no stereotypical assumption or formula that where death
occurs after a lapse of some time, the injuries (which might have caused the
death), the offence is one of culpable homicide. Every case has its unique fact
situation. However, what is important is the nature of injury, and whether it is
sufficient in the ordinary course to lead to death. The adequacy or otherwise of
medical attention is not a relevant factor in this case, because the doctor who
conducted the post-mortem clearly deposed that death was caused due to
cardiorespiratory failures, as a result of the injuries inflicted upon the deceased.
Thus, the injuries and the death were closely and directly linked.”
63. Finally, in Neeraj Kumar (supra) relied upon by the prosecution,
Hon’ble Supreme Court has discussed in Para 16 that in that case the High
Court was in error in holding that the dying declarations cannot be
accepted merely because death of the deceased occurred after a
substantial lapse of time from their recording. It was observed in Para 16
that Section 32 of the Evidence Act contains no such time limitation. The
Page No.# 28/30
relevant Para 16 may be reproduced herein below:-
“16. Additionally, in our considered view, the High Court erred in holding that
these statements cannot be treated as dying declaration(s) merely because the
death of the deceased occurred after a substantial lapse of time from their
recordings. Such an approach is clearly untenable since the law does not require
that a declarant, at the time of making the statement, to be under the shadow
of death or the expectation that death is imminent. Here the time gap between
the incident and the death is less than 2 months. In any event, Section 32 of
the Evidence Act, contains no such limitation. What is pertinent is that the
statement relates either to the cause of death or the circumstances leading to
it.”
64. In the instant case, the dying declarations were made soon after the
incident, though the death took place after two and a half months of the
incident. In any case, the dying declarations in the instant case have not
been found to be suffering from any infirmity due to any time lag.
65. The question now before this Court is whether the criminal act of the
appellant is murder or culpable homicide not amounting to murder.
66. The medical evidence has already proved that the injury sustained by
the victim by way of fracture of the sixth cervical vertebrae was an injury
which was capable of causing death. It is not clear from the evidence and
circumstances as to in what situation the said injury was inflicted. It is also
not clear as to what was the weapon of assault by which such injury was
assaulted.
67. One of the criteria to decipher intention to cause death is the part of
the body where the injury is inflicted. From that point of view, in the
instant case, the injury was inflicted on the cervical spine which is a vital
part of the body and the assault resulting in fracture of the sixth vertebrae
was indeed a fatal injury on a vital part of the body. However, as already
Page No.# 29/30
mentioned above, the circumstances of the crime and the weapon of
assault have not emerged from the evidence.
68. The aspect of enmity, if any, has also not emerged from the
evidence. However, from the evidence of PW-3, it has emerged that he
was told by the victim it has been revealed that at the time of the
incident, the convict appellant as the assailant and the other two
associates were under influence of liquor. Considering the circumstances
of the crime, we are of the opinion that though the injury in question was
a fatal injury on the vital part of the body, but the other circumstances
regarding such intention to cause death has not sufficiently emerged from
the evidences and circumstances. And therefore, perhaps it would be
justified to give benefit of doubt to the appellant on that count.
69. Therefore, we hold that the convict appellant, while assaulting the
victim should be attributed with the knowledge of causing death, rather
than the intention of causing death. Hence, we are of the opinion that
conviction would be more justified under section 304 Part II IPC, rather
than under section 302 IPC.
70. Therefore, while it is proved by the prosecution case that the
appellant was one of the assailants in the incident, but his conviction is
altered to one under section 304 Part II IPC. With regard to the sentence,
considering that the assault by the appellant resulted in the death of the
victim, we are not inclined to impose a lenient sentence.
71. Therefore, for his conviction under section 304 Part II IPC, the
convict appellant is hereby sentenced to undergo rigorous imprisonment
(RI) for 10 years. Consequently, the Judgment dated 27.09.2023 and
Page No.# 30/30
Sentence and Order dated 05.10.2023 passed by the learned Sessions
Judge, Dima Hasao, Haflong in Sessions Case No.28/2015 is hereby
upheld and confirmed, subject to the modification in the conviction and
the sentence as indicated above.
72. Resultantly, the instant criminal appeal stands dismissed, subject to
the aforesaid modification of the conviction and the sentence. Registry is
directed to send back the TCR immediately.
JUDGE JUDGE Comparing Assistant
