Gauhati High Court
Vill.- P. Hnachangjal vs The State Of Assam And Anr on 6 September, 2024
Author: M. Choudhury
Bench: Manish Choudhury
Page No.# 1/6
GAHC010263562023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/444/2024
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 THE PP
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 : MR. B BARUAH
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
Page No.# 2/6
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 06.09.2024
(M. Choudhury, J)
Heard Mr. B. Baruah, learned counsel for the applicant-appellant; Ms. A.
Begum, learned Additional Public Prosecutor for the opposite party no. 1, State
of Assam; and Mr. B.K. Sen, learned counsel for the opposite party no. 2-
informant.
2. The instant application under Section 389[1] of the Code of Criminal
Procedure, 1973 ['CrPC' and/or 'the Code', for short] is preferred seeking
suspension of execution of the sentence passed against the applicant-appellant
and for his release on bail.
3. The applicant as the appellant, has preferred the accompanying appeal,
Criminal Appeal no. 474 of 2023, against a Judgment dated 27.09.2023 and an
Order of Sentence dated 05.10.2023 passed by the Court of learned Sessions
Judge, Dima Hasao, Haflong ['the trial court', for short] in Sessions Case no.
28/2015. By the said Judgment and Order, the applicant-appellant has been
convicted for the offences under Section 341, Indian Penal Code [IPC] and
Section 302, IPC. For the offence under Section 302, IPC, the applicant-
appellant has been sentenced to undergo imprisonment for life and to pay a fine
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of Rs. 10,000/- [Rupees ten thousand], in default of payment of fine, to
undergo further imprisonment for another six months. No sentence has been
imposed on the applicant-appellant for the offence under Section 341, IPC on
the premise that the prosecution did not pray for it. The criminal appeal has
already been admitted for hearing.
4. Mr. Baruah, learned counsel for the applicant-appellant has submitted
that there was no proper identification that Doya Hmar and Daineisang Pudaite
is one and the same person. The said aspect is of utmost relevance as none of
the prosecution witnesses had mentioned about Daineisang Pudaite as the
alleged assailant and by adducing defence evidence, the applicant-appellant was
successful in establishing that Doya Hmar is not known as Daineisang Pudaite.
In addition, Mr. Baruah has contended that the deceased died about two and
half months after the alleged injury sustained by him on 28.03.2015/29.03.2015
and the fact that the deceased died in home goes to substantiate the fact that
the deceased did not die for an act which can be termed either as culpable
homicide or murder. He has further submitted that the prosecution case, due to
the death of the deceased, rested on circumstantial evidence and the learned
trial court had erred in law in accepting the dying declaration of the deceased
without the same being exhibited. Thus, the applicant-appellant has a fair
chance of acquittal.
5. Ms. Begum, learned Additional Public Prosecutor for the opposite party
no. 1, State of Assam and Mr. Sen, learned counsel for the opposite party no. 2-
informant, have vehemently opposed the instant application contending that
immediately after the deceased sustained those injuries on his person, he
disclosed to his brother-informant, P.W.3 and to his co-employee, P.W.1, the
name of the applicant-appellant along with two of his acquaintance as the
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assailants. The learned counsel for the opposite parties have further submitted
that there was no delay in lodging the FIR as in the meantime, the informant,
who was the elder brother of the deceased, was busy in providing medical
treatment to the deceased at the Silchar Medical College & Hospital [SMC&H],
which is in another district, and such delay has already been explained during
his testimony. The learned counsel for the opposite parties have further referred
to the initial Medical Examination Report [Ext.-P-14] of the deceased to submit
that when the deceased was first examined on 31.03.2015, the deceased was
found to have suffered grievous injury caused by blunt forces and on that day,
the deceased was found suffering from traumatic quadriparesis and the fact was
further substantiated from the Post-Mortem Examination Report [Ext.-P12]. It is
the contention that as regards the oral dying declaration, the defence was not
successful to dispute the same and as such, the finding of guilt based on these
evidences was correctly reached by the learned trial court.
6. We have duly considered the submissions of the learned counsel
appearing for the parties and have gone through the materials for the purpose
of considering the instant application, by keeping into consideration the
parameters within which an application under Section 389[1], CrPC is to be
considered.
7. The prosecution witnesses - P.W.1 & P.W.3 - have deposed to the effect
that immediately after the deceased was recovered in an injured condition, he
disclosed the name of the applicant-appellant as the assailant as the deceased
was then in a condition to speak. The defence appeared to have not seriously
contested the said part of their testimony. Regarding identification of the
deceased, P.W.3 stated that he knew Doya Hmar from a date earlier to the date
of the incident though he did not know whether the name of Doya Hmar was
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also Daineisang Pudaite. The issue whether the learned trial court had properly
reached the finding that the assailant of the deceased was properly identified or
not is a matter which would require a detail consideration on the basis of the
entire evidence/materials on record and the same is only possible at the stage
of hearing of the accompanying criminal appeal. It appears from the
evidence/materials on record, prima facie, that the deceased, when he was
treated at Silchar Medical College & Hospital [SMC&H] on 31.03.2015, he was
not in a position to speak as the I.O. was not able to record his statement at
that time. The non-admissibility as regards the oral dying declaration of the
deceased, as contended by the learned counsel for the applicant-appellant,
would also stand for consideration at the stage of such hearing. It is not in
dispute that the deceased was assaulted on 28.03.2015/29.03.2015 and when
he was medically examined on 31.03.2015 at Silchar Medical College & Hospital
[SMC&H], he was found to be traumatically quadriparesis with absence of
reflexes and as per the Post-Mortem Examination Report [Ext.-P12], the
deceased sustained transverse fractures on cervical 6 vertebrae and his C 5 to C7
were found contused. Having considered the aforesaid aspects, we do not find
that the applicant-appellant has made out a prima facie case for suspension of
execution of the sentence passed against him.
8. In view of above discussion and for the reasons assigned therein, the
instant application is found not merited and the same is liable to be dismissed at
this stage. It is accordingly ordered.
9. It is, however, made clear that the observations made hereinabove are
only for the purpose of consideration of the application of the applicant-
appellant seeking suspension of execution of the sentence passed against him
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and the observations made hereinabove shall not be construed as observations
in respect of the merits of the accompanying criminal appeal.
JUDGE JUDGE
Comparing Assistant
