Gauhati High Court
Page No.# 1/27 vs The State Of Assam on 30 October, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/27
GAHC010277992019
2025:GAU-AS:14614
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/91/2019
NIPAM PHUKAN @ PETAI
NORTH LAKHIMPUR, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. RAKESH SARMA, AMICUS CURIAE,
Advocate for the Respondent : PP, ASSAM,
Linked Case : CRL.A(J)/74/2019
PRABIN PHUKAN @ BIRA
LAKHIMPUR
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM.
------------
Advocate for : MS. S SARMAH (AMICUS CURIAE)
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
Page No.# 2/27
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MRS. JUSTICE MITALI THAKURIA
For the appellant in Crl. A.(J) 91/2019 : Mr. Rakesh Sarma, Amicus Curiae
For the appellant in Crl. A.(J) 74/2019 : Ms. R. Sarmah, Amicus Curiae
For the respondent : Ms. B. Bhuyan, Sr. Advocate & Addl.
P.P., Assam
Date of hearing : 16.10.2025
Date of Judgment : 30.10.2025.
JUDGMENT AND ORDER
(M. Zothankhuma, J)
1. Heard Mr. Rakesh Sarma, learned Amicus Curiae appearing in Crl. A.(J) No.91/2019 for
the appellant convict Sri Nipam Phukan @ Petai. Also heard Ms. S. Sarmah, learned Amicus
Curiae appearing in Crl. A.(J) No.74/2019 for the appellant convict Sri Prabin Phukan @ Bira
as well as Ms. B. Bhuyan, learned Sr. Counsel and Addl. P.P., Assam assisted by Ms. R. Das,
appearing for the State.
2. These two appeals have arisen out of the impugned judgment dated
04.04.2019 passed by the learned Addl. Sessions Judge (FTC), Lakhimpur, North
Lakhimpur in Sessions Case No.104(NL)/2018, by which the appellants, who are
brothers and allegedly under the influence of alcohol, have been convicted under
Section 302/34 of the IPC, for having caused the death of the father of the
informant, Prosecution Witness No.1 (PW-1), by stabbing him with a knife, after they
had been told by the deceased to go home and not make a nuisance. They were
accordingly sentenced to suffer rigorous imprisonment for life and to pay fine of
Rs.5,000/- each, in default, to suffer rigorous imprisonment for 6 months each under
Section 302/34 of the IPC.
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3. The prosecution case in brief is that an FIR dated 24.01.2018 was submitted
by the informant (PW-1) to the Officer-in-Charge of Narayanpur P.S., stating that
around 8:30 pm on 23.01.2018, the appellants had confronted her husband, when
he went to purchase betel leaf from a shop. They assaulted him with a sharp
weapon and thereby killed him. People apprehended the appellants at the place of
occurrence and assaulted them before handing them over to the police. Pursuant to
the FIR, Narayanpur P.S. Case No.29/2018 under Section 302/34 of the IPC was
registered. PW-11 was thereafter entrusted to investigate the case.
4. After examining the witnesses, making an inquest report and after the
post-mortem report was made, the Investigating Officer (PW-11) submitted a
charge-sheet against the appellants, having found a prima facie case under
Section 302/34 of the IPC against them.
5. The learned Trial Court thereafter framed charge under Section 302/34 of
the IPC against the appellants, for having intentionally caused the death of the
deceased, in furtherance of their common intention to kill him by assaulting
him with a sharp weapon. The appellants pleaded not guilty to the charge
framed against them and claimed to be tried.
6. The learned Trial Court examined 11(eleven) prosecution witnesses and
1(one) defence witness. Interestingly prosecution witness No.9 (PW-9) was
also examined as a defence witness (D.W.-1). The learned Trial Court
examined the appellants under Section 313 Cr.P.C., wherein they gave a
blanket denial to the evidence that had been adduced against them. The
learned Trial Court thereafter came to a finding that the prosecution had been
able to prove that the appellants had murdered the deceased, in furtherance
of their common intention to kill him and the learned Trial Court accordingly
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convicted and sentenced them under Section 302/34 of the IPC.
7. Being aggrieved, the appellants have filed the two appeals against the
same impugned judgment passed by the learned Trial Court.
8. The counsels for the appellants submit that the basis for convicting the
appellants by the learned Trial Court was only due to the oral dying declaration
given by the deceased to PWs-1, 2, 3 & 5, who were the wife, cousin brother,
brother and nephew of the deceased respectively. They submit that as PWs-1,
2, 3 & 5 were related to the deceased, it was unsafe to convict the appellants
on the basis of the dying declaration alone, inasmuch as, the testimonies of
the relatives had not been scrutinized with greater care and circumspection by
the learned Trial Court.
9. The counsels for the appellants further submit that there is no evidence
adduced by any witness to show whether the deceased was mentally fit to give
a dying declaration, for convicting the appellants. Further, there was a
possibility that the oral dying declaration was as a result of prompting and
tutoring. Also there was no proof that the oral dying declaration given by the
deceased was voluntary.
10. The counsels for the appellants further submit that the evidence of PW-3
in his cross-examination, is to the effect that the place of occurrence was
about ½ k.m. away from the house of the deceased and as such, the wife
(PW-1) could not have heard the appellants or the deceased quarrelling. As
such, the testimony of PW-1 that her husband had asked the appellants to go
home instead of making a nuisance on the road and that her husband had
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called her saying "I am dying, Rumi" was unbelievable. They also submit that
the evidence of PW-1, to the effect that she and PW-2 managed to lift her
husband's dead body to the road from under the bridge on a changi,
whereafter the deceased had apparently told her that the appellants had
assaulted him, on being asked by PW-1, was a major discrepancy. They submit
that once the deceased had died, there was no question of the deceased
making any oral dying declaration to PW-1, with regard to who were the
assailants.
11. The learned counsels for the appellants submit that even if this Court
were to hold that there was no ground for interfering with the impugned
judgment passed by the learned Trial Court, the evidence of the prosecution
witnesses showed that the appellants had been provoked by the deceased,
which deprived them of the power of self-control, which led to the death of the
deceased. They also submit that the evidence also points towards a quarrel
having ensued between the deceased and the appellants which ultimately led to
the killing of the deceased. They accordingly submit that even if this Court were
to hold that the appellants had caused the death of the deceased, Section 302
IPC would not be applicable to the facts of the case, inasmuch as, Exceptions 1
& 4 of Section 300 IPC are attracted. As such, the appellants should have been
convicted, if at all, under Section 304 Part-II of the IPC, as there was no
intention or premeditation on the part of the appellants, to kill the deceased. In
support of their submission that the oral dying declaration of the deceased could
not have been made the basis of convicting the appellants, they have relied
upon the judgment of the Supreme Court in the case of Irfan alias Naka Vs.
State of Uttar Pradesh, reported in 2023 SCC OnLine SC 1060. In support
of their submission that related/interested witnesses' testimonies have to be
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scrutinized with greater care and circumspection, they have relied upon the
judgment of the Supreme Court in the case of Md. Jabbar Ali & Others Vs.
State of Assam, reported in (2023) 19 SCC 672. They accordingly pray that
the impugned judgment should be set aside and the appellants should either be
acquitted of the Charge under Section 302/34 IPC or in the alternative, they
should be convicted under Section 304 Part-II of the IPC.
12. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand
submits that there is no infirmity with the conviction of the appellants by the
learned Trial Court. She submits that the testimonies of the PWs-1, 2, 3 & 5
regarding the oral dying declaration of the deceased has not been shaken or
controverted during the cross-examination of the prosecution witnesses. There
was also no previous enmity existing between the deceased and the appellants.
There was also no existing enmity between the appellants and the prosecution
witnesses. As such, there was no ulterior reason for the deceased to have given
a dying declaration, identifying the appellants as the persons who had assaulted
him with a knife. The learned Additional Public Prosecutor submits that when
the genuineness or veracity of an oral dying declaration had not been shaken or
controverted in the cross-examination of the prosecution witnesses and if the
Court is satisfied with the truthfulness of the same, the Court can base it's
conclusion with regard to the death of the deceased without any further
corroboration. In this regard, she has relied upon the judgment of the Supreme
Court in the case of Kamal Khudal vs. State of Assam, reported in (2022)
20 SCC 654.
13. The learned Additional Public Prosecutor also submits that though it is
unsafe to record a conviction on the basis of a dying declaration alone, in cases
where no suspicion regarding the correctness of the dying declaration exists, the
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dying declaration heard by the four prosecution witnesses, though related to the
deceased, does not suffer from any whiff of suspicion that it is a fabricated
story. As such, the impugned judgment should not be interfered with. In
support of her submission, she has relied upon the judgment of the Supreme
Court in the case of Rajendra vs. State of Maharashtra, reported in 2024
SCC OnLine SC 941.
14. We have heard the learned counsels for the parties.
15. In the present case, the evidence of PW-1 (wife of the deceased), PW-2
(cousin brother of the deceased), PW-3 (brother of the deceased) and PW-5
(nephew of the decease) are to the effect that the deceased had given his
dying declaration that the appellants had inflicted injuries on him with a white
knife. There is nothing in the cross-examination of the above witnesses, which
gives any indication that the above oral dying declaration was tutored or
prompted by any person. The cross-examination of PW-1, PW-2, PW-3 and
PW-5 shows that the deceased had given his oral dying declaration in a broken
voice and that there was a pool of blood on the road where he was lying. On
considering the factors to be considered by this Court for determining the
truthfulness of a dying declaration, as provided in para 62 of the judgment of
the Supreme Court in Irfan alias Naka (supra), we are of the view that the
person making the statement was on expectation of death and that the dying
declaration had been made at the earliest opportunity. There being no
evidence with regard to any enmity between the appellants vis-a-vis the
deceased or the prosecution witnesses, we do not find any ground to suspect
that the dying declaration was put in the mouth of the dying person or that he
had been tutored or prompted to say what he had said. The incident having
Page No.# 8/27
occurred in a village and the deceased having clearly stated the names of the
appellants who had caused him injury with a white knife, we do not find any
inconsistency in the dying declaration made by the deceased, as related in the
testimonies of PWs-1, 2, 3 & 5. We are also of the view that the dying
declaration was voluntary and was a statement of fact. Keeping in view the
injury that had been inflicted upon the deceased, we are of the view that it
was possible for the deceased to have made a dying declaration. There is also
nothing to show that the deceased was not in a fit state of mind or that his
dying declaration was not voluntary.
16. The evidence of PW-1 is to the effect that when her husband went out
to buy betel leaf from a shop at around 8- 8:30 pm on 23.01.2018, the
appellants were creating a nuisance on the road under the influence of liquor.
Her husband asked them to go home instead of causing a nuisance.
Thereafter, she heard her husband calling her saying "I am dying, Rumi". On
going to the place of occurrence she found her husband lying in a pool of
blood under the bridge. Her brother-in-law, PW-3, who accompanied PW-1
flashed the torch light. They saw the appellants running away from the place
of occurrence. As they could not lift the body of the deceased, who was still
alive, which was under the bridge, she went to the house of PW-2. After PW-2
came to the place of occurrence, they lifted the body of the husband of PW-1
to the road from under the bridge on a changi. Many people thereafter
gathered at the place of occurrence and on asking her husband as to what had
happened, PW-1 was told by her husband that the appellants had assaulted
him.
Page No.# 9/27
17. Despite what PW-1 had stated in her testimony, the evidence of the
Investigating Officer, i.e. PW-11, in his cross-examination, is to the effect that
PW-1 had not told him that her deceased husband had shouted "I am dying
Rumi", or that she had gone to the place of occurrence. PW-11 further stated
that PW-1 had also not told PW-11 that she had seen her husband lying under
the bridge smeared with blood and that with the help of the torch light of PW-
3, she had seen the appellants fleeing from the place of occurrence. PW-11
had also stated that PW-1 did not tell him that she had called PW-2 and that
with his help and PW-3, they had taken her injured husband from under the
bridge.
In her statement given under Section 161 Cr.P.C, PW-1 had stated that the
appellants had sung dirty songs and were using dirty words. Interestingly, PW-
1 in her testimony before the learned Trial Court does not make a mention
regarding the appellants singing dirty songs and using abusive/dirty words. In
any event, even if we are to hold that the evidence of PW-1 is not reliable, the
fact remains that the evidence of PWs-2, 3 & 5 proves that the deceased had
given an oral dying declaration to them before his death, wherein he had
identified the appellants as the persons, who had assaulted him with a knife.
Further, the evidence of PW-3 is to the effect that when he flashed his torch
light, he saw the appellants fleeing from the place of occurrence.
18. Though the learned counsels for the appellants had tried to make out a
case that there was discrepancy in the evidence of PW-1, wherein it appeared
that the deceased had died while being taken from under the bridge on a
changi to the road, we find that the translation of the evidence of PW-1 from
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the vernacular language (Assamese) to English by the Translator of the paper
book, has not been accurate. In fact, the original evidence recorded in
vernacular shows that when the body of the deceased was lifted from under
the bridge to the road, the deceased was still alive. It was only due to the
wrong translation made in the paper book that it appeared that the oral dying
declaration appeared to be made by the deceased to PW-1 after his death.
However, as stated earlier, the same has been clarified on going through the
original evidence recorded in vernacular (Assamese), i.e. the deceased was
carried to the road from under the bridge alive, after which he made his dying
declaration, before the death.
19. The evidence of PW-2 is to the effect that DW-1 had run to his house
and informed him that someone had inflicted cut injuries on her husband. He
then went to the place of occurrence with PW-1 and found the deceased lying
under the bridge in a moribund stage. At that time PW-1, PW-2 and PW-3
were present along with some villagers who gathered there. On asking the
deceased who was still alive as to what happened, he stated that the
appellants had inflicted injuries on him with a white knife. Thereupon they
lifted the body of the victim from under the bridge to the road with the help of
a changi (bier like frame to carry dead body or other things). PW-2 further
stated that he also saw the knife stained with blood which was seized by the
Police.
20. The evidence of PW-3, who is the younger brother of the deceased, is to
the effect that around 8 p.m. on the day of occurrence, he was about to sleep
after taking his meal. He then heard the PW-1 shouting and addressing him.
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When he went out of the house, PW-1 informed him that something had
happened to his elder brother. Thereafter, PW-1 (sister-in-law) and himself
went towards the place of occurrence. While flashing the torch light, he saw
the appellant fleeing away from the place of occurrence. On seeing his brother
lying beside the bridge in a pool of blood, he asked as to what had happened.
His elder brother thereafter replied that the appellants had inflicted grievous
injury on him with a knife. PW-3 further stated that the Police seized the knife,
which was also produced in the Court.
21. The evidence of PW-4 is to the effect that while she was sitting in the
house of one Dulal Gogoi, the appellant Prabin Phukan @Biro Bahu came into
the house of Dulal Gogoi and started shouting. On being asked as to what had
happened, the appellant Prabin Phukan stated that his younger brother, the
appellant Nipom Phukan had killed the deceased with a knife. PW-4 then
stated that she immediately informed the police about the incident and went to
the place of occurrence. PW-4 stated that on reaching the place of occurrence,
she saw the dead body of the deceased, which was being kept on the road
and saw injury marks and blood near the stomach of the deceased. PW-4 also
saw the appellant Nipom Phukan, who was kept tied by the public near the
place of occurrence. PW-4 was also a witness to the seizure of the knife.
22. The evidence of PW-5 is to the effect that around 8-30 a.m. on the night
of the incident, he was reading in his house when he heard a commotion. He
also heard someone making noise under the influence of alcohol. On hearing
the voices, he assumed the voices were of the appellants. He thereafter heard
PW-1 shouting repeatedly along the road that her husband had been
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assaulted. He went near the bridge located in front of his house and saw the
deceased lying with injuries under the bridge. At that time the deceased was
still alive and the deceased told them that the appellants had assaulted him.
PW-5 further stated that the deceased died on the way to the hospital. He also
stated that the Police seized the knife with a cover and he gave his signature
in the seizure list.
23. The evidence of PW-6 is to the effect that he was informed by his wife
that the appellant Nipom Phukan had stabbed the deceased. When the people
started questioning both the appellants, PW-6 was present. The appellant
Nipom Phukan then stated that the appellant Prabin Phukan had hit the head
of the deceased with a bamboo and had also stabbed him with a knife. PW-6
was also a seizure witness.
As can be seen from the evidence of PW-4 and PW-6, the appellants have
blamed each other for causing the death of the deceased.
24. The evidence of PWs-7, 8 & 9 are only hearsay evidence.
25. The evidence of the Doctor (PW-10) who had conducted the post-
mortem examination of the dead body of the deceased stated with regard to
the injuries of the deceased, to the following effect:-
1) Stab injury on right side of abdomen on umbilical level away from
umbilicus about 2 inches (Size- 1 ½ x ½ x 5 inches).
2) Stab injury on midway of right thigh. Clotted blood seen.
Page No.# 13/27
The injuries were ante-mortem in nature. In the opinion of PW-10, the
deceased died due to shock and haemorrhage as a result of the stab injury.
26. The evidence of PW-11, who is the I.O. is to the effect that he was
serving as Officer-in-Charge of Narayanpur Police Station on the day when the
FIR was lodged and he himself took up the investigation of the case. He went
to the place of occurrence, made the sketch map and examined the witnesses.
He also seized the knife used by the appellants for stabbing the victim. He also
submitted the charge-sheet, as he had found a prima facie case under Section
302/34 of the IPC against the appellants.
27. The evidence of the prosecution witnesses shows that the knife with
which the injuries had been inflicted upon the deceased was seized and it was
exhibited in the Court.
28. The above being said, we are quite surprised that PW-9, whose evidence
was hearsay evidence, has also been examined as defence witness, i.e, DW-1.
However, as stated earlier, as the evidence of PW-9 is only hearsay evidence,
no relevance can be attached to his evidence, as to whether the appellants
had assaulted the deceased. However, the cross-examination of DW-1 shows
that the place of occurrence was half a kilometer away from his house. The
sketch map, on the other hand, shows that the place of occurrence was near
the house of PW-9. This is not in consonance with the cross-examination of
PW-3, who stated that the place of occurrence was about half a kilometer
away from his house. Though this discrepancy in the evidence of PW-3 and
DW-1 with regard to the exact location of the place of occurrence contradicts
Page No.# 14/27
one another, there is no gainsaying to the fact that the incident had occurred
on the road mentioned in the sketch-map. In any event, the circumstantial
evidence and the oral dying declaration proves that the death of the deceased
had been caused by the appellants and the injuries on the body of the
deceased shows that there was a stab injury on a vital part of the body of the
deceased.
29. In the case of Laxman Vs. State of Maharashtra, reported in (2002)
6 SCC 710, the Constitution Bench of the Supreme Court has held that a
dying declaration is made in extremity, when the party is at the point of death
and when every hope of this world is gone and every motive to falsehood is
silenced, and the man is induced by the most powerful consideration to speak
only the truth. Notwithstanding the same, great caution must be exercised in
considering the weight to be given to this species of evidence on account of
the existence of many circumstances which may affect their truth.
30. In the case of Irfan alias Naka (supra), the Supreme Court had
enumerated certain factors, which could be considered to determine whether a
dying declaration should be accepted and to be convinced of the truthfulness
of the same. It however put in a word of caution that the factors to be
considered in para 62 of the said judgment would only affect the weight of the
dying declaration and not it's admissibility. The factors to be considered, as
mentioned in para 62 of the above judgment, are as follows:-
"(i) Whether the person making the statement was in expectation of
death?
(ii) Whether the dying declaration was made at the earliest opportunity?
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"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?"
31. In the case of Md. Jabbar Ali & Ors. (supra), the Supreme Court had
held that just because the witnesses were related/interested/partisan
witnesses, their testimonies cannot be disregarded. However, it also held that
when the witnesses were related/interested, their testimonies have to be
scrutinised with greater care and circumspection. It thus held that the
evidence of related witnesses has to be considered by applying discerning
scrutiny.
Page No.# 16/27
32. In the case of Raju Vs. State of Tamil Nadu , reported in (2012) 12
SCC 701, the Supreme Court observed in para 29 as follows:-
"29. The sum and substance is that the evidence of a related or interested
witness should be meticulously and carefully examined. In a case where the
related and interested witness may have some enmity with the assailant, the
bar would need to be raised and the evidence of the witness would have to
be examined by applying a standard of discerning scrutiny. However, this is
only a rule of prudence and not one of law, as held in Dalip Singh [Dalip
Singh v. State of Punjab, (1953) 2 SCC 36 : AIR 1953 SC 364] and pithily
reiterated in Sarwan Singh [Sarwan Singh v. State of Punjab, (1976) 4 SCC
369 : 1976 SCC (Cri) 646] in the following words : (Sarwan Singh
case [Sarwan Singh v. State of Punjab, (1976) 4 SCC 369 : 1976 SCC (Cri)
646] , p. 376, para 10)
'10. ... The evidence of an interested witness does not suffer from any
infirmity as such, but the courts require as a rule of prudence, not as a
rule of law, that the evidence of such witnesses should be scrutinised with
a little care. Once that approach is made and the court is satisfied that the
evidence of interested witnesses have a ring of truth such evidence could
be relied upon even without corroboration.' "
33. As has been held by the Supreme Court in various judgments, a dying
man is induced by the most powerful consideration to speak only the truth. In
this case, there is no stand taken by any of the witnesses or the appellants
that there was any enmity between the appellants on one side and the
deceased and PWs-1, 2, 3 & 5 on the other side. As such, there was no reason
for the deceased to give an oral dying declaration against the appellants or for
Page No.# 17/27
that matter, PWs-1, 2, 3 & 5 to give false testimonies against the appellants.
Consequently, we do not find any reason to disregard the testimonies of PWs-
1, 2, 3 & 5, which is to the effect that the appellants had assaulted the
deceased with a knife, which ultimately led to his death.
34. The other aspect of the matter is that at the time of examination of the
appellants under Section 313 Cr.P.C, the appellants had given a blanket denial
with regard to the evidence adduced against them. In the case of Wajir Khan
vs. State of Uttarakhand, reported in (2023) 11 SCR 39, the Supreme
Court has held that in a case based on circumstantial evidence where no
eyewitnesses were available, there is another principle of law which must be
kept in mind, i.e. when an incriminating circumstance is put to the accused
and the accused either offers no explanation or offers an explanation which is
found to be untrue, then the same becomes an additional link in the chain of
circumstances making it complete. It has been further held by the Supreme
Court in the case Raj Kumar Vs. State of U.P. reported in (2014) 5 SCC
353 that a blanket denial during examination under 313 Cr.P.C would allow a
Court to draw an adverse inference against the accused, as admissible in law.
35. The above being said, the evidence of PWs-4 & 6 clearly goes to show
that both the appellants had apparently been named by the other, as the
person who had stabbed the deceased with a knife. This extra-judicial
confession to the public/prosecution witness nos.4 & 6 is also an added link,
connecting the appellants to the death of the deceased, at the hands of the
appellants.
36. In the case of Virendra Singh Vs. State of Madhya Pradesh reported in
Page No.# 18/27
(2010) 8 SCC 407, the Supreme Court has held that vicarious or constructive
liability under section 34 IPC can arise only when two conditions are fulfilled l.e.
the mental element or the intention to commit the criminal act conjointly with
another or others; and the other is the actual participation in one form or the
other in the commission of the crime. The common intention postulates the
existence of a pre-arranged plan implying a prior meeting of the minds. It
further held that the dominant feature of section 34 is the element of intention
and participation in action. This participation need not in all cases be by physical
presence. Common intention implies acting in concert. It also held that common
intention may develop on the spot where the crime is committed and it is not
necessary that the prosecution must prove that the act was done by a particular
or specified person. It held that section 34 IPC is intended to cover a case
where a number of persons act together and on the facts of the case it is not
possible for the prosecution to prove as to which of the persons, who acted
together, actually committed the crime. Little or no distinction exists between a
charge for an offence under a particular section and a charge under that section
read with section 34 IPC.
37. in the case of Krishnamurthy alias Gunodu and others Vs. State of
Karnataka reported in (2022) 7 SCC 521, the Supreme Court held that by
section 33 IPC, a criminal act in section 34 IPC includes omission to act. Thus, a
co-perpetrator who has done nothing but has stood outside the door, while the
offence was omitted, may be liable for the offence. It thus held that common
intention or crime sharing may be by a overt or covert act, by active presence or
at distant location, there should be a measure of jointness in the commission of
the act. Even a person not doing a particular act but only standing as a guard to
prevent any prospective aid to the victim may be guilty of common intention. It
Page No.# 19/27
further held that in a case of offence involving physical violence, physical
presence in the place of actual commission may be considered to be safe for
conviction, it may not be mandatory when pre-arranged plan is proved and
established beyond doubt. It thus held that a co-perpetrator who had
participated in the offence is actually liable on the principle of joint liability. For
section 34 to apply, it is not necessary that the plan should be pre-arranged or
hatched for a considerable time before the criminal act is performed. Common
intention can be formed just a minute before it actually happened. It is a
psychological fact, as it requires prior meeting of minds. In such cases, direct
evidence normally will not be available and in most cases, whether or not there
exists a common intention has to be determined by drawing inference from the
facts proved. This requires an inquiry into the antecedents, conduct of the co-
participants or perpetrators at the time and after the occurrence. The manner in
which the accused arrived, mounted the attack, nature and type of injuries
inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators,
object and purpose behind the occurrence or the attack etc. are all relevant
facts, from which inference has to be drawn to arrive at a conclusion whether or
not the ingredients of Section 34 IPC is established. It thus held that Section 34
IPC comes into operation against the co-perpetrators because they have not
committed the principal or main act, which is undertaken/performed or is
attributed to the main culprit or perpetrator.
38. In the case of Kamal Khudal Vs. State of Assam reported in (2022) 20
SCC 654, the Supreme Court has held that a dying declaration, oral or written,
before it could be relied upon, must pass a test of reliability as it is a statement
made in the absence of the accused and there is no opportunity to the accused
even to put it through the fire of cross-examination, to test its genuineness or
Page No.# 20/27
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.
39. In the case of Heikrujam Chaoba Singh Vs. State of Manipur reported
in (1999) 8 SCC 458, the Supreme Court has observed that an oral
declaration can form the basis of conviction, though the Court seeks
corroboration as a rule of prudence. However, the Court must be satisfied about
the truthfulness of the dying declaration and that the deceased was in a fit
condition to give the statement.
40. In the case of Rajendra Vs. State of Maharashtra reported in 2024
SCC OnLine SC 941, the Supreme Court has held once a dying declaration is
found to be authentic inspiring confidence of the court, then the same can be
relied upon and can be the sole basis for conviction without any corroboration.
However, before accepting such a dying declaration, court must be satisfied that
it was rendered voluntarily, it is consistent and credible and that it is devoid of
any tutoring. Once such a conclusion is reached, a great deal of sanctity is
attached to a dying declaration and as said earlier, it can form the sole basis for
conviction.
41. In the case of Abhishek Sharma Vs. State ((Govt. of NCT of Delhi )
reported in 2023 SCC OnLine SC 1358, the Supreme Court has held that the
Page No.# 21/27
evidence of witness cannot be discarded merely on the ground that he is either
partisan or interested or a close relative to the deceased, if otherwise he is
found to be trustworthy and credible. It has further held that a dying
declaration, if it is free of tutoring, prompting, etc. can form the sole basis of
conviction.
42. On considering the above judgements of the Supreme Court, it is quite
apparent that only because one of the two appellants had been the person who
had stabbed the victim with a knife, does not exclude the liability of the other
appellant from attracting the provision of section 34 IPC. The fact that both the
appellants had assaulted the deceased is clear from the oral dying declaration
made by the deceased when he named both the appellants as his assailants.
The act of stabbing the deceased by one of the two appellants thus shows that
section 34 IPC is attracted to the case in hand. The reason for the assault on
the deceased who was above 40 years of age, while the appellants were in the
early 20s, shows that due to the appellants being reprimanded for their drunken
behavior, they had lost their cool and killed the deceased. Though, there is
nothing to show that there was any pre-meditated intention or motive to have
killed the deceased, the same had apparently been done due to the words of
victim having inflamed the passion of the appellants, which led to a quarrel as
per the testimony of PW-3 and the subsequent stabbing of the victim.
43. In the case of Vijay alias Vijaykumar Vs. State reported in (2025) 3
SCC 671, the Supreme Court has held that Exception-1 of section 300 IPC can
be invoked for the benefit of an accused, if it is established that the act
committed by the accused was a simultaneous reaction to a grave and sudden
provocation, which deprived him of the power of self control during which time
Page No.# 22/27
he had caused the death of the victim. The Supreme Court in the above case
held that a bare statement by the accused that he regarded the provocation as
grave will not be accepted by the court. The court has to apply an objective test
for deciding whether the provocation was grave or not. A good test for deciding
whether the sudden provocation was grave or not, is whether a reasonable man
would likely loose self control as a result of the said provocation. If the answer
is in the affirmative, than the provocation will be classed as grave. If the answer
is in the negative, the provocation is not grave. In this context, the expression
'reasonable man' means a normal or an average person. A reasonable man is
not the ideal man or the perfect being. A normal man sometimes loses temper.
There is therefore, no inconsistency in saying that, a reasonable man may lose
self control as a result of grave provocation.
44. In the above case of Vijay (Supra), the Supreme Court has further held
that a judge should not impose his personal standards in the matter as by
training, a Judge is a patient man. But the reasonable man or the normal man
need not have the same behavior as the Judge himself. It thus held that the
provocation must be such as will upset, not merely a hasty and hot-tempered or
hypersensitive person, but one of ordinary sense and calmness. It further held
that the burden of proving the circumstances covered by Exception 1 of Section
300 IPC is on the accused. Para 21, 22, 22.1, 22.2, 22.3, 23, 24 & 25 of Vijay
(Supra) are reproduced herein below for ready reference :-
"21. In other words, before Exception I can be invoked, the accused must establish
the following circumstances:
(i) there was a provocation which was both grave and sudden;
(ii) such provocation had deprived the accused of his power of self-control; and
(iii) whilst the accused was so deprived of his power of self-control, he had caused the
death of the victim.
Page No.# 23/27
22. In order to bring his case under Exception 1 to Section 300 IPC the following
ingredients: (1) the provocation was sudden; (II) the provocation was grave; and (ill)
loss of self-control. These three ingredients may be considered one by one:
22.1. Whether the provocation was sudden or not does not present much difficulty.
The word "sudden" Involves two elements. First, the provocation must be unexpected.
If an accused plans in advance to receive a provocation in order to justify the
subsequent homicide, the provocation cannot be said to be sudden. Secondly, the
interval between the provocation and the homicide should be brief. If the man giving
the provocation is killed within a minute after the provocation, it is a case of sudden
provocation. If the man is killed six hours after the provocation, it is not a case of
sudden provocation.
22.2. The main difficulty lies in deciding whether a certain provocation was grave or
not. A bare statement by the accused that he regarded the provocation as grave will
not be accepted by the court. The court has to apply an objective test for deciding
whether the provocation was grave or not. A good test for deciding whether a certain
provocation was grave or not is this: "Is a reasonable man likely to lose self-control as
a result of such provocation?" If the answer is in the affirmative, the provocation will
be classed as grave. If the answer is in the negative, the provocation is not grave. In
this context, the expression "reasonable man" means a normal or an average person.
A reasonable man is not the ideal man or the perfect being. A normal man sometimes
loses temper. There is, therefore no inconsistency in saying that, a reasonable man
may lose self-control as a result of grave provocation. A reasonable or normal or
average man is a legal fiction. The reasonable man will vary from society to society. A
Judge should not impose his personal standards in this matter. By training, a Judge is
a patient man. But the reasonable man or the normal man need not have the same
standard of behaviour as the Judge himself. The reasonable man under consideration
is a member of the society, in which the accused was living. So, education and social
conditions of the accused are relevant factors. An ordinary exchange of abuse is a
matter of common occurrence. A reasonable man does not lose self control merely on
Page No.# 24/27
account of an ordinary exchange of abuses. So, courts do not treat an ordinary
exchange of abuses as a basis for grave provocation. On the other hand, in most
societies, adultery is looked upon as a very serious matter. So, courts are prepared to
treat adultery as a basis for grave provocation.
22.3. The question of loss of self-control comes up indirectly in deciding whether a
particular provocation was grave or not. So, if it is proved that the accused did receive
grave and sudden provocation, the court is generally prepared to assume that
homicide was committed while the accused was deprived of the power of self-control.
In some cases, it may be possible for the prosecution to prove that the accused
committed the murder with a cool head in spite of grave provocation. But such cases
will be rare. So, when the accused has established grave and sudden provocation, the
court will generally hold that he has discharged the burden that lay upon him under
Exception 1 to Section 300IPC.
23. What should be the approach of the court? The provocation must be such as will
upset not merely a hasty and hot-tempered or hypersensitive person, but one of
ordinary sense and calmness. The court has to consider whether a reasonable person
placed in the same position as accused would have behaved in the manner in which
the accused behaved on receiving the same provocation. If it appears that the action
of the accused was out of all proportion to the gravity or magnitude of the provocation
offered, the case will not fall under the exception. The case can only fall under the
exception when the court is able to hold that provided the alleged provocation is
given, every normal person would behave or act in the same way as the accused in
the circumstances in which the accused was placed, acted.
24. In the words of Viscount Simon [Holmes v. Director of Public Prosecutions, 1946
AC 588 (HL)): (AC p. 598)
"The whole doctrine relating to provocation depends on the fact that it causes,
or may cause, a sudden and temporary loss of self-control, whereby malice,
which is the formation of an intention to kill or to inflict grievous bodily harm, is
Page No.# 25/27
negatived. Consequently, where the provocation inspires an actual intention to
kill, or to inflict grievous bodily harm the doctrine that provocation may reduce
murder to manslaughter seldom applies."
(emphasis supplied)
25. Section 105 of the Evidence Act, 1872 casts burden of proof on the accused Being
an exception, the burden of proving the circumstances covered by Exception is on the
accused. Where the prosecution prima facie proves that the act was committed by the
accused which had resulted in the death of the deceased and the accused pleads that
the case falls within one of the exceptions, it is for him to prove that."
45. Though the counsel for the appellants has made a submission that the 4th
Exception to Section 300 IPC is also attracted to the present case, there is no
evidence adduced to show that a sudden fight had occurred between the
parties. In the case of Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat
reported in (2003) 9 SCC 322, the Supreme Court has held that the 4th
Exception to Section 300 IPC covers acts done in a sudden fight. It further held
that a sudden fight implies mutual provocation and blows on each side, with or
without weapons. However, in the present case, there being no stand taken by
the appellants that there was a fight between the parties prior to the assault on
the deceased, we are unable to hold that the present case attracts the 4th
Exception to Section 300 IPC.
46. As has been held by the Supreme Court, the test to be applied to see as
to whether the sudden provocation on the part of the deceased to the appellant,
was grave or not, is whether a reasonable man would likely to lose self-control
as a result of the sudden provocation. In the present case, the admonition and
reprimand given by the deceased to the appellants, who were under the
influence of liquor, not to create nuisance on the road and to go home, was
Page No.# 26/27
sudden and unexpected. The appellants were not expecting such a sudden and
unexpected admonition/reprimand. Besides, the appellants being apparently
under the influence of liquor, they could not be said to be reasonable persons in
the ordinary sense of the term, as there is a vast difference between an
intoxicated person and a person who is not under the influence of liquor.
Though a reasonable person may not lose self-control as a result of such
provocation, it would not be unexpected for a person under the influence of
liquor, to regard and react to the said provocation as a grave provocation. The
evidence of PW-1 is to the effect that soon after she heard her husband asking
the appellants to go home instead of making a nuisance, she heard her husband
calling her by saying "I am dying Rumi". Further, the evidence of PW-3 is to the
effect that he heard the deceased and appellants quarreling between them. The
deceased was soon thereafter found stabbed and he died after about a half
hour later.
47. On considering all the above, we are of the view that the appellants being
under the influence of liquor at the time when they were admonished by the
deceased, it can be said that they were subject to a grave and sudden
provocation, and as a quarrel had apparently ensued between the appellants
and the deceased, the same apparently deprived the appellants of the power of
self-control. In view of the appellants being under the influence of liquor, the
assault on the deceased by the appellant at the spur of moment, while
apparently being deprived of the power of self-control, leads us to believe that
the present case comes within Exception-1 of Section 300 IPC. As a result, we
are of the view that the case of the appellants would come under Section 304
Part-1 IPC, as the use of a dangerous weapon on a vital part of the body, leads
us to believe that there was a sudden intention to cause death. Accordingly, we
Page No.# 27/27
convict the appellants under Section 304 Part-1 IPC, as we find that the
appellants had caused culpable homicide not amounting to murder for causing
death, with the intention to cause death or such bodily injury as was likely to
cause death. Further, as there was a common intention to cause death or such
bodily injury as was likely to cause death, the appellants are convicted under
Section 34 IPC also. Consequently, the impugned judgment dated 04.04.2019
passed in Sessions Case No.104(NL)/2018 is set aside, in so far as the
conviction has been made under Section 302/34 IPC. The sentence passed on
the basis of the said impugned judgment dated 04.04.2019 is also set aside.
48. The appellants having now been convicted under Section 304 Part-1 IPC
read with Section 34 IPC, they are sentenced to undergo rigorous imprisonment
for 10 years with a fine of Rs.5,000/- each, in default, to suffer rigorous
imprisonment for a further period of 6 months. The impugned judgment dated
04.04.2019 passed by the learned Trial Court is accordingly modified and set
aside to the extent indicated above.
49. Send back the T.C.R.
50. In appreciation of the assistance provided by the two learned Amicus
Curiaes, their fees should be paid by the Assam State Legal Services Authority.
JUDGE JUDGE
Comparing Assistant
