Page No.# 1/16 vs The State Of Assm
2025 Latest Caselaw 8163 Gua

Gauhati High Court

Page No.# 1/16 vs The State Of Assm on 30 October, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                        Page No.# 1/16

GAHC010094092023




                                                                  2025:GAU-
AS:14581-DB

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./157/2023

            MD. RAHMAN MIA ANSARI @ RAHMAN MIA
            S/O LT SUDAGAR ANSARI,
            VILL.- BILTILLA-LALACHERRA V.P.S.- LALA,
            DIST.- HAILAKANDI, ASSAM, PIN- 788163.



            VERSUS

            THE STATE OF ASSM
            TO BE REP. BY THE P.P., ASSAM.



Advocate for the Petitioner   : MR. K A MAZUMDER, MR A HAI,M. ROBBANI

Advocate for the Respondent : PP, ASSAM,

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-B E F O R E -

HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON'BLE MR. JUSTICE KAUSHIK GOSWAMI

For the Appellant : Mr. K A Mazumder, Mr. A Hai, Mr. M Robbani, Advocates

For the Respondent : Ms. B Bhuyan, APP, Assam for the State.

Date of Hearing         : 28.10.2025.


Date of Judgment        : 30.10.2025




                         JUDGMENT & ORDER (CAV)

KAUSHIK GOSWAMI, J

Heard Mr. K A Mazumder, learned counsel for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam for the State.

2. This appeal is directed against the impugned judgment of conviction dated 31.03.2023 and sentence dated 03.04.2023 passed by the learned Additional Sessions Judge, Hailakandi [trial court, for short] in Sessions Case No. 96/2016, whereby the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code (murder) and sentenced to undergo imprisonment Page No.# 3/16

for 15 (fifteen) years and to pay a fine of Rs. 10,000/- (ten thousand), in default to undergo further imprisonment for 3 (three) months.

3. The prosecution case in brief is that on 12.05.2011 (date and time as per FIR/record), the deceased, Islam Uddin Talukdar (husband of PW-2 and son-in- law of PW-1) sustained injuries allegedly caused by the appellant. The injured had to be moved from the hospital situated within the limits of the place of occurrence of the police station, i.e., Lala Police Station, Hailakandi, wherein he was initially taken for immediate treatment, to Silchar Medical College situated within the jurisdiction of the Ghungoor Police Outpost [hereinafter referred to as the 'Ghungoor Outpost'] for better treatment. An information concerning the injured person was lodged thereafter at the said Ghungoor Outpost and accordingly, a General Diary entry vide GD Entry No. 274 dated 13.05.2011 was recorded. The police of that outpost thereafter visited the said hospital and when the injured succumbed to his injuries on 14.05.2011 at 12.15 AM, the Executive Magistrate, DC, Cachar, Silchar conducted inquest in presence of PW- 2, PW-9 and the investigating officer, i.e., ASI, Debdas Deb of the said Ghungoor Outpost. The statement of the wife of the deceased, Halima Begum Ansari (PW-2) and Samsuddin (PW-9), were also recorded by the said investigating officer of the Ghungoor Outpost under Section 161 Cr.P.C in connection with the aforesaid GD Entry No. 274 dated 13.05.2011. On 14.05.2011 itself, the dead body being sent by the said investigating officer of Ghungoor Outpost for post-mortem examination to the Silchar Medical College with reference to the aforesaid GD Entry No. 274 dated 13.05.2011, post- mortem was accordingly conducted and report was furnished thereto to the said IO.

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4. Thereafter, after a gap of about two days, i.e., on 15.05.2011, the formal FIR in the present case was lodged at Lala Police Station. The investigating officer of the said Lala Police Station, i.e., Sub-Inspector Sri. Nayanmoni Singha, accordingly registered the case as Lala Police Station Case No. 81/2011 under Sections 302/34 IPC (corresponding to G.R. No. 480/2011) against the accused and another co-accused. Thereafter, on 15.05.2011 and 16.05.2011, the said investigating officer re-recorded statements under Section 161 CrPC of PW-2 and other witnesses in connection with said Lala P.S. Case No. 81/2011.

5. Accordingly, investigation proceeded based on the said FIR dated 15.05.2011, without starting from GD Entry No. 274 leading to Charge-sheet No. 400 submitted on 31.12.2015 against the accused and another person under Sections 302/34 IPC, listing 15 Prosecution Witness, including the first investigating officer of the Ghungoor Outpost.

6. Thereafter, the case was committed to the Sessions Court, wherein after framing charges under Sections 302/34 IPC, the trial commenced. During trial, the prosecution examined 11 PWs. However, the first investigating officer of the Ghungoor Outpost who recorded the initial statement of PW-2 and PW-9, under Section 161 CrPC and in whose presence the inquest was conducted, was not produced during trial. Upon closure of the evidence, the trial court acquitted co-accused Manik Uddin @ Potol @ Ketli, however, convicted the accused appellant under Section 302 IPC sentencing him to undergo 15 years of rigorous imprisonment and to pay Rs. 10,000/- fine, in default to undergo imprisonment for further 3 months. Situated thus, the present appeal has been filed.

7. The primary contentions urged before this Court on behalf of the appellant are:

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(a) the prosecution case rests solely on the testimony of two related witnesses (PW-1 and PW-2) and the testimony of PW-2 is materially inconsistent with earlier statements made by her to the police; specifically, the first statement recorded by police officer, i.e., from Ghungoor Outpost at the hospital/outstation differs from the version later attributed to PW-2 in her court testimony;

(b) there were at least two statements of PW-2 recorded under Section 161 Cr.P.C. before different police stations (Ghungoor Outpost & Lala PS) and they are inconsistent with one another and with her evidence in court; these inconsistencies were not properly explored in cross-

examination;

(c) the first investigating officer, Sri. Debdas Deb, ASI of Ghungoor Outpost (the officer of the outpost where the hospital is located and who recorded the first statement/made the GD entry dated 13.05.2011 and conducted the inquest) was not produced/examined by the prosecution at trial and the GD entry/inquest papers made at Ghungoor Outpost were not exhibited; the omission creates a lacuna in the prosecution case and requires elucidation; and

(d) the sentence imposed by the Trial Court for 15 years is legally impermissible for a conviction under Section 302 IPC, inasmuch as Section 302 prescribes punishment by death or imprisonment for life; the imposition of a lesser term of 15 years is therefore erroneous and requires notice/reconsideration.

8. We have heard Mr. K A Mazumder, learned counsel for the appellant as Page No.# 6/16

well as Ms. B Bhuyan, learned Additional Public Prosecutor, Assam for the State. We have also examined the records and the evidence carefully.

9. On a close reading of the depositions of PW-2, wife of the deceased Halima Begum Ansari, it is apparent that there are material inconsistencies between what is said to have been recorded by the police at the Ghungoor Outpost at the first instance and what was ultimately deposed to in the witness box. In her first recorded statement (on the version placed before the Court) PW-2 is said to have stated that the deceased informed her that he had been struck by the appellant; in her later statement/witness box version she says she personally saw the accused assaulting the deceased. Viewed in the context of the initial version given by the PW-2 before the Ghungoor Outpost, the testimony of PW-1 also becomes doubtful, since she deposed that upon hearing hue and cry from the road in the front of her house, she went there, wherein she found the deceased was being assaulted by the accused and another person and though she tried to disperse the accused but she could not, however, PW-2 reached the place of occurrence and was able to disperse them. Such variations go to the core of the ocular account and materially affect the reliability of the testimony of the two related witnesses. Where the prosecution case primarily rests on the testimony of the said related witnesses, the trial court must subject such testimonies to the closest scrutiny and must note whether any prior statement of the witnesses recorded under Section 161 Cr.P.C. is inconsistent and, if so, whether that prior statement was put to the witness in cross-examination. If not, the accused is deprived of a fair opportunity to test the witness' veracity before the fact-finder.

10. It is furthermore an important matter that the first investigating officer Page No.# 7/16

from Ghungoor Outpost', who, by the prosecution's own account, made the first GD entry, visited the hospital, caused the inquest/post-mortem formalities and recorded PW-2's earliest statement, was not produced/examined at the trial. The first GD entry, the inquest papers, and the first statement recorded by that outpost, if they exist, are relevant documents and testimony for appreciating whether the sequence of events narrated by prosecution is correct and complete. Their non-production, without explanation, casts a shadow on the completeness of the prosecution case. In Bircha Kurmi -Vs- State of Assam , reported in 2013 (4) GLT 1017 the Hon'ble Division Bench of this Court in Criminal Appeal (J) No. 57/2009 by judgment and order dated 02.08.2013 in the context that though police investigation had commenced on the basis of the oral information which had been received at the Digboi police station from the headman of the village concerned, the officer-in-charge of that police station was not examined nor the fact as to whether any General Diary Entry had been made on the basis of the said information received by the officer-in-charge, Digboi Police Station, held that the impugned conviction is unsustainable in the absence of the contents of the said initial General Diary Entry as well as the evidence of the said Officer-in-Charge of Digboi Police Station and the concerned person who informed over phone about the occurrence of the alleged incident to the headman. The relevant paragraphs of the said judgment and order read as under -

"18 From a bare reading of the above evidence, what becomes transparent is that before Ext 1 was lodged, at Digboi Police Station, by PW1, younger brother of the said deceased, police investigation had already commenced on the basis of the oral information, which had been received, at the said Police Station, from PW11, headman of the village concerned.

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19. In the circumstances indicated above, it was incumbent, on the part of the prosecution, and so was incumbent on the part of the learned trial Court, to examine Md Abdul Hannan, Officer-in- Charge, Digboi Police Station, and also bring on record as to whether any General Diary Entry had been made, on the basis of the information, so received, by the Officer-in-Charge, Digboi Police Station, from PW11, headman of the village concerned, 7 Criminal Appeal (J) 57/2009 inasmuch as the oral information, so received by police, had been acted upon and the contents of Ext.1 would, in law, be nothing, but a statement made, in writing, by PW11 to the police during investigation.

20. Situated thus, it is clear that Ext. 1 could not have been treated as the First Information Report There was, thus, serious lapse, on the part of the prosecution as well as the learned trial Judge, in not examining Apurba Saikia, who had, according to the evidence of PW11, informed their village headman, Krishna Mahato (PW11), and also the Officer-in-Charge, Digboi Police Station, namely, Md. Abdul Hannan, and also bring on record the General Diary Entry, if any, which might have been made, at Digboi Police Station, before the police personnel had moved out of the said Police Station to visit the place of occurrence and investigate the offence, which had been reported to them Non-examination of Apurba Saikia and Abdul Hannan as witnesses and the omission to bring on record the General Diary Entry, if any, which might have been made before the police personnel had moved out of the said Police Station, are serious lapses, on the part of the prosecution and the learned trial Judge and for these omissions, cause of justice cannot be allowed to suffer.

21. What is, now, of utmost importance to note is that a trial Judge is not merely a recording machine of evidence given by the witnesses nor can he be a silent spectator to the evidence produced by the parties. Though a trial Judge must not drop the mantle of a Judge and assume the role of a prosecutor or a defence counsel, the fact remains that his duty is to reach the truth and Section 165 of the Evidence Act gives the Judge adequate power and authority to put any question to any witness at any time -- be it during the course of examination-in-chief or cross-examination or at the end of Page No.# 9/16

any such examination or re-examination which, to the Judge, appears to be 8 Criminal Appeal (J) 57/2009 necessary for a just decision of the case and in order to discover or obtain proof of relevant fact. Though a Judge must not usurp the function of a counsel, he needs to participate, in the trial, in such a manner as would ensure that the evidence, adduced by the parties, is legal and such evidence becomes clear, complete and intelligible. A Judge, who merely sits at a trial and records evidence without caring to conduct examination of the witnesses in order to ensure that evidence on record becomes intelligible, must be held to have not performed his duty as warranted by law A Judge is not merely an observer. It is his duty to explore, within permissible limits, the truth. If, therefore, a Judge finds that the examination of a witness is not being conducted in such a way as to unfold complete truth, it is not only right for the Judge, but his duty to intervene and put such questions as may be warranted and permissible within the ambit of Section 165. A Judge cannot behave like a passive agent, when a case is tried before him. He has the power and also the duty to question the witnesses in order to elicit relevant materials. A case cannot be allowed to suffer for failure of any of the parties to elicit relevant materials from a witness. It is to discover the truth and bring, on record, the relevant facts that a Judge has been vested with the power to put questions under Section 165. It is with this object in view that the Judge has been vested with the power to call any witness or recall any witness at any time suo moto or at the instance of any of the parties if it becomes necessary for a just decision of the case. If the prosecution omits to bring out any relevant, fact or the defence elicits from a witness, in the cross- examination, a statement, which is obscure or incomplete, the defence does not acquire (the Judge must bear in mind) a vested right in such limited cross-examination. It is the duty of the Judge to remove such obscurity or incompleteness by putting appropriate question. In such a case, it is, rather, 9 Criminal Appeal (J) 57/2009 the duty of the Judge, conducting the trial, to elicit from the witness complete information so that the evidence given by him or her becomes clear and intelligible, though his putting of questions cannot be in a manner as if the witness is under cross-examination nor can such examination be aimed at destroying or diluting the Page No.# 10/16

effect of the cross-examination of the witness by the defence. It is for this reason that a Court shall not put, in exercise of its powers under Section 165, leading question or put words into the mouth of the witness.

22. In the light of the law as discussed above, one cannot ignore the fact and we must point out that the conviction of the accused- appellant, without bringing the contents of General Diary Entry as well as the evidence of Officer-in-Charge, Digboi Police Station, and Apurba Saikia, were serious infirmities in the trial and, in the face of such infirmities, the conviction of the accused-appellant cannot be sustained and the present case needs to be remanded back to the learned trial Court for disposal in accordance with law.

23. Because of what have been discussed and pointed out above, the impugned judgment and order, convicting the accused-appellant and the sentence passed against him, are hereby set aside and the case is remanded to the learned trial Court for disposal in accordance with law, preferably within a period of three months from the date of receiving a copy of this judgment and order, by bringing on record the contents of the General Diary Entry by calling Md. Abdul Hannan, the then Officer-in-Charge, Digboi Police Station, and/or by calling, if necessary, the present Officer-in-Charge, Digboi Police Station, and the said Apurba Saikia.

24. Before parting with this appeal, we place it on record that we have consciously refrained ourselves from commenting on merit or otherwise of the conviction of the accused-appellant so that the learned trial Court 10 Criminal Appeal (J) 57/2009 remains free to come to its own independent finding after having brought on record the omitted materials and, in the light of additional evidence, which may come on record, and after, of course, having allowed the defence to adduce, if they so seek, such evidence in support of their defence, as may be permissible in law."

11. Now turning back to the impugned sentence awarded under the judgment of sentence in appeal, Section 302 of the Indian Penal Code prescribes punishment by death or imprisonment for life and fine. The punishment for murder under Section 302 IPC that can be awarded by the convicting Court is Page No.# 11/16

death or imprisonment for life and fine. Therefore, the minimum sentence provided for the offence punishable under Section 302 IPC would be imprisonment for life and fine. The Apex Court in the case of The State of Madhya Pradesh -Vs- Nandu @ Nandua in Criminal Appeal No. 1356 of 2022 observed that punishment of death is the extreme exception and that life imprisonment is the normal sentence under Section 302. The Apex Court further in that context, observed that awarding a sentence less than life for a conviction under Section 302 is impermissible. Relevant Paragraph of the aforesaid judgment reads as under -

"5. Having heard the learned counsel appearing on behalf of the Sate and considering the impugned judgment and order passed by the High Court by which though the High Court has maintained the conviction of the respondent - accused for the offence under Section 302 IPC, but the High Court has reduced the sentence to already undergone, i.e., seven years and ten months, we are of the firm view that the same is impermissible and unsustainable. The punishment for murder under Section 302 IPC shall be death or imprisonment for life and fine. Therefore, the minimum sentence provided for the offence punishable under Section 302 IPC would be imprisonment for life, if an accused is convicted for the offence punishable under Section 302 IPC. Any punishment less than the imprisonment for life for the offence punishable under Section 302 would be contrary to Section 302 IPC. By the impugned judgment and order though the High Court has specifically maintained the conviction of the accused for the offence under Sections 147, 148, 323 and 302/34 IPC, but the High Court has reduced the sentence to sentence already undergone which is less than imprisonment for life, which shall be contrary to Section 302 IPC and is Page No.# 12/16

unsustainable "

In the light of the aforesaid judgment of the Apex Court, the Trial Court's award of a 15 year term, therefore, calls for scrutiny and correction.

12. In the facts and circumstances of the present case, we thus find that -

(i) there are material discrepancies in the prosecution evidence: the earlier statement(s) of PW-2 (as placed on record) are not in complete harmony with her testimony in the witness box; those contradictions were not adequately and specifically put to PW-2 in cross-examination so as to afford the defence a fair opportunity to test the witness' story;

(ii) the first investigating officer and the first GD entry/inquest papers made at the Ghungoor Outpost within whose jurisdiction the hospital is (and by whose police PW-2's earlier statement was recorded) were not produced/exhibited at the trial; in consequence, the chronology and content of the earliest police action and statements cannot be satisfactorily ascertained from the record as it stands; and

(iii) the sentence of 15 years imposed by the Trial Court for a conviction under Section 302 IPC is manifestly at variance with the punishment prescribed under Section 302 IPC and requires corrective notice and consideration by the appropriate forum.

13. In the result we are of the considered view that the trial has suffered from such procedural and evidentiary lacunae that the interests of justice demands that this Court should not sustain the conviction and sentence in its present form without affording an opportunity to cure those lacunae.

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14. For the foregoing reasons:

(a) The appeal is allowed to the extent indicated below. The impugned judgment of conviction dated 31.03.2023 and sentence dated 03.04.2023 passed by the learned Additional Sessions Judge, Hailakandi in Sessions Case No. 96/2016 are set aside.

(b) The matter is remitted to the Court of the learned Additional Sessions Judge, Hailakandi for re-hearing/re-appreciation of evidence in the following manner:

(i) The Trial Court shall take on record additional evidence as may be necessary in the interest of justice, including but not limited to: the production and exhibition of the first GD entry, the inquest papers/inquest report, the post-mortem report and any other contemporaneous papers made at the outstation police station; and the production and examination of the first investigating officer of the Ghungoor Outpost to clarify the position as to the initial recording of statements, the timing and contents of GD entries and the inquest procedures.

(ii) The prosecution shall produce all relevant documents in its possession and any statement(s) recorded under Section 161 Cr.P.C.

(including those recorded at the Ghungoor Outpost) shall be exhibited to the Trial Court.

(iii) PW-2 and other witnesses shall be given the opportunity to be further cross-examined on any prior statement(s) and on the newly produced material; the defence shall be permitted to confront the Page No.# 14/16

witness with her earlier statement(s) as recorded at the Ghungoor Outpost and shall be entitled to re-examine/recall any witness if necessary in the interest of justice.

(iv) After recording such additional evidence and after allowing such further cross-examination/re-examination as may be necessary, the Trial Court shall re-appreciate the entire evidence and pass a fresh judgment in accordance with law.

(c) This Court notes the issue with regard to sentence. In view of the fact that Section 302 IPC prescribes punishment by death or by imprisonment for life, and in view of the observations of Apex court to the effect that less than life imprisonment is not normally permissible for an offence under Section 302 IPC, the Trial Court is directed to take note of the legal position while making any order of sentence after re-appreciation. If, upon re-appreciation of evidence, the accused is again convicted for an offence under Section 302 IPC, the Trial Court shall pass sentence strictly in accordance with law, with full reference to Section 302 IPC and the established jurisprudence thereon; sentences that are manifestly inconsistent with Section 302 IPC shall not be passed.

(d) The appellant having been granted bail by this Court pending the appeal vide order dated 17.09.2025 passed in I.A.(Crl) No. 371/2023, let the appellant remain on such bail until disposal of the matter by the Trial Court in accordance with this order. The bail bond and surety (if any) furnished earlier shall continue to be in force subject to the usual conditions.

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(e) The Trial Court shall complete the exercise directed above and pronounce the fresh judgment and order, preferably within six months from the date of receipt of certified copy of this order. If the Trial Court for reasons recorded in writing finds that it is not possible to complete the exercise within six months, it may record reasons and complete it as expeditiously as possible thereafter.

(f) Liberty is given to both parties to place additional material/authorities before the Trial Court and, if necessary, to apply to this Court in case of any difficulty in complying with the directions contained herein.

15. The Registry shall place a certified copy of this order and the records of Sessions Case No. 96/2016 before the Court of the learned Additional Sessions Judge, Hailakandi with a direction to proceed in accordance with this order. The Trial Court shall ensure that all relevant police records (GD entries, inquest papers, statements under Section 161 Cr.P.C., post-mortem report) are called for from the Outpost, police station(s) and made part of the trial court record.

16. It is made clear that this order does not express any opinion on the guilt or innocence of the accused; it is confined to the limited exercise of ensuring that the trial court and the appellant has an opportunity to examine the missing link(s) in the prosecution case and to ensure that any sentence passed, if conviction is again recorded, is in accordance with law.

17. The appeal is accordingly allowed in terms of the directions above.

18. Return the TCR.

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JUDGE JUDGE

Comparing Assistant