Gauhati High Court
Page No.# 1/8 vs The State Of Assam on 4 September, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/8
GAHC010199352021
2025:GAU-AS:12073-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/46/2021
MADAN THAKURIA
S/O. LT. BHAGIRAM THAKURIA, VILL. SANDHELI (MAKRAPARA),
P.S. BELSOR, DIST. NALBARI, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : , MR. N K KALITA, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE ANJAN MONI KALITA
For the appellant : Mr. N.K. Kalita, Amicus Curiae
For the respondent : Ms. B. Bhuyan, Addl. P.P., Assam
Date of hearing : 04.09.2025
Date of judgment : 04.09.2025
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JUDGMENT AND ORDER
(M. Zothankhuma, J)
Heard Mr. N.K. Kalita, learned Amicus Curiae for the appellant. Also heard
Ms. B. Bhuyan, learned Addl. P.P., Assam appearing for the State.
2. The present appeal has put a challenge to the impugned judgment and
order dated 06.08.2021, passed by the learned Sessions Judge, Nalbari, in
Sessions Case No.29/2014, by which the appellant has been convicted under
Section 302 of the IPC for killing his wife.
3. The prosecution case, in brief, is that an FIR dated 01.06.2013 was
submitted by the brother of the deceased, who was the prosecution witness
No.2 (PW-2). The FIR stated that at around 3:45 pm on 01.06.2013, the
appellant had killed his wife, the deceased, by hacking her with an axe inside
the house. Pursuant to the FIR, Belsor P.S. Case No.54/2013 under Section 302
of the IPC was registered. The investigation was thereafter initiated and on
completion of the investigation, the Investigating Officer submitted his charge-
sheet, having found a prima facie case under Section 302 of the IPC against the
appellant.
4. The learned Trial Court framed charge under Section 302 of the IPC
against the appellant, to which he pleaded not guilty and claimed to be tried.
5. The learned Trial Court thereafter examined 10(ten) prosecution witnesses
and after having examined the appellant under Section 313 Cr.P.C., the learned
Trial Court came to a finding that the appellant had killed his wife with an axe.
The appellant was accordingly convicted and sentenced under Section 302 of
the IPC.
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6. Mr. N.K. Kalita, learned Amicus Curiae submits that the evidence of the
daughter of the appellant and the deceased i.e. PW-9, who is the sole
eyewitness to the crime in question, was not consistent, inasmuch as, PW-9 had
only spoken of 3 injuries on the neck of her mother, while there were 4 injuries
as per the evidence of the Doctor. Further, PW-9 had only spoken of one injury
at the time of her statement made under Section 161 Cr.P.C. He also submits
that certain things that PW-9 had stated in her testimony before the learned
Trial Court had not been stated by her under Section 161 Cr.P.C. PW-9 had not
stated the fact that she had seen her father inflicting the last blow on her
mother with an axe, in her statement under Section 161 Cr.P.C., though the
same had been stated by her in her evidence. He also submits that PW-9 did
not state before the police that her mother's head was about to be severed from
her body due to the axe blow made by the father of PW-9. However, the same
had been stated by PW-9 in her testimony before the learned Trial Court. He
thus submits that when there are inconsistencies in the evidence of PW-9 vis-à-
vis her statement made under section 164 Cr.P.C., it was not safe to convict the
appellant on the sole evidence of PW-9.
7. Ms. B. Bhuyan, learned Addl. P.P., on the other hand, submits that the
statement made by PW-9 under Section 161 Cr.P.C. has not mentioned the fact
that PW-9 had seen the last blow made by her father with the axe on her
mother's neck. Further, PW-9 did not mention that the neck of her mother was
about to be severed in her statement made under Section 161 Cr.P.C. However,
PW-9 in her statement made under Section 161 Cr.P.C. had clearly mentioned
the fact that she saw her mother lying on the floor with blood coming out of her
and her father holding an axe. Further, her father had told her that he had killed
her mother.
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8. The learned Addl. P.P. submits that the appellant in his examination under
Section 313 Cr.P.C. had taken an alibi that the evidence recorded against him
was false, as he was working as an Electrician in Guwahati during the time the
incident had occurred. She submits that the alibi given by the appellant is a
false statement, when it is considered against the evidence of the prosecution
witnesses, who had seen the appellant on the date of the incident in the Village
Sandheli (Makrapara), where the incident occurred.
9. The learned Addl. P.P. further submits that the evidence of PW-1 clearly
shows that the appellant was in his village and had been seen leaving his house
after killing his wife on the day of the incident. She further submits that the
appellant had made an extra-judicial confession to the Village Headman (PW-4)
on the day of the incident, when the appellant rushed into the house of the
Village Headman and asked him to save the appellant. He further told PW-4 that
he had killed his wife and asked him to inform the police. The learned Addl. P.P.
submits that when the evidence of the daughter of the appellant and the
deceased, i.e PW-9, had clearly shown the fact that she was an eyewitness to
the killing of her mother by her father, there was no requirement of any further
witness, inasmuch as, no suggestion had been put by the appellant to PW-9
that her evidence was a lie and had been fabricated.
10. We have heard the learned counsels for the parties.
11. As can be seen from the evidence recorded by the learned Trial Court, PW-
9 had seen her father inflicting injury upon her mother's neck with an axe,
which made her mother's head about to be severed from her body. There is no
suggestion put to PW-9 by the appellant that the evidence of PW-9 was false or
that she was not a reliable witness. The evidence of PW-9 is to the effect that
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on the day of the occurrence, at about 4 p.m, while her father and mother were
talking in the middle of their house, she went to take a bath. Thereafter, she
heard the scream of her mother. On immediately rushing to the room, she
noticed her father inflicting injury on the neck of her mother with an axe. She
also noticed that her father had already inflicted injury twice, by means of an
axe on her mother. She noticed the last blow inflicted by her father on her
mother with an axe, due to which her mother's head was about to be severed
from her body. Thereafter, her father left the axe and went out of the house
with a lathi in his hand. On raising a hue and cry, her sister Pampi Thakuria,
neighbours and relatives appeared at the place of occurrence. Her maternal
uncle also came to the place of occurrence and took her mother to the hospital,
although she had already expired. Later on, the dead body of her mother was
brought to the village and cremated.
12. On perusing the contents of the cross-examination of PW-9 by the
appellant, we notice that no suggestion had been put by the appellant to PW-9,
that the evidence of PW-9 was a lie and had been fabricated. We find the
evidence of PW-9 to be reliable and truthful. In the case of Amar Singh Vs.
State(NCT of Delhi) reported in (2020) 19 SCC 165, the Supreme Court
held that conviction can be based on the sole testimony of a single witness,
provided he is wholly reliable.
13. The evidence of PW-4, who is the Village Headman, is to the effect that
while he was sleeping in his house, the appellant rushed to his house and asked
him to save the appellant. On asking the appellant the reason, the appellant
told PW-4 that he had hacked his wife. He accordingly asked PW-4 to save him
and to inform the police. PW-4 thereafter stated that he came to know that
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people armed with sticks and spears were proceeding towards his house. He
kept the appellant in his drawing room and informed the police. The police came
45 minutes later and guarded the appellant. Thereafter, they took PW-4 to the
house of the appellant, where he saw the wife of the appellant lying prostate
inside the house, with a bleeding injury on her nape.
14. As can be seen from the evidence of PW-4, there was an extra-judicial
confession made by the appellant to PW-4, stating that he had killed his wife
with an axe.
15. The evidence of PW-1, who is the brother of the deceased, is to the effect
that the appellant had spent the night before in his residence. On the day of the
occurrence, the appellant had taken a dao from his house and on enquiry, he
could learn that the appellant had proceeded towards Belsor Police Station. On
reaching Belsor Police Station, PW-1 was asked by the Officer-in-Charge of the
Police Station to take the appellant back to his residence. The appellant was
then made to ride a motor cycle driven by his nephew Balen Thakuria, while
PW-1 followed on a bicycle. On reaching the house of the appellant, he heard
that the accused had given an axe blow on the head of the deceased, resulting
in the death of the deceased. PW-1 then went to the house of the Village
Headman. In his cross-examination, PW-1 stated that when he reached the
place of occurrence, he saw the appellant running from the gate of his house
and he did not notice any weapon in the hands of the appellant at that
time.
16. The chain of events, starting from the appellant being taken from Belsor
Police Station to his house, the fact of the appellant running away from his
house and the evidence of PWs. 4 & 9, shows that the evidence of PW-1
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corroborates the evidence of PWs-4 & 9 that the appellant had killed his wife
with an axe.
17. In the case of Maghar Singh Vs. State of Punjab, reported in (1975)
4 SCC 241, the Supreme Court held that evidence furnished by an extra-
judicial confession made by the accused to witnesses, cannot be termed to be a
tainted evidence and if corroboration is required, it is only by way of abundant
caution. If the Court believes the witnesses before whom the confession is
made and it is satisfied that the confession was voluntary, then, in such a case,
conviction can be founded on such evidence alone. It thus held that an extra-
judicial confession cannot proceed on a fundamentally wrong premise that it is
tainted evidence.
18. With respect to the alibi taken by the appellant in his examination under
Section 313 Cr.P.C., pertaining to Question No.28, that he was not present at the
place of occurrence at the relevant point of time and that he was in Guwahati, is
clearly contradicted by the evidence of PWs-1, 4 & 9.
19. In the case of Binay Kumar Singh Vs. State of Bihar, reported in
(1997) 1 SCC 283, the Supreme has held that strict proof is required for
establishing the plea of alibi. In the present case, the evidence of the
prosecution witnesses clearly shows that the appellant was in Village Sandheli
(Makrapara) on the day of the incident and as there is no proof that the
appellant was in Guwahati on the said date. Thus, the alibi of the appellant
being in Guwahati on the said date of the incident, cannot be accepted by us.
20. The above being said, we are of the view that the bald plea of denial by
the appellant in his examination under Section 313 Cr.P.C, to the gravely
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incriminating evidence, is not sufficient to absolve him of the burden cast upon
him to absolve himself of the crime, as he was in Guwahati at the relevant point
of time.
21. In the case of Phula Singh Vs. State of H.P. reported in (2014) 4
SCC 9, the Supreme Court has held that when an accused chooses to remain
silent or in complete denial when his statement is recorded under section 313
Cr.P.C., the Court would be entitled to draw an adverse inference against the
accused, as may be permissible in accordance with law.
22. In view of the reasons stated above, we do not find any ground to
interfere with the impugned judgment and order passed by the learned Trial
Court. The appeal is accordingly dismissed.
23. Send back the TCR.
24. In appreciation of the assistance provided by the learned Amicus Curiae
his fees shall be paid by the Assam State Legal Services Authority.
JUDGE JUDGE
Comparing Assistant
