Page No.# 1/3 vs The State Of Assam And Anr
2026 Latest Caselaw 3152 Gua

Gauhati High Court

Page No.# 1/3 vs The State Of Assam And Anr on 6 April, 2026

Author: Nelson Sailo

Bench: Nelson Sailo

                                                                            Page No.# 1/30

GAHC010263562023




                                                                       2026:GAU-AS:5036-
DB

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

                                Case No. : Crl.A./474/2023

            DAINEISANG PUDAITE
            S/O SRI KHUNZUL PUDAITE,
            VILL.- P. HNACHANGJAL, P.O.- DITTOKCHERA, P.S.- HARANGAJAO, DIST.-
            DIMA HASAO (ASSAM), PIN- 788818.


            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY P.P., ASSAM.

            2:BABUL ACHARJEE
             S/O LT. SATISH CHNADRA ACHARJEE

            VILL.- KAYANG DESUWALI BASTI
            P.O.- DITTOKCHERA
            P.S.- HARANGAJAO
            DIST.- DIMA HASAO (ASSAM)
            PIN- 788818

Advocate for the Petitioner   : MR. B BARUAH, MR U RONGPI

Advocate for the Respondent : PP, ASSAM, MR. B K SEN (R-2),MR A HUSSAIN (R-2),N HASAN

(R-2)

BEFORE HON'BLE MR. JUSTICE NELSON SAILO HON'BLE MR. JUSTICE PRANJAL DAS

Date on which judgment is reserved: 12.02.2026 & 13.02.2026 Date of pronouncement of judgment: 06.04.2026 Page No.# 2/30

Whether the pronouncement is of the Operative part of the judgment : N/A Whether the full judgment has been Pronounced : Yes

JUDGMENT & ORDER (CAV)

(Mr. Pranjal Das, J)

Heard Mr. B. Baruah, learned counsel for the appellant. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor, Assam for the State respondent and Mr. B. K. Sen, learned counsel for the respondent No. 2.

2. The instant criminal appeal has been filed by the convict appellant Daineisang Pudaite against the judgment dated 27.09.2023 and sentence and order dated 05.10.2023 passed by the learned Sessions Judge, Dima Hasao, Haflong in Sessions Case No.28/2015, whereby, the convict appellant has been convicted under Sections 302/341 IPC and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- in default to undergo further imprisonment for 6(six) months.

3. The prosecution case in brief, which was before the learned Trial Court was that an FIR was lodged on 31.03.2015 by one Babul Acharjee at the Harangajao police station in district of Dima Hasao alleging that on 28.03.2015 at about 9.00 P.M. one Doya Hmar of Hrangchal along with two of his associates confined his brother Haradhan Acharjee and severely assaulted him.

4. Upon receipt of the FIR, Harangajao P.S. Case No. 04/2015 was registered under Sections 341/325/34 IPC and investigation started.

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Subsequently, the victim of the alleged assault died and after completion of investigation, the I/O submitted charge-sheet against the present convict appellant and three other accused persons, namely Pangin Hmar @ Gin, Khupming Houlong and Routsang Murte under Sections 341/302/34 IPC and showing the other three accused persons as absconders.

5. Subsequently, after committal of the case and other formalities charges were framed against the present convict appellant by the learned trial Court on 14.02.2019 under Sections 341/302 IPC. The charges being denied, led to commencement of the trial, during which, the prosecution examined 9(nine) witnesses.

6. After completion of prosecution evidence, the convict appellant was examined under section 313 Cr.P.C., which was followed by defence evidence, during which, the defence adduced the evidence of two witnesses. After completion of the trial, the learned Trial court convicted and sentenced the appellant as already stated above. Aggrieved by the same, the present appeal has been filed.

7. Mr. Baruah, the learned counsel for the appellant submits that the impugned judgment suffers from infirmity and that conviction of the appellant was recorded on mistaken identity. It is submitted that the victim was alive for two and a half months but dying declaration though recorded was not exhibited. It is submitted that P.W-1 in his testimony did not state his father's name and address and that P.W-1 could be some other person also. It is submitted that during the investigation, no Test Identification Parade (TIP) was held. It is submitted that P. W. 3 reveals in his testimony that he does not know the identity of the accused and that the testimony Page No.# 4/30

of P.W-4 is mere hearsay.

8. It is reiterated and submitted that witnesses have not stated about the appellant's father's name and address and that nowhere in the evidence, it has been revealed that the name of the appellant is Daya. It is submitted that P.W-7 who was the M.O. was re-examined after three months. It is submitted that there is nothing in the prosecution evidence as to who gave the fatal blow. It is submitted that there were other assailants but the role of the appellant is not supported by evidence and that the nature of the incident is not revealed from the prosecution's evidence.

9. It is submitted that the alleged statement of the victim before the I.O. was on 04.06.2015 and death took place on 16.06.2015. It is submitted that the prosecution has not been able to discharge its burden in the criminal trial and therefore, the impugned judgment and order requires interference through this appeal.

10. On the other hand, Mr. R.R. Kaushik, the learned Additional P.P. submits that from the testimony of P.W.-1 and P.W.-3, it is revealed that the victim knew the accused and that P.W.-1 and P.W.-3 knew the accused as Doya. It is submitted that it is also revealed from the examination under section 313 Cr.P.C. that the appellant is known as Doya.

11. The prosecution submits that the dying declaration in this case can be relied upon and it is submitted that the incident had taken place in Ditokcherra Market. The prosecution reiterates that from the testimony of P.W-1, P.W-3 and his examination under section 313 Cr.P.C, the identity of the appellant as Doya is revealed.

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12. Mr. B.K. Sen, the learned Counsel for the informant supports the contentions of the prosecution and further submits that the convict appellant namely Daineisang Pudaite @ Doya are one and the same person. In this context, it is submitted by Mr. Sen, the learned counsel for the informant that the victim and the accused belong to the same village and therefore, the identity of both the names is cogently proved. In support of his contentions, the learned counsel for the appellant cites the following decision:-

(i) State of H.P. Vs. Prem Chand (2002) 10 SCC 518.

13. In support of his contentions, the learned counsel for the convict appellant cites the following decisions:-

(i) Ajmal Vs. State of Kerala (2022) 9 SCC 766,

(ii) Irfan @ Naka Vs. The State of Uttar Pradesh in Criminal Appeal Nos. 825-826 of 2022,

(iii) Hem Singh @ Hemu Vs. State of Haryana (2009) 6 SCC 748,

(iv) Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan (2013) 5 SCC 722,

14. Similarly, in support of his contentions, Mr. R.R. Kaushik, the learned Additional P.P. submits the following decisions :-

(i) Kalipado Gope Vs. State of Bihar (1986) 0 Supreme (Pat) 314,

(ii) Prasad Pradhan and Another Vs. State of Chhattisgarh (2023) 11 SCC 320,

(iii) State of Rajasthan Vs. Kishore (1996) 8 SCC 217, Page No.# 6/30

(iv) Neeraj Kumar @ Neeraj Yadav Vs. State of U.P. & Ors. 2025 LiveLaw(SC) 1171.

Discussion and Decision

15. The prosecution case is mostly based on multiple dying declarations and medical evidence. Before taking up the testimony of the prosecution witnesses, we first look at the medical evidence adduced during the trial. As per the prosecution story, the victim was initially injured due to assault by the appellant and others. And in this regard, P.W.-9 Dr. Sudipan Dey from the Silchar Medical College Hospital testified that on 31.03.2015, he was posted at the SMCH in the Department of Orthopaedics, and on that day, he prepared a medical report on the basis of hospital records on police requisition, of Haradhan Acharjee. The report has been exhibited as Ext-P14 and his signature as Ext- P14(1). In cross-examination, he stated about one cervical spine injury on the patient and no other injuries.

16. It has emerged from the testimony of P.W.-1 that the victim underwent treatment in SMCH, Silchar after the incident, and thereafter, in GMCH, Guwahati and he returned home from there and a week later, he expired. The autopsy was done by Dr. Netromoni Kakati, who adduced evidence during the trial as PW-7. In his evidence, he stated that on 16.06.2015, while being posted at Silchar Medical College in the Department of Forensic Medicine, he conducted post-mortem examination on the dead body of Haradhan Acharjee in connection with Katighora PS GD Entry No. 474 dated 15.06.2015. Upon external examination, he found a bed sore of size 12cm x 10cm to 8cm x 6cm. He found the vertebra contused at the level of C5 to C7 and transverse fracture present on the Page No.# 7/30

cervical sixth vertebra. The brain was found to be congested and spinal cord was found to be contused at the level of C4 to C7. In his opinion regarding that, PW-7 stated that death was due to shock, resulting from injury present in the cervical vertebra and that the injury was ante mortem and caused by blunt force impact. He proved the medical report as Exhibit P12 and his signature thereon as Exhibit P12(1), P12(2).

17. In cross-examination, he stated that the injury mentioned was an old one and there were no other injuries. He also stated that such an injury can also be caused if a person falls on a hard surface from a height of about 10 feet. There was re-examination of PW7, the autopsy doctor, but no further cross-examination. In such re-examination, PW7 stated that the injury found on the body of the deceased by way of contused vertebrae at the level of C5 to C7 and transverse fracture present on cervical sixth vertebra is fatal. He further stated that as there is fracture of the cervical sixth vertebra, it is sufficient to cause death of the deceased.

18. Thus, from the medical evidence, it appears that the victim suffered an ante mortem injury on the cervical region caused by blunt force impact and the said assault on the cervical region caused contusion of the vertebrae in the cervical region and fracture of the sixth vertebrae and such injury was held by the medical opinion to have been fatal for the victim.

19. Now, the next question is as to who caused that assault and injury upon the victim, resulting in his death though not immediately after the incident of assault, and as to whether the appellant and others implicated were responsible for the same. The question is whether during the trial, the prosecution succeeded in proving that the appellant was responsible Page No.# 8/30

for causing the injury on the victim, eventually leading to his death. Before proceeding further, it may be mentioned herein that in the FIR, the allegation of assault was against Doya Hmar along with two others.

20. After completion of investigation, the Investigating Officer submitted chargesheet against 4 (four) persons, including the appellant. The other three persons namely Paugin Hmar, Khupming Huolong and Routsang Murte were shown as absconders. The learned Trial Court made efforts to procure the attendance of these absconding persons and eventually issued proclamation and attachment. However, these three persons could not be found and they continued to be absconding. Eventually, on the basis of the report of proclamation and attachment and upon examination of the Executing Officer, these three absconding accused were declared as proclaimed absconders and the case filed with regard to them. The trial proceeded only against the present appellant and he was convicted and sentenced thereby resulting in the instant appeal.

21. There are no eyewitnesses to the alleged incident of assault of the victim. The case is based on circumstantial evidence. Before proceeding further, Para 153 of the seminal Judgment on Circumstantial Evidence in Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 may be reproduced herein below:-

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or Page No.# 9/30

should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

22. In this paragraph, the Hon'ble Supreme Court has summarized the principles pertaining to proof by circumstantial evidence in a criminal trial. Therefore, the evidence on record produced during the trial in the instant case have to be appreciated and tested on the touchstone of these fundamental principles of circumstantial evidence to determine as to whether the learned Trial court was correct in holding that the prosecution successfully proved its case during the trial.

23. PW-1 is Benu Madhab Das. During his deposition, he identified the accused at the dock as Doya Hmar. From the testimony of PW1, it is revealed that he used to work together with the victim Haradhan Acharjee, and on the next morning of the incident, he along with Rajesh Mishra went to the house of the victim and called him out for usual work but found him in an injured condition. PW-1 stated that Haradhan told him Page No.# 10/30

that he was badly assaulted on the night before by Doya Hmar and two of his associates at Ditokcherra Bazar and they threw him into a ditch and he was brought back by his elder brother, Babul Acharjee, the next morning of the incident. PW-1 further testified about the victim being taken to SMCH, Silchar at the suggestion of the police and thereafter he was taken to GMCH at Guwahati and later, on the advice of the doctor at GMCH, Guwahati, Haradhan Acharjee was brought back home. He further testified that a week after reaching his home from GMCH, Haradhan Acharjee died.

24. In cross-examination, he stated that the victim named Doya Hmar is the perpetrator of the assault on him and PW-1 also stated that he knew Doya Hmar from before the incident. He denied the suggestion that Doya Hmar was not involved in the incident. He admitted in cross-examination that he is not an eyewitness and his knowledge about the incident is based on what he heard from the victim.

25. The statement of PW-1 about being told by the victim that he was assaulted by Doya Hmar and two associates can be taken to be an oral dying declaration. In our law, for a dying declaration to be admissible, it is not necessary that the person making the declaration should be under an expectation of death. All that is required is that the statement should pertain to circumstances pertaining to his death. Ideally, a dying declaration should be recorded before a Magistrate and certified by a Doctor. However, it is not the law that dying declarations made in less than ideal conditions would not be admissible if they are otherwise found to be trustworthy.

26. PW2 Rajesh Mishra, who was referred to by PW-1, also testified that when he went to the house of the victim, he told him that on the previous Page No.# 11/30

night he was badly assaulted by Doya Hmar and two of his associates. In cross-examination, he stated that the victim was in an injured condition and he reiterated that the victim told him that Doya Hmar and two of his associates were behind the attack.

27. Therefore, the aforesaid testimony of PW-2 corroborates the testimony of PW-1 and the statement purportedly made by the victim before PW-2 about being assaulted on the previous night by Doya Hmar and his two associates is also in the nature of an oral dying declaration.

28. PW-3 Babul Acharjee is the brother of the victim and he testified that the incident took place on 28.03.2015. And on the next day, in the wee hours of 3 am, one Karobi Rai telephoned him stating that his brother Haradhan Acharjee was crying behind Kalibari at Ditokcherra Bazar. PW-3 stated that on hearing this, he along with his another brother Amal Acharjee went to the spot and found his victim brother in an injured condition lying by the side of the ditch and he was brought to the house. PW-3 stated that upon being asked, his brother Haradhan Acharjee told him that Doya Hmar and two of his associates threw him into the ditch, as a result of which he became unconscious and after he regained sense, he cried for help.

29. PW-3 is also the informant and he lodged an FIR before the Ditokcherra outpost which he exhibited as Ext-1 and his signature thereon as Ext- 1(1). He testified that about two and a half months from the date of the incident, his victim brother died at his residence after undergoing treatment at Silchar Medical College Hospital as well as Guwahati Medical College Hospital. PW-3 stated that his brother died due to the internal injuries sustained by him because of the attack on him by Doya Hmar. In Page No.# 12/30

cross-examination, he explained the delay in lodging the FIR, as due to attending to his injured brother and his treatment. He stated that he knew Doya Hmar from before the incident. PW-3 testified in his cross- examination that it was revealed by his victim brother that Doya Hmar and his associates were under the influence of liquor at the time of the incident. He denied the suggestion that accused Doya Hmar present in the dock was not the culprit.

30. The testimony of PW-4, Abdul Jalil is not very significant as he has only stated about seeing the dead body in the house of Bana Bihari Acharjee and he stated that he knew that the victim was a patient and stayed there for about two months. In cross-examination, he admitted that he does not know the cause of the death of the victim.

31. Thus, from the testimony of the informant PW-3 also, the statement of the victim by way of a dying declaration emerges inasmuch as the victim had clearly told PW-3 who was his brother that he was thrown into the ditch by Doya Hmar and his associates. This statement of the victim before PW-3 would also be in the nature of the oral dying declaration.

32. PW-5 Bana Bihari Acharjee is another brother of the victim and he also stated about the incident having taken place on 28.03.2015. He stated that after 15 days of the incident, his another brother Babul Acharjee brought his victim brother at his house after being discharged by the authorities of GMCH. PW-5 stated that on being asked by his brother, he stated that on 28.03.2015, he was badly assaulted by Doya Hmar along with two others at Dittockcherra from where he was shifted to Harangajao PHC, then to SMCH, Silchar and then finally to GMCH, Guwahati. PW-5 stated that after about two months of treatment also, he could not recover Page No.# 13/30

from the injuries sustained and succumbed to his injuries at his residence. In cross-examination, he admitted that he did not know Doya Hmar.

33. It is important to note that from the testimony of PW-5 also, an oral dying declaration of the victim emerges. PW-5 testified about being clearly told by his injured brother that on 28.03.2015, he was badly assaulted by Doya Hmar and two others at Dittockcherra.

34. PW-6, Rekmat Ali Mazarbhuiya, a police official testified that on 15.06.2015, while being attached at Katigorah PS, his OC received an information from Babul Acharjee that on 29.03.2015, his brother Haradhan Acharjee was assaulted by some miscreants at Dittockcherra and later, he was admitted at SMCH, Silchar from where he was referred to GMCH, Guwahati. He stated that after some recovery, he stayed at his brother's house at Katigorah while continuing treatment, but he succumbed to his injuries subsequently. GD entry No. 474 dated 15.06.2015 was made and that he was instructed to conduct an inquest on the dead body of the deceased. He proved GD entry No. 474 as Ext-10 and as Ext-10(1) as the signature of the then OC, Katigorah PS, Nitai Chandra Singha stating that he knew the signature. He proved the inquest report as Ext-11 and his signature as Ext-11(1). In cross-examination, he stated that he got information about the assault upon the victim and later his death after two and a half months while staying at his brother Babul Acharjee's residence.

35. PW-8 is the main Investigating Officer of the case and he is Gunajit Pathak. He stated in his deposition that on 31.03.2015 while being posted at Ditokchera outpost as I/C, he received an information from Babul Acharjee that his brother Haradhan Acharjee was seriously assaulted by one Doya Hmar of Nachangchol village along with two other persons, as a Page No.# 14/30

result of which he became unconscious and he was thrown into a roadside. PW-8 stated that upon getting this information, he made GD Entry vide Dotokcherra OP GD Entry No. 1189 dated 31.03.2015. At that time, Babul Acharjee also lodged a written FIR which was forwarded to the OC, Harangajao PS and registered as Harangajao PS Case no. 04/2015 under section 341/325/34 IPC. PW-8 was endorsed to investigate. He has testified about the steps of investigation. He proved the sketch map as Ext P-13 and his signature as Ext P-13(1). He stated that he visited SMCH for recording statement of the victim but could not do so as he was not in a position to depose at that time. He stated that after his release from SMCH, he visited and recorded the statement of the victim at his original house at Katighora.

36. However, we find that unfortunately that statement of the victim recorded by the IO was not exhibited during the trial. He proved the medical record as Ext-14. During the course of investigation, he came to know that the victim had expired due to the injury sustained on his person on 15.06.2015. After completion of investigation, he submitted chargesheet which he exhibited as Exhibit P-15 and his signature thereon as Ext P-15(1). In cross-examination, he stated that the date of incident was 28.03.2015. He admitted that the identification of the accused was not conducted. He denied that the victim and the witnesses had not stated the name of the accused. He denied that Doya Hmar is not involved in the incident and that he is not the person named by the victim and witnesses or that he was innocent.

37. Upon perusing the prosecution evidence, we find that the medical evidence clearly indicated a homicidal death due to ante mortem blunt Page No.# 15/30

force injury on the cervical region which led to fractures of the sixth cervical vertebra which has been medically opined to be fatal, resulting in the death of the victim. The medical evidence thus clearly proves that the death of the victim was a homicidal death.

38. Regarding the identity of the assailant, it has emerged from the testimony of PW-1, PW-2, PW-3, PW-5 that these witnesses were reported to and told by the victim upon being asked, that he was assaulted by Doya Hmar and his two associates. The statements of the victim before these witnesses as revealed by the testimony of these witnesses can be taken as oral dying declarations as already stated. Unfortunately, the statement before the I.O. was not brought into the record during the trial. Therefore, the contents of the said statement before the I.O. of the victim is not part of the testimony. Nevertheless, the testimony before PW-1, PW-2, PW-3 and PW-5 are consistent with one another and constitute oral dying declarations, unanimously revealing about the victim stating that he was assaulted and injured by Doya Hmar and his two associates.

39. Out of these witnesses, PW-2 is not a family member and not a related witness. PW-2 is an independent witness and even he has stated about the victims making such an oral dying declaration. With regard to the law of oral dying declaration, a reference may be made to the decision of the Hon'ble Supreme Court in the case of Kamal Khudal v. State of Assam, reported in (2022) 20 SCC 654. The relevant Para 22, 23 and 24 may be reproduced herein below:-

"22. The law regarding the nature, scope and value as a piece of evidence of oral and written dying declarations is now fairly well settled by various judicial decisions of this Court. A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the Page No.# 16/30

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 veracity. The court has, therefore, to subject it to close scrutiny. But once the court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon. However, if there are infirmities and the court does not find it safe to base any conclusion on it without some further evidence to support it, the question of corroboration arises.

23. We may refer to one of the decisions of this Court in Heikrujam Chaoba Singh v. State of Manipur [Heikrujam Chaoba Singh v. State of Manipur, (1999) 8 SCC 458 : 1999 SCC (Cri) 1460] , wherein in para 3 this Court observed as under : (SCC p. 461) "3. An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability."

24. "Truth sits upon the lips of a dying man."

-- Matthew Arnold The whole idea of accepting a statement in the name of dying declaration comes from a maxim "nemo moriturus praesumitur mentire" which means that a man will not meet his maker with a lie in his mouth. It is believed that when a man is at the point of death and when every expectation of this world is gone, it hushes away every motive of lie."

40. We have not found any inconsistency in the oral dying declarations and as already mentioned, they are all on identical lines about the victim being assaulted and injured by Doya Hmar and his two associates. Therefore, together with the medical evidence and the oral dying declarations, it can be said that on the day of the incident on 28.03.2015, the victim Haradhan Acharjee was assaulted by Doya Hmar and his associates and though the victim died two and a half months after the Page No.# 17/30

incident, but the medical opinion clearly reveals that the injury was a fatal one and the victim could not succeed in recovering from the same and died as a result of the injuries.

41. Now the most important question is whether Doya Hmar is the appellant Daineisang Pudaite. One of the most important contentions of the learned counsel for the appellant is that that Daineisang Pudaite is not Doya Hmar and therefore, he has been wrongly implicated as the assailant in this case. It is important to note that charges under 341/302 IPC were framed on 14.02.2019 during the trial against accused Daineisang Pudaite. PW1 has mentioned the name of the accused in the dock as Doya Hmar.

42. PW-3 Babul Acharjee interestingly identified the accused in the dock at the time of his deposition as Doya Hmar alias Daineisang Pudaite. PW-3 as mentioned earlier is the informant of the case and brother of the deceased. In his examination-in-chief he has also stated that the victim died due to internal injuries sustained by him because of the attack on him by accused Doya Hmar alias Daineisang Pudaite.

43. PW-5 has also stated about coming to know from his victim brother that he was assaulted by Doya Hmar. From cross-examination it is clear that PW-5 does not know the accused.

44. PW-8, the IO stated that he got the information about the victim being assaulted by one Doya Hmar. Later in the examination-in- Chief, he stated that he arrested the accused namely Daineisang Pudaite. It may be mentioned herein that during the trial, after examination of the accused under section 313 CrPC the defense adduced the evidence of two witnesses.

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45. Interestingly, DW-1, Khupkai Hmar, stated about knowing the accused standing in the dock and identified his name as Daineisang Pudaite. He also stated about the accused and himself belonging to Hmar community. He stated that the accused name is Daineisang Pudaite and he does not know if he has any other name and that they all know him as Daineisang Pudaite in the village. In cross-examination, he expressed ignorance as to whether villagers called Daineisang Pudaite as Doya also. However, DW-1 then goes on to state in his cross-examination that the name of the accused is not Doya thereby contradicting himself.

46. DW-2 Lalremsang Khobung also identified the accused in the dock as Daineisang Pudaite and stated about knowing him since childhood. He also testified about all of them knowing the accused as Daineisang Pudaite and expressing ignorance as to whether he has any other name. He also stated in cross-examination that he does not know whether villagers call him Doya also. DW-2 also contradicted himself in subsequent part of the cross-examination when he denied that the name of the accused is Doya. From the testimony of the defense witnesses, it emerges that they identified the accused at the dock as Daineisang Pudaite stating that they know him by that name only. In cross-examination both the DWs expressed ignorance as to whether the villagers call him Doya also, but again went on to deny that his another name is Doya, thereby contradicting themselves. DW-1 and DW-2 identified the accused in the dock as Daineisang Pudaite, while PW-1 identified him as Doya Hmar.

47. PW-3 identified the accused in the dock as Doya Hmar alias Daineisang Pudaite. The examination of the accused under section 313 CrPC was conducted in two phases. The first examination was on Page No.# 19/30

09.02.2023 and the second examination on 21-07-2023. On the second day, the Court addressed the issue of name and identity. To the questions of the Court, the accused stated that he does not have any other name but he belongs to the Hmar community. To another question, he stated that there is no other person in the village by the name Daineisang Pudaite alias Daya. He also stated that people of the Ditokcherra market used to call him Daya but in his village he is known as Deineisang and sometimes also as Sanga. Thus, it emerges from this point of the examination of the accused that he belongs to Hmar community and he is also known as Daya in the Ditokcherra market and that there is no other person in his village by the name Daineisang Pudaite.

48. It is very important to note that the incident took place in the Ditokcherra market and PW-1, PW-3 and PW-5 mentioning about the accused as Doya Hmar. PW-1 stated about being told by the victim that he was assaulted by Doya Hmar and two others near the Ditokcherra market. While PW-1 and PW-2 identified the accused as Doya Hmar, PW-3 identified him as Doya Hmar alias Daineisang Pudaite. DW-1 and DW-2 identified the accused in the dock as Daineisang Pudaite. In his own examination under Section 313 CrPC, apart from stating to be belonging to Hmar community, he has stated that he is also known as Daya in the Ditokcherra market and it is the same Ditokcherra market which is the area where the incident took place.

49. Thus, on the basis of these evidence, we have no doubt in our mind that the person who was arrayed as the accused or as being the assailant and who faced trial and was convicted is none other than Daineisang Pudaite who was also known as Daya or Doya in the area of Ditokcherra Page No.# 20/30

market. Therefore, on the basis of the evidence on record, we come to the considerable finding that on the fateful day on 28.03.2015, the victim was assaulted by Daineisang Pudaite, who was also known as Daya or Doya in that area and his associates acting together in concert. And, as a result of the assault, the victim suffered injury fracture of the cervical sixth vertebra, which as per the medical opinion was fatal and led to the death of the victim.

50. The decision in Ajmal (supra), relied on by the appellant side, discusses inter alia the distinction between a murder and culpable homicide, not amounting to murder. The Court in that decision discusses the principles laid down in the seminal judgment of State of AP versus R. Punnayya reported in (1976) 4 SCC 382. In the aforesaid decision of Ajmal (supra), the Hon'ble Supreme Court also referred to the case of Mohd. Rafiq Vs. State of M.P. reported in (2021) 10 SCC 706, in which there is a discussion of the judgment of Pulicherla Nagaraju Vs. State of A.P. reported in (2006) 11 SCC 444. In Para 29 of Pulicherla Nagaraju (supra), the Court has discussed the distinction between murder and culpable homicide not amounting to murder, and enlisted a non-exhaustive list of circumstances from which the intention to cause death can be gathered. The said relevant Para 29 of Nagaraju (supra), may be reproduced herein below:-

"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters- plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no Page No.# 21/30

intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

(xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."

51. In the case of Lakshmi (supra), the Hon'ble Supreme Court has discussed the law pertaining to dying declaration made to a police officer and held that though, it is desirable for a dying declaration to be made before Magistrate, but if the exigencies of the situation so requires, such a dying declaration can be recorded by police official also and that itself would not make it inadmissible. The relevant Para 29 may be reproduced herein below:-

"29. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by Investigating Officer has been discouraged and this Court has urged the Investigating Officer availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in Page No.# 22/30

such a precarious condition that there was no other alternative left except the statement being recorded by the Investigating Officer or the police officer lateron relied on as dying declaration. In Munnu Raja v. State of Madhya Pradesh, AIR 1976 SC 2199: (1976 Cri LJ 1718) this Court observed - "Investigating Officer are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an Investigation ought not to be encouraged." The dying declaration recorded by the Investigating Officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh v. State of Punjab, AIR 1979 SC 1173: (1979 Cri LJ 700) this Court has permitted dying declaration recorded by Investigating Officer being admitted in evidence and considered on proof that better and more reliable methods of recording dying declaration of injured person were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful."

52. The decision in Irfan @ Naka (supra) also delves into the law of dying declaration. The relevant Para 60, 61, 62 and 63 may be reproduced herein below:-

"60. Since time immemorial, despite a general consensus of presuming that the dying declaration is true, they have not been stricto-sensu accepted, rather the general course of action has been that judge decides whether the essentials of a dying declaration are met and if it can be admissible, once done, it is upon the duty of the court to see the extent to which the dying declaration is entitled to credit.

61. In India too, a similar pattern is followed, where the Courts are first required to satisfy themselves that the dying declaration in question is reliable and truthful before placing any reliance upon it. Thus, dying declaration while carrying a presumption of being true must be wholly reliable and inspire confidence. Where there is any suspicion over the veracity of the same or the evidence on record shows that the dying declaration is not true it will only be considered as a piece of evidence but cannot be the basis for conviction alone.

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62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -

(i) Whether the person making the statement was in expectation of death?

(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"

(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?

(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to clearly observe the incident?

(vii) Whether, the dying declaration has been consistent throughout?

(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired?

(ix) Whether, the dying declaration was itself voluntary?

(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant."

53. In Hem Singh alias Hemu (supra), the Hon'ble Supreme Court inter alia has discussed about the issue of identification in Court and Page No.# 24/30

emphasized the principle that Courts ordinarily do not give much credence to identification made for the first time in Court and that too after a long time.

54. Raj Kumar Singh (supra), relied on by the appellant side, has summarised some of the important principles pertaining to examination under section 313 CrPC. The relevant Para 41 may be reproduced herein below:-

"41. In view of the above, the law on the issue can be summarised to the a effect that statement under Section 313 CrPC is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 CrPC cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 CrPC is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 CrPC. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become a witness against himself."

55. Upon perusing the said decisions and coming back to the facts of the instant case, we find that the dying declarations in question in the instant case have been made before private witnesses being PW-1, PW-2, PW-3 Page No.# 25/30

and PW-5, and out of these PW-2 happens to be an independent witness. Though the IO as PW-8 has also stated about recording the statement of the victim prior to his death, but, he has not testified regarding the contents of the said statement as already discussed nor has that statement been exhibited.

56. On the touchstone of the principles governing dying declarations that have emerged from the aforesaid decisions, we do not find infirmity in the multiple dying declarations of the instant case. As far as identification is concerned, the witnesses have cogently identified the accused as Doya Hmar during their deposition with one of the witnesses PW-3 identifying him as Doya Hmar alias Daineisang Pudaite. Though TIP was not conducted in the instant case, we have not found infirmities in the identification of the accused as Doya Hmar by the witnesses during their deposition.

57. As already discussed, from the testimony of PW-3, the evidence of PWs and some of the materials that have emerged from the examination of the accused under section 313 CrPC, his identity as Daineisang Pudaite was also known as Doya and the accused belonging to the Hmar community have emerged. In our considered view, it cannot be said that the examination of the accused under Section 313 CrPC have filled up the gaps in the prosecution case. Rather, his identification as Daineisang Pudaite alias Doya Hmar has emerged from the testimony of PW-3 and also indicated from the testimony of the defence witnesses and the revelations in the Section 313 CrPC statement has only fortified the aspect of identification.

58. With regard to the aspect of materials emerging from examination Page No.# 26/30

under section 313 CrPC, the prosecution has relied upon the decision of Kalipado Gope (supra). The relevant paragraph 11 may be reproduced herein below:-

"11. The contention that the circumstances in which they were identified were not put to the accused persons in their examination under S.313 of the Criminal P.C. cannot be accepted. It is not necessary that all the natural probabilities and all reasonable inferences, such as might arise from the evidence, must be exhausted and put to the accused persons while recording their statement under S.313 of the Criminal P.C. The onus is upon the accused persons to prove that by reasons of his not having been examined as required by S.313 of the Criminal P.C. he has been prejudiced. No such prejudice has been caused to the accused persons in this case. They never raised any objection at the time when the test identification parade was held that they had been shown to the witnesses before they were put up for identification in the test identification parade. It was not so raised either at the time when they were examined under S.313 of the Criminal P.C. Therefore, it has not been shown as to how they were prejudiced. The identification was held after observing all the necessary requirements in law and no infirmity could be pointed out."

59. Paragraph 11 of the judgment in Kishore (supra) relied on by the prosecution pertaining to dying declaration may be reproduced herein below:-

"11. It is settled law by series of judgments of this Court that the dying d declaration, if after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, is no legal impediment to form such dying declaration the basis of conviction, even if there is no corroboration vide Tarachand Damu Sutar v. State of Maharashtra; Kusa v. State of Orissa; Meesala Ramakrishan v. State of A.P.; Goverdhan Raoji Ghyare v. State of Maharashtra and Gangotri Singh v. State of U.P."

In the said decision, the Hon'ble Supreme Court has held that if the dying declaration is found to be trustworthy and consistent, there is no impediment to base a conviction upon such dying declaration.

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60. In Meharban & Ors (supra), the Hon'ble Apex Court has held that a failure to bring on record any evidence regarding motive does not necessarily weaken a prosecution case though existence of the same may strengthen the same.

61. In the instant case, though the motive for the appellant as assailant assaulting the victim is not clear and, did not emerge from the evidence, but, in view of the other prosecution evidence, which has been found to be reliable, the non-proof of any motive would not materially damage the prosecution case.

62. In Prasad Pradhan (supra), the Hon'ble Supreme Court has again discussed the distinction between culpable homicide not amounting to murder and murder. The relevant Para 31 may be reproduced herein below:-

"31. There can be no stereotypical assumption or formula that where death occurs after a lapse of some time, the injuries (which might have caused the death), the offence is one of culpable homicide. Every case has its unique fact situation. However, what is important is the nature of injury, and whether it is sufficient in the ordinary course to lead to death. The adequacy or otherwise of medical attention is not a relevant factor in this case, because the doctor who conducted the post-mortem clearly deposed that death was caused due to cardiorespiratory failures, as a result of the injuries inflicted upon the deceased.

Thus, the injuries and the death were closely and directly linked."

63. Finally, in Neeraj Kumar (supra) relied upon by the prosecution, Hon'ble Supreme Court has discussed in Para 16 that in that case the High Court was in error in holding that the dying declarations cannot be accepted merely because death of the deceased occurred after a substantial lapse of time from their recording. It was observed in Para 16 that Section 32 of the Evidence Act contains no such time limitation. The Page No.# 28/30

relevant Para 16 may be reproduced herein below:-

"16. Additionally, in our considered view, the High Court erred in holding that these statements cannot be treated as dying declaration(s) merely because the death of the deceased occurred after a substantial lapse of time from their recordings. Such an approach is clearly untenable since the law does not require that a declarant, at the time of making the statement, to be under the shadow of death or the expectation that death is imminent. Here the time gap between the incident and the death is less than 2 months. In any event, Section 32 of the Evidence Act, contains no such limitation. What is pertinent is that the statement relates either to the cause of death or the circumstances leading to it."

64. In the instant case, the dying declarations were made soon after the incident, though the death took place after two and a half months of the incident. In any case, the dying declarations in the instant case have not been found to be suffering from any infirmity due to any time lag.

65. The question now before this Court is whether the criminal act of the appellant is murder or culpable homicide not amounting to murder.

66. The medical evidence has already proved that the injury sustained by the victim by way of fracture of the sixth cervical vertebrae was an injury which was capable of causing death. It is not clear from the evidence and circumstances as to in what situation the said injury was inflicted. It is also not clear as to what was the weapon of assault by which such injury was assaulted.

67. One of the criteria to decipher intention to cause death is the part of the body where the injury is inflicted. From that point of view, in the instant case, the injury was inflicted on the cervical spine which is a vital part of the body and the assault resulting in fracture of the sixth vertebrae was indeed a fatal injury on a vital part of the body. However, as already Page No.# 29/30

mentioned above, the circumstances of the crime and the weapon of assault have not emerged from the evidence.

68. The aspect of enmity, if any, has also not emerged from the evidence. However, from the evidence of PW-3, it has emerged that he was told by the victim it has been revealed that at the time of the incident, the convict appellant as the assailant and the other two associates were under influence of liquor. Considering the circumstances of the crime, we are of the opinion that though the injury in question was a fatal injury on the vital part of the body, but the other circumstances regarding such intention to cause death has not sufficiently emerged from the evidences and circumstances. And therefore, perhaps it would be justified to give benefit of doubt to the appellant on that count.

69. Therefore, we hold that the convict appellant, while assaulting the victim should be attributed with the knowledge of causing death, rather than the intention of causing death. Hence, we are of the opinion that conviction would be more justified under section 304 Part II IPC, rather than under section 302 IPC.

70. Therefore, while it is proved by the prosecution case that the appellant was one of the assailants in the incident, but his conviction is altered to one under section 304 Part II IPC. With regard to the sentence, considering that the assault by the appellant resulted in the death of the victim, we are not inclined to impose a lenient sentence.

71. Therefore, for his conviction under section 304 Part II IPC, the convict appellant is hereby sentenced to undergo rigorous imprisonment (RI) for 10 years. Consequently, the Judgment dated 27.09.2023 and Page No.# 30/30

Sentence and Order dated 05.10.2023 passed by the learned Sessions Judge, Dima Hasao, Haflong in Sessions Case No.28/2015 is hereby upheld and confirmed, subject to the modification in the conviction and the sentence as indicated above.

72. Resultantly, the instant criminal appeal stands dismissed, subject to the aforesaid modification of the conviction and the sentence. Registry is directed to send back the TCR immediately.

                                         JUDGE                JUDGE




Comparing Assistant