[Cites 10, Cited by 0]
Gauhati High Court
Page No.# 1/15 vs The State Of Assam on 19 February, 2026
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/15
GAHC010055542022
2026:GAU-AS:2493-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/45/2022
CHIKORAM GOWALA @ BUI
KARBI ANGLONG, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR N J DAS, AMICUS CURIAE,
Advocate for the Respondent : PP, ASSAM,
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE PRANJAL DAS
Advocate for the applicant : Shri NJ Das, Amicus Curiae
Advocates for the respondent : Shri RR Kaushik, APP, Assam
Date on which judgment is reserved : 16.02.2026
Page No.# 2/15
Date of pronouncement of judgment : 19.02.2026
Whether the pronouncement is of the operative part of the
judgment? : NA
Whether the full judgment has been pronounced? : Yes
Judgment & Order
(S.K. Medhi, J.)
The instant appeal has been preferred from jail against a judgment & order
dated 28.01.2022 passed by the learned Sessions Judge, Karbi Anglong, Diphu
in connection with Sessions Case No.26/2017 (New) arising out of GR Case No.
191/2015 convicting the appellant under Section 302 of the IPC and sentencing
him to undergo rigorous imprisonment for life and also to pay fine of
Rs.10,000/- with default stipulation.
2. The criminal law was set into motion by lodging of an Ejahar on
06.03.2015 by the PW3 stating inter alia that on 05.03.2015 at about 7:30 pm,
the appellant had grievously injured Shri Sursingh Gaur @ Bankot Gaur, who
was his father-in-law by assaulting him on the head with a lathi made of stump
of bamboo whereafter, the deceased was brought to Dokmoka Primary Health
Centre, where he succumbed to his injuries. Based on the Ejahar, the FIR was
registered as Dokmoka PS Case No.17/2025 under Section 302 of the Indian
Penal Code.
3. After completion of the investigation, the charge sheet was submitted
whereafter, the charges were framed. On denial of the same, the trial had
begun in which the prosecution had adduced evidence through 11 nos. of
witnesses including the doctor and the IO.
4. PW1 is a neighbor who had stated that the fateful day was the day of Holi
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festival, when he had heard a hue and cry and had arrived in the front of the
house of the deceased and could learn that the accused had assaulted the
deceased. Thereafter, a 108 ambulance had come and the deceased was taken
to the hospital and on the next date, he could learn that the deceased had
succumbed to his injuries.
5. PW2 is the daughter of the deceased and also the wife of the accused. She
deposed that there was a scuffle between the accused and deceased, following
a quarrel and in the same, the head of the deceased got hit against a betel nut
tree causing injury on his head and he became unconscious and fell on the
ground. She had accordingly raised a hue and cry whereafter, the villagers had
come and took her father to the hospital in 108 ambulance. Her father had
passed away on the same night. In the cross examination, she had stated that
both the deceased and the accused were in an inebriated stage and the
deceased was so inebriated that he could not even stand.
6. PW3 is the informant who is also the brother of the deceased. He had
stated that his house is situated near the house of the deceased and after
finishing his meal in the evening, he could see the appellant hitting on the wall
of his house with a big lathi and accordingly, he had asked the appellant not to
do so, as the same would cause damage. Thereafter, he had left his house and
started hitting the wall of the house of the deceased, when the appellant was
tried to be resisted by the PW3, he was pushed down when the deceased had
come out of the house and at that time, the appellant had dealt a blow on his
head with lathi, which was in the hand. The deceased had fallen down on the
ground instantly and his head got cracked and blood started oozing out. He had
accordingly called the VDP member who had come and the police was informed.
In the meantime, the appellant had fled away from the place of occurrence and
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after searching, he was found hiding in a latrine of a villager's house. The VDP
members had secured the appellant by tying him in a place near their house,
whereafter the police had come. The deceased was taken to the Dokmoka
Hospital and was advised to be shifted to the Nagaon Civil Hospital which was
done on the night itself. However, the deceased passed away. He deposed of
clearly witnessing the appellant injuring the deceased by striking him with a
bamboo lathi. He had accordingly lodged the Ejahar which was proved as
Exhibit 1.
In the cross-examination, he clarified that he could see the hitting as he
was nearby. He has also admitted that there was little darkness and yet he
could witness the same.
7. PW4 is a co-villager who however appears to be a hearsay witness. He had
deposed that he heard from the villagers of the incident and also later heard
that the deceased had died in the hospital. In the cross-examination, he had
however stated that though the houses were adjacent, he did not hear any
commotion.
8. PW5 is also a co-villager, whose residence is about a kilometer away from
the place of occurrence. He had also deposed of hearing the incident from the
villagers.
9. PW6 is a co-villager, who had stated that at that time, he was a Dokmoka
and was informed about the death whereafter he had come to the place of
occurrence. He had deposed that he had rescued the appellant from public and
informed the police. He is also a seizure witness, so far as the piece of bamboo
is concerned. In his cross-examination, he had however clarified that his
deposition was on the basis of what he heard from the villagers.
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10. PW7 is also a co-villager, who appears to be a hearsay witness and the
same has been confirmed in the cross-examination.
11. PW8 is the Doctor, who had conducted the postmortem upon the
deceased. As per his opinion, the death was caused due to head injuries. The
following opinion was given:
"In my opinion the cause of death was shock and intra cranial
hemorrhage due to head injuries sustained."
In his cross-examination, he had however deposed that such injuries could
be sustained by falling on hard substance. For ready reference, the same
is extracted hereinbelow:
"xxx
Injuries can be sustained falling on the hard substance."
The Post-Mortem Report was proved as exhibit 3.
12. PW 9 is a Police Officer, who had done the preliminary investigation. He
had deposed that a telephone call was received by the Officer-in-Charge
whereafter GD Entry No. 285 was registered and preliminary investigation was
done through him. In his cross-examination, he had stated that fingerprint of
the accused was taken. However, he was not aware of any report from the FSL.
13. PW10 is the Investigating Officer who had deposed that he was posted as
the 2nd Officer in the Dokmoka PS. He had deposed of doing all the
investigation, leading to laying of the charge sheet, which has been proved as
Exhibit 5. In the cross-examination, he had however, revealed that the seized
materials were not sent to FSL.
14. PW 11 is the In-Charge of the Bhugeswari Phukanani Civil Hospital,
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Nagaon, who had conducted the inquest. The Inquest Report has been proved
as Exhibit 6.
15. After conclusion of the prosecution witnesses, the incriminating
circumstances emanating from the said depositions were put to the appellant in
his examination under Section 313 of the CrPC, where he had denied the
allegations. The appellant had also not offered to produce any defence witness.
16. After consideration of the materials on record and after hearing the
learned counsel for the parties, the impugned judgment dated 28.01.2022 has
been passed, which is the subject matter of challenge in the present appeal.
17. We have heard Shri NJ Das, learned Amicus Curiae for the appellant. We
have also heard Shri RR Kaushik, learned Additional Public Prosecutor, Assam.
18. Shri Das, the learned Amicus has submitted that apart from the PW2 and
PW3, all other witnesses appear to be hearsay and therefore may not be
relevant. He has however, submitted that even in the deposition of PW2 and
PW3, there are gross inconsistencies. He has highlighted that while the PW2 has
categorically stated that there was a quarrel between the appellant and the
deceased which led to a fight in which the appellant had pushed the deceased
and his head got hit against a betel nut tree causing the injuries, she has also
stated that both the appellant and the diseased were heavily drunk. The learned
Amicus has thereafter led this Court to the deposition of PW3, who had deposed
of witnessing the appellant hitting the deceased with a lathi causing the injury,
which caused his death. PW3 had also confirmed witnessing such incident in
spite of the darkness which had set it during the time when the incident had
taken place. The learned Amicus has submitted that there being apparent gross
inconsistencies in the versions of PW2 and PW3, it is version of the witness,
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which is towards the innocence of the accused, that should be taken into
consideration and accepted. He has also highlighted that PW2 was not declared
as hostile and therefore, there was a legal obligation for due consideration of
such evidence.
19. The learned Amicus has submitted that the prosecution had also failed in
not examining the wife of the deceased, who was very much available at the
place of occurrence. He has submitted that as per the opinion of the Doctor who
had conducted the post-mortem, the injury can also be sustained by falling on
hard substance.
20. By drawing the attention of this Court to the Post Mortem Report, more
particularly to the nature of the injuries, the learned Amicus has submitted that
it appears that there was only one blow which had caused death. He has
submitted that the PM Report, however, does not mention the amount of clot
which was found. The said statement has been made for the purpose of
developing an argument that to die out of hemorrhage, certain amount is
specified, which was not done by the prosecution in the instant case.
21. In support of his submission, the learned Amicus has relied upon a case of
Raja Ram Vs. State of Rajasthan reported in (2005) 5 SCC 272. In the
said case, it has been laid down that if a prosecution witness is not declared
hostile, the version of such witness is liable to be considered. For ready
reference, the relevant observation are extracted hereinbelow:
"9. But the testimony of PW-8 - Dr. Sukhdev Singh, who is another
neighbour, cannot easily be surmounted by the prosecution. He has
testified in very clear terms that he saw PW-5 making the deceased
believe that unless she puts the blame on the Appellant and his parent
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she would have to face the consequences like prosecution proceedings. It
did not occur to the Public prosecutor in the trial Court to seek permission
of the court to hear PW-8 as a hostile witness for reasons only known to
him. Now, as it is, the evidence of PW-8 is binding on the prosecution.
Absolutely no reason, much less any good reason, has been stated by the
Division Bench of the High Court as to how PW-8 s testimony can be side-
lined."
22. The learned Amicus has also relied upon the case of Rupinder Singh
Sandhu Vs. State of Punjab and Ors. reported in (2018) 16 SCC 475 by
submitting that in the said case, the amount of hemorrhage was found to be
100-150 ML and the conviction was converted to one under Section 323 from
Section 302 of the Indian Penal Code. He has submitted that in absence of any
finding on the amount of haemorrhage, it cannot be concluded that the death
was due to the haemorrhage.
23. The learned Amicus has submitted that the impugned judgment has not
taken into consideration the aforesaid factors and therefore, it is a fit case for
interference by this Court.
24. Per contra, Shri Kaushik, the learned Additional Public Prosecutor has
submitted that the version of PW2 cannot be said to be contradictory to the
version of PW3. He has submitted that the fact of causing the injury was
consistently stated by both the aforesaid witnesses. He has also submitted that
though PW2 had deposed that the appellant had pushed the deceased, by a
mere push, a person will not suffer such injuries to cause fracture of the skull.
He has submitted that the conduct of the appellant is also relevant and in this
case, the appellant was found to be hiding in latrine after the incident. He has
submitted that non-examination of the weapon by forensic expert will not be
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fatal to every case, more particularly, in those cases where there are
eyewitnesses. He has submitted that the deposition of PW2, PW3 and PW9 read
with the Post Mortem Report would establish the prosecution case. He
accordingly submits that no interference is liable to be made in the instant case.
25. The rival contentions advanced by learned counsel for the parties have
been duly considered and the materials placed before this Court have been
carefully perused. We have also examined the original records.
26. The incident had occurred on 05.03.2015 at 7:30 pm, as would reveal
from the Ejahar lodged on 06.03.2015 by the elder brother of the deceased,
who had deposed as PW3. From the materials available on record and perusal of
the depositions, it appears that apart from the official witnesses, the other
witnesses, except PW2 and PW3 are hearsay witnesses. PW2 and PW3, both
claim to be eyewitnesses. However, there is a stark difference in the narration of
the facts by the said PW2 and PW3. While the aspect of there being a quarrel
and fighting between PW appear to be consistent in the 2 depositions, the
aspect of causing the fatal injury however, differs grossly. While PW2 had
deposed that in course of fighting followed by a quarrel, the appellant had
pushed the deceased who got hit against a betel nut tree causing the injury,
PW3 had deposed that he saw the appellant hitting the head of the deceased
with a bamboo stick causing the injury. Though the lathi was seized, there was
no effort on the part of the prosecution to connect the seized lathi, with that of
the appellant.
27. As rightly pointed out by the learned Amicus, PW2 was not declared
hostile and in that view of the matter, by following the principles laid down by
the Hon'ble Supreme Court in a catena of decisions, including the case of Raja
Ram (supra), there would be an obligation to consider such deposition as valid
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deposition which the prosecution cannot discard.
28. This Court is also of the view that from the deposition of PW2 and PW3,
two different conclusions can be arrived at. If one goes by the deposition of
PW2, though the aspect of causing the injury is proved, the intention to cause
the death in all probability, cannot be invariably concluded. It may also be noted
that the Doctor who had conducted the post-mortem (PW8) in his cross-
examination had accepted the proposition that such injury can also be caused
by falling on hard substance.
29. It is also settled principle in criminal jurisprudence that when two views
are possible the one pointing to the innocence of the accused should be
adopted. In the instant case, the version advanced by PW2 appears to be in
favour of the accused, from where the intention to cause the death of the
deceased cannot be readily inferred. In this context, one may gainfully refer to
the case of the Hon'ble Supreme Court of Kali Ram v. State of Himachal
Pradesh reported in AIR 1973 SC 2773, wherein it was observed as under:
"25. Another golden thread which runs through the web of the
administration of justice in criminal cases is that if two views are possible
on the evidence adduced in the case one pointing to the guilt of the
accused and the other to his innocence, the view which is favourable to
the accused should be adopted. This principle has a special relevance in
cases where in the guilt of the accused is sought to be established by
circumstantial evidence."
30. In the backdrop of the aforesaid discussion, it is required to be seen as to
whether the offence would be one which would come under the definition of
Murder as per Section 300 of the Indian Penal Code or would amount to
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Culpable Homicide not amounting to Murder.
31. The Hon'ble Supreme Court in the case of Anda and Others. Vs. the
State of Rajasthan reported in AIR 1966 SC 148 has laid down as follows:
"5. Section 300 tells us when the offence is murder and when it is
culpable homicide not amounting to murder. Section 300 begins by setting
out the circumstance when culpable homicide turns into murder which is
punishable under S. 302 and the exceptions in the same section tell us
when the offence is not murder but culpable homicide not amounting to
murder punishable under S. 304.Murder is an aggravated form of culpable
homicide. The existence of one of four conditions turns culpable homicide
into murder while the special exceptions reduce the offence of murder
again to culpable homicide not amounting to murder. We are not
concerned with the exceptions in this case and we need not refer to them.
...
7. ...The sufficiency of an intentional injury to cause death in the ordinary
way of nature is the gist of the clause irrespective of an intention to cause
death. Here again, the exceptions may bring down the offence to culpable
homicide not amounting to murder."
32. Section 300 of the IPC lays down 5 exceptions where culpable homicide
would not amount to murder. However, it is settled law that an offence under
Section 299 of the IPC not to fall under the offence of murder under Section 300
would not be restricted only to the five exceptions. For a culpable homicide to
be murder, it must come within the four provisions of Section 300. Murder is the
gravest form of culpable homicide. At this stage it will be beneficial to refer to
the principles laid down by the Hon'ble Supreme Court in the case of State of
Page No.# 12/15
AP vs Rayavarapu Punnayya and Anr. reported in AIR 1977 SC 45 .
"21. From the above conspectus, it emerges that whenever a court is
confronted with the question whether the offence is murder or culpable
homicide not amounting to murder on the facts of a case, it will be
convenient for it to approach the problem in three stages. The question to be
considered at the first stage would be, whether the accused has done an act
by doing which he has caused the death of another. Proof of such causal
connection between the act of the accused and the death, leads to the
second stage for considering whether that act of the accused amounts to
"culpable homicide" as defined in Section 299. If the answer to this question
is prima facie found in the affirmative, the stage for considering the
operation of Section 300, Penal Code, is reached. This is the stage at which
the Court should determine whether the facts proved by the prosecution
bring the case within the ambit of any of the four Clauses of the definition of
'murder' contained in Section300. If the answer to this question is in the
negative the offence would be 'culpable homicide not amounting to murder',
punishable under the first or the second part of Section 304, depending,
respectively, on whether the second or the third Clause of Sec. 299 is
applicable. If this question is found in the positive, but the case comes within
any of the Exceptions enumerated is Section 300, the offence would still be
'culpable homicide not amounting to murder', punishable under the First Part
of Section 304, Penal Code."
33. Further in the case of Kishore Singh and Anr. vs. The State of M.P.
reported in AIR 1977 SC 2267 it has been laid down as follows:
"11. The distinction between culpable homicide (Section 299, I.P.C.) and
murder (Section 300, I.P.C.) has always to be carefully borne in mind while
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dealing with a charge under Section 302, I.P.C. Under the category of
unlawful homicides fall both cases of culpable homicide amounting to murder
and those not amounting to murder. Culpable homicide is not murder when
the case is brought within the five exceptions to Section 300, I.P.C. But even
though none of the said five exceptions are pleaded or prima facie
established on the evidence on record, the prosecution must still be required
under the law to bring the case under any of the four clauses of Section 300.
I. P. C. to sustain the charge of murder. If the prosecution fails to discharge
this onus in establishing any one of the four clauses of Section 300, I. P. C.,
namely, 1stly to 4thly, the charge of murder would not be made out and the
case may be one of culpable homicide not amounting to murder as described
under S. 299, I. P. C."
34. There is another aspect of the matter regarding the nature of the
onslaught. Even if the version of PW3 is considered for an objective analysis,
firstly, the object used for hitting the deceased was not per se any weapon of
deadly nature but a bamboo stick. It also transpires from the medical evidence
that there is only one injury which leads to the conclusion that only one blow
was given. Though there is no strait jacket formula that where only a single
blow is involved, there may not be an intention to cause death, it would be
necessary to examine the particular facts and circumstances. In this connection
it would be beneficial to refer to the case of Abani K. Debnath and Anr. Vs
State of Tripura reported in (2005) 13 SCC 422 wherein the Hon'ble
Supreme Court, on noticing that the death was caused by one blow of a dao in
the spur of the moment which was preceded by a quarrel had converted the
punishment from Section 302 of the IPC to 304 Part II.
35. In the case of Pularu Vs. State of M.P. reported in AIR 1993 SC
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1487, the Hon'ble Supreme Court was dealing with a case where death was
caused by a single blow with an agricultural equipment. It was held as follows:
"7. That takes us to the nature of the offence. All the three eye-witnesses
have spoken that the appellant dealt only one blow with the agricultural
implement. Having regard to the time and the surrounding circumstances
it is difficult to hold that he intended to cause the death of the deceased
particularly, when he was not armed with any deadly weapon as such. As
an agriculturist he must have been having a tabbal in his hands and if in
those circumstances he dealt a single blow it is difficult to convict him by
invoking clause (1) or (3) of Section 300, I.P.C. It cannot be said that he
intended to cause that particular injury which unfortunately resulted in the
fracture of bones. Therefore, the offence committed by him would be one
amounting to culpable homicide punishable under Section 304, Part-II
I.P.C. We accordingly set aside the conviction of the appellant under
Section 302, I.P.C. and sentence of imprisonment for life awarded
thereunder. Instead we convict him under Sec. 304, Part-II, I.P.C. and
sentence him to undergo Rigorous Imprisonment for seven years. The
appeal is partly allowed to the extent indicated hereinabove."
36. We have also noticed that though the lathi was seized vide seizure list Ext.
2, there are no materials to show that any finger print matching was done with
the aforesaid weapon.
37. In the case in hand, even if the version of PW3 is accepted, the intention
of the appellant to cause the death of the deceased cannot be readily inferred.
38. Under the aforesaid facts and circumstances and the discussions made,
we are of the view that the conviction is liable to be converted under Section
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304 Part II of the IPC which is accordingly done. Consequently, the sentence is
altered to rigorous imprisonment for a period of 7 years with fine of Rs. 5000/-
(Rupees Five Thousand) in default of which simple imprisonment for 6 months.
39. The appeal accordingly stands partly allowed.
40. Let the records of the case be sent back.
41. For the valuable assistance rendered by Shri NJ Das, the learned Amicus
Curiae, we placed on record our appreciation and he would be entitled to the
prescribed fee.
JUDGE JUDGE
Comparing Assistant
