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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)

B E F O R E

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

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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

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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,

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(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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

Page No.# 27/30

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

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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

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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