Page No.# 1/8 GAHC020002552021 2025:GAU-NL:604 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : CRL.A(J)/2/2021 SHRI. AKUM CHINGMAK S/O LATE BESOYIMCHUNG, R/O NAKSHAU VILLAGE, PO/PS - TUENSANG, NAGALAND VERSUS THE STATE OF NAGALAND NAGALAND, KOHIMA – B E F O R E – HON’BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY For the Appellant(s) : Ms. Esther, Advocate. For the Respondent(s) : Ms. S. Mere, Govt. Advocate, Nagaland. Date of judgment : 4th December, 2025. Page No.# 2/8 J UDGMENT & O RDER (ORAL) (Ashutosh Kumar, CJ) We have heard Ms. Esther, learned Advocate for the appellant and Ms. S. Mere, learned Government Advocate, Nagaland for the State. 2. The appellant has been convicted under Section 302 of the Indian Penal Code (IPC) and Sections 7 & 8 of the Nagaland Security Regulation, 1962 (hereinafter to be referred as the “1962 Regulation”) by the learned Additional District & Sessions Judge, Tuensang vide judgment dated 21.12.2009 passed in G.R. Case No.5/2007 in connection with Tuensang Police Station Case No.2/2007. By an order passed on the same day, the appellant has been sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the IPC and to further undergo rigorous imprisonment for 5(five) years for the offences under Sections 7 & 8 of the 1962 Regulation. The sentences have been directed to run concurrently. The period of detention undergone by the appellant has been directed to be set off against the sentence of imprisonment as provided under Section 428 of the Code of Criminal Procedure, 1973 (Cr.PC). 3. Two persons, namely, Achung Chang of Tuensang village and Elemongko Chang of Tubu village, are said to have been killed at the hands of the appellant. Page No.# 3/8 4. On 08.02.2007, the ASI of Tuensang Police Station, namely, Wangshiliba (PW-1), received a telephonic information by a person of an undisclosed identity that 2(two) injured persons were lying in a precarious situation near Khiam Church. On such information, he proceeded to the place and arranged for shifting of the injured persons to Civil Hospital for medical treatment. It was in that process that the 2(two) injured persons (deceased) were identified as Achung Chang and Elemongko Chang. A complaint was, therefore, registered by him in the Police Station leading to the lodging of Tuensang Police Station Case No.2/2007 for the offences under Section 302 of the IPC; Sections 25(1)(A) of the Arms Act; Sections 7 & 8 of the 1962 Regulation as also Sections 10 & 13 of the Unlawful Activities (Prevention) Act, 1967. 5. During the course of investigation, 2(two) persons are said to have heard one of the deceased say that it was the appellant who had killed them. However, unfortunately none of those 2(two) persons have been brought to the witness stand to prove the case. It appears from the records that one Mrs. Thangchisangla, sister of one of the deceased, namely, Elemongko Chang, told the Investigator (PW-2) that the appellant, a bodyguard of Sepong Chang, self-styled Town Commander had come to her place and had inquired about her deceased brother. Later, she learnt that her brother was injured and hospitalized. A cousin sister of Elemongko Chang, namely, Mrs. Sungmo Page No.# 4/8 Yim, also narrated similar kind of story to PW-2, the Investigator, that fortuitously she had reached the place of occurrence when her cousin was still not dead and he disclosed the name of the appellant as one who had shot him. 6. There was yet another witness during the course of investigation, namely, the grand-father of deceased Elemongko Chang, who divulged that the appellant had persuaded the deceased and his friend, the other deceased, to join his gang after defecting from NSCN (IM). On refusal by them, they were killed. This killing was, according to the grand-father, for the purposes of proving the loyalty of the appellant to his military outfit bosses. Similar such statements were made to the Investigator (PW-2) but none of them, as noted above, were brought to the witness stand to prove the case. 7. The trial Court, after examining the 2(two) witnesses only, namely, the person who received the information and became the informant and the Investigator, convicted and sentenced the appellant, as aforesaid. 8. PW-1 has only confirmed that he had received information from an undisclosed source about 2(two) persons having been injured. While shifting them to the Hospital, their identities were established. They succumbed to the injuries. No post-mortem report appears to have been conducted. There was only inquest report proving that both the deceased died of bullet injuries. Page No.# 5/8 9. The Investigator (PW-2) though has narrated the sequence of events and the statements made before him by the witnesses during the stage of investigation, but those are only hearsay statements which could not be proved because of such persons not having been brought to the witness stand. There was no seizure of fire arms from any place and there was no material on record to justify the conviction and sentence of the appellant under Sections 7 & 8 of the 1962 Regulation. 10. So far as the offence of murder is concerned, the records revealed a peculiar state of affairs. 11. The trial Court has solely relied upon the Section 313 Cr.PC statement of the appellant to hold him guilty and has sentenced him under Section 302 of the IPC. 12. In his Section 313 Cr.PC statement, the appellant admitted that he was a bodyguard of Sepong Chang, a self-styled Town Commander of Tuensang (I.M. Faction), who had been entrusted to recover the 2(two) stolen carbines which were found to be missing from the house of Sepong Chang. He suspected the hands of the deceased. He had tried to chase them but since the deceased persons also retaliated, he had to fire in his self defence as also for saving himself from the opprobrium of his political/ military leader. He further stated that his intention was not to kill them but to save his own life. Page No.# 6/8 13. It appears from the records that the learned trial Court solely relying upon such statement came to the conclusion that it was the appellant who had shot at the deceased and killed them. There are no eye witnesses to the occurrence. The reliance of the trial Court exclusively on the Section 313 Cr.PC statement of the appellant is completely a derogation from the established principle of law. All cannons of appreciating the evidence, it appears, have been thrown to the winds by the learned trial Court. 14. It needs no reiteration that the statement under Section 313 Cr.PC is not an evidence and cannot itself be the foundation for conviction. It can only lend credence to the prosecution evidence already on record. No part of it, including the Inculpatory part, could be ever used for conviction of an accused. 15. The prosecution has to prove the case beyond all reasonable doubts. Since a statement made under Section 313 Cr.PC is not a substantive evidence, it can only be used to corroborate other evidence and could have been relied upon if the prosecution had already proved all the chain of circumstances and the statement under Section 313 Cr.PC would have fitted into and supported the prosecution case and not otherwise. There are various reasons for not holding a conviction on the basis of Section 313 Cr.PC statement, which is only a supplemental material and not a primary evidence. The purpose of Page No.# 7/8 recording a statement under Section 313 Cr.PC is to give an opportunity to an accused to explain the incriminating circumstances against him collected during the trial. While making such a statement, he is not on oath; he cannot be cross-examined and, therefore, such statement has a very low evidentiary value. 16. As has been observed by one of the jurists, Section 313 Cr.PC is one of the “tools to effect fairness” in trial, which cannot be made into a source of incriminating evidence. It could, as noted above, only reinforce an existing chain of proof but it can never create one. 17. We, therefore, are unhesitatingly of the view that the judgment & order of conviction and sentence is unsustainable in the eyes of law. That apart, we have found that the appellant has already served out his sentence if remissions are to be taken into account as he has remained in jail since the date of his arrest in 2007. Thus, we allow this appeal; set aside the judgment & order of conviction and direct for the immediate release of the appellant, namely, Akum Chingmak. 18. A copy of this judgment be transmitted to the Superintendent of Jail, where the appellant is presently lodged, for compliance as also for record. Page No.# 8/8 19. The records of this case be returned to the trial Court forthwith if not required in any other case. JUDGE CHIEF JUSTICE Comparing Assistant