Page No.# 1/9 GAHC010258992014 2025:GAU-AS:15572 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./120/2014 DIGEN BISWAS S/O LATE JUGENDRA BISWAS, R/O L.G. ROAD, SHANTIPUR, GUIJAN, P.S. TINSUKIA, DIST. TINSUKIA, ASSAM. VERSUS STATE OF ASSAM Advocate for the Petitioner : MR.D MAHANTA, MR.T J MAHANTA,MR.P P DUTTA,MR.B BORA Advocate for the Respondent : , PP, ASSAM,, Page No.# 2/9 BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 30/10/2025 Heard Mr. T J Mahanta, learned Senior counsel assisted by Mr. T Gogoi, learned counsel for the appellant and Mr. B Sarma, learned Additional Public Prosecutor, Assam for the State respondent. 2. The present appeal has been instituted assailing the judgment dated 21.02.2014 passed by the Court of the learned Sessions Judge, Tinsukia, in Sessions Case No. 97(T)/2012, convicting the appellant, herein, under Section 304 Part-II IPC and sentencing him to undergo Rigorous Imprisonment for 3 (three) years. 3. The prosecution story in brief is that an Ejahar was lodged at Guijan Police Outpost on 04.09.2011 by one Nityananda Bhar, inter-alia, stating, therein that on 04.09.2011 at around 9:00 AM, while his brother, Ashok Bhar had gone to the market with vegetables, the appellant, herein, had accosted him and hit him on his head with a hammer, causing grievous injuries. On receipt of the said FIR, G.D. Entry No. 59 dated 04.09.2011 was registered and the FIR was forwarded to the Tinsukia Police Station for its registration. Accordingly, the said FIR was registered as Tinsukia P.S. Case No. 554/2011 under Sections 341/325/307 IPC. The victim, Ashok Bhar having passed away subsequently, Section 302 IPC was added after the permission for the same was granted by the learned Trial Court. On conclusion of the investigation, police laid a charge-sheet against the present appellant under Sections 341/302 IPC. The learned Trial Court upon appreciating the materials coming on record was pleased to frame a charge under Sections 302/341 IPC against the appellant, herein and the same on being read over and explained to him, the appellant, herein, having pleaded not guilty and claimed to be tried, a trial ensued. Page No.# 3/9 During the trial, the prosecution had examined 7 (seven) witnesses and thereafter, the appellant, herein, was examined under Section 313 Cr.P.C. The learned Trial Court on conclusion of the trial, upon appreciating the evidences coming on record was pleased vide judgment dated 21.02.2014, to convict the appellant, herein, under Section 304 Part-II IPC and sentenced him to undergo Rigorous Imprisonment for 3 (three) years. Being aggrieved, the appellant, herein, has instituted the present appeal. 4. Mr. T J Mahanta, learned Senior counsel for the appellant, at the outset, has submitted that the conviction of the appellant, herein, is based on the depositions of PW4 Nityananda Bhar, the informant and PW5 Angad Biswas. 5. By taking this Court through the depositions of PW4 and PW5, Mr. Mahanta, learned Senior counsel for the appellant has submitted that the said deposition had brought to the forefront that the deceased on being asked by the said witnesses had stated that he was hit on his head with a hammer by the appellant, herein. 6. Mr. Mahanta, learned Senior counsel for the appellant has referred to the deposition of the doctor, conducting the postmortem examination of the deceased, who had deposed during the trial as PW2. Mr. Mahanta, learned Senior counsel for the appellant has submitted that opinion rendered by the PW2 is to the effect that the death of the deceased was due to coma, as a result of head injuries sustained, which was ante-mortem in nature, caused by blunt force and homicidal in nature. 7. Mr. Mahanta, has further submitted that the deposition of the PW2 had also revealed that the deceased before his death was treated by a doctor and he had also undergone a surgery. However, the prosecution had not examined the doctor, who had treated the deceased after the injury was sustained by him and prior to his death. 8. Mr. Mahanta, has further submitted that the prosecution failed to adduce evidence with regard to the condition of the deceased at the time when he was present in the Police Station. He submits that during the examination of PW4 and PW5, it was not clarified that the Page No.# 4/9 deceased was in a position to make statements, while he was in the Police Station. He also has submitted that such clarification was also not brought on record during the deposition of the Investigating Officer. He further submits that the deceased being in the police station, a G.D. Entry already being made on information being furnished by the persons, who had taken the victim and the accused to the police station, no clarification has been placed on record by the prosecution as to why the examination of the deceased was not carried out by the Investigating Officer at the relevant point of time. Accordingly, Mr. Mahanta, submits that the statement of the deceased that he was hit on the head with a hammer by the appellant, herein, cannot be elevated to the level of a dying declaration. 9. Mr. Mahanta, by referring to the deposition of the PW4 and PW5, has submitted that the statement made before them by the deceased was held by the learned Trial Court to be a dying declaration and by placing reliance on the same, the appellant, herein, was convicted. 10. Mr. Mahanta, learned Senior counsel for the appellant also submits that the above position raises a situation, wherein, it can be said that the deceased on account of the injuries sustained by him was not in a position to speak coherently and also thereby not in a position to make a statement with regard to the person who had assaulted him. 11. Mr. Mahanta, learned Senior counsel for the appellant has further submitted that there exists two 161 statements recorded of the informant. In the first statement, so recorded on 05.09.2011, there is no statement made with regard to the dying declaration purportedly made before him by the victim. In the second statement recorded on 06.09.2011 after the death of the victim, the informant had improved upon his earlier statement and had brought on record the dying declaration purportedly made before him by the deceased. 12. Mr. Mahanta, learned Senior counsel for the appellant has further submitted that the evidences coming on record revealed that the deceased and the accused were brought to the police station by the persons who had gathered at the purported site, wherein, the incident had occasioned. However, none of the said persons who had taken the accused and the deceased to the police were examined as prosecution witnesses in the matter. Accordingly, he submits that the examination of the said persons who had brought the deceased and the Page No.# 5/9 appellant, herein, to the police station would have revealed the fact as to whether the deceased, at the relevant point of time, when he was in the police station, was fit to make a statement with regard to the injuries sustained by him. 13. Mr. Mahanta, learned Senior counsel for the appellant by referring to the examination of the appellant, herein, under Section 313 Cr.P.C. has submitted that although the Trial Court had relied upon the purported dying declaration made by the deceased before PW4 and PW5, the appellant, herein, was not examined on the said issue. In the above premises, Mr. Mahanta submits that the present appeal is required to be allowed by setting aside the impugned judgment dated 21.02.2014, convicting the appellant, herein, under Section 304 Part-II IPC. 14. Per contra, Mr. B Sarma, learned Additional Public Prosecutor, Assam has submitted that the deposition of PW4 would reveal that he had deposed that on being asked, the deceased had told him that the appellant, herein, had hit him on his head with a hammer. 15. Mr. Sarma, learned Additional Public Prosecutor, Assam has further submitted that the said deposition is corroborated by the deposition made by PW6, who had also deposed in similar lines. He submits that the depositions of PW4 and PW6 are direct and the defence having not dislodged the evidences as adduced by PW4 and PW6 in spite of they being submitted to cross-examination, the deceased having passed away soon thereafter, the statement made by the deceased to the PW4 and PW6 is permissible to be treated as a dying declaration and accordingly, the reliance placed thereon by the learned trial Court cannot be said to be erroneous. 16. Mr. Sarma, learned Additional Public Prosecutor, Assam has further submitted that although PW4 and PW6 are not eye witnesses, however, their depositions clearly implicates the appellant, herein, and accordingly, the conviction of the appellant under Section 304 Part- II IPC would not mandate any interference. 17. Mr. Sarma, learned Additional Public Prosecutor, Assam further submits that the evidence adduced by PW4 and PW5 being reliable and trustworthy, the dying declaration coming on record of the deceased through them would not call for any further corroboration Page No.# 6/9 and the same can be the basis for convicting the appellant, herein. Accordingly, he submits that the judgment dated 21.02.2014 passed by the learned Trial Court would not mandate any interference. 18. I have heard the learned counsel for the parties and also perused the materials available on record. 19. The learned Trial Court upon appreciating the evidences coming on record including the medical evidence adduced by PW2, had proceeded to draw the following conclusions:- “15. PW4 Sri Nityananda Bhar, the younger brother of the deceased has stated in his deposition that upon hearing about the incident, he went to Guijan Police Outpost, where he found his brother and upon asking his brother Ashok Bhar, he replied that the accused Digen Biswas had hit him on his head with a hammer. This testimony of PW4 has remained unshaken. Further, PW5 Sri Angad Biswas has also deposed that on getting information about the incident, he along with PW4 had gone to the Guijan Police Outpost and there he found Ashok Bhar with injuries on his head and upon asking Ashok Bhar, he stated that Digen had assaulted him on his head with a hammer. It is pertinent to note that in cross-examination, PW5 Sri Angad Biswas has reiterated that upon asking Ashok Bhar, he had told him that the accused Digen had assaulted him on his head with a hammer. This part of the evidence of PW4 and PW5 can be taken as a dying declaration of the deceased Ashok Bhar. It is well settled that dying declaration is a substantive evidence, if it is found to be reliable and trustworthy. However, corroboration is always a rule of prudence. Of course, the ideal dying declaration is one recorded by a Magistrate in the presence of doctor, who has certified that the deceased was in a fit state of mind to make the dying declaration. However, in this case, though the statement of the deceased regarding assault by the accused on his head with a hammer was made to PW4 and PW5, I find this dying declaration to be truthful, reliable and trustworthy. It may also be mentioned that the dying declaration finds corroboration from the medical evidence regarding the nature of the injuries. 16. In this case, though there are hearsay witnesses and the crucial eye witness Page No.# 7/9 has turned hostile, but I find the two dying declarations made by the deceased before PW4 and PW5 to be reliable enough to come to a finding that on the day of the incident, pursuant to a quarrel, the accused Digen Biswas hit the deceased Ashok Bhar on his head with a hammer, resulting in injuries and subsequent death of the deceased. However, a the incident took place pursuant to a quarrel, therefore, I am of the view that the accused person should not be fastened with an intention to cauase death. But since he hit the deceased with a hammer on head, it can be concluded that he had knowledge about causing death of the deceased by his act. Thus, on the basis of evidence on record, I come to the finding that the accused is guilty of committing culpable homicide, not amounting to murder u/s 304 Part-II IPC. Further, on the basis of the evidence on record, I do not find sufficient materials to convict the accused u/s 341 IPC.” 20. A perusal of the said conclusion drawn by the learned Trial Court would reveal that the learned Trial Court had relied upon the depositions of PW4 and PW5, who had deposed that they on reaching the police station had found the victim therein and on asking him he had deposed that the appellant, herein, had hit him on his head with a hammer. The statement as made by the deceased before the PW4 and PW5 was taken as a dying declaration of the deceased Ashok Bhar. The learned Trial Court further concluded that the depositions made by PW4 and PW5 being found to be truthful, reliable and trustworthy and the dying declaration, so brought on record, being corroborated by the medical evidence with regard to the nature of injuries, held that the same can be the basis for convicting the appellant, herein. The learned Trial Court thereafter noticing that the incident had occasioned pursuant to a quarrel, proceeded to further conclude that the appellant, herein, cannot be fastened with an intention to cause death. Accordingly, the learned Trial Court proceeded to convict the appellant, herein, under Section 304 Part II IPC and sentenced him, as noticed, hereinabove. 21. It is a settled position of law that a dying declaration is a substantive piece of evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the Court is fully satisfied that the dying declaration made by the deceased was Page No.# 8/9 voluntary and reliable and the author recorded the dying declaration as stated by the deceased. 22. It is also a settled position of law that for relying upon the dying declaration, the Court must be conscious that the dying declaration was voluntary and further, it was recorded correctly and above all, the maker was in a fit condition mentally and physically to make such statements. In the case in hand, the evidence adduced by PW2, the doctor who had conducted the postmortem on the dead body of the deceased had opined that the death of the deceased was due to coma as a result of ante-mortem homicidal head injuries, caused by blunt force. 23. The dying declaration relied upon by the learned Trial Court was the one made before PW4 and PW5 by the deceased at the police station. Considering the evidence adduced by the doctor conducting the postmortem examination of the deceased, as PW2, it is not clear that as to whether the deceased, when he was at the police station was in a position to make any statement, with regard to the injuries sustained by him before PW4 and PW5. There is no evidence brought on record that the deceased at the relevant point of time was in a fit and conscious state to make the statement. Further, there is no corroboration in the said deposition made by PW4 and PW5 by any other prosecution witnesses adducing evidence during the trial. The prosecution had also not got the matter, clarified from the Investigating Officer during his deposition. Accordingly, there is no evidence on record to demonstrate that the deceased during the time he was in the police station was in a position to make a statement with regard to the manner in which he had received the injuries. 24. The conviction of the appellant, herein, being solely based on the dying declaration of the deceased through the evidence adduced by PW4 and PW5, but the prosecution having not brought on record evidence that the deceased when he was in the police station was in a conscious state and was in a position to make the said statement, this Court is of the considered view that the said dying declaration could not have been made the basis for convicting the appellant, herein, and further corroboration thereof was mandated. In Page No.# 9/9 absence of any corroboration with regard to the depositions made by PW4 and PW5 about the statement made before them by the deceased while he was in the police station, about the manner in which he had suffered the injuries, this Court is of the considered view that solely basing on the deposition of the PW4 and PW5, it is not permissible to convict the appellant, herein. 25. In view of the above discussion, this Court is of the considered view that the prosecution has not established the charge under Section 304 Part-II IPC against the appellant, herein, beyond reasonable doubt and accordingly, the said conviction would mandate an interference. 26. This Court having drawn satisfaction with regard to the impermissibility to convict the appellant, herein, under Section 304 Part-II IPC basing on the evidences coming on record, the other contentions raised by the learned counsel for the appellant is not been examined. 27. In view of the above, the conviction of the appellant, herein, under Section 304 Part- II IPC stands set aside. Consequently, the judgment dated 21.02.2014 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 97(T)/2012 also stand set aside. The appellant is set at liberty. The bail bond executed by the appellant stands discharged. 28. With the above observation and direction, the present appeal stands disposed of. 29. Registry to send down the LCR forthwith. JUDGE Comparing Assistant