Page No.# 1/15 GAHC010263342024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRL.A(J)/183/2024 BIKROM PATOR S/O- SANATON PATOR, VILL.- BALIJURI, P.S. SAMAGURI, DIST. NAGAON, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE P.P., ASSAM Advocate for the appellant : Mr. A. Zaman. …..Advocate. Advocates for the respondent : Ms. B. Bhuyan, Sr. Advocate and Addl. P.P., Assam. Ms. S. Saloi, …. Advocate. :::BEFORE::: HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE NCHUMBEMO MOZHUI Date on which judgment is reserved : 17.09.2026 Date of pronouncement of judgment : 23.09.2026 Whether the pronouncement is of the : N/A operative part of the judgment ? Whether the full judgment has been : Yes pronounced? Page No.# 2/15 JUDGMENT & ORDER (CAV) (M. Zothankhuma, J) 1. Heard Mr. A. Zaman, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Senior Advocate and Additional Public Prosecutor assisted by Ms. R. Saloi learned counsel for the State. 2. This appeal has been filed against the impugned judgment dated 21.09.2024 passed by the learned Additional Sessions Judge No.3, Nagaon in Sessions Case No.32/2006, by which the appellant Bikram Pator (A1) has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life, with a fine of Rs.5000/-, in default rigorous imprisonment for 6 months. The co-accused Dhiren Manki, @ Dalua (A2) and Gokul Pator (A4) were convicted and sentenced under Section 323 IPC. However, all the accused persons, namely Bikram Pator (A1), Dhiren Manki, @ Dalua (A2), Thuru Bhakta (A3) and Gokul Pator (A4) were acquitted of the charges under Section 148/448/34 IPC, while A2, A3 and A4 were also acquitted of the charge under Section 302/34 IPC. The co-accused Biren Manki (A5) died during the trial proceedings and as such, the case stood abated against him. 3. The brief facts of the case is that an FIR dated 03.05.2005 was submitted by PW-3 (informant), who was also the father of the deceased Sibu, to the Officer-in-charge of the Samaguri Police Station, stating that at around 8.30 p.m, on 01.05.2005, the accused persons A1 to A5 had entered his house, armed with daos and sticks and assaulted his sons Sankar Tanti (PW-5) and Sibu Tanti (deceased), besides assaulting his daughter Jyoti Tanti @ Mukti (PW- 4) also. Thereafter the informant’s children were admitted to Nagaon Civil Page No.# 3/15 Hospital. The informant's son Sibu Tanti died in Civil Hospital on 03.05.2005 at 3 p.m, while undergoing treatment. The informant stated that the delay in lodging the FIR on 03.05.2005, was due to the treatment being given to his injured children. Pursuant to the FIR, Samaguri Police Station Case No.56/2005 under Section 147/148/149/457/326/302 IPC was registered. The five accused persons are referred to as A1 to A5 as follows : 1. Bikrom Pator (A1), 2. Dhiren Manki, @ Dalua (A2), 3. Thuru Bhakta (A3) 4. Gokul Pator (A4) 5. Biren Manki (A5), who subsequently died during trial. 4. The Investigating Officer (PW-6), on completion of investigation, submitted a charge sheet against all the five accused persons, on finding a prima facie case established against them under Sections 147/148/149/457/326/302/IPC. 5. The learned Trial Court thereafter framed four charges against all the accused persons, i.e. under (i) Section 148 IPC, (ii) 448/34 IPC, (iii) 324/34 IPC and (iv) Section 302/34 IPC. The appellants all pleaded not guilty to the charges framed against them and claimed to be tried. 6. The learned Trial Court thereafter examined 8 Prosecution witnesses and three Defence witnesses. After examining all the five accused persons under Page No.# 4/15 section 313 Cr.P.C, the learned Trial Court came to the finding that only the present appellant (A1) was guilty of committing the offence punishable under Section 302 IPC. A2 and A4 were found guilty of having committed the offence punishable under Section 323 IPC. All the accused persons were acquitted of the charges framed against them under Section 148/448/34 IPC. A2, A3 and A4 were also acquitted from the charges of Section 302/34-IPC. 7. This appeal is against the conviction of Bikram Pator (A1) under Section 302-IPC. 8. The learned counsel for the appellant submits that there are major discrepancies in the evidence of the Prosecution witnesses, due to which the evidence of the witnesses could not be relied upon to convict the appellant. He submits that the place of occurrence is different in terms of the evidence of the witnesses and there is only one injury on the deceased, in terms of the evidence of the Doctor (PW-8), though the evidence of PW-5 shows that besides the appellant having struck the head of the deceased with an axe, accused Biren (A5) had also assaulted Sibu (deceased) with a wooden batten. 9. The learned counsel for the appellant further submits that there is a delay of 2 days in filing the FIR dated 03.05.2005, inasmuch as, the incident occurred at 8:30 p.m on 01.05.2005, which had left a lot of time for the Prosecution and their witnesses to make up a false case and make embellishments to the case. He also submits that the evidence of the Defence Witnesses (DW 1, 2 & 3) goes to show that the deceased had tried to rape DW-1, due to which the deceased was chased by the accused persons and was hit with an axe. The learned Page No.# 5/15 counsel submits that the testimony of DW Nos.1 to 3 shows that the death of the deceased has been done due to a sudden provocation and for which the Exception-I to Section 300 IPC would be attracted. The same thus showed that the act of killing the deceased amounted to culpable homicide not amounting to murder, for which the appellant could be convicted only under Section 304 Part- II of IPC. 10. The learned Additional Public Prosecutor, on the other hand submits that the reason for the delayed FIR was due to the fact that the deceased and his siblings was being treated for their injuries, which they had received on 01.05.2005. It was only after the deceased died on 03.05.2025 that the informant who was looking after them, could file the FIR on 03.05.2025. The Addl. P.P submits that there being two injured eyewitnesses, i.e. PW-4 and PW- 5, who are the sister and brother of the deceased, the fact that the appellant had killed the deceased had been proved. Further, the fact that PW-4 and PW-5 were injured eyewitnesses, had also been proved by the Doctor (PW-7), in his testimony given before the learned Trial Court. She accordingly submits that there is no ground to interfere with the impugned judgment and order passed by the learned Trial Court. 11. We have heard the learned counsels for the parties. 12. The evidence of PW-1 is to the effect that he knew the informant as well as the accused persons, though A5 was not present in the Court. PW1 stated that he did not know how the deceased had died, though he had an injury on his head, which was inflicted with a dao. Page No.# 6/15 13. The evidence of PW-2 is to the effect that he knew the informant, though he did not know the accused persons. He stated that the deceased was to be his son-in-law. He also stated that he did not know who killed the deceased. 14. The evidence of PW-3 is to the effect that he was the informant and he knew the accused persons, though A2 and A5 were not present in the Court. PW-3 stated that the deceased was his son and the incident took place at around 7 p.m on 01.05.2005. He was told by his other son PW-5, that the appellant (A1) had struck the head of the deceased with a small axe. PW-3 also stated that he noticed a cut injury on the face of PW-5, near his eye, which was bleeding. When asked about the injury, PW-5 told him that Gofu (A4) had assaulted him with a torchlight and that A2 had injured PW-4 with a dao. The name Gofu in the evidence of PW-3 would have to be construed to be Gokul (A4), inasmuch as, the evidence of PW-5 is to the effect that it was Gokul who had assaulted him near his eye with a torchlight. Further, PW-3 had assaulted PW-5 with a piece of wood. The FIR also stated that A5 had also assaulted the deceased with a bamboo stick. Upon hearing the incident, PW-3 ran to his tea garden quarter and saw a pool of blood on the road, in front of his house. He also stated that the house of the appellant (A1) and his house were opposite to each other. He found the deceased lying in his house with injuries on his head. Everyone was crying. When he went to the house of A2, the door was closed. Thereafter, he took all the three injured persons in a vehicle to Nagaon Civil Hospital, where they were admitted and provided treatment. PW-3 stated that the Doctor then advised him that the deceased, who was still alive, should be taken to Guwahati for treatment, as his injuries were severe. However, due to financial constraints, he was unable to take him to Guwahati. The incident Page No.# 7/15 occurred on Sunday and the deceased died on Tuesday. The police came to the hospital on Tuesday and investigated the matter. He also stated that he lodged the FIR on Monday because he was busy with looking after his children and was trying to arrange money for the treatment of his son (deceased). As such, his mind was not working properly. In his cross-examination, PW-3 stated that there was a pool of blood near the boundary wall of the appellant's house also. 15. The evidence of PW-4, whose name is Mukti Tanti @ Joyti Tanti and the daughter of the informant, is to the effect that she knew the persons whom her father mentioned as the accused and they were A1 to A5. At the time of the incident, her brother was studying in class 9, and a woman named Tarabati (Defence Witness No.1) from their tea garden line came to their house at around 6.30 pm and asked for the deceased. PW-4 was at home while the deceased was not at home. As such, PW-4 asked Tarabati (DW-1) to come the next day. They then called the deceased and asked him if he had gone to Tarabati's house. The deceased then said that he had not gone to Tarabati's house and then they went to the appellant's house. PW-4 stated that she went with the deceased to the appellant's house, but came back. PW-4 then heard the deceased shouting, ‘Ma’. On going there, she saw the deceased lying on the ground in an injured condition and blood was coming out from his body. The appellant was holding an axe, while A2 was holding a dao. A2 then struck PW-4 once with the dao, due to which PW-4 fell to the ground unconscious. PW-4 stated that she regained her consciousness in a vehicle, while being taken to the hospital. She said that the deceased died two days after being taken to the Page No.# 8/15 hospital, while she remained at the civil hospital for 10 days. She took medicines and underwent further treatment in the tea garden. In her cross-examination, PW-4 stated that Tarabati had asked about the whereabouts of the deceased and told her that the deceased had entered Tarabati's house and tried to misbehave with her. When the deceased came home, PW-4 asked him about it, due to which he got angry and went to ask Tarabati about the same. Shortly after that, the deceased went to Tarabati's house. She then heard the scream of the deceased. 16. The evidence of PW-5, who is the other son of the informant, is to the effect that Tarabati had come to their house asking for the deceased Sibu, who was not at home. On asking the deceased Sibu if he had gone to Tarabati's house, the deceased had denied the same. Thereafter, the deceased went to the appellant's house to ask him as to why he had been picking a fight. When the deceased called the appellant from the road, the appellant came out from his house and struck the deceased on the head with an axe. When the deceased fell down, appellant (A1) assaulted the deceased with a wooden batten. PW-5 then tried to stop A5. A4 then assaulted PW-5 near his eye with a torchlight, due to which PW-5 went into his house out of fear. PW-5 stated that he then took the deceased to hospital and that he died two days later. PW-5 also stated that Tarabati was a relative of the appellant. In his cross-examination, PW-5 stated that when he asked Tarabati why she had scolded the deceased, Tarabati said that the deceased had touched her. PW-5 also stated that after talking to the appellant (A1), the appellant had Page No.# 9/15 struck the head of the deceased from behind with an axe. 17. The evidence of PW-6, who is the Investigating Officer, is to the effect that after investigating the case and finding a prima facie case against the appellants under section 147/148/149/457/326/302 IPC, he had submitted the charge sheet. 18. The evidence of PW-7, who is a Doctor in the B.P. Civil Hospital, Nagaon, is to the effect that on 02.05.02005, he examined PW-4 and found “lacerated wound occipital region of scalp-2”x1/2 bleeding present. Nature of injury and weapon used : simple and blunt object”. He also examined PW-5 and found the following : “Lacerated wound on left check of size ½” x ½”. Object use blunt and nature of injury is simple”. 19. The evidence of PW8, who is also a Doctor in Nagaon B.P. Civil Hospital, is to the effect that he performed the Post-Mortem examination on the dead body of the deceased Sibu and found the following : “External appearance :- Condition of subject stout, Rigor mortis absent. Sharp cut injury longitudinal extended from frontal region to occipital region. Cranium and Spinal Canal :- Fracture frontal and segital bone. Membrane-Ruptures. Page No.# 10/15 Brain and spinal cord – Liquid and clotted blood inside brain Other organs are healthy The injury ante mortem in nature. In my opinion – the cause of death was hock and haemorrhage as a result of injury.” In his cross examination, PW-8 stated that he found only one cut injury on the head and that such type of injury could occur if someone fell on a very sharp substance. 20. The evidence of DW-1, Taraboti Pator, is to the effect that she knew the appellant and the informant. DW-1 stated that while she was sleeping in her house at around 8 p.m, the deceased got on top of her and tried to rape. On raising a hue and cry A4 and A5 came. A5 had a dao in his hand and due to the commotion, the family members of the informant and other people also came. DW-1 thereafter stated that she did not know what had happened thereafter. In her cross-examination, DW-1 stated that A4 was her brother-in-law. She also stated that there was a road in between her house and the house of the deceased. She also denied the suggestion that the deceased did not try to rape her. She also stated that she did not lodge any FIR with the police station, nor did she report the matter to anybody. She also stated that she did not know if the appellant had killed the deceased. 21. The evidence of DW-2 is to the effect that he knew the informant and the deceased. DW-2 stated that at about 8-8:30 p.m on the date of the occurrence, Page No.# 11/15 she heard a hue and cry coming from the house of her sister-in-law (DW-1). On going there, DW-1 told DW-2 that the deceased had attempted to rape her. When DW-1 screamed, the deceased hit her on the forehead with a dao. Hearing about it A5 had chased the deceased with a dao. Thereafter, she did not know what had happened. In her cross-examination, DW-2 stated that the appellant’s house was located behind DW-1’s house. DW-2 stated that they did not lodge any FIR in connection with the attempt by the deceased to rape DW-1 and neither did they inform anybody about it. 22. The evidence of DW-3 is to the effect that he knew the informant and the deceased. Around 7-8:00 p.m on a Sunday, he heard a hue and cry, while he was in his house. However, since it was dark he did not go beyond his courtyard. DW-3, who is also the accused no.3 (A3), denied the suggestion that he along with the other 4 accused persons illegally entered the house of PW-3 with deadly weapons or that they had assaulted the deceased and PW-4. 23. The evidence of the Enquiry Officer is to the effect that on 02.12.2018 he was posted at Puranigudam P.P under Samaguri P.S. On that day, he had been asked by the Officer-in-Charge to ascertain the death of A5. On going to the address of A5, he found that A5 had expired, due to which a death certificate was issued accordingly. 24. The stand of the appellant during his examination under Section 313 Cr.P.C, is basically to the effect that a false case had been lodged against him. Page No.# 12/15 25. As can be seen from the evidence of the witnesses, though the FIR speaks of the assault being made on the deceased, inside the house of the deceased, the said fact has been clarified by PW-4, who stated that after they had gone to the appellant’s house, she had come back and then she had heard the deceased shouting. On going back, PW-4 saw the deceased lying on the ground in an injured condition. PW-5 has also stated that the deceased had gone to the appellant’s house and on the way back home, the appellant had struck the head of the deceased with an axe. The evidence of the witnesses is to the effect that there was blood all over the road. The sketch map made by PW-6 shows that the assault on the deceased had taken place on the road, between the house of the informant and the house of DW-1. Thus, there is no discrepancy with regard to the place of occurrence/assault on the deceased. 26. With regard to there being only one injury on the head of the deceased, the evidence of PW-5 is that the accused Biren (A5) had also assaulted the deceased with a wooden batten. It appears that the assault by Biren was not serious enough to show injury marks on the body of the deceased. In any event the assault on the head of the deceased with an axe by the appellant has been proved by the direct ocular evidence of the two injured eyewitnesses (PW-4 and PW-5). The evidence of the injured eyewitnesses, which is to the effect that the appellant had struck the head of the deceased with an axe, has been corroborated by the evidence of PW-8. 27. In the case of State of U.P. Vs. Naresh, reported in (2011) 4 SCC 324, the Supreme Court has held the evidence of an injured witness must be given due weightage, inasmuch as, his presence at the place of occurrence Page No.# 13/15 cannot be doubted. Further, his statement is generally to be considered very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished, merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. 28. In the present case, it is the brother of the eyewitness that has been killed by an axe wielded by the appellant. There is nothing to doubt the truthfulness of the testimony of the 2 injured eyewitnesses. There is also no major contradictions or discrepancies in their evidence, to leave a doubt that it was not the appellant who had hit the head of the deceased with a dangerous weapon, i.e. an axe. 29. The fact that the two eyewitnesses, PW-4 and PW-5 had also been injured is also corroborated by the evidence of PW-7. Further, the evidence of PW-4 that she remained in hospital for 10 days, has not been controverted or shaken by the appellant. We do not find any reason to doubt the evidence of PW-4 and PW-5, who are siblings of the deceased. In the case of Esakkimuthu vs. State represented by the Inspector of Police, reported in 2025 0 INSC 880, the Supreme Court held that the evidence of close relatives of the Page No.# 14/15 deceased can be rejected if there are material contradictions and inconsistencies in their testimonies. However, as stated earlier, we find the evidence of PW-4 and PW-5 to be truthful and without any material contradictions or inconsistencies. 30. In the case of Apren Joseph alias Current Kunjukunju and Ors. Vs. The State of Kerala, reported in (1973) 3 SCC 114, the Hon’ble Supreme Court has held that an FIR is very useful, if recorded before there is time and opportunity to embellish it, or before the informant’s memory fades. Undue or unreasonable delay in lodging the FIR, therefore, may give rise to a suspicion, which puts the Court on guard to look for the possible motive and consider its effect on the trustworthiness or otherwise of the Prosecution case. Thus, in terms of the above judgment, FIR should normally be lodged at the earliest possible opportunity. However, some laxity is provided and accepted in filing delayed FIRs, provided there is some explanation for the same. 31. With regard to the stand taken by the appellant’s counsel that there is a delay in filing the FIR, which creates a doubt as to the credibility of the Prosecution case, we find that the explanation given by the informant that he could not file the FIR earlier, is acceptable and plausible, as the informant had stated that he had to look after his injured children, who were being treated in the hospital. Further, as he did not have money to take his deceased son to Guwahati for better medical treatment, required him to look for money for achieving the said purpose, leads us to believe that the delay in filing the appeal has been explained. 32. With regard to the stand taken by the appellant's counsel that the Page No.# 15/15 conviction of the appellant could have at best been under Section 304 Part-II IPC, on the ground that Exception-1 to Section 300 IPC was attracted, we find that there is nothing explained or stated by the appellant, as to how he had been deprived of the power of self control, by any alleged grave and sudden provocation on the part of the deceased. The evidence of the witnesses does not show that any grave and sudden provocation has been made to the appellant by the deceased. The evidence of DW-1 and DW-2 that the deceased had tried to rape DW-1 is an unproven allegation. The fact that defence witnesses had never spoken about it to anyone, prior to adducing their evidence on 28.08.2018 and 03.05.2024 casts a doubt regarding the authenticity of the allegation. Even if it is assumed that the appellant was provoked by the alleged attempt to rape made by the deceased on DW-1, there is no explanation or reason for the assault/attack made on PW-4 and PW-5. 33. In view of the reasons stated above, we find that there is no ground to interfere with the impugned Judgment dated 21.09.2024 passed by the learned Addl. Sessions Judge No.3, Nagaon in Sessions Case No.32/2006. 34. The appeal is accordingly dismissed. 35. Send back the TCR. JUDGE JUDGE Comparing Assistant Kuntal Datta Digitally signed by Kuntal Datta Date: 2026.09.23 10:43:54 +05'30'