Page No.# 1/15 GAHC010270652022 2026:GAU-AS:7240-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./19/2023 HAREN BORAH S/O LATE KAMESWAR BORA. R/O TEZPUR, SONITPUR, ASSAM, PIN- 784001. VERSUS THE STATE OF ASSAM AND ANR. REP. BY P.P., ASSAM. 2:JONAK BORAH S/O LATE MOHEN BORA VILL.- TINGRI BONGALIGAON P.S.- MAKUM DIST.- TINSUKIA ASSAM PIN- 786170 Advocate for the Appellant : MR. B BARUAH, MRS. S D DEKA Advocate for the Respondent : Mr. R.R. KAUSHIK, ADDL. P.P., ASSAM, BEFORE HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA Date on which judgment is reserved : 20/05/2026 Date of pronouncement of judgment : 26/05/2026 Page No.# 2/15 Whether the pronouncement is of the : No operative part of the judgment ? Whether the full judgment has been : Yes pronounced? JUDGMENT AND ORDER (CAV) (Michael Zothankhuma, J) 1. Heard Mr. B. Baruah, learned counsel for the appellant and Mr. R.R. Kaushik, learned APP, Assam, appearing for the State. 2. This appeal has been filed against the impugned judgment dated 23/112022, passed by the learned Sessions Judge Udalguri in Sessions Case No. 104/2018, convicting the appellant under Section 302 IPC, for having killed his police colleague at around 1.30 a.m. on 28/09/2017 with a knife. 3. The appellant's counsel submits that a group of policemen, including the appellant and the deceased, were playing cards on the night of 27/09/2017. Thereupon, a quarrel ensued between the appellant and the deceased late in the night of 27/09/2017. The Platoon Commander thereafter came to the place of occurrence and told the appellant and the deceased to go to sleep on their own beds. However, at about 1.30 a.m., the quarrel which was apparently continuing ended with the deceased being found on his bed, bleeding from the left side of his chest. A bloodied knife was recovered on the next day. The appellant's counsel submits that there is no proof that the appellant had stabbed and killed the deceased. In the alternative, he submits that assuming that the appellant was the perpetrator of the crime, Exception 4 to section 300 IPC would be attracted, as the quarrel between them escalated into a fight, which ultimately ended the life of the deceased. The act of the appellant, in the alternative scenario, would have to be considered to be Page No.# 3/15 unintentional, as there was no premeditation or intention on the part of the appellant, at the time that they started playing cards, to kill the deceased. He accordingly submits that section 302 IPC would not be attracted and at best, the appellant could have been convicted under section 304 Part-II IPC. 4. Mr. R. R. Kaushik, the learned APP, on the other hand, submits that the evidence of the witnesses show that there was an initial quarrel between the appellant and the deceased at around 10.30 p.m. of 27/09/2017, which ended with the appellant and the deceased being ordered to go to bed by the Platoon Commander (PW-1). However, the camp was woken up at around 1.30 a.m. on 28/09/2017, on account of the deceased shouting “I am dying”, whereupon the appellant was seen standing near the bed of the deceased and repenting and thereafter going towards his bed. He also submits that none of the Exceptions 1 to 5 of Section 300 IPC are attracted to the facts of the case. Further, though there was no premeditation and intention to kill the deceased initially, the intention to kill had apparently grown during the course of the quarrel that had ensued between them earlier in the night. The learned APP also submits that the question of the appellant being deprived of his self- control does not arise, as the act of killing the deceased had occurred a few hours after their quarrel had been stopped and they had been directed to go to sleep by their Platoon Commander. Further, the intention to kill the deceased can be deduced due to the appellant using a weapon to cause bodily harm to the deceased, by stabbing him in a vital part of the body while he was asleep. Thus, there was no infirmity with the conviction of the appellant for killing the deceased under section 302 IPC. 5. We have heard the learned counsels for the parties. 6. The facts of the case in brief is that an FIR dated 28/09/2017 was submitted by the informant (PW-1), who was the Platoon Commander. The F.I.R. stated that at Page No.# 4/15 around 1.30 a.m. on 28/09/2017, an altercation took place between the appellant and the deceased over some personal issues. On hearing them quarrelling, he went to them and told them to go and sleep in their own beds. Thereafter, PW-1 also went to sleep. After about 10-15 minutes, the person on sentry duty who was PW-6 called him and told him that the appellant and the respondent were fighting and that the deceased had fallen on to his bed. On reaching the place of occurrence, he saw the deceased lying on his bed in a pool of blood. PW-1 also noticed an injury on the upper left chest of the deceased, which appeared to be caused with a knife. On seeing the deceased in a critical condition, he immediately called the Ambulance and the in- charge of the Police Outpost. He was informed by the Udalguri Civil Hospital around 3.15 a.m. that the deceased had passed away. On searching the barrack and nearby place, they found a blood-stained knife, generally used by the deceased. The knife was found in the back side of the barrack, which was handed over to the in-charge. Pursuant to the FIR, Udalguri PS case No. 187/2017 under section 302 IPC was registered. 7. After investigation of the case and filing of charge-sheet, charge under Section 302 IPC was framed against the appellant, to which he pleaded not guilty and claimed to be tried. 8. The learned Trial Court after recording the evidence of 12 Prosecution Witnesses and examining the appellant under Section 313 Cr.P.C, came to a finding that the prosecution had been able to prove beyond all reasonable doubt that the appellant had killed the deceased. Accordingly, sentence was imposed upon the appellant under section 302 IPC. 9. The appellant has thus made a challenge to his conviction by filing this appeal. Page No.# 5/15 10. The evidence of PW-1, who is the informant, is to the effect that at around 11 p.m., he heard the appellant and the deceased making noise/quarrelling. He intervened and asked both of them to go to bed. At about 1.30 am in the night, PW-6 informed him that the appellant and the deceased were quarrelling. On going to the room of the deceased and the accused/appellant, he found that the deceased was lying on the bed with a bleeding injury on the left side of his chest. He accordingly informed the in-Charge of the Out-Post and called an ambulance. The deceased was taken to Udalguri Civil Hospital, where he was declared dead at around 3.30 a.m. Thereafter, PW-1 lodged an FIR. PW-1 also stated that he was informed by PW-6 that the appellant had stabbed the deceased with a sharp weapon. A blood stained knife was recovered the next morning by the Police from outside the boundary of the barrack. 11. The evidence of PW-2, who is a Police Constable, is to the effect that when he was in the barrack at around 1.30 a.m. in the night, the in-Charge of the Outpost (PW-10) called him and informed him that a quarrel took place between the appellant and the deceased and he needed to go to the hospital. He went to the police camp and then accompanied the deceased to the hospital, where he was declared dead. 12. The evidence of PW-3, who is a Lnc. Nayak of the 12th APBN Battalion, is to the effect that he knew the appellant, the deceased and the informant. On the day of the occurrence, about 12 to 14 personnel of the battalion were sleeping in a barrack and at about 1.30 a.m. in the night, he heard the appellant and the deceased quarrelling. Then PW-1 came to the barrack and asked the deceased and the appellant to stop quarrelling and to go to sleep. They then went to their beds. After about 15-20 minutes, they heard someone screaming “I am dying”. The battalion staff, who were on sentry duty, came inside the barrack and on rushing to the bed of the deceased, they found the deceased on his bed with a bleeding injury on his chest. They also found the appellant near the bed of the deceased and on asking him as to what Page No.# 6/15 happened, the appellant told them that he did not kill the deceased with the intention of killing him. PW-3 further stated that the appellant also made several meaningless comments. 13. In his cross-examination, PW-3 stated that the bed of the deceased was next to the bed of the appellant and there was a passage between their beds. PW-3 did not know the reason why the appellant and the deceased were quarreling. 14. The evidence of PW-4, who is a Constable in the 12th APBN Battalion, is to the effect that on the day of the occurrence at about 10 p.m., the appellant and the deceased had an altercation. Thereafter, PW-1 stopped their quarrelling and they went to their own beds. Again at about 12.30-1 a.m. in the night, the deceased and the appellant started quarrelling. During the quarrel, the deceased screamed “I am dying”. PW-4 and the other inmates of the barrack rushed to the bed of the deceased and saw him on the bed with a bleeding injury on his chest. The appellant was seen standing near the deceased and on being asked as to what happened, the appellant stated that he did not know what he did. 15. In his cross-examination, PW-4 stated that the second incident of causing injury to the deceased happened after one hour of the earlier incident, in which the informant intervened in the quarrel between the appellant and the deceased. PW-4 stated that though they called the deceased, the deceased was unable to speak. PW-4 also stated that he saw the appellant standing near the bed of the deceased saying that he did not kill the deceased and that he had committed a mistake. 16. The evidence of PW-5, who is a Lnc. Nayak in the 12th APBN Battalion, is to the effect that at about 11.30 p.m., the appellant and the deceased had an altercation. The other inmates of the barrack informed PW-1, who took the deceased to the bed of one Hiranya Bora and asked him to sleep there. The deceased came out Page No.# 7/15 of the bed of Hiranya Bora and said that he did not like to sleep in the bed of another person and that he would sleep in his own bed. Thereafter, the deceased slept on his own bed. PW-5 then states that after sometime, he heard the deceased saying “I am dying”. PW-6, who was on duty outside the barrack, came into the barrack and saw the deceased lying on his bed with a stab injury on his chest. He also stated that there was bleeding. The appellant was near the deceased and he was walking aimlessly. PW-6 then shouted at the appellant Haren Bora, and asking him as to what he had done, besides telling him to bring water. The appellant brought water and put the same on the mouth and head of the deceased and then the appellant cried. 17. In his cross examination, PW-5 stated that the knife was recovered the next day from outside the barrack and that when he entered the barrack, all other inmates who were sleeping inside the barrack came to the place of occurrence. PW-5 also stated that on the day of the occurrence some youths and constables played cards on the bed of the deceased. The appellant also played cards. During that time when people were playing cards, a quarrel broke out between the appellant and the deceased. PW-5 also denied the suggestion that the appellant was falsely implicated in the case, as prior to the incident, the appellant had quarreled with the deceased. 18. The evidence of PW-6, who is a Constable in the 12th APBN, is to the effect that about midnight at about 12, the appellant had an altercation with the deceased. On the informant being told, the informant came to their barrack and asked the appellant and the deceased not to quarrel, which they did. After the informant left the barrack, PW-6 went for sentry duty. At about 1.30 a.m, he heard someone screaming, “I am going to die” inside the barrack. Thereafter, PW-6 and the other sentry duty Manoronjon Ghosh rushed to the barrack. On entering it, PW-6 saw the deceased lying on his bed with his hand covering his chest. On the appellant seeing PW-6 and Manoronjon Ghosh, he immediately went to his bed. Thereafter, the informant was called, who subsequently went to call the in-charge of the Out Post. In his cross- Page No.# 8/15 examination, PW-6 stated that at the time of the incident, there were five Constables inside the barrack. He also denied the suggestion that on the date of occurrence, some boys had been playing cards along with the deceased on the bed of the appellant, due to which an altercation ensued. 19. The evidence of PW-7, who is a Havildar in the 12th APBN, is to the effect that after completion of his duty in the Puja Pandal, he went to the barrack at 12 in the night. While sleeping, he heard a hue and cry at around 1.30 a.m. He then saw the appellant crying and falling on the body of the deceased. PW-7 also saw blood coming out from the chest of the deceased. In his cross-examination, PW-7 stated that he woke up on hearing a hue and cry raised by PW-6 and another Constable. PW-7 further stated that the other four Constables, who were sleeping in the barrack, also woke up and came near the bed of the deceased. After the incident, the appellant was not allowed to go outside the barrack. He further stated that the seized knife was not shown to him. 20. The evidence of PW-8 is to the effect that he knew the accused and the deceased. On the date of the occurrence, he was posted at 12 APBN Camp. While sleeping in the barrack, which was adjacent to the barrack where the incident took place, he heard a commotion in the other barrack at about 1 a.m. PW-6 woke him up at around 1.25 a.m. and told him that the appellant had killed the deceased. PW-8 then went to the place of occurrence and saw the deceased lying on his bed with injury on his chest, which was bleeding profusely. 21. The evidence of PW-9 who is a Constable in the 12 APBN, is to the effect that at about 12.30 a.m, an altercation took place between the appellant and the deceased. The informant intervened and stopped their quarrel. At about 1.30 a.m, PW-6, who was on sentry duty, raised a hue and cry stating that something had happened to the deceased. On going to the bed of the deceased, he found the Page No.# 9/15 deceased on his bed with a bleeding injury near his neck. He saw the appellant pour water on the face of the deceased and the appellant was saying that he did not assault the deceased with the intention to kill him and was also repenting. In his cross examination, PW-9 denied the suggestion that the appellant did not say that he did not assault the deceased with intent to kill him and was repenting. He also stated that one blood stained knife was recovered from outside the barrack. 22. The evidence of PW-10, who is the Second Officer at Sualkuchi Police Station is to the effect that on 28/09/2017, he was working as in-charge of the Bhairabkunda Outpost. On the intervening night between 27/09/2017 and 28/09/2017, at about 1.45 a.m, the informant came to the Outpost and informed him that fighting had taken place between the deceased and the appellant in the Battalion Barrack, due to which the deceased sustained severe injuries on his neck. On going to the barrack, he saw the deceased lying on his bed in an unconscious state and the appellant was near him. He also saw blood flowing from the neck of the deceased and his bedsheet was smeared with blood. He called an Ambulance and recorded the GDE, detained the appellant and recorded statements of the witnesses. He also prepared the sketch map of the place of occurrence and on searching the barrack the next morning, he found a knife which was stained with blood. He seized the said knife and the stained bedsheet of the deceased. An FIR was registered and inquest done on the body. As he was transferred from Bhairabkunda Outpost, he handed over the case diary to the Officer- in-Charge of Udalguri PS. 23. The evidence of PW-11, who was working as the Second Officer at Udalguri PS on 20/12/2017, is to the effect that the OC Udalguri PS had handed over the case diary of the case to him for completing the investigation. As he found the investigation of the case had already been completed by PW- 10 and having found sufficient materials against the appellant, he submitted the charge under section 302 IPC. Page No.# 10/15 24. The evidence of PW-12, who is Senior Medical and Health Officer at Udalguri Civil Hospital is to the effect that he conducted post-mortem examination of the dead body of the deceased on 28/09/2017. He found stab injury on the left side of the chest of the deceased and in his opinion, death was due to shock and haemorrhage. 25. The examination of the appellant under section 313 Cr.P.C. shows that the appellant had denied killing the deceased. Further, though the appellant denied that any quarrel had taken place between the deceased and the appellant at around 1.30 a.m, he did not deny the evidence that there had been an altercation between them at about 10 pm. In this regard, Question and answer Nos. 4, 6 & 8 of the examination of the appellant under section 313 Cr.P.C. is reproduced herein below as follows :- “Q4. PW2 UBC Jogen Deka had deposed in his evidence that on the date of occurrence, at about 1.30 am in the night, the In-charge of Bhairabkunda OP, Umesh Bordoloi called him to the battalion camp and informed that a quarrel took place between you and the deceased and he need to go to hospital. What do you want to say? Ans: No quarrel took place at 1.30 am. Q6. PW3 Gunajit Kalita had deposed in his evidence that on the date of occurrence, in the night, about 12-14 personnel of his battalion were sleeping in a barrack and in that night, at about 1.30 am, you and deceased Sankar Kardong were quarrelling. Then the Pitn. Commader ABSI, Jamak Bora came to our barrack and asked both of you to stop quarrelling and go to sleep. Then you and the deceased went to bed. What do you want to say? Ans: No quarrel took place at 1.30 am. Q8. PW4 Bhaba Nanda Nath had also deposed in his evidence that on the date of occurrence, at about 10 pm you and the deceased had an altercation. Then Pitn. Commander Jamak Bora came to barrack and asked both of you to stop Page No.# 11/15 quarrelling. Then both of you stopped and went to your beds. What do you want to say? Ans: Yes, it is true.” 26. A perusal of the evidence of the witnesses goes to show that a group of policemen played cards in their barracks and at around 10.30 p.m. of 27.09.2017, a quarrel ensued between the appellant and the deceased. The Platoon Commander was called and he directed the appellant and the deceased to go to sleep. However, at about 1.30 a.m, a cry was heard from the deceased saying that he was dying. When the other persons in the barrack who were sleeping and the sentries who were guarding the police outpost came into the barrack, they saw the appellant on his bed, clutching his chest, which was blooded. They also saw the appellant who was standing near the bed of the deceased, muttering that he did not kill the deceased and that he had committed a mistake. The appellant had apparently stated that he did not know what he did to the deceased. Further, the appellant was trying to go to his bed when PW-6 had entered the barrack. It is also in the evidence of PW-9 that the appellant stated that he did not assault the deceased with the intent to kill him and was repenting his action. 27. The FIR of PW-1 shows that a blood-stained knife was found in the barrack and that the said knife had been generally used by the appellant. The evidence of the witnesses also shows that the blood-stained knife which had apparently been used had been seized. The evidence of some of the witnesses is to the effect that there was another quarrel between the appellant and the deceased at around 1.30 a.m. and immediately thereafter, the deceased was shouting “I am dying”. Further, he was also thereafter seen on his bed with a bloody chest wound. 28. The examination of the appellant under section 313 Cr.P.C. also shows that the appellant has not denied having a quarrel with the deceased at around 10 p.m. Page No.# 12/15 29. On considering the evidence of the parties and keeping in view the first quarrel that was ended by the Platoon Commander at 10.30 p.m. and the subsequent injury on the chest of the deceased at around 1.30 a.m, we do not find any reason to come to a different conclusion than the fact that the appellant had stabbed the victim with a knife at 1.30 a.m. The behavior and demeanor of the appellant appears to be that of guilty person, when everyone else in the barrack and from outside came into the barrack and had seen the injured person. The evidence of PW4 is to the effect that the deceased and the appellant again started quarreling at around 12.30- 1.00 a.m. in the night and during the quarrel the deceased screamed “I am dying.” All these circumstantial evidence, in our view, leads us to no other conclusion than the fact that the appellant had stabbed the victim with the bloody knife that had been recovered the next day. 30. Now coming to the alternative argument made out by the appellant's counsel that Exception 4 to Section 300 IPC was attracted to the facts of the case, inasmuch as, the act of the appellant had occurred due to a sudden quarrel and in the heat of passion, without any premeditation or intention on the part of the appellant to kill the deceased. 31. The Supreme Court in the case of Ghapoo Yadav & Ors. Vs. State of M.P, reported in (2003) 3 SCC 528, has held that for Exception 4 to Section 300 IPC to be invoked, if death is caused, the following conditions have to be present- (a) if the death is caused without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. 32. No doubt, Exception 4 to Section 300 IPC also provides that a sudden quarrel should have started and the act of the accused should have been on the basis of a sudden fight that had erupted after the sudden quarrel. Exception 4 to Section 300 Page No.# 13/15 IPC is reproduced hereinbelow as follows:- “Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 33. The evidence of the Prosecution witnesses in the present case, however, does not indicate that any sudden fight had occurred between the parties, though there was a quarrel between the parties. With regard to whether there was any premeditation or intention to kill on the part of the appellant, we will have to see the judgment of the Supreme Court in the case of Pulicherla Nagaraju Alias Nagaraja Reddy Vs. State of A.P., reported in (2006) 11 SCC 444, where it is held that the intention to cause death can be gathered generally from a combination of a few or several of the following 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 premeditation; (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. Be that as it may. 34. The facts of the case in Pulicherla Nagaraju Alias Nagaraja Reddy Page No.# 14/15 (Supra) was that the appellant was carrying a dangerous weapon and there was previous enmity between the appellant and the deceased. There was also an earlier incident about half an hour earlier, where the father and brother of the deceased had been attacked by the appellant and his father. The deceased was unarmed. There was no provocation, sudden quarrel or fight. There was no indication of any cause for apprehension on the part of the appellant that the deceased may attack him. The stabbing was with great force causing an injury on a vital part of the body, sufficient in the ordinary course of nature to cause death. The Supreme Court in the above case, thus held that the circumstances to bring the case under Exception 4 to Section 300 IPC did not exist. 35. In the present case also, though there was a previous quarrel at around 10.30 p.m, the appellant and the deceased had been directed to go to sleep and the next quarrel had apparently started at around 1.30 a.m. Thus there was sufficient time for the parties to cool down. Even if we are to assume that the quarrel started afresh at 1.30 a.m or that the quarrel continued from 10.30 p.m of 29.07.2019, the fact remains that the quarrel did not lead to a sudden fight between the parties. Only PW-10 who was not an eyewitness and who was only informed of the fact that the deceased had sustained severe injury, has stated that fighting had taken place between the deceased and the appellant. However, there is no evidence given to that effect by anybody. In the present case, only the deceased has been stabbed in the chest and only one bloodied knife has been recovered. Thus, in the absence of use of a weapon on the part of the deceased, the act of the appellant in using a knife on a vital part of the body of the deceased, which led to his death, shows that Exception 4 to Section 300 IPC cannot be attracted to this case. In any event though there was no premeditation or intention to kill the deceased on the part of the appellant, the intention may have suddenly occurred during the second quarrel. On considering the facts of this case, we are of the view that Clause Thirdly of Section 300 IPC is Page No.# 15/15 attracted, without attracting any of the Exceptions to Section 300 IPC. 36. In the case of Jagrup Singh Vs. State of Haryana, reported in (1981) 3 SCC 616, the Supreme Court held that there is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder, punishable under Section 304 Part II IPC. The whole thing depends upon the intention to cause death which must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death. In this case, as the ingredients for attracting Exception 4 to Section 300 IPC have not been made out, while Clause Thirdly is found to be attracted, we are of the view that the Prosecution has been able to prove beyond all reasonable doubt the act of the appellant being culpable homicide amounting to murder. 37. For the reasons stated above, we do not find any grounds to interfere with the impugned judgment. 38. The appeal stands dismissed. 39. Send back the TCR. JUDGE JUDGE Comparing Assistant Anup am Chutia Digitally signed by Anupam Chutia Date: 2026.05.26 11:13:32 +05'30'