Page No.# 1/24 GAHC010000482016 2026:GAU-AS:8363 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./138/2019 MD MUJAHIDUL ISLAM S/O- MD. ABDUL MANNAN, R/O- VILL CHATAGARJAN, P.O.- KARATIPAM, P.S.- MAYANG, DIST- MORIGAON, ASSAM. VERSUS MD KHAJA ALOM AND ANR. S/O- LATE MOHARUDDIN, R/O- MOUZA KARATIPAM, MORIGAON, DIST- MORIGAON, ASSAM. 2:THE STATE OF ASSAM. REPRESENTED BY PP ASSAM – B E F O R E – HON’BLE MR. JUSTICE NELSON SAILO HON’BLE MR. JUSTICE RAJESH MAZUMDAR For the Appellant : Mr. V.A. Choudhury, Advocate. For the Respondent No. 1 : Mr. T.J. Mahanta, Senior Advocate assisted by Mr. T. Gogoi, Advocate. Page No.# 2/24 For the Respondent No. 12 : Ms. B. Bhuyan, Additional Public Prosecutor/ Senior Advocate assisted by Ms. R Saloi, Advocate. Date on which judgment is reserved : 04.06.2026. Date of pronouncement of judgment : 12.06.2026. Whether the pronouncement is of the operative part of the judgment? : Not applicable. Whether the full judgment has been pronounced? : Yes. J UDGMENT & O RDER (CAV) ( Rajesh Mazumdar , J) Heard Mr. V.A. Choudhury, learned counsel for the appellant, Mr. T.J. Mahanta, learned senior counsel assisted by Mr. T. Gogoi, learned counsel for the respondent No. 1, and Ms. B. Bhuyan, learned Senior counsel as well as Additional Public Prosecutor, Assam, assisted by Ms. R. Saloi, learned counsel appearing for the respondent No. 2. Page No.# 3/24 [2.] This is an appeal filed by the appellant under Section 378 of the Cr.PC against the judgment, dated 08.04.2016, passed by the court of the learned Sessions Judge, Morigaon, in Sessions Case No. 05/2013, by which the respondent No. 1, along with other accused persons, were acquitted of the charge under Sections 147/148/149/302 of the IPC by giving them the benefit of doubt. Although there were as many as 12 (twelve) accused persons, including the instant respondent No. 1, who were acquitted of the charges, the instant appeal has been filed by the appellant solely against the accused No. 1, i.e., Md. Khaja Alom. The appellant is the informant, who had submitted the FIR dated 20.02.2012. [3.] The case of the prosecution is that on 20.02.2012, an FIR was lodged before the Officer-in-charge of Mayong Police Station by the appellant (informant) against the accused persons, namely, Md. Khaja Alom, Md. Sahah Uddin, Md. Fakar Uddin, Md. Oed Ali, Md. Saidul Alom, Md. Iju Haque, Md. Sifikul Islam, Md. Ahmad Ali and Md. Abdul Jalil, alleging, inter alia, that on 19.02.2012, at about 11:54 pm, the deceased Moinul, while watching the Jatra Party, was called outside from there by the accused Khaja Alom and was taken towards Bakalibori riding a motorcycle. It was further alleged that the aforesaid accused persons Page No.# 4/24 forced Moinul to get down from the bike and assaulted him with sharp- edged cutting weapons, causing fatal injuries to his person. In the FIR, it was further stated that on hearing about the incident, the appellant ran towards the place of occurrence and from the mouth of the victim, he came to know about the names and addresses of the accused persons, who assaulted him. Later, the injured victim was taken to the Civil Hospital, but he succumbed to his injuries on the way. [4.] Upon receipt of the FIR, the same was registered as Mayong Police Station Case No. 18/2012 under Sections 147/148/149/326/302 of the IPC, and the Investigating Authority started investigating the same. [5.] During the investigation, the Investigating Officer visited the place of occurrence and recorded the statements of the witnesses and also produced the witnesses, namely, Siraj Ali, Hajrat Ali and Abu Talib, before the learned Magistrate for recording their statements under Section 164 Cr.PC. It may also be stated herein that upon receipt of a telephonic information from Md. Mubarak Hussain, a member of the V.D.P. of village Bokalibori Tanashigarh, G.D. Entry was made by the Investigating Officer, and he, along with a party, had proceeded to the place of occurrence, took custody of the dead body and sent the same for post-mortem Page No.# 5/24 examination (PME). [6.] During the investigation, the Investigating Authority arrested the accused persons, namely, Khaja Alom, Oed Ali, Abdul Jalil, Md. Sahabuddin, Sahidul Alam, Safiqul Islam, Md. Fakaruddin and Ajijul Haque. [7.] Upon completion of the investigation and finding a prima facie case under Sections 147/148/149/302 of the IPC against the accused persons, the Investigating Officer submitted the charge-sheet, vide C.S. No. 32, dated 20.09.2012. [8.] After the case was committed to the learned Trial Court concerned, a charge was framed formally against the accused persons under Sections 147/148/149/302 of the IPC, to which they pleaded not guilty and claimed to be tried. Accordingly, the trial began against the accused persons. During the trial, as many as 9 (nine) prosecution witnesses were examined, including the Investigating Officer of the case, to bring home the guilt of the accused persons for the offences under which they were charged. The defence examined 5 (five) witnesses, including the appellant herein, who deposed as DW 5, to rebut the charge. Accordingly, the learned Trial Court, after affording the parties Page No.# 6/24 the opportunity to lead their respective evidence, examined the accused persons under Section 313 of the Cr.PC and hearing them, acquitted all of them of the charge vide the impugned judgment dated 08.04.2016 by giving them the benefit of doubt. Aggrieved, the complainant, as appellant, has filed the instant appeal against the impugned judgment challenging the order of acquittal in respect of the accused No. 1 only. [9.] Mr. VA Choudhury, learned counsel for the appellant, at the outset submits that the case of the appellant is based on the dying declaration made by the deceased to PWs-1, 2, 3 and 6. Referring to PW-1, the learned counsel submits that he is the brother of the deceased and in his evidence before the Trial Court, PW-1 stated that the occurrence took place about 10 to 15 months ago at about 12:00 midnight at village Karmaninandini. At that time, PW-1 was enjoying jatra along with the deceased, Idrish Ali, Isadul Hoque and Joinal Abdin. Moinul told them that he received a phone call from Khaja Alam, who had called him. Then Moinul went out from the jatra pandal, and he was taken by Khaja Alam on his bike. After 10 to 15 minutes, they heard some hue and cry. Then, when they came out from the jatra pendal towards the road, they Page No.# 7/24 saw Khaja Alam, Sahabuddin, Fakaruddin, Wahed Ali, Ahmed Ali, Abdul Jalil, Sohidul Alam, Sohidul Islam and Ijur Hoque armed with dao, dagger and other pointed weapons, and his brother Moinul was lying on the side of the road in an injured condition in a pool of blood. He saw cut injuries on the forehead, face and back of the deceased. The deceased told him that Khaja Alam, Sahabuddin, Fakaruddin, Wahed Ali, Ahmed Ali, Abdul Jalil, Sohidul Alam, Sohidul Islam and Ijur Hoque caused injuries on his body. At that time, Idrish Ali, Isadul Hoque and Joinal were also present. They took Moinul to Morigaon Civil Hospital in a vehicle, and on the way, Moinul succumbed to his injuries near Karatipam Bazar. He filed an ejahar the following day at Mayong Police Station. [10.] The learned counsel submits that during the cross-examination, PW-1 stated that he saw the accused persons proceeding from the southern side to the northern side with arms, and as per them, they were going from north to south. Therefore, PW-1 saw them from the front side and also the 9 (nine) accused persons were armed with weapons. The learned counsel submits that similarly, PWs-2, 3 and 6 in their evidence also stated that they heard hue and cry when they were enjoying the jatra and so they rushed to the place of occurrence and found Moinul Page No.# 8/24 lying injured on the side of the road. On being asked, Moinul told them that it was Khaja Alam, Sahabuddin, Fakaruddin, Wahed Ali, Ahmed Ali, Abdul Jalil, Sohidul Alam, Sohidul Islam and Ijur Hoque who had caused him injuries. Moinul, having clearly made a dying declaration before he succumbed to his injuries, the same ought to have been taken into account by the learned Trial Court, and since the same was not done, the impugned judgment should be set aside. [11.] The learned counsel submits that a dying declaration can be the sole basis of conviction if the same inspires full confidence in the Court. The Court is required to satisfy itself that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting and imagination. He submits that it is a well- accepted principle that a dying person would not lie. Therefore, the dying declaration of Moinul having not been taken into account by the learned Trial Court, the order of acquittal being unsustainable, the same should be set aside. In support of his submission, the learned counsel has relied upon the case of Naeem vs. State of Uttar Pradesh, reported in (2024) 17 SCC 735. [12.] The learned counsel for the appellant further submits that the Page No.# 9/24 learned Trial Court has heavily relied upon the deposition of the Doctor, who conducted the post-mortem examination (PME). The Doctor, who was examined as PW-5, stated that due to exposure of brain matter, a person immediately becomes unconscious with shock. Since the same happened to the deceased person, the Court therefore opined that he could not have made the dying declaration. The Court also took note of the fact that the deceased expired within 20 (twenty) hours before the PME was conducted. Taking into account the deposition of PW-5, the learned Trial Court ruled out the possibility of the deceased having made any dying declaration. The learned counsel, however, submits that the deceased did not succumb to his injuries immediately, which can be seen from the evidence of PWs-1, 2, 3 and 6 before whom the deceased had made a dying declaration. Although he suffered multiple injuries, it was only on the way to the hospital that he succumbed to his injuries. Therefore, he submits that the ocular evidence should prevail over the medical evidence, unless the ocular evidence is found to be totally unreliable. He also submits that even in the event of contradictions between the two, ocular testimony of a witness will have a greater evidentiary value vis-à-vis the medical evidence. In support of his Page No.# 10/24 submissions, the learned counsel relies upon the cases of Sri Chikkegowda & Ors. vs. State of Karnataka Etc, reported in 2025 SCC OnLine SC 2190 and State of Haryana vs. Bhagirath & Ors., reported in (1999) 5 SCC 96. [13.] The learned counsel further submits that another reason for acquitting the accused persons is that, according to the learned Trial Court, the accused persons, instead of running away after committing the crime, came towards the crowd where the jatra was being held. He submits that, according to the learned Trial Court, under such circumstances, the perpetrator of the crime would run away and distance himself from the crowded place, but since the accused persons proceeded from south to north towards the place where the jatra was being held, they could not have been the ones who had committed the crime. He submits that such a proposition or theory cannot be accepted, in view of the evidence of PWs-1 and 3, amongst others, who, in their cross-examination, had clearly stated that they saw the accused persons proceed from south to north with arms. Therefore, the conclusion arrived at by the learned Trial Court is erroneous; the same should be set aside and quashed. Page No.# 11/24 [14.] The learned counsel submits that the reason for the accused persons laying their hands upon Moinul could be because Moinul is an accused in the murder of the father of Khaja Alam. Therefore, there was intention on the part of the accused persons to lay their hands upon Moinul and murder him. Under the circumstances, the learned counsel submits that the order of acquittal should be set aside and the respondent No. 1 should be convicted on the charge. [15.] Mr. TJ Mahanta, learned senior counsel for the respondent No. 1, on the other hand, submits that there was clear enmity between the families of the deceased and the accused persons. It is because of such enmity that the respondent No. 1 has been falsely implicated in the matter. He submits that there was a delay of about 12 (twelve) hours in filing the FIR, and the same has not been properly explained by the prosecution. He submits that, in fact, the Police made G.D. Entry No. 319 at 1:40 am on 20.02.2012 on the report made by one Md. Mubarak Hussain, a member of the V.D.P. of village Bokalibori Tanashigarh. However, most surprisingly, the said person, who gave information to the police, has not been named as a witness and examined by the Page No.# 12/24 prosecution. The said person would have been the best person to know how the incident had occurred, but since he has not been examined, the chain of events to implicate the accused persons is not complete, and therefore, the prosecution has failed to prove the involvement of the accused persons beyond reasonable doubt. He further submits that only 9 (nine) out of 14 (fourteen) prosecution witnesses were examined, including the Investigating Officer and the Doctor, who conducted the PME. [16.] The learned senior counsel, referring to the sketch map of the place of occurrence drawn by the Investigating Authority, submits that the place of occurrence was towards the southern side of the venue where the jatra was being held. After the accused persons were allegedly said to have committed the crime of inflicting injuries upon the deceased person, they were said to have moved towards the jatra venue instead of going in the opposite direction, which ordinarily would be the direction that a perpetrator of a crime would take to flee from the scene. However, instead, the accused persons were said to have proceeded towards the jatra venue and therefore, the learned Trial Court was right in giving the accused persons the benefit of doubt in the Page No.# 13/24 absence of there being any eye-witness to the crime. [17.] The learned senior counsel further submits that the defence examined as many as 5 (five) defence witnesses and their evidence is to be treated at par with the evidence of the prosecution witnesses. From a perusal of their evidence, it is clear that there is no indication of their involvement in the commission of the alleged crime. The evidence of the defence witnesses was also equally relevant and reliable; the learned Trial Court was fully justified in giving the accused persons the benefit of doubt and acquitting them. In support of his submissions, the learned senior counsel has relied on the case of State of Haryana vs. Ram Singh, reported in (2002) 2 SCC 426. [18.] The learned senior counsel, referring to the evidence of PW-9, who was the Investigating Officer submits that it can be seen that PWs-1, 2, 3 and 6 did not state before him that Moinul informed them that he has received a missed call from respondent No. 1. Not only this, the mobile phone of respondent No. 1 was not seized and the call records in the mobile phone was not examined as well. Under the circumstances, the case of the prosecution, which otherwise solely rests on the phone call made by the respondent No. 1 to the deceased, having not been Page No.# 14/24 proved, the impugned judgment of the learned Trial Court is clearly sustainable. He submits that again, as the chain in the prosecution story is not complete and proved accordingly, the learned Trial Court rightly acquitted the accused persons. [19.] The learned senior counsel also submits that even otherwise, where there is a possibility of having two views, the view that is favorable to the accused person has to be adopted. In this connection, the learned senior counsel has relied upon the following cases:- (i) Murugesan & Ors. vs. State through Inspector of Police, reported in (2012) 10 SCC 383. (ii) Mohd. Akhtar alias Kari & Ors. vs. State of Bihar & Anr. reported in (2019) 2 SCC 513. (iii) N. Vijayakumar vs. State of Tamil Nadu, reported in (2021) 3 SCC 687. (iv) Chandrappa & Ors. vs. State of Karnataka, reported in (2007) 4 SCC 415. [20.] Ms. B Bhuyan, learned Additional Public Prosecutor appearing for the State respondent No. 2 adopts the arguments made by Mr. VA Page No.# 15/24 Choudhury, learned counsel for the appellant and submits that the learned Trial Court having failed to rely upon the dying declaration made by the deceased to PWs 1, 2, 3 and 6, the impugned judgment of acquittal cannot be sustained and the same should be set aside. She submits that materials on record goes to show that there was enmity between the rival parties, in view of the fact that the deceased was also named as one of the suspects in the murder of the father of the respondent No. 1. Therefore, for this reason, there is clearly a motive behind the commission of the crime and the dying declaration made by the deceased has not been demolished by the defence in any manner. Therefore, the impugned judgment of acquittal should be set aside. [21.] The learned Additional Public Prosecutor submits that the learned Trial Court heavily relied upon the opinion of the Doctor, who conducted the PME, but seeing the ocular evidence, the evidence of the Doctor cannot be blindly relied upon and cannot be the final or the last word on the subject. The opinion of the Doctor is to be tested by the Court, and if the opinion is bereft of logic or objectivity, the Court is not under an obligation to go by such opinion. The prosecution's witness, to whom the dying declaration was made by the deceased, clearly implicates the Page No.# 16/24 respondent No. 1 and the other accused persons. Therefore, the same should have been relied upon by the learned Trial Court. As it was not done, the impugned judgment of acquittal should be interfered with by this Court. In support of her submissions, the learned Additional Public Prosecutor has relied upon the case of Munni alias Patiram vs. State of Madhya Pradesh, reported in (2016) 12 SCC 694. [22.] The learned Additional Public Prosecutor also submits that in view of the very short time gap after the deceased had left the place where the jatra was held and was later discovered in an injured condition, the principle of “last seen” theory is also attracted. Likewise, the learned Additional Public Prosecutor also submits that Section 114 of the Indian Evidence Act and Section 6 of the said Act are also attracted. Referring to Section 114, the learned Additional Public Prosecutor submits that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. She refers to the illustration (g) of Section 114, which provides that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. She Page No.# 17/24 also submits that Section 149 of the IPC is also attracted, as there was a common object amongst the accused persons to cause harm to the deceased person. Under the said provision of Section 149 of the IPC, every member of an unlawful assembly would be responsible for the action. She thus submits that in view of the failure on the part of the learned Trial Court to appreciate the evidence of the prosecution, most importantly with regard to the dying declaration of the deceased, the same cannot be sustained and hence should be set aside. [23.] The submissions made by the learned counsel for the parties and the relevance of the citations relied upon by the contesting parties have received our consideration. The appellant and the Additional Public Prosecutor, while supporting the appeal, have relied upon the dying declaration of the victim to indicate that the learned Trial Court had committed an error when the same was not given its due importance. There is no quarrel that a dying declaration can be the sole evidence to come to the finding of guilt of an accused, provided such a declaration is made in a fit state of mind, is voluntary and inspires confidence. A dying declaration, that is a statement made by the declarant about the reason for his state and the injuries that led to his state, is admissible in Page No.# 18/24 Court on the basis that the last words before death and are presumed to be the truth and free and absent from malice. [24.] In Kushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22, the Supreme Court of India held that a real and voluntary declaration that is free from compulsion does not require further corroboration. It is not weaker evidence than any other form of evidence. It therefore must be assessed in view of the surrounding circumstances and in accordance with the Rules regulating the weight of evidence. It was observed that a dying declaration, which depends on oral testimony, may be susceptible to the many flaws common in human memory and character. [25.] In Atbir vs. Government of NCT of Delhi, reported in 2010 (4) Crimes 148 (SC) , the Apex Court has held that the Court must be confident that the declarant was mentally fit while making the dying declaration. It held that normally the Court would seek medical advice to determine whether the declarant was mentally stable when making a dying declaration; however, where evidence of an eyewitness stated that the declarant was mentally stable while making the dying declaration, the medical opinion cannot prevail. When the dying declaration appears to be suspicious, it should not be followed up Page No.# 19/24 without corroborative evidence. [26.] In the State of Uttar Pradesh Vs. Ram Sagar Yadav, reported in (1985) 1 SCC 552, it has been held that the primary effort of the Court is to see if the dying declaration is authentic. [27.] In the present case, PW1, 2, 3 and PW6 have deposed that the victim had told them that the respondent no.2, along with others named in the FIR, had assaulted and caused injury to his body. The doctor who had conducted the post-mortem examination had stated that due to exposure in the brain matter, a person would immediately become unconscious with shock. In the post-mortem report, as also in his evidence, the aforesaid doctor had given evidence that on an examination of the dead body, the brain matter was found exposed. None of the prosecution witnesses has stated that the declarant was mentally stable while making the dying declaration. The fact that the brain matter had been exposed due to injuries raises serious doubt about the mental stability and the consciousness of the victim at the time when the alleged dying declaration was made. [28.] Since the stability and consciousness of the victim remains doubtful because of the serious nature of injuries present in the head Page No.# 20/24 region, this Court does not find any error on the part of the learned Trial Court in concluding that the deceased, before making the dying declaration, may not have been in a fit state of mind. [29.] The learned counsel for the appellant has attempted to convince this Court that during the inquest, the exposure of brain matter was not recorded, and it was obvious that immediately before the death of the victim, the brain matter had not been exposed. Therefore, the learned counsel submits that it would be safe to presume that the victim was in a conscious and fit state of mind to give the dying declaration. This Court cannot accept the said argument since the witnesses had not deposed regarding the state of mind of the victim when the alleged declaration was made. The opinion of the doctor, in such circumstances, assumes importance, which was to the effect that a victim with the bind of injuries, as was suffered by the deceased in this case, is found to lose consciousness. [30.] The reliance of the prosecution and the appellant on the alleged phone call received by the deceased from the respondent no 2 herein, whereafter he had allegedly left with the respondent no 2, had also failed to draw confidence of the learned Trial Court. From the records, it Page No.# 21/24 is seen that the mobile phone of the deceased had not been seized by the investigating authority, and the prosecution had made no attempt to produce the call detail records of the mobile number of either the deceased or the accused. Thus, there is nothing on record to fortify the stand of the PW 1,2,3 and 6 that the deceased had left the jatra party on being called by the accused. This Court finds force in the submission of the learned Senior Counsel appearing for the respondent no. 2 that the very foundational fact, regarding the phone call, had remained not proved, and therefore, the chain of circumstances in this present case, which is based on circumstantial evidence was not complete and the evidence adduced by the prosecution was not sufficient to hold the accused guilty of the charges framed. [31.] The learned Trial Court also found it difficult to believe the projection of the prosecution witnesses that the accused, after committing a murder and still armed with weapons, were seen going towards a crowded place, instead of moving away towards the isolated fields. We find ourselves to be in agreement with the findings of the learned Trial Court on this aspect of the matter as well. [32.] The evidence of the PWs that the deceased, who was facing a Page No.# 22/24 trial for the murder of the father of the accused, had gone with the accused, alone and in the dead of the night, on being called upon by the accused, is also highly improbable. The Learned Trial Court had also taken note of the above and had rightly found fault with the prosecution since other witnesses present at the location were not examined. [33.] The prosecution did not lead evidence of the VDP member who had informed the police authorities at the first instance, and whose information had resulted in the GD Entry. The evidence of the said person, who was also available at the place of occurrence, would have revealed not only the details of the persons who had arrived at the place of occurrence but could also have revealed the condition of the deceased when he was located. Neither were the torch lights allegedly carried by the PWs, in the light of which the PWs claimed to have identified the accused, nor any weapon alleged to have been used in the murder, seized. During the trial, some of the witnesses, whose statements had been recorded under the provisions of Section 164 of the Cr.P.C by the investigating authorities, were not produced as Prosecution witnesses; rather, the defence had produced them as defence witnesses. [34.] It is settled in law that the case of prosecution has to stand on its Page No.# 23/24 own feet to come to a conclusion of guilt of the accused, except in cases where the relevant law requires a presumption of guilt of the accused. The present is not such a case which requires a presumption of guilt, rather on the basis of the charges framed, the prosecution would be required to prove its accusations beyond reasonable doubt, and in the present case, which is based on circumstantial evidence, a complete and unbroken chain of events is required to be proved. This Court, after going through the evidence on record and upon the evaluation of such evidence, does not find the conclusion arrived at by the learned Trial Court, to the effect that the prosecution had failed to prove their case beyond reasonable doubt and therefore the accused would be entitled to the benefit of doubt, to be bereft of any fault and also finds the same to be in accordance with the settled principles of law. [35.] In the result, this Court does not find any reason to interfere with the order dated 8.4.2016 passed by the learned Sessions Judge, Morigaon, in Sessions Case no 05/2013, acquitting the respondent no.2 herein by giving him and the other co-accused the benefit of doubt. The criminal appeal is accordingly dismissed. Page No.# 24/24 [36.] The Registry to send back the original records, which had been received on requisition, to the Learned Trial Court along with a copy of this order. JUDGE JUDGE Comparing Assistant