Gauhati High Court
CRL.A(J)/32/2020 on 4 November, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
GAHC010088102020
2025:GAU-AS:14995
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal (Jail) no. 32/2020
Dhan Gowala, Sonitpur
..................Appellant
-VERSUS-
The State of Assam, represented by the Public
Prosecutor, Assam.
...................Respondent
BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY HON'BLE MRS. JUSTICE MARLI VANkUNg Advocate for the Appellant : Ms. B. Chowdhury, Amicus Curiae Advocate for the Respondent State : Ms. B. Bhuyan, Senior Counsel & Additional Public Prosecutor, Assam;
Ms. R. Das, Advocate
Date on which Judgment is reserved : Not Applicable
Page 1 of 29
Date of Hearing : 04.11.2025
Date of Judgment and Order : 04.11.2025
Whether the pronouncement is of the Operative part of the Judgment ? : No Whether the full Judgment has been pronounced ? : Yes JUDGMENT & ORDER [ORAL] [Manish Choudhury, J] The instant criminal appeal from Jail is directed against a Judgment & Order dated 08.08.2019 passed by the Court of learned Additional Sessions Judge, Biswanath Chariali at Sonitpur, Assam ['the Trial Court', for short] in Sessions Case no. 27 of 2018. By the Judgment & Order dated 08.08.2019, the Trial Court has convicted the accused-appellant for the offence under Section 302, Indian Penal Code [IPC] and he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo rigorous imprisonment for another two months.
2. The investigation was set into motion on the basis of a First Information Report [FIR] lodged by the informant, Smti. Tipari Ghatowar [P.W.8] on 20.03.2017 before the Officer In-Charge, Gohpur Police Station reporting about an alleged murder occurred at 06-00 p.m. on that day. In the FIR, the informant had inter alia stated that at around 06-00 p.m. on that day, the accused-appellant, Dhan Gowala killed his brother-in-law, Matilal Ghatowar, aged about 30 years and a resident of Bishnupur Majgaon, by hacking him with a dao. After the assault, the accused-appellant taking advantage of the darkness ran away from the place immediately.
3. On receipt of the FIR, the Officer In-Charge, Gohpur Police Station registered the same as Gohpur Police Station Case no. 56/2017 under Section 302, Page 2 of 29 Indian Penal Code [IPC] on 20.03.2017 itself and entrusted the investigation to one Subaleswar Deka, a Sub-Inspector of Police attached to Gohpur Police Station.
4. On being entrusted with the investigation, the Investigating Officer [I.O.], P.W.10 proceeded to the place of occurrence, that is, the house of the informant, P.W.8. Going there, he found the deadbody of the deceased Matilal Ghatowar lying in the courtyard of the house. The I.O., P.W.10 noticed cut injuries on the neck of the deceased. After examination of the witnesses at the place of occurrence [P.O.], the deadbody of the deceased was brought to the Police Station. The inquest proceeding on the deadbody was done on 21.03.2017 before sending the deadbody for post-mortem examination. The I.O., P.W.10 also drew a Sketch Map of the P.O. vide Ext.-2. As P.W.10 got transferred from Gohpur Police Station, he handed over the case diary to the Officer In-Charge, Gohpur Police Station after collecting the Post-Mortem Examination [PME] Report. The subsequent I.O., P.W.11 was entrusted with the investigation of the case by the Officer In-Charge, Gohpur Police Station on 10.08.2017. The 2nd I.O., P.W.11 arrested the accused-appellant and forwarded him to the Court for remand. After completing the investigation of the case, a charge-sheet under Section 173[2], CrPC was submitted vide Charge-Sheet no. 07/2018 on 30.01.2018 finding a prima facie case against the accused-appellant for committing the offence of murder which is punishable under Section 302, IPC.
5. On submission of the Charge-Sheet before the Court of Judicial Magistrate, First Class [JMFC], Gohpur, Sonitpur, the Court of JMFC, Gohpur, Sonitpur secured the appearance of the accused-appellant from Jail custody on 06.03.2018. As the copies were ready, the same were furnished to the accused-appellant in compliance of the provisions of Section 207, CrPC. Finding the offence under Section 302, IPC exclusively triable by the Court of Sessions, the case record of G.R. Case no. 64/2017, corresponding to Gohpur Page 3 of 29 Police Station Case no. 56/2017, was committed to the Court of Additional Sessions Judge, Biswanath Chariali, Sonitpur by an Order of Commitment dated 06.03.2018. The learned Public Prosecutor was notified accordingly with a further direction to the Jail authority to produce the accused-appellant before the Court of Additional Sessions Judge, Biswanath Chariali, Sonitpur on 20.03.2018.
6. On receipt of the case records of G.R. Case no. 64/2017, the Court of learned Additional Sessions Judge, Biswanati Chariali, Sonitpur ['the Trial Court'] registered the same as Sessions Case no. 27 of 2018 and secured the appearance of the accused-appellant before it on 03.04.2018 from Jail custody. The case of the prosecution was opened by the learned Public Prosecutor. After hearing the learned Public Prosecutor and the learned defence counsel; and upon perusal of the materials on record; the Trial Court framed a charge under Section 302, IPC against the accused-appellant on 03.04.2018. When the charge was read over and explained to the accused- appellant, he pleaded not guilty and claimed to be tried.
7. During the course of the trial, the prosecution side examined eleven nos. of prosecution witnesses and exhibited four nos. of documents to bring home the charge against the accused-appellant. After closure of the evidence from the prosecution side, the accused-appellant was examined under Section 313, CrPC wherein the incriminating circumstances brought on record by the prosecution side, were placed before the accused-appellant for his explanation. After hearing the learned counsel for the parties; and after appreciation of the evidence on record; the Trial Court delivered the Judgment & Order of conviction and sentence dated 08.08.2019, mentioned above.
8. We have heard Ms. B. Chowdhury, learned Amicus Curiae for the accused-
appellant and Ms. B. Bhuyan, learned Senior Counsel & Additional Public Page 4 of 29 Prosecutor, Assam assisted by Ms. R. Das, learned counsel for the respondent State.
9. Ms. Chowdhury, learned Amicus Curiae appearing for the accused-appellant has submitted that the wife of the accused-appellant was a material witness in the case as she was present at the time of the incident. But the prosecution side did not examine such material witness. Ms. Chowdhury has further submitted that the incident occurred when the accused-appellant was scolding his two minor children in whose presence the incident occurred. But, the prosecution side did not also examine the said two children. It has been pointed out that the I.O. had neither recovered the alleged weapon of assault nor seized the bloodstained wearing apparels of the deceased. Other than the informant-P.W.8, all other witnesses had arrived the P.O. after the incident and as such, the nature of their evidence is hearsay. In so far as the testimony of the alleged eye-witness, P.W.8 is concerned, Ms. Chowdhury has submitted that in view of non-examination of the other material witnesses, the testimony of P.W.1 did not receive any corroboration and as such, the conviction could not have been based on the sole testimony of P.W.8. The learned Amicus Curiae has pointed out that the accused-appellant during his examination under Section 313, CrPC had stated that he was not at the P.O. and his non-presence received corroboration from the prosecution witnesses - P.W.1 to P.W.7. The learned Amicus Curiae had further submitted that on the basis of such evidence, the Trial Court has erred to hold the accused-appellant guilty of the offence of murder. As the incident occurred after a resistance given by the deceased to the accused-appellant, the learned Amicus Curiae, in the alternative, has submitted that the evidence on record would point that the case would, at best, be brought within the purview of Exception 4 to Section 300, IPC.
10. Ms. Bhuyan, learned Additional Public Prosecutor appearing for the State has submitted that non-examination of the children or the wife of the accused-
Page 5 of 29appellant is not material as the testimony of the sole eye-witness-P.W.8 is reliable, cogent and trustworthy and the defence had failed to create any dent in her testimony. During the trial, the prosecution sought to secure the presence of the wife of the accused-appellant as she was also a witness to the incident. But, despite issuance of processes in the form of summons and bailable warrant of arrest, her presence as a witness could not be secured by the prosecution as it has emerged from the examination of the accused- appellant under Section 235[2], CrPC that she left the company of the accused-appellant subsequent to the incident. Ms. Bhuyan has further submitted that in the presence of an eye-witness, non-recovery of the alleged weapon of assault or non-seizure of bloodstained wearing apparels is not material. Though the accused-appellant had taken the plea of alibi at the stage of his examination under Section 313, CrPC, no evidence was led in this regard. Ms. Bhuyan has further submitted that the nature of injury caused to the deceased was such that the case, by any stretch, could not be brought within Exception 4 to Section 300, IPC. The accused-appellant had apparently acted in a very cruel manner and caused the injury in a vital part, that is, the neck of the deceased. Submitting as such, the learned Additional Public Prosecutor has submitted that no interference is called for to the Judgment & Order of conviction and sentence passed by the Trial Court against the accused-appellant.
11. We have given due consideration to the submissions of the learned counsel for the parties and have also gone through the evidence/materials on record, available in the case records of Sessions Case no. 27 of 2018, in original.
12. As amongst the prosecution witnesses, the informant-P.W.8 has emerged to be the only eye-witness to the incident, her evidence is taken up for consideration at first.
Page 6 of 2913. P.W.8, Tipari Ghatowar deposed, during her examination-in-chief, that the accused-appellant is her son-in-law. As regards the incident, P.W.8 stated that the incident took place at about 08-00 p.m. on a Monday two years earlier. Her son, Matilal Ghatowar resisted the accused-appellant when he saw the accused-appellant beating his children. The accused-appellant, taking a bothidao in hand rushed towards her son, Matilal Ghatowar and after holding her son by hair, the accused-appellant cut his neck with the bothidao and as a result, the neck of Matilal Ghatowar got severed from the body and he died instantaneously. P.W.8 stated that the accused-appellant was under the influence of liquor at that time and seeing the incident, P.W.8 cried out and swooned. Subsequently, she lodged the FIR at the Police Station. P.W.8 further stated that the accused-appellant ran away after committing the incident and he was absconding. P.W.8 stated that at the time of the incident, she and her son, Matilal Ghatowar were at home.
13.1. During cross-examination, P.W.8 stated that the accused-appellant is her son-
in-law. The incident took place in the courtyard of her house and at that time, there was darkness. At the time of the incident, the daughter and son of the accused-appellant were about 5 and 4 years of age. She deposed that the accused-appellant was also staying at their house. After hearing hue and cry, neighbours, namely, Prabin Karmakar [P.W.2] and Hem Bhumij [P.W.4] came to the P.O. She denied suggestions that in her previous statement, she stated that the head of her son was severed from the body; that the accused- appellant did not kill her son, Matilal Ghatowar; and that Matilal Ghatowar succumbed to the injuries sustained in a fall under the influence of liquor. She also denied suggestions that she was not present at the P.O. at the time of the incident; and that the accused-appellant did not inflict the cut injury on her son, Matilal Ghatowar.
14. P.W.9, Dr. Dipak Kumar Biswashi was, on 21.03.2017, serving as Senior Medical & Health Officer at Behali PHC, Biswanath and it was on that day, he Page 7 of 29 performed the post-mortem examination on the deadbody of Matilal Ghatowar in reference to Gohpur Police General Diary Entry no. 373/2017 dated 20.03.2017 after the deadbody was identified by a Police constable. P.W.9 deposed to the effect that after performing the post-mortem examination [PME], he recorded his findings in the PME Report [Ext.-1] as under :-
1 incised of size 2 x 1.5 inches over left lateral aspect of neck at level of cervical 3 vertebra exposing the laryngeal cartilage and cutting the trachea and left cervical vessels. No other external injury found. Stomach congested, no food matters found, smell of alcohol found. All the injuries were of ante-mortem in nature. The time since death was within 24 hours.
The death was due to sudden arrest of cardio-respiratory system as a result of the injuries sustained under influence of alcohol.
P.W.9 identified his signature in Ext.-1 as Ext.-1[1].
14.1. During cross-examination, P.W.9 stated that the injury sustained by the deceased could also be caused by falling with force on a sharp weapon like bothidao.
15. P.W.10, Subaleswar Deka was the I.O. at the start of the investigation. In his examination-in-chief, P.W.10 stated that at about 07-00 p.m. on 20.03.2017, he received information over telephone that the accused Dhan Gowala had fled away after killing his brother-in-law, Matilal Ghatowar at Bishnupur Majgaon and the said information was recorded as Gohpur Police Station General Diary Entry no. 373 dated 20.03.2017. After recording the entry, he proceeded to the P.O., that is, the courtyard of the house of the informant- P.W.8 at 07-30 p.m. After reaching the P.O., he drew the Sketch Map of P.O. [Ext.-2]. Going there, he found the deadbody of the deceased lying at the courtyard of the house of P.W.8 with blood smearing all over the body. The deadbody was identified by P.W.8 as that of Matilal Ghatowar, aged about 30 Page 8 of 29 years. P.W.10 noticed that the esophagus and the neck of the deceased were cut. Then, he examined witnesses at the P.O. and thereafter, brought the deadbody to the Police Station at night. In the following morning, he held the inquest on the deadbody of the deceased before sending it for post-mortem examination. The PME Report was collected subsequently. During investigation, the accused-appellant was found absconding. As he was transferred from Gohpur Police Station, he handed over the case diary to the Officer In-Charge. P.W.10 exhibited the PME Report as Ext.-1; the Sketch Map of the P.O. and his signature therein as Ext.-2 & Ext.-2[1]; and the FIR and the signature of the Officer In-Charge therein as Ext.-3 & Ext.-3[1].
15.1. During cross-examination, P.W.10 stated that it was the President of Village Defence Party [VDP], Arun Nath [P.W.1] who gave information about the incident over telephone. P.W.10 stated that he also recorded the statement of Rina Ghatowar, the wife of the accused. P.W.10 clarified that the informant, P.W.8 did not state before him that the head of the deceased was cut and severed from the body. He stated that he did not seize the bothidao used by the accused-appellant and the bloodstained wearing apparels of the accused. He stated that the incident took place in presence of the mother and the wife of the deceased. He denied a suggestion that the mother and the wife of the accused did not tell him that the accused had committed the murder.
16. It was P.W.11, Indreswar Gogoi who completed the investigation after being handed over the concerned case diary by the Officer In-Charge, Gohpur Police Station on 10.08.2017, that is, after the transfer of the 1st I.O., P.W.10. In his examination-in-chief, P.W.11 stated that after taking charge of the investigation, he went through the case diary and also searched for the accused. Subsequently, the accused was arrested by him and was forwarded to the Court. After completing the investigation, he submitted the Charge- Sheet against the accused for commission of the offence under Section 302, Page 9 of 29 IPC. P.W.11 exhibited the Charge-Sheet as Ext.-4 with his signature therein as Ext.-4[1].
16.1. During cross-examination, P.W.11 stated that the accused voluntarily appeared at the Police Station and after interrogation, the accused was arrested by him. He did not go searching for the accused and he did not seize any article during the course of the investigation. He further stated that neither he nor the preceding I.O. had seized the alleged weapon of assault and the bloodstained wearing apparels of the deceased. He denied a suggestion that he submitted the Charge-Sheet against the accused without conducting the investigation properly.
17. The prosecution witnesses - P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 & P.W.7 - in their depositions, stated that they did not witness the incident of assault on the deceased by the accused. Their depositions are to the effect that all of them had arrived at the P.O. immediately after the incident. All of them stated that they knew the informant, P.W.8, the deceased and the accused.
18. P.W.1, Arun Nath stated that he was President of the VDP and he informed the Police about the incident. This piece of testimony has corroborated the testimony of P.W.10 that it was on the basis of information received from P.W.1, the entry, Gohpur Police Station General Diary Entry no. 373 dated 20.03.2017 was registered. As per P.W.1, the incident took place at twilight hours and he heard that during an altercation, the accused hacked the deceased with a bothidao. When he went to the P.O., P.W.1 noticed a cut injury on the neck of the deceased. It was the wife of the accused who told him about the occurrence and on being informed so, P.W.1 went to the P.O. P.W.1 stated that the incident took place in the house of the deceased.
Page 10 of 2918.1. During cross-examination, P.W.1 stated that the wife of the accused came to his house to give the information about the incident and then, he reached the P.O. within 10-15 minutes. By that time, the people from the neighbourhood assembled at the P.O. P.W.1 testified that P.W.2, P.W.4 and many other people were at the P.O. P.W.1 stated that the Police reached at the P.O. after about an hour. He further stated that by the time he reached the P.O., the deceased already died and he did not see the accused at the P.O. as he had ran away from the place. He further stated that he did not see the bothidao as he heard that bothidao was thrown in a field or somewhere else.
19. P.W.2, Prabin Karmakar stated that he reached the P.O. after hearing that the deceased was hacked by the accused. At the P.O., he did not find the accused. He noticed a cut injury on the neck of the deceased. He was told by the wife of the deceased that when the deceased tried to restrain the accused-appellant then the accused killed him.
19.1. During cross-examination, P.W.2 stated that the incident took place in the evening hours and he went to the P.O. immediately thereafter. At the P.O., he did not see the bothidao. He denied a suggestion that he adduced false evidence in favour of the informant.
20. P.W.3, Kaliram Saikia deposed that after receiving the information about the murder, he went to the P.O. and going there, he learnt that the deceased was killed inside the house. Then, he made a phone call to Gohpur Police Station and Police Personnel came to the P.O. It was P.W.8 who first informed him about the incident.
20.1. During cross-examination, P.W.3 stated that he received the information at about 06-00/07-00 p.m. and immediately thereafter, he went to the P.O. When he was at the P.O., Police Personnel arrived and examined the deadbody. At that time, many people including the informant-P.W.8, P.W.2 Page 11 of 29 and the wife of the accused, were at the P.O. He denied a suggestion that the accused was not involved in the incident.
21. P.W.4, Hema Kanta Bhumij stated that the incident took place in the house of the deceased at Bishnupur Majgaon. He went to the P.O. after hearing commotion.
21.1. In cross-examination, he stated that he came to the P.O. at about 07-00 p.m. from his house which is at distance of about 1 km from the P.O. Going there, he saw the deadbody of the deceased lying in the courtyard outside his house and Police Personnel reached the P.O. about an hour after he reached there. He denied a suggestion that the accused was not involved in the murder.
22. P.W.5, Subharam Ghatowal stated that the accused is his nephew-in-law [husband of daughter of sister]. As regards the incident, P.W.5 stated that the accused killed his brother-in-law in the house of P.W.8 where the deceased used to stay. He noticed a cut injury on the neck of the deceased. He did not see the accused at the P.O. as he had ran away.
22.1. During cross-examination, P.W.5 stated that he did not witness the incident.
He denied a suggestion that the accused was not involved in the incident.
23. P.W.6, Shyam Goala stated that P.W.8 is his aunt [wife of father's elder brother]. As regards the incident, he stated that the incident took place in the evening hours. There was a quarrel between the accused and the deceased over some issue and during the quarrel, the accused killed the deceased by hacking him with bothidao from behind. Police Personnel came to the P.O. and took the deadbody to the Police Station for post-mortem examination.
Page 12 of 2923.1. During cross-examination, P.W.6 stated that he learnt about the incident from P.W.8 and Rina Gowala, the wife of the accused. He stated that he did not go to the P.O. but went to the hospital on the following day.
24. P.W.7, Bablu Ghatowal stated that he was not present at the time of the incident. It was after returning from work, he heard hue and cry and then he went to the P.O. and witnessed that the body of Matilal Ghatowar was lying dead. He was told by persons that after making assault, the accused ran away.
24.1. During cross-examination, P.W.7 stated that he did not witness the incident in which the deceased died. He denied a suggestion that the accused did not commit the incident.
25. From the testimony of the prosecution witnesses - P.W.1 to P.W.7, it has emerged that they are post-occurrence witnesses. From their depositions, it has emerged that they reached at the P.O. immediately after the occurrence as all of them are co-villagers. From their evidence including the testimony of P.W.8 and PW.10 the fact that the P.O. was the courtyard of the house of P.W.8 received sufficient corroboration. The defence did not even make any suggestion to any of the prosecution witnesses to suggest that the P.O. was elsewhere.
26. From the evidence/materials on record, it is noticed that the FIR was lodged on the date of the incident itself, that is, on 20.03.2017. The information regarding the incident was received at the Police Station at first telephonically from P.W.1 as the President of the VDP and the Police Personnel from Gohpur Police Station proceeded to the P.O. at around 07-30 p.m. The prosecution witnesses, P.W.1 to P.W.7 had testified that the Police Personnel reached the P.O. after about an hour from the incident. It has emerged from the evidence on record that the accused was not at the P.O. when the prosecution Page 13 of 29 witnesses, P.W.1 to P.W.7 and the Police Personnel reached the P.O. after the incident.
27. The learned Amicus Curiae appearing for the accused-appellant has submitted that at the time of the incident, the wife of the accused-appellant was also present in the house and had witnessed the incident apart from her two minor children. On perusal of the case records of the Sessions Case no. 27 of 2018, it is found that the prosecution side sought to secure the presence of Rina Gowala, that is, the wife of the accused-appellant and the daughter of the informant-P.W.8, as a witness during the course of the trial by issuing processes in the form of summons followed by bailable warrant of arrest. But, despite issuance of such processes, the presence of the wife of the accused- appellant could not be secured. When the accused-appellant was examined under Section 235[2], CrPC on the point of sentence, the accused-appellant stated that after the incident, his wife deserted him and eloped with another person.
28. It is a settled proposition of law that reliance can be placed on the solitary statement of a witness if the Court comes to the conclusion that the testimony of the sole witness is true and correct version of the prosecution case. It is the quality of the evidence not the quantity of the evidence which is required to be judged by the Court to place reliance. Section 134 of the Evidence Act has prescribed that no particular number of witnesses shall in any case be required for the proof of any fact. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is material and important as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not to be counted.
Page 14 of 2929. On the matter of examination of a solitary witness by the prosecution, the Hon'ble Supreme Court in Kartik Malhar vs. State of Bihar, [1996] 1 SCC 614, has observed as under :-
14. .....it is open to the courts to record a conviction on the basis of the statement of a single witness provided the evidence of that witness is reliable, unshaken and consistent with the case of the prosecution. The case of the prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eyewitness, nor can it be insisted that the corroboration of the statement of that witness was necessary by other eyewitnesses. The instant case, it may be pointed out, does not strictly fall within the category of those cases where only one witness is present and the case of the prosecution is sought to be proved by the statement of that witness alone. Here, three of the witnesses were produced but two of them turned hostile leaving the third alone and, therefore, on the principles already discussed, if the remaining eyewitness is found to be trustworthy, it becomes the duty of the court to convict the accused as observed by this Court in Vadivelu Thevar [AIR 1957 SC 614 : 1957 Cri LJ 1000 : (1957) 2 MLJ (SC) 69] quoted below :
'But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution.'
15. As to the contention raised on behalf of the appellant that the witness was the widow of the deceased and was, therefore, highly interested and her statement be discarded, we may observe that a close relative who is a natural witness cannot be regarded as an interested witness. The term Page 15 of 29 'interested' postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason. In Dalbir Kaur [Mst] vs. State of Punjab [1976] 4 SCC 158 it has been observed as under :
Moreover, a close relative who is a very natural witness cannot be regarded as an interested witness. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. Such is not the case here.
30. On the plea of non-examination of the other eye-witnesses, the following observations made in the case of Rajesh Yadav and another vs. State of Uttar Pradesh, [2022] 12 SCC 200, are found appropriate for reference :-
Non-examination of witness
34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it.
31. In the case in hand, the informant P.W.8, Tipari Ghatowar presented herself to be the eye-witness to the incident of assault on the deceased by the accused-appellant in addition to her daughter & the wife of the accused, Rina Gowala.
Page 16 of 2932. In Shahaja @ Shahjan Ismail Mohd. Shaikh vs. State of Maharashtra, [2022] 12 SCR 196, it has been held that in assessing the value of the evidence of the eye-witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
33. It has clearly emerged, without even in the form of suggestion from the defence side, that the place of occurrence [P.O.] was the courtyard of the house of the informant-P.W.8. It has further emerged from the evidence on record that both the accused-appellant and the deceased used to reside in the same house along with the informant-P.W.8. The evidence on record has clearly established that the P.O. was the courtyard of the house where all three of them - the informant, the deceased & the accused-appellant - used to reside and the incident occurred during the evening hours on the date of the incident. In view of such clear evidence, the presence of the informant- P.W.8 at the time of the incident at the P.O. was natural. The defence side despite cross-examination could not discredit the testimony of the informant- P.W.8 to create any dent in her evidence as regards her presence at the P.O. Page 17 of 29 It is true that the informant-P.W.8 exaggerated her version by saying that because of the assault, the deceased's neck got severed from his body. But her testimony to the effect that the accused-appellant made the assault on the neck of the deceased with a bothidao which has a sharp side, remained consistent and has not been dislodged in any manner whatsoever.
34. Coupled with such testimony of the informant-P.W.8, when we examine the testimony of the Autopsy Doctor, P.W.9, we find that the deceased sustained an incised wound of size : 2 inches x 1.5 inches on left lateral aspect of his neck at the level C-3. As a result, the vertebra exposed the laryngeal cartilage and there was cutting of the trachea and left cervical vessels. The Autopsy Doctor, P.W.9 opined that the injury was ante-mortem in nature and the injury was caused within 24 hours. The post-mortem examination was performed at around 02-00 p.m. on 21.03.2017 by P.W.9. P.W.9 further stated that the death was due to sudden arrest of cardio-respiratory system as a result of the injuries sustained. The findings of the Autopsy Doctor, P.W.9 as regards the injuries sustained by the deceased are found to be corroborating the testimony of the informant-P.W.8, the sole eye-witness examined by the prosecution.
35. The testimony of the other witnesses, P.W.1 to P.W.7 who were post-
occurrence witnesses, are found to have corroborated the version of the informant-P.W.8, who is related to both the deceased and the accused- appellant as they are her son and the son-in-law respectively. The defence could not attribute any motive to the informant-P.W.8 to even suggest that the testimony of the informant-P.W.8 could not be accepted as it is. Having considered the entire evidence on record, we find the testimony of the informant-P.W.8 to be a truthful one as it is cogent, reliable and convincing enough to inspire the confidence of the court. The result of the above discussion is that it was the accused-appellant who only had made the assault Page 18 of 29 on the deceased which resulted in the death of the deceased instantaneously at the P.O.
36. In view of the submissions advanced by the learned Amicus Curiae on the issue whether the death of the deceased despite being a homicidal one, is one which could not be categorized as one of murder, it appears necessary to deal on the issue in the context of Section 299 and Section 300 of the IPC. On the other hand, the learned Additional Public Prosecutor has submitted that the case in hand clearly falls in Clause thirdly of Section 300, IPC and Exception 4 to Section 300, IPC is not attracted.
37. Section 299, IPC and Section 300, IPC have provided for the offence of culpable homicide and murder respectively and they read as under :-
Section 299. Culpable homicide.-- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or --
2ndly. -- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
3rdly.-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
4thly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily Page 19 of 29 injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.-- When culpable homicide is not murder. -- Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos :--
First.-- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-- That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Exception 2.-- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.-- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the Page 20 of 29 due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
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's having taken undue advantage or acted in a cruel or unusual manner.
Exception 5.-- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
38. The Hon'ble Supreme Court of India in the case of State of Andhra Pradesh vs. Rayavarapu Punnayya, 1976 [4] SCC 382, after having examined Section 299 and Section 300 of the IPC and the decision in Virsa Singh vs. State of Punjab, AIR 1958 SC 465 which has attained the status of locus classicus, has observed as under :-
17. For cases to fall within clause [3], it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant vs. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of this point.
18. In Virsa Singh vs. State of Punjab, AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818.] Vivian Bose, J. speaking for this Court, explained the meaning and scope of clause [3], thus [at p. 1500] :Page 21 of 29
The prosecution must prove the following facts before it can bring a case under Section 300, 'thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
19. Thus according to the rule laid down in Virsa Singh case of even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be 'murder'. Illustration [c] appended to Section 300 clearly brings out this point.
20. Clause [c] of Section 299 and clause [4] of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause [4] of Section
300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general -- as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act Page 22 of 29 having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to 'culpable homicide' as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304, of the Penal Code.
39. When we apply the above principles laid down to the case in hand, it is found that the prosecution has been able to establish that the bodily injury to the deceased caused was by the accused-appellant and the bodily injury was of the nature which was sufficient to cause death in the ordinary course of Page 23 of 29 nature. As contended by the learned Amicus Curiae, it is now required to examine whether the case falls within the Exception 4 to Section 300, IPC.
40. The Hon'ble Supreme Court in Prakash Chand vs. State of Himachal Pradesh, [2004] 11 SCC 381, has expounded on the essential requirements to bring a case within the Exception 4 to Section 300, IPC in the following manner :-
7. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is Page 24 of 29 caused : [a] 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. To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat, [2003] 9 SCC. When the factual scenario is considered in the light of legal principles indicated above, the inevitable conclusion is that Exception 4 to Section 300 IPC is clearly applicable.
41. As extracted above, as per Exception 4, culpable homicide is not murder if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or act in cruel or unusual manner. As per Exception 4, it is immaterial in such cases which party force the provocation or commits first assault. As elucidated above, the help of Exception 4 can be invoked if the death is caused : [a] 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; and to bring Page 25 of 29 a case within Exception 4, the four ingredients mentioned above must be found.
42. Following the above decision, the Hon'ble Supreme Court in Balu Sudam Khalde vs. State of Maharashtra, [2023] 13 SCC 365 on Exception 4 to Section 300, IPC has observed in the following manner :-
57. Thus, the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that section and to make it a case of culpable homicide not amounting to murder. We must, therefore, assume that this would be a case of murder and it is for the accused to show the applicability of the Exception. Exception 4 reads as under :
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.
58. A perusal of the provision would reveal that four conditions must be satisfied to bring the matter within Exception 4 :
[i] it was a sudden fight;
[ii] there was no premeditation;
[iii] the act was done in the heat of passion; and that [iv] the assailant had not taken any undue advantage or acted in a cruel manner.
59. On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused [a] without premeditation, [b] in a sudden fight, [c] without the offenders having taken undue advantage or acted in a Page 26 of 29 cruel or unusual manner; and [d] the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found.
43. When from the above perspective, the evidence on record is analyzed dispassionately, it can be said that resistance was offered by the deceased to the accused when the accused was found scolding his two minor children and there was verbal confrontation between the two followed by a scuffle. The deceased at that point of time was unarmed. The assault may be due to heat of passion as the accused-appellant retaliated immediately thereafter. But, the retaliation was after picking up a sharp weapon like bothidao with which he caused an incised wound of size : 2 x 1.5 inches, a deep cut injury, over left lateral aspect of the neck exposing the laryngeal cartilage and cutting the trachea and left cervical vessels which. As a result the deep-cut injury, the death was instantaneous. When the deceased was unarmed, an assault with a sharp weapon like bothidao to cause the injury of the nature, mentioned above, on the neck of the deceased on the part of the accused which is clearly cruel, thus, taking the case out of Exception 4 to Section 300, IPC.
44. In other words, having regard to the nature of injuries caused by a sharp weapon like bothidao, which was applied on the vital part of the body, neck with such force it resulted in exposure of the laryngeal cartilage and cutting of the trachea and left cervical vessels, there is no escape from the conclusion that it is a case of murder under Section 300, IPC which is punishable under Section 302, IPC.
45. The decision in Ravasaheb alias Ravasahebgouda and others vs. State of Karnataka, [2023] 5 SCC 391, relied upon by the learned Additional Public Prosecutor, supports the above view.
Page 27 of 2946. As regards the submission of the learned Amicus Curiae that the alleged offending weapon of assault used in the incident and the bloodstained wearing appeals of the deceased were not seized during the investigation resulting in a defective investigation, we are of the considered view that the recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. Similarly, non-seizure of the wearing apparels of the deceased is not a factor to seriously affect the case of the prosecution when the prosecution case is based on direct evidence in the form of eye-witness[es]. The law is settled that if there is direct evidence in the form of a witness, even in the absence of recovery of weapon, the accused can be convicted. The decision in State through the Inspector of Police vs. Laly alias Manikandan and another, 2022 SCC OnLine SC 1424 can be referred to in his connection.
47. The decision in Prakash Mahadeo Godse vs. State of Maharashtra, [1969] 3 SCC 741, referred to by the learned Amicus Curiae, is a case based on circumstantial evidence and as such, the decision is not found applicable to the case in hand as the case in hand is based on the testimony of an eye- witness. The decision in State of Rajasthan vs. Poona Ram and others, [2016] 12 SCC 501, has dealt on the aspect of conversion of the conviction from one under Section 302, IPC to Section 304 Part-I or Section 302 Part-II, IPC. As we have found from the discussion made above that the present one is a case which is clearly a case of murder, no conversion of the conviction can be arrived at. Therefore, the decision in Poona Ram and others [supra] is found not applicable in the case in hand. The decision in Vijender vs. State of Delhi, [1997] 6 SCC 171 is primarily on hearsay evidence. As the present case is based on the solitary eye-witness whose testimony is found to be beyond doubt, the decision in Vijender [supra] is not of any assistance to the accused-appellant here. The decision in State of Utter Pradesh and another vs. Jaggo alias Jagdish and others, [1971] 2 SCC 42 is with regard to conflict between eye-witness account and medical evidence and its effect as well as non-examination of the material witness. There is no conflict between the eye-
Page 28 of 29witness account and the medical evidence in the present case. So far as non- examination of the material witness is concerned, the present case is found to be one where the conviction can be based on the solitary eye-witness account of the mother of the deceased, who is also the mother-in-law of the accused- appellant.
48. In view of the discussion made, for the reasons recorded and the findings reached at as above, the criminal appeal is found to be bereft of any merits. Consequently, affirming the Judgment and Order of conviction and sentence passed by the Trial Court, the criminal appeal is liable to be dismissed. It is accordingly ordered.
49. Before parting with the record, we wish to place our appreciation on record as regards the service rendered by Ms. B. Chowdhury, learned Amicus Curiae appearing for the accused-appellant and direct the Registry to make available to her just remuneration as per the notified fee structure applicable to the Amicus Curiae.
50. The District Legal Services Authority is directed to award adequate compensation to the victim[s] after due enquiry under Section 357A, CrPC and the extant Victim Compensation Scheme, 2012 framed thereunder. We further observe that such enquiry shall be undertaken and completed with utmost expediency and thereafter, to award and disburse appropriate compensation thereunder to the victim[s] entitled upon conclusion of such enquiry.
51. The case records of Sessions Case no. 27 of 2018 be send back forthwith.
JUDGE JUDGE
Comparing Assistant
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