Gauhati High Court - Itanagar
CRL.A(J)/32/2023 on 19 May, 2026
Page No. 1/27
GAHC040014802023
2026:GAU-AP:480-DB
THE GAUHATI HIGH COURT
[THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH]
ITANAGAR PERMANENT BENCH
NAHARLAGUN
CRL.APPL.[J]. No. 32[AP]/2023
Abdul Basar @ Basa.
..................Appellant
-VERSUS-
The State of Arunachal Pradesh.
...................Respondent
BEFoRE HoN'BLE MR. JUSTICE MANISH CHoUDHURY HoN'BLE MR. JUSTICE KARDEK ETE Advocates :
For the Appellant : Mr. Uttam Bori, Legal Aid Counsel
For the Respondent : Ms. Laxmi Hage, Additional Public Prosecutor,
Arunachal Pradesh
Page No. 2/27
Date on which judgment is reserved : 30.04.2026
Date of Hearing : 30.04.2026
Date of pronouncement of judgment : 18.05.2026
Whether the pronouncement is of the
Operative part of the judgment ? : No
Whether the full judgment has been
Pronounced ? : Yes
JUDGMENT & oRDER
[Manish Choudhury, J]
1. This criminal appeal from jail is directed against a Judgment dated 20.11.2019 and an Order on Sentence dated 22.11.2019 passed by the Court of learned District and Sessions Judge, Tirap, Changlang and Longding at Khonsa, Arunachal Pradesh in Khonsa Sessions Case no. 46/2019. By the Judgment dated 20.11.2019, the accused-appellant has been convicted for the offence of murder under Section 302, Indian Penal Code [IPC] and thereafter, by the Order on Sentence dated 22.11.2019, the accused-appellant [hereinafter also referred to as 'the accused', at places, for easy reference] has been sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default of payment of fine, to undergo simple imprisonment for another two months.
2. The informant, one Sri Kabir Ahmed [P.W.2] lodged the First Information Report [FIR] before the Officer In-Charge, Kharsang Police Station on 11.08.2018 stating inter alia that at around 22-15 hrs on 11.08.2018, there was a quarrel among his labourers at their work site located at Electric Page No. 3/27 Colony, Kharsang under influence of alcohol. During the said quarrel, one of the labourers namely Sri Abul Basar [the accused-appellant] had physically assaulted his co-labourer namely Sri Ajibur Rehman [the deceased] with a dao. The FIR further mentioned that as a result of the assault, the deceased sustained grievous injury on his throat and succumbed to the injury on the spot.
3. On receipt of the FIR, the Officer In-Charge, Kharsang Police Station registered it as Kharsang Police Station Case no. 11/2018 under Section 302, IPC @ 23-30 hrs on 11.08.2018 and took up the investigation of the case himself.
4. Immediately after registration of the FIR and in the course of investigation, the Investigating Officer [I.O.] proceeded to the Place of Occurrence [P.O.] at Electric Colony, Kharsang. It was on the way to the P.O., the I.O. found the accused coming from the opposite direction and on being identified, the accused was apprehended by the I.O. while he was trying to run away. Then, he proceeded to the P.O. As the dead body of the deceased was found at the P.O., the I.O. held inquest on the dead body of the deceased at first and thereafter, prepared a Sketch Map of the P.O. [Ext.-4]. Subsequently, the dead body was sent to the Primary Health Centre [PHC], Kharsang for post-mortem examination. The I.O. recorded the statements of the witnesses under Section 161, Code of Criminal Procedure, 1973 [the 'Code' or the 'CrPC', for short]. During the course of investigation, the alleged weapon of assault, that is, one dao measuring 26.50 inches [full length] with a handle [bamboo] of 14 ½ inches [metal wrapped] was seized at 12-30 hrs on 12.08.2018 in presence of two witnesses viz. [i] Sri Rajesh Sahu [P.W.1] and [ii] Sri Ram Tanti [P.W.3] vide a Seizure Memo, M.R. no.
Page No. 4/2738/2018 [Ext.-1]. The I.O. collected the Post-Mortem Examination [PME] Report [Ext.-3].
5. After completing investigation into the case, Kharsang Police Station Case no. 18/2018, the I.O. submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 06/2019 dated 10.06.2019 finding a prima facie case against the accused to proceed for trial for committing the offence under Section 302, IPC. On submission of the Charge-Sheet before the Court of learned Judicial Magistrate, First Class, Changlang [the JMFC, Changlang], the Court of JMFC, Changlang after completing the formalities as required under Section 207, CrPC committed the case record to the Court of District and Sessions Judge, Tirap, Changlang and Longding at Khonsa ['the Trial Court'] under Section 209, CrPC vide a Commitment Order dated 26.06.2019. The learned Public Prosecutor was notified accordingly and a direction was made for production of the accused before the Trial Court on 23.07.2019.
6. On receipt of the case record of Kharsang Police Station Case no. 11/2018, the Trial Court registered the same as Khonsa Sessions Case no. 46/2019. On appearance of the accused before the Trial Court, the case was opened by the learned Public Prosecutor. The Trial Court after hearing the learned Public Prosecutor for the State and the learned Defence Counsel for the accused, framed a charge under Section 302, IPC against the accused for intentionally causing the death of the deceased, Ajibur Rehman. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried and the case proceeded to the stage of recording evidence.
Page No. 5/277. During the course of the trial, the prosecution side examined six witnesses and exhibited six nos. of documents in order to bring home the charge against the accused. After closure of evidence from the prosecution side, the accused was examined under Section 313[1][b], CrPC to provide him the opportunity to explain his version as regards the incriminating circumstance appearing against him from the testimony of the prosecution witnesses. When the accused was asked whether he would adduce any evidence in his defence, the accused declined to adduce any defence evidence. Thereafter, the Trial Court after hearing the learned Counsel for both the sides; and upon appreciation of the evidence/materials on record; proceeded to deliver the impugned verdict of guilt against the accused- appellant. Hence, the present criminal appeal from jail.
8. We have heard Mr. Uttam Bori, learned Legal Aid Counsel for the accused-
appellant; and Ms. Laxmi Hage, learned Additional Public Prosecutor, Arunachal Pradesh for the respondent State.
9. Mr. Bori, learned Legal Aid Counsel appearing for the accused-appellant has contended that the conviction has been based on the sole testimony of an eye-witness, whose testimony was not believable on all the material points. There was failure on the part of the Trial Court to appreciate the evidence in proper perspective. He has canvassed that though a dao was shown to be recovered and was projected to be the weapon of assault, neither there was any satisfactory evidence regarding recovery of the dao on the basis of any disclosure made by the accused nor there is any evidence to connect the dao with the alleged homicidal death of the deceased. He has contended that the prosecution had failed to lead evidence as regards any fight or quarrel preceding the incident. Further, no evidence as regards Page No. 6/27 motive was led. He has further submitted that element of provocation from the deceased and that the deceased was the aggressor can be inferred from the evidence/materials on record and therefore, the offence cannot be held to be a murder of the first degree for conviction of the accused-appellant under Section 302, IPC as the evidence has clearly indicated towards applicability of Exceptions. In support, he has referred to the decisions in Virsa Singh vs. State of Punjab, AIR 1958 SC 465 and Thangaiya vs. State of Tamilnadu, [2005] 9 SCC 650. Mr. Bori has, by referring to the decision in Vadivalu Thevar vs. State of Madras, AIR 1957 SC 614, submitted that the solitary eye-witness in the present case cannot be termed to be a wholly reliable witness.
10. Ms. Hage, learned Additional Public Prosecutor appearing for the State has supported the Judgment and Order of conviction and sentence passed by the Trial Court. It has been strenuously submitted that there is no scope for any interference in the case in hand. Though there was a solitary eye- witness, but his testimony was consistent and reliable all throughout and his testimony had received ample corroboration on all the material points from the testimonies of the other witnesses and documentary evidence. The prosecution witness, P.W.3 had testified to have seen both the deceased and the accused leaving his house prior to the incident and the eye-witness had seen both of them at the time of the incident. It is not a case of single blow. The deceased was assaulted more than once by the accused with a dao and from the nature of the injuries sustained by the deceased, as reported in the PME Report, the injuries sustained by the deceased were sufficient in the ordinary course to cause death and for that reason, the deceased died of the injuries instantaneously at the spot. The learned Additional Public Prosecutor has, thus, contended that the only conclusion Page No. 7/27 which can be drawn from the evidence on record is that the accused had committed the offence of murder and the prosecution has been able to establish the case beyond all reasonable doubts. It is submitted that the defence pleas sought to be urged by the learned Legal Aid Counsel were without substance as there were no supporting materials to substantiate such defence pleas. There were no suggestions even to infer that there was any act of aggression from the end of the deceased. Mr. Hage has submitted that the appeal is bereft of any merit and it is liable to be dismissed affirming the Judgment and Order of the Trial Court.
11. We have duly considered the submissions advanced by the learned counsel for the parties, and have also perused the evidence/materials available in the case record of Khonsa Sessions Case no. 46/2019, in original.
12. The case of the prosecution is primarily based on the testimony of Sri Rajesh Sahu [P.W.1], who was stated to be the sole eye-witness to the incident of alleged assault on the deceased by the accused leading to the alleged homicidal death of the deceased. According to the prosecution, the testimony of the other witnesses had lent corroboration to the testimony of the eye-witness to prove the case beyond all reasonable doubts against the accused. Therefore, it appears apposite to refer to the testimony of P.W.1 at first to find out whether the same was vital to establish the case of the prosecution.
13. P.W.1, Rajesh Sahu deposed to the effect that he used to work as a mason and he knew both the deceased and the accused. He stated that in the month of August, 2018, he was working at Kharsang for construction of a thermal plant under the Electricity Division. During that time, the deceased Page No. 8/27 and the accused also used to work as masons with him. All three of them worked together for about a month. On one Saturday, they brought some chicken and they prepared food at the residence of Ram [P.W.3], whose house was near to their Labour Camp. At the house of P.W.3, all three of them consumed liquor and chicken while watching television. P.W.1 stated that he came back from the house of Ram to the Labour Camp at first. P.W.1 testified that after return, he was watching his mobile by standing nearby the switch board. At that time, the deceased came running to the Labour Camp and reached near him. The accused was following him and reaching near to the deceased, the accused stabbed the deceased repeatedly. P.W.1 stated that he had seen the accused repeatedly assaulting the deceased by a dao as it was just near to him and in the same room. As a result, the deceased fell down on the ground and died on the spot. On watching the incident, he rushed to room of the contractor and knocked the door. But the door was not opened. During that time, the accused came running towards him and held him. The accused then asked P.W.1 to accompany him to bury the dead body. P.W.1 stated that as the accused had just committed a murder, he apprehended that if he would deny the accused then the accused would also harm him. P.W.1 stated that he told the accused that he would assist. But as soon as the accused loosened his grip on him, P.W.1 stated to have run away from the place to the Police Station. At the Police Station, he informed everything to the Police personnel and a team of Police personnel from the Police Station, accompanied by him, to the Labour Camp. On the way to the Labour Camp, they saw the accused on the road. As the accused tried to run away from there, Police personnel had apprehended him and took him to the Labour Camp, where the dead body of the deceased was found lying on the spot. P.W.1 stated that the deceased sustained a cut injury on his neck. P.W.1 Page No. 9/27 further deposed that on the next day, as per the disclosure of the accused, the dao which was the alleged weapon of assault, was recovered from the jungle nearby the Labour Camp. P.W.1 stated that the incident took place at the room of the Labour Camp where all three of them used to stay. P.W.1 stated that during the time of investigation, the accused disclosed that he had thrown the dao over the wall and the dao was recovered from the jungle over the wall as per the disclosure made by the accused. P.W.1 clarified that during the time of the incident, only three of them - he, the deceased and the accused - were present and there was no one except him who had seen the incident of assault. He stated that the dao was recovered and seized by Police in his presence and the dao which was used by the accused to assault the deceased was normally used by them for works.
13.1. During cross-examination, P.W.1 stated that he did not know about the incident which took place between the deceased and the accused before the murder took place. P.W.1 deposed that during the time of the incident, all three of them were under the influence of alcohol. He did not understand the language of the deceased and the accused and could not say what was the matter between them. He did not know what happened before the incident and had not seen any fight between the deceased and the accused. P.W.1 stated that the accused used to consume ganja and sometime he used to keep laughing. The dao which was used by the accused for cutting the deceased was not seen by him in the court and the dao was identified by him before the Police at the Police Station.
14. P.W.2, Kabir Ahmed stated that he used to work as a mason and the accused also used to work as a mason. P.W.2 deposed that in the previous year, he was working in a construction work at Kharsang Electricity Division.
Page No. 10/27The deceased and the accused also used to work with him. They had completed the assigned construction work and on the next day, they were about to leave the place of work. But, on that night, an incident took place where the accused murdered the deceased by cutting him with a dao. P.W.2 stated that he was at his residence when the incident took place during the night. At around 11-00 P.M., Police called him over phone and told that an incident of murder had taken place at the work site. P.W.2 stated that he immediately rushed to the work site and saw that the accused was kept apprehended by Police and the deceased was lying dead. The dead body of the deceased and the accused were taken to the Police Station and he [P.W.2] was also called to the Police Station. After performing post-mortem examination on the dead body of the deceased, the dead body was handed over to him. On the next day, he had taken the dead body of the deceased to the native place of the deceased and handed it over to his relatives. P.W.2 stated that he lodged the FIR and exhibited the FIR as Ext.-2 with his signature therein as Ext.-2[a]. When cross- examined, P.W.2 stated that he did not see the accused killing the deceased.
15. P.W.3, Ram Tanti deposed to the effect that about a year earlier, he was staying at Kharsang as he was given a job by the contractor at the Electricity Sub-Division at Kharsang. The accused also used to work at the same site as a mason with some other persons. On the date of the incident, the accused and two other persons came to his residence with two bottles of IMFL and chicken. They told him [P.W.3] that they were going to leave the place on the next day. P.W.3 stated that his wife then cooked the chicken and all of them had consumed liquor with chicken. During the night, all three of them went back to the work site. P.W.3 stated that only in the Page No. 11/27 next morning he came to know that the accused had killed one of his co- workers who came to his [P.W.3] residence during the night. In cross- examination, P.W.3 admitted that he did not see the accused killing the deceased. He deposed that when the accused and the deceased were consuming liquor with him there was no quarrel between them. P.W.3 further deposed that the deceased and the accused were under the influence of alcohol.
16. P.W.4, Dr. Gyati Majee was posted as the Medical Officer at the PHC, Kharsang on 11.08.2018. P.W.4 stated that on 11.08.2018, one dead body was brought to the PHC for post-mortem examination to ascertain the cause of death. The post-mortem examination was conducted on 12.08.2018. Performing autopsy on the dead body of the deceased, Ajibur Rehman, aged about 28 years of age, he found two cut injuries on the dead body. One cut injury measuring 4 cm X 2 cm X bone deep was at the occipital region of the head. The other cut injury measuring 5 cm X 1 cm X 3 cm depth was on the left side of the neck and the injury was located around 3 cm below the hyoid bone. According to P.W.4, the injury was caused by a sharp weapon. P.W.4 found that the death of the deceased was caused due to laceration of the right carotid artery for which there was blood loss and the death was due to severe hemorrhage. P.W.4 exhibited the PME Report as Ext.-3 with his signature therein as Ext.-3[a]. During cross-examination, P.W.4 stated that he could not say whether the injury was inflicted on the deceased intentionally. He further deposed that there was very rare chance of saving the deceased after such severe cut injury as there were no such facilities at the hospital.
Page No. 12/2717. P.W.5, Tomai Wangpan was posted as the Officer In-Charge of Kharsang Police Station on 11.08.2018. P.W.5 deposed to the effect that at about 23- 30 hrs on 11.08.2018, it was reported at the Police Station by one Kabir Ahmed i.e. the informant-P.W.2 that at about 22-15 hrs, the accused, Abdul Basa had murdered the deceased, Ajibur Rehman by cutting him with a dao. On receipt of the FIR, he registered it immediately and undertook the investigation of the case. When he was on his way to the P.O. from the Police Station, the accused was seen coming from the opposite direction. The accused was identified by Rajesh Sahu [P.W.1] and accordingly, he caught hold of the accused when the accused attempted to run away. He took the accused to the Police Station at first, and thereafter, to the P.O. At the P.O., the dead body of the deceased was found and accordingly, inquest was done. P.W.5 stated to have drawn a Sketch Map of the P.O. P.W.5 searched the vicinity of the P.O. for finding the weapon of assault. The weapon of assault was not found at the P.O. then. The dead body of the deceased was forwarded to the hospital for post-mortem examination. He then formally arrested the accused and thoroughly interrogated him. P.W.5 stated that during interrogation, the accused confessed his guilt and voluntarily disclosed where he had thrown the weapon of assault. Based on the disclosure of the accused, a search was conducted at the area beyond the wall and the weapon of assault which was a dao, was recovered from the jungle. P.W.5 stated that during the course of investigation, he had recorded the statements of the eye-witness, the informant and other relevant witnesses under Section 161, CrPC. He received the PME Report from Dr. Gyati Majee [P.W.4]. On his transfer from Kharsang Police Station, he handed over the case diary to Kishan Kumar, one Assistant Sub- Inspector of Police for further investigation. P.W.5 exhibited a Seizure Memo as Ext.-1 whereby a dao was seized along with his signature therein Page No. 13/27 as Ext.-1[b]. P.W.5 also exhibited the FIR, the PME Report, the Sketch Map of the P.O. and five Photographs of the P.O. as Ext.-2, Ext.-3, Ext.-4 and Ext.-5[a-e] respectively.
17.1. P.W.5 stated that on receipt of the FIR at 23-30 hrs, he immediately proceeded towards the P.O. during that night itself. He stated that P.W.1 who was a co-worker of the deceased and the accused, was the eye- witness to the incident. The accused was under the influence of alcohol. Before reaching the P.O., the deceased and the accused were at the residence of Ram Tanti [P.W.3] and there they consumed alcohol. P.W.5 stated that while going to the P.O., the deceased and the accused had quarreled and the accused had assaulted the deceased by the dao. P.W.5 deposed that during investigation, the accused stated that after committing the crime, he washed the dao and threw it in the jungle. Therefore, after recovering the dao, he did not send it to the Forensic Science Laboratory [FSL] for examination.
18. P.W.6, Krishna Mohan Das deposed that during the month of March, 2019, he was posted as the Officer In-Charge of Kharsang Police Station. His predecessor Officer In-Charge, Tomai Wangpan [P.W.5] had handed over the case diary of Kharsang Police Station Case no. 11/2018 to him. On receipt of the case diary, he examined it and found that the investigation of the case was already complete. P.W.6 stated that based on the materials in the case diary, he had submitted the Charge-Sheet against the accused under Section 302, IPC. P.W.6 exhibited the Charge-Sheet as Ext.-6 with his signature there as Ext.-6[a&b]. The defence declined to cross-examine P.W.6.
Page No. 14/2719. A conviction can be based on the sole testimony of a solitary eye-witness.
Section 134 of the Indian Evidence Act, 1872 has mentioned that no particular number of witnesses shall in any case be required for the proof of any fact. In Vadivelu Thevar [supra], the Hon'ble Supreme Court has observed that Section 134 of the Evidence Act enshrines the well recognized maxim that 'Evidence has to be weighed and not counted. If legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. The Hon'ble Court had proceeded to classify the witnesses into three categories, namely, [i] wholly reliable, [ii] wholly unreliable, and [iii] neither wholly reliable nor wholly unreliable. But, to base a conviction on the testimony of the sole eye-witness, the testimony of the eye-witness must be strong, reliable, conclusive and free from any blemish and doubt so as to inspire confidence. For appreciating the value of the sole eye-witness, it is required to examine whether his presence at the place of occurrence to witness the incident was natural, and whether he has any animosity with either of the parties or he is a neutral witness.
20. In Shahaja @ Shahajan Ismail Mohd. Shaikh vs. State of Maharashtra, [2022] 12 SCR 196, the Hon'ble Supreme Court has observed 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 place 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 Page No. 15/27 of their statements, will have a bearing upon the value which a court would attach to their evidence.
21. When keeping the above aspects into consideration, we look at the testimony of the sole eye-witness, P.W.1, nothing is detectable to hold that his presence at the time when and at the place where the incident took place, was unnatural. It has emerged from the evidence on record that P.W.1, the deceased and the accused were all masons and for about a month prior to the incident, all three of them were working at a construction site of Electricity Division at Kharsang. It has further emerged from the evidence on record that their place of stay was same where the incident of assault on the deceased was committed by the accused. All three of them were to leave the work site on the next day. On the previous night and prior to the incident of assault, P.W.1, the deceased and the accused went to the house of Ram Tanti [P.W.3] to have dinner. For the said purpose, the three of them purchased chicken and bottles of alcohol. At the house of P.W.3, all three of them with P.W.3 had dinner and consumed alcohol. As per the testimony of P.W.1, after having chicken and alcohol, he came out of the house of P.W.3 at first leaving the deceased and the accused there in the company of P.W.3. That P.W.1, the deceased and the accused had gone together to the house of P.W.3 on the night of the incident and consumed alcohol there had received corroboration from the testimony of P.W.3. P.W.1 had reached their place of stay [room] where all three of them used to stay for their works at the construction site. After some time, P.W.1 witnessed that the deceased was running towards their place of stay ahead of the accused and the deceased stopped near P.W.1. The accused reached the place following the deceased. P.W.1 saw that the accused was armed with a dao and the accused stabbed the deceased on Page No. 16/27 the upper part of his body near neck with the dao. As a result of the assault, the deceased fell down on the floor and died instantaneously on the spot.
22. P.W.1 was staying together in the same room with the deceased and the accused for a month due to their engagements as masons at a construction site and the incident occurred in the night hours of 11.08.2018. Considering the sequence of events which occurred prior to the incident of assault, there is nothing unnatural about the presence of P.W.1 at the place of occurrence and at the time of assault. Nothing has emerged from the evidence that P.W.1 had any animosity either with the deceased or with the accused and had any motive to give a different projection of the incident to implicate the accused.
23. During his examination under Section 313[1][b], CrPC, the accused admitted that he worked with P.W.1, as mentioned, during the year 2018 for about a month at Kharsang for construction of a thermal plant under Electricity Division, Kharsang. The accused also admitted that they had brought chicken on that Saturday and prepared food at the residence of P.W.3, which was near to the Labour Camp, and consumed liquor there watching TV. The accused admitted in line of the testimony of P.W.1 that when P.W.1 was proceeding with Police personnel towards the Labour Camp, he was seen on the road and he tried to run away from the place and at that time, he was apprehended and taken by the Police to the Labour Camp, where the dead body of the deceased Ajibur Rehman was lying. In response to the incriminating circumstance emerging from the testimony of P.W.1 to the effect that at the time of the incident, he, P.W.1 Page No. 17/27 and the deceased were present at the Labour Camp and P.W.1 saw him murdering the deceased, the accused answered in the affirmative.
24. With regard to the submission advanced by the learned Legal Aid Counsel for the accused-appellant that from the evidence on record, no motive has emerged so as to attribute any reason behind the alleged assault on the deceased. It is a settled proposition that motive plays an important part in cases based on circumstantial evidence, but motive becomes irrelevant in a case of direct evidence. It is settled that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. In other words, when there is direct evidence with regard to the commission of crime and when such direct evidence is strong reliable, conclusive and not shaken as regards its worth, the motive part becomes insignificant and recedes to the background. From the discussion made above as regards the testimony of P.W.1, the solitary eye-witness, we have found that his eye-witness account is reliable, conclusive and direct with regard to the assault on the deceased by the accused with a dao and such part of testimony has not been discredited in any manner. The solitary eye-witness, P.W.1 is found to be falling in the category of wholly reliable witnesses. In Vadivelu Thevar [supra], the Hon'ble Court has observed that in the first category of proof, that is, of wholly reliable witness, the Court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. Thus, absence or presence of motive on the part of the accused to kill the deceased is hardly of any significance in the present case.
Page No. 18/2725. A dao, which was alleged to be the weapon of assault, was recovered from a jungle area beyond the wall of the premises where the occurrence took place. As per the I.O., the dao was recovered on the basis of a disclosure made by the accused that he had thrown the dao in the jungle area beyond the wall. It has been the contention of the learned Legal Aid Counsel for the accused-appellant that the disclosure statement of the accused which led to such discovery was not exhibited during the course of the trial and, therefore, the accused cannot be held to be complicit in the commission of the crime.
26. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye-witness, even in the absence of recovery of weapon, the accused can be convicted. It has been held in Krishna Mochi and others vs. State of Bihar, [2002] 6 SCC 81, that the recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate the accused from the charges, more so, when participation of the accused in the crime is unfolded in ocular account of the occurrence, by the witnesses, whose evidence has been found to be unimpeachable. In the case of State through the Inspector of Police vs. Laly @ Manikandan and another, [2022] 15 SCR 633, it has been observed that even if it is assumed that the recovery of the weapon used is not established or proved, the same cannot be a ground to acquit the accused when there is a direct evidence of the eye-witness.
27. Therefore, the point urged on behalf of the accused-appellant regarding non-recovery of the weapon of assault on the basis of any disclosure statement of the accused, in the considered view of this Court, does not bear any significance. It is not a proposition of law that in case of non-
Page No. 19/27recovery of weapon of assault in a proper manner, the whole prosecution case would get weakened.
28. The offence of culpable homicide is defined in Section 299 of the Indian Penal Code [IPC]. 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. Culpable homicide is the genus and the offence of murder its species, meaning thereby, all murders are culpable homicides but all culpable homicides are not murders. The offence of murder is defined in Section 300, IPC, which reads as under
:-
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 Secondly - 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 Thirdly - 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 Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily 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.
Page No. 20/2729. The issue which has arisen, therefore, is whether the injury caused due to the attack is one which falls within the description of Section 300 Thirdly of the Indian Penal Code. Section 300 Thirdly is attracted if the attack 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. The requirement of Section 300 Thirdly, IPC is fulfilled if the prosecution establishes that the accused inflicted an injury which would be sufficient to have resulted in death of the victim. The primary factor would be the intention to cause such injury.
30. In Nankaunoo vs. State of Uttar Pradesh, [2016] 3 SCC 317, the Hon'ble Supreme Court has explained in what situation the Third clause of Section 300, IPC is attracted after taking into consideration the interpretation given in Virsa Singh, which has attained the position of locus classicus. The Hon'ble Supreme Court has observed in the following manner :-
11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering clause Thirdly of Section 300 IPC and reiterating the principles stated in Virsa Singh case [Virsa Singh vs. State of Punjab, AIR 1958 SC 465], in Jai Prakash vs. State (Delhi Admn.) [Jai Prakash vs. State (Delhi Admn). (1991) 2 SCC 32] para 12, this Court held as under : (SCC p. 41) Page No. 21/27
12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [Jagrup Singh vs. State of Haryana, (1981) 3 SCC 616 : 1981 SCC (Cri) 768], observed thus : (SCC p. 620, para 7) '7. ... These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [Virsa Singh vs. State of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818], for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.' The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh vs. State of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove [1] that the body injury is present, [2] that the injury is sufficient in the ordinary course of nature to cause death, [3] that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas under the second part whether it was sufficient to cause death, is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly Page No. 22/27 of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end.
12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death.
The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause Page No. 23/27 death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place.
The decision in Thangaiya [supra] has also held in similar lines.
31. In the present case, there is an eye-witness account P.W.1 of the incident, and the testimony of the eye-witness could not be discredited in any manner during the cross-examination. The eye-witness account of P.W.1 is direct, clear and conclusive on the point of assault on the deceased by the accused by way of a dao. As per the PME Report [Ext.-3] exhibited through the Autopsy Doctor [P.W.4] there were two injuries on the person of the deceased : [i] a deep incision on left side of neck measuring 5 cm X 1 cm X 3 cm deep, 3 cm below hyoid bone; and [ii] a cut injury of 4 cm X 2 cm X bone deep on left side of occipital bone, 2 cm lateral to occipital protuberance. The right side the neck of the accused showed cut wound with large collection of blood. P.W.4 testified that on further exploration, it was found that there was a ruptured sternocleidomastoid muscle with damaged surrounding tissues. On deeper exploration, it was found that there was a severed right carotid artery. According to the Autopsy Doctor [P.W.5], the cause of death was massive hemorrhage following the injury to right carotid artery. All the injuries were ante-mortem and homicidal and they were caused by a sharp weapon. The above opinion of the Autopsy Doctor was not challenged in any manner whatsoever by the defence at any point of time.
32. Keeping in view the above principles and the evidence on record, when we examined the facts and circumstances of the present case, it is found that the deceased had received injuries, as mentioned in the preceding Page No. 24/27 paragraph, which were on a vital part of the body. The death of the deceased was instantaneous as he succumbed to the injuries immediately at the spot in front of the eye-witness, P.W.1. It has emerged that the deceased came running to the place of his stay where P.W.1 and the accused also used to stay together with him. The deceased was followed by the accused wielding a dao in his hand and reaching the place of stay, the deceased gave blows on the person of the deceased at around his neck. The weapon used and the manner in which the assault was made and the injuries were inflicted have clearly established that the accused intended to cause those injuries. Once it is established that the accused intentionally inflicted the injuries, then the offence would be murder, if it is sufficient in the ordinary course of nature to cause death.
33. It has been urged by the learned Legal Aid Counsel for the accused-
appellant that the case would fall either within Exception 1 or Exception 4 of Section 300, IPC. To that end, he has referred to an answer given by the accused-appellant during his examination under Section 313[1][b], CrPC wherein the accused-appellant had projected that the deceased was coming towards him to assault with a dao and he had to retreat from the deceased to save himself. Such plea of the accused-appellant is found to be an afterthought as no suggestion to that effect was ever made by the defence during the entire course of the trial. The evidence on record do not point towards anything wherefrom it can be inferred, even remotely, that initially, the deceased was the aggressor. In the absence of any witness, the prosecution did not lead any evidence as to what happened during the gap between the time the deceased and the accused left the house of P.W.3 at night after consuming liquor and the time when the incident of assault took place at their place of stay. As the deceased was no more, it was the Page No. 25/27 accused who could have thrown light as regards the events that occurred during the said gap period. But the accused did not make any attempt to throw any light as regards such events. The time when both of them reached their place of stay, it was the accused who was the aggressor brandishing a sharp weapon, dao with which he had assaulted the deceased which led to the instantaneous death of the deceased.
34. As per Exception 1 of Section 300, IPC, 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. Exception 4 of Section 300, IPC has laid down to the effect that 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 acted in a cruel or unusual manner. As per the Explanation to Exception 4, it is immaterial in such cases which party offers the provocation or commits the first assault.
35. The assistance of Exception 4 can be sought if death is caused [a] without pre-meditation, [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. In order to examine a case within Exception 4, it is to be ensured that all the ingredients mentioned above are present. In order to bring in Exception 4 in a case of murder, it is not enough to establish that there was a sudden quarrel and there was no pre- meditation. It must also be shown that the accused has not taken undue advantage or acted in a cruel or unusual manner. In the case in hand, it is evident from the PME Report and the testimony of the Autopsy Doctor that Page No. 26/27 the accused did not stop himself after inflicting one injury on the deceased. Rather, he inflicted more than one injury on the person of the deceased with a sharp weapon resulting in a deep incision and a cut injury with severance of the right carotid artery resulting in instantaneous death of the deceased at the spot when the deceased was unarmed. To bring in Exception 1, there must be provocation and the provocation must be grave and sudden and as a result of such provocation, the accused is deprived of the power of self-control. There is no iota of evidence as regards any provocation, much less grave and sudden provocation. Therefore, by no stretch, the case can be brought either within Exception 1 or within Exception 4 of Section 300, IPC.
36. Taking into consideration the facts and circumstances obtaining in the case in its entirety, as discussed above, and for the reasons assigned therein, we are of the clear view that the case squarely falls under Clause 'Thirdly' of Section 300 of the Penal Code, which is punishable under Section 302 of the Penal Code. Therefore, we find no ground, not to speak of good and sufficient ground, to interfere with the conclusion recorded by the Trial Court for the charge of murder in the case in hand. Resultantly, the criminal appeal is found to be bereft of any merit. Consequently, affirming the Judgment and Order of Conviction and Sentence passed by the Trial Court in Khonsa Sessions Case no. 46/2019, the criminal appeal is dismissed.
37. It is noticed that the Trial Court has not made any recommendation for compensation to the victim. Before parting with the record, we recommend that adequate compensation to the victim, if any, should be awarded under Section 357A, CrPC. The jurisdictional District Legal Services Authority shall Page No. 27/27 consider the matter of granting compensation to the victim as per the Victim Compensation Scheme, if any, framed under Section 57A, CrPC.
38. This Court also records its appreciation for the assistance rendered by the learned Legal Aid Counsel. The learned Legal Aid Counsel is to be paid remuneration as per the rules in force.
39. The TCR is to be sent back forthwith.
JUDGE JUDGE
Comparing Assistant
Digitally signed by Rupam
Basumatary
Date: 2026.05.19 13:47:30
+05'30'