Allowed¶69

Lila Chetry v. the State of Assam and Anr.

Gauhati HC5 Mar 2026Crl.A./176/2023

Case brief

AI extract

What is this about?

Gauhati High Court criminal appeal allowed: conviction under Section 302 IPC founded on an oral dying declaration heard by a sole witness (PW-1) set aside — PW-2 stated the victim could not speak and no dying declaration was mentioned in the FIR, Section 161 Cr.P.C statement or IO testimony; absconding held not a proving link (Matru, Chetan); bamboo-stick 'murder weapon' not sent to FSL; no eyewitness and incomplete chain of circumstantial evidence; appellant acquitted and directed to be released.

What did the court decide?

Appeal allowed; appellant acquitted of the charge under Section 302 IPC; impugned judgment dated 08.02.2023 of the Additional Sessions Judge (FTC-I), Margherita in Sessions Case No.24(M)/2017 set aside; appellant to be released immediately from judicial custody if not wanted in any other case; TCR to be sent back.

Lila Chetry Vs the State of Assam and Anr. — Murder and Culpable Homicide | Gauhati HC (2026)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the oral dying declaration allegedly made by the deceased and heard only by PW-1 (informant), when other prosecution witnesses were present and PW-2 stated the victim could not speak, could be the basis of convicting the appellant under Section 302 IPC. +3 more

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Court's answer

The facts that PW-1 made no mention of the oral dying declaration in his FIR or in his Section 161 Cr.P.C statement, and that neither I/O (PW-8/PW-9) deposed that PW-1 had spoken of any such declaration, do not inspire confidence in PW-1's evidence of the oral dying declaration.

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Ratio / Principle

No oral dying declaration could be given by the deceased/victim, as PW-2 had stated that the victim could not speak; the claim that only PW-1 heard it, after PW-2 and his brother Himalaya had already reached the spot, is not believable.

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Key takeaways

The conviction based on the oral dying declaration, as one of the links in the chain of circumstantial evidence, is not acceptable.ratio¶69
The conviction and sentence of the appellant under Section 302 IPC is not sustainable in law.ratio¶69
The absence of the appellant from his house on the night of the incident is not a link proving his guilt; further, suspicion, however grave, cannot take the place of proof.ratio

Detailed headnote1 paragraphs

Crl.A./176/2023, Gauhati High Court (judgment dated 06.03.2026): appeal allowed; judgment dated 08.02.2023 of the Additional Sessions Judge (FTC-I), Margherita in Sessions Case No.24(M)/2017 convicting the appellant under Section 302 IPC and sentencing him to rigorous imprisonment for life with fine set aside; appellant acquitted. The conviction rested principally on an oral dying declaration allegedly heard only by PW-1, the informant. The Court found it not believable: PW-2, who reached the spot immediately after his brother Himalaya, stated the victim could not speak; Himalaya was not made a witness; and neither the FIR, PW-1's statement under Section 161 Cr.P.C, nor the testimony of the Investigating Officers (PW-8, PW-9) mentioned any dying declaration. Relying on Matru Alias Girish Chandra vs. State of Uttar Pradesh, (1971) 2 SCC 75 and Chetan Vs. State of Kartanaka, (2025) 9 SCC 31, the Court held that the appellant's absence from his house on the night of the incident was not a link proving guilt, suspicion not taking the place of proof. The bamboo stick allegedly seized was not sent to the Forensic Science Laboratory and the seizure proved nothing; there was no eyewitness, the last-seen theory pointing, if at all, to the discharged Dipak Thapa. Finding a break in the chain of circumstantial evidence and no proof of guilt beyond all reasonable doubt, the Court acquitted the appellant and directed his immediate release from judicial custody if not wanted in any other case.

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Page No.# 1/11

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GAHC010081522023

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A./176/2023

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LILA CHETRY

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S/O LATE JITT BAHADUR CHETRY,

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RESIDENT OF VILLAGE DHEKIAJAN, PS DIGBOI DIST. TINSUKIA, ASSAM, 786171

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VERSUS

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THE STATE OF ASSAM AND ANR. REPRESENTED BY PP ASSAM

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2:SRI MILON THAPA S/O LATE PRATAP THAPA

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RESIDENT OF KHERJAN NEPALEE GAON PS DIGBOI DIST TINSUKIA ASSAM 78617

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:::BEFORE:::

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HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

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Advocates for the appellant : Mr. B. Chetri.

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Mr. U. Das. … Advocates.

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Advocates for the respondents : Ms. B. Bhuyan, Addl. P.P., Assam.

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Date of hearing & judgment : 06.03.2026

Page No.# 2/11

JUDGMENT & ORDER

(M. Zothankhuma, J)

1. Heard Mr. B. Chetri, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam for the State.

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2. This appeal has been filed against the judgment dated 08.02.2023 passed by the learned Additional Sessions Judge (FTC-I), Margherita, in Sessions Case No.24(M)/2017, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life, with a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for 6 (six) months under Section 302 IPC.

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3. The appellant’s basic case is that the oral dying declaration of the deceased, which was heard only by PW-1 (informant), while the evidence shows that there were other prosecution witnesses present with PW-1 at the relevant time, could not be the basis of convicting the appellant under Section 302 IPC.

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4. Mr. B. Chetri, learned counsel for the appellant submits that PW-1 did not make a mention in the FIR submitted by him that the deceased had made a dying declaration in the FIR or in his statement under Section 161 Cr.P.C.. He also submits that the Investigating Officer (I/O) of the case, i.e. PW-8, in his testimony, had also not made any mention of PW-1 having ever spoken of the deceased having given a dying declaration. He thus submit that when there is

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Page No.# 3/11

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no basis for convicting the appellant, the conviction and sentence of the appellant under Section 302 IPC by the learned Trial Court is liable to be set aside.

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5. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand submits that the evidence of PW-1 was enough to convict the appellant under Section 302 IPC, subject to this Court finding it truthful. She also submits that the weapon used for the offence, i.e, wooden stick was recovered from the residence of the appellant. Further, the appellant being on the run, the same showed the guilty mind of the appellant. She accordingly submits that the impugned judgment should not be interfered with.

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6. We have heard the learned counsels for the parties.

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7. The conviction of the appellant by the learned Trial Court as the person who had murdered the deceased, is on the ground that the deceased had, prior to his death, given an oral dying declaration to PW-1, where he had implicated the appellant as the person who had assaulted him. Further, the appellant was not available in his house when the police went in search of him after the incident. Thirdly, the police seized the bamboo, which was alleged to be the murder weapon. The learned Trial Court thus held that first circumstantial evidence thus proved that the appellant had killed the deceased.

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8. The prosecution case in brief is that an FIR dated 17.09.2016 was submitted by PW-1, who is the uncle of the deceased. The FIR which was addressed to the Officer-in-charge, Digboi Police Station stated that on

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Page No.# 4/11

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16.09.2016 at about 10 O’clock in the night, one Sri Dipak Thapa came to the house of the deceased and woke him up and then both went to Dhekiajan village for some reason. A little later, the appellant who had been lying in ambush on the road, assaulted the deceased and injured him seriously. Thereafter, an ambulance was called and the deceased was admitted in I.O.C Medical at Digboi. The deceased however died while under treatment. The FIR was registered as Digboi P.S. Case No.154/2016 under Section 302/34 IPC.

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9. After investigation of the case, the I/O (PW-8) started the investigation and the 2^nd I/O, i.e. PW-9 submitted the charge-sheet, wherein a prima facie case under Section 302/34 IPC was found against the appellant. Dipak Thapa, who had woken up the deceased and taken him to Dhekiajan village was however discharged, as the Police did not find sufficient evidence against him to implicate him in the murder case.

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10. The learned Trial Court thereafter framed charge under Section 302 IPC, to which the appellant pleaded not guilty and claimed to be tried. The learned Trial Court thereafter examined 9 (nine) prosecution witnesses and after examining the appellant under Section 313 Cr.P.C, convicted him under Section 302 IPC.

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11. As stated earlier, the reason for conviction of the appellant was primarily on the basis of the oral dying declaration given by the deceased to PW-1, who was also the informant. PW-1 in his evidence stated that he was at his home at the time of the incident, i.e. around 8/9 p.m on 16.09.2016, while the house of the deceased was 100/150 metres away from his house. On hearing a

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Page No.# 5/11

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commotion and that the deceased had been assaulted by the appellant, he rushed to the spot and found the deceased lying on the road in an injured state, about ½ k.m from his house. On asking him the reason, the victim told him that the appellant had assaulted him. However, the voice of the victim died down soon after that. PW-1 stated that his elder brother Dhan Bahadur Thapa, Dil Bahadur Thapa (PW-2), Lok Bahadur Thapa (PW-3) and several other persons were near the victim. They took the victim in an ambulance and the Doctor declared the victim dead.

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12. It is interesting to note that only PW-1 seems to have heard the oral dying declaration of the victim, though PW-2 & PW-3 amongst others, were also present during the relevant period of time, when the dying declaration had been given. The above being said, PW-2 and PW-3 have stated that they saw the victim lying in an injured state and that the victim was not able to speak. In fact, the evidence of PW-2 shows that he was the second person, after his brother Himalaya, to reach the spot where the victim was lying on the road, as his evidence is to the following effect :

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“When I had reached the spot, I found brother Himalaya there.”

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However, the said Himalaya has not been made a witness in the case. When PW-2, who had reached the spot where the victim was lying in an injured position just after his brother Himalaya and had stated that the victim was not able to speak, the statement of PW-1 in his evidence that the victim had given an oral dying declaration does not appear to be true.

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Page No.# 6/11

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13. It is interesting to note that PW-1 in his FIR has not made any mention of the oral dying declaration allegedly made to him by the deceased. Even in the statement made by PW-1 under Section 161 Cr.P.C, he has not made any mention of any oral dying declaration being made by the victim/deceased. The evidence of the two I/Os i.e, PW-8 & PW-9, also does not contain any statement to the effect that PW-1 had told them that the victim had made an oral dying declaration, implicating the appellant as the person who had assaulted the victim. All the above facts do not inspire our confidence regarding the evidence of PW-1, that the victim had made an oral dying declaration implicating the appellant as the person who had assaulted the deceased.

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14. It is interesting to note that while it was one Dipak Thapa who had woken the deceased and taken him at about 10 O’clock in the night of 16.09.2016 to Dhekiajan village and the deceased was found soon after in an injured condition on the road and expiring soon after, the role of Dipak Thapa has not been clarified by the respondents. Neither was he made prosecution witness nor defence witness. The Charge-sheet only states that as there was no sufficient evidence against the accused Sri Dipak Thapa, he should be discharged from the case.

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15. There is no eyewitness with regard to the person who had assaulted the deceased. The last scene theory in the present case could probably apply to Sri Dipak Thapa. He could have thrown light as to whether he had left the company of the deceased prior to the deceased being assaulted and as to whether he knew how and who had assaulted the deceased. Unfortunately, everything in that direction is met with a blank wall of silence.

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Page No.# 7/11

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16. In the case of Matru Alias Girish Chandra vs. State of Uttar Pradesh , reported in (1971) 2 SCC 75 , the Supreme Court has held that mere absconding by itself does not necessarily lead to a firm conclusion of a guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime which is the instinct of selfpreservation. The act of absconding is no doubt a relevant piece of evidence to be considered along with other evidence, but its value would always depend on the circumstances of each case. It further held that normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.

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17. In the case of Surendra Mishra Vs. State of Jharkhand reported in (2011) 11 SCC 495, the Supreme Court had held that the act of the accused in running away from the scene of the crime subsequent to the commission of the offence, clearly suggest that he knew that whatever he had done was wrong and illegal.

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18. Though in terms of the judgment of the Supreme Court in Surendra Mishra (supra) , the act of the appellant not being in his house could be assumed that he had ran away, which suggested that he knew he had done something wrong or illegal, the other view is that he was not in his house for whatever reasons that may be known to the appellant only. Sri Dipak Thapa, who had been discharged by the police, may have been able to clarify certain

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Page No.# 8/11

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aspects of this case. Thus, in our view, there is a break in the chain of circumstantial evidence. In any event when there are two views available with respect to a certain fact, the view in favour of the accused would have to be taken by the Criminal Courts.

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19. In the case of Chetan Vs. State of Kartanaka, reported in (2025) 9 SCC 31, the Supreme Court reiterated it’s earlier decision in the case of Matru Alias Girish Chandra (supra). As the evidence of the act of absconding would always depend on the circumstances of each case which can be considered under the provisions of Section 8 of the Evidence Act, 1872, we do not find the absence of the appellant from his house on the night of the incident to be a link proving the guilt of the appellant. Further, it is settled law that suspicion, however grave it may be, cannot take the place of proof.

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20. The above being said, a perusal of the answers given by the appellant during his examination under Section 313 Cr.P.C shows that he has denied killing anyone, besides denying the recovery of any bamboo stick from his house. He also stated that he did not have any quarrel with the deceased at any time. He also stated that he had gone to the market which has not been disproved by the prosecution.

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21. The bamboo stick that had been allegedly recovered from the house of the appellant has not been sent to the Forensic Science Laboratory for examination, to prove that it was the weapon used to kill the deceased. The alleged seizure of the same in the house of the deceased does not prove anything.

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Page No.# 9/11

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22. On considering all these factors, we do not find any common thread or complete chain of events leading to a conclusion that it was only the appellant who could have killed the deceased and no other person/s. We are accordingly of the view that the prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubt. In fact, it cannot be said that the deceased had made any oral dying declaration prior to his death, as the same was not heard by any other person except PW-1, even though PW-1 was not the first person at the scene of the crime.

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23. In the case of Kamal Khudal vs. State of Assam, reported in (2022) 20 SCC 654 , the Supreme Court has held that a dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross examination to test is genuineness or veracity. The Court has, therefore, to subject it to close scrutiny. But once the Court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon. However, if there are infirmities and the court does not find it safe to base any conclusion on it, without some further evidence to support it, the question of corroboration arises.

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24. Paragraph-23 of the Kamal Khudal (supra) is reproduced hereinbelow, as follows :

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“23. We may refer to one of the decisions of this Court in the case of

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Page No.# 10/11

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Heikrujam Chaoba Singh v. State of Manipur , reported in (1999) 8 SCC 458, wherein in para 3 this Court observed as under:

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"3. An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability."

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25. The Apex Court, in Nanhar v. State of Haryana, reported in (2010)11 SCC 423 , held that –

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“The dying declarations should be such, which should immensely strike to be genuine and stating the true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubt”.

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26 . In the case of State of U.P. –vs.- Ram Sapar Yadav , reported in (1985) 1 SCC 552 , the Court held that if the Court is satisfied that the dying declaration is true and voluntarily it can base conviction on it without corroboration.

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27. In the case of Rasheed Beg –vs.- State of M.P., reported in (1974) 4 SCC 264 , the Supreme Court held that where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

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28. In the case of Ram Monorath –vs.- State of U.P., reported in (1981) 2 SCC 654 the Supreme Court observed that, a dying declaration which suffers

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Page No.# 11/11

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from infirmity cannot form the basis of conviction.

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29. On considering all the above judgments, it is quite clear that an oral dying declaration can be accepted to be truthful, provided that the same should strike one to be genuine, true and not tainted with doubt. In the present case, it is surprising that only PW-1, who had appeared before the injured victim, after PW-2 and his brother Himalaya had already reached the place of occurrence/incident, was the only one who happened to hear the oral dying declaration. This in our view is not believable and we accordingly hold that no oral dying declaration could be given by the deceased/victim, as PW-2 had stated that the victim could not speak. As such, the conviction on the basis of the oral dying declaration, as one of the links in the chain of circumstantial evidence, is not acceptable to us. Consequently, we hold that the conviction, and sentence of the appellant under Section 302 IPC is not sustainable in law. Accordingly, the appellant is acquitted from the charge framed against him under Section 302 IPC. The impugned judgment dated 08.02.2023 passed by the Additional Sessions Judge (FTC-I), Margherita, in Sessions Case No.24(M)/2017, by is hereby set aside. The appellant is to be released immediately from judicial custody, if not wanted in any other case.

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30. The appeal is accordingly allowed.

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31. Send back the TCR.

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JUDGE JUDGE

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Comparing Assistant

Lila Chetry v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Lila Chetry v. the State of Assam and Anr.

Case brief

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