Gauhati High Court
Page No.# 1/14 vs The State Of Assam on 5 August, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/14
GAHC010021022022
2025:GAU-
AS:10139-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/30/2022
ARJUN HASDA
S/O. LT. REGA HASDA, VILL. N.K. ANGARKATA, SIMLIBARI, P.S.
TAMULPUR, BAKSA, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
For the Appellant : Mr. R. Sharma, Amicus Curiae.
For the Respondents: Mr. R.R. Kaushik, APP, Assam.
-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
Date of hearing : 29/07/2025.
Date of Judgement : 05/08/2025
JUDGEMENT AND ORDER (CAV)
(Michael Zothankhuma, J)
Page No.# 2/14
1. Heard Mr. R. Sharma, learned Amicus Curiae, appearing for the appellant.
Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam, representing
the State.
2. This appeal has been filed against the judgment dated 25/11/2021 passed
by the learned Sessions Judge, Baksa, Mushalpur, in Sessions Case No. 20/2019, by
which the appellant has been convicted under section 302 IPC and sentenced to
undergo rigorous imprisonment for life with a fine of Rs. 2000/- in default, further
rigorous imprisonment for 2 (two) months vide sentence order dated 26/11/2021.
3. The prosecution case in brief, is that an FIR dated 12/07/2018 had been
submitted by PW-6, who is the brother of the deceased before the In-charge,
Kumarikata Police Out Post, stating that his deceased brother was killed at around 12-
30 p.m. while returning home, by the appellant on 12/07/2018. The FIR also stated
that the appellant had been threatening to kill the deceased for the last couple of
days. Pursuant to the FIR dated 12/07/2018, the Kumarikata Police Out Post
forwarded the FIR to the Officer-in-Charge, Tamulpur Police Station, wherein,
Tamulpur PS case No. 258/2018 under section 302 IPC was registered.
4. After investigation of the case by the Investigating Officer (IO) and after
recording the confessional statement of the appellant under section 164 Cr.P.C., the IO
had submitted the charge sheet, on finding a prima-facie case under section 302 IPC
against the appellant for murdering the deceased. The learned trial Court thereafter
examined 10(ten) prosecution witnesses and 1(one) Court Witness. The examination
of the appellant was done under section 313 Cr.P.C. wherein, he denied the evidence
that had been adduced against him, pertaining to the use of a bamboo stick/pole
allegedly belonging to the PW-4, for killing the deceased.
5. The learned trial Court thereafter came to a finding that as the appellant
made the confessional statement voluntarily under section 164 Cr.P.C., without any
Page No.# 3/14
threat, promise, pleasure and influence by the Police and after being given reflection
time, besides the bamboo stick used by the appellant having been found near the
dead body of the deceased, it was proved beyond doubt that the deceased had died
due to the appellant’s assault on the deceased with the bamboo. The learned trial
Court also held that due to the medical evidence adduced by PW-6 and the post-
mortem report (Exbt.3), it was proved that the appellant had intentionally caused the
said injury on the deceased, with the intention and knowledge that such injury was
sufficient for causing the death of the victim. Accordingly, the appellant was convicted
under section 302 IPC and sentenced accordingly.
6. The learned Amicus Curiae submits that the only ground for the learned
Trial Court to convict the appellant is on the basis of the 164 Cr.P.C. statement given
by the appellant, which he had denied making during his examination under section
313 Cr.P.C. He submits that the appellant stated that he had not given any
confessional statement when asked by the learned Trial Court that the Court Witness-
I, JMFC, Baksa had testified that he had recorded the confessional statement of the
appellant, confirming that he had hit the deceased twice with the bamboo, which
resulted in the deceased falling to the ground. Further, even if the Court were to
assume that the confessional statement under section 164 Cr. P.C. was made by the
appellant, the answer given by the appellant to question No. 11, during his
examination under section 313 Cr.P.C., would amount to retraction of the confessional
statement made under section 164 Cr.P.C. The question no. 11 and the answer given
by the appellant during his examination under section 313 Cr.P.C. are as follows :-
“Q.11 CW-1 Shri Binod Prasad, JMFC, Baksa testified that on 16/07/2018 at 2 pm, he
recorded your confessional statement vide Exbt. 5 after giving you warning about
making such confessional statement. He also provided you the time of reflection
before recording the confessional statement. What have you got to reply?
Ans : False evidence has been adduced. I have not given any confessional
Page No.# 4/14statement.”
7. The learned Amicus Curiae further submits that there was no eye witness to
the occurrence of the crime and the evidence relied upon by the learned trial Court
was only with regard to the retracted confessional statement of the appellant and the
evidence of PW-4, who stated that she had seen the appellant taking away a bamboo
post from her compound, which was found lying besides the dead body of the
deceased.
8. The learned Amicus Curiae further submits that even if it is assumed that
the appellant had caused the injuries on the deceased which had led to his death, the
retracted confessional statement of the appellant would go to show that there was no
pre-meditation or intention on the part of the appellant to cause the death of the
deceased. In-fact, in terms of the retracted confessional statement, the deceased had
initially assaulted the appellant on the date on which the deceased had died.
9. The learned Amicus Curiae further submits that the retracted confessional
statement of the appellant can be used as a basis for convicting the accused, provided
the Judicial Officer, who had recorded the confessional statement, had assured the
accused/appellant of protection from any sort of apprehension, torture from the
Police, even if he declines to make a confessional statement. In the present case, no
such assurance had been given to the appellant by the learned Magistrate. Thus, the
confessional statement could not be used as a basis for convicting the appellant, as
the provision of section 164 Cr.P.C. had not been complied with in essence. In this
regard, he has relied upon the judgement of the Supreme Court in the case of
Rabindra Kumar Pal alias Dara Singh Vs. Republic of India [(2011) 2 SCC
490].
10. The learned Amicus Curiae further submits that the specification of the
bamboo stick used by the appellant, which inflicted injury on the deceased, shows
Page No.# 5/14
that it measured 5.9 ft in length, having a diameter of 2 inches. Thus, the bamboo not
being a thick bamboo, the assault on the deceased by the appellant with the said
bamboo, even if the same was on a vital part of the body, cannot attract section 302
IPC. The same would fall in section 304 Part-II of the IPC. In the present case, there
being no intention on the part of the appellant to assault the deceased, as can be
seen from confessional statement, which shows that there was a chance meeting of
the appellant and the deceased on the fateful day, the learned Trial Court erred in
convicting the appellant under section 302 IPC.
11. In support of his submission that the use of a bamboo for the alleged assault
cannot attract the provision of section 302 IPC, the learned Amicus Curiae has relied
upon the judgement of the Supreme Court in the case of Camilo Vaz Vs. State of
Goa [(2000) 9 SCC 1].
12. The learned Amicus Curiae submits that the appellant has been in judicial
custody since 13/07/2018 and as the present case could attract only Section 304 Part-
II IPC at best. Thus, the appellant could have been convicted under section 304 Part-
II IPC, but not under section 302 IPC.
13. Mr. R.R. Kaushik, learned APP, Assam, on the other hand, submits that the
evidence of PW-4 and the confessional statement made by the appellant, proves that
the cause of death of the deceased was due to the deadly assault made by the
appellant on a vital part of the body of the deceased. He also submits that even
though it can be assumed that the appellant had retracted his confessional statement
made under section 164 Cr.P.C., a conviction can be made on the basis of a retracted
confessional statement, though the same may need corroboration. However, the
corroboration would only have to be general in nature and a corroboration does not
need to be made in respect of all aspects of the case. In this regard, he has relied
upon the judgment of the Supreme Court in the case of Paramananda Pegu Vs.
State of Assam [2004 (7) SCC 779] . He also submits that as the retracted
Page No.# 6/14
confessional statement had been corroborated by the evidence of PW-4, the guilt of
the appellant under section 302 IPC was proved in the instant case.
14. The learned APP further submits that the confessional statement of the
appellant having clearly shown that the appellant had admitted to assaulting the
deceased with a bamboo and as the said bamboo was found near the dead body of
the deceased, there was no infirmity in the learned trial Court convicting the appellant
under section 302 IPC. He also submits that though the appellant had ample time to
retract his confession, the appellant did not do so in the earlier stages of the trial and
had retracted his confession only during his examination under section 313 Cr.P.C. He
also submits that the appellant had only denied making the confessional statement
during his examination under Section 313 Cr.P.C, which had been proved by CW-I, the
Judicial Magistrate, 1st Class, who had recorded the confessional statement. As there
was no actual retraction, there is nothing to indicate that the confession made by the
appellant was not voluntary. In support of the above submission, the learned APP has
relied upon the judgement of the Supreme Court in the case of Shankaria Vs. State
of Rajasthan [(1978) 3 SCC 435].
15. The learned APP, thus submits as that the confessional statement of the
appellant has been corroborated by the PW-4, the impugned judgement of the learned
Trial Court should not be interfered with.
16. We have heard the learned counsels for the parties and have also gone
through the materials available on record.
17. As can be seen from the submissions made by the learned counsel for the
parties and in terms of the evidence adduced by the prosecution witnesses, we find
that the learned trial Court has convicted the appellant under section 302 IPC due to
the confessional statement made under section 164 Cr.P.C, which is to the following
effect :-
“On 9/7/2018 i.e. on Monday, a quarrel took place between Ghena and
Page No.# 7/14me. Ghena Soren injured me and my wife by assaulting us. On 12/7/18,
Thursday, while I was returning from market, I met Ghena Soren on the
bank of Kala river. Ghena Soren again threatened me and assaulted me. A
bamboo was lying near the place of occurrence. I dealt two blows on the
back and on the back side of Ghena’s head with that piece of bamboo. He
immediately fell down on the ground and I left from there. Later, I came
to know that Ghena was lying dead at the place of occurrence.”
18. A consideration of the appellant’s confession shows that he had dealt one
blow of the bamboo stick on the back of the deceased and one on the back of the
head. The deceased thereafter fell down on the ground and the appellant left him
there. The appellant only came to know later that the deceased had died at the place
of occurrence. The above, in our view, does not indicate that the appellant had the
intention of causing the death of the deceased or that he had the intention of causing
such bodily injury, which was likely to cause the death of the deceased. Further, the
confession does not in any way indicate that there was any pre-meditation on the part
of the appellant to kill the deceased, inasmuch as, this was a chance meeting of the
appellant and the deceased on the banks of the Kala river. The deceased had
apparently threatened and assaulted the appellant and thereafter, the appellant had
retaliated and stuck two blows on the deceased with a bamboo was lying in the place
of occurrence,. There is no discrepancy with regard to the above facts, inasmuch as,
the evidence of PW-4, is that the appellant had picked up a bamboo post from her
compound.
19. When the learned trial Court found that the appellant to be guilty of the
crime, solely on the basis of the confessional statement made by the appellant, which
appears to be partly corroborated by the evidence of PW-4, the learned trial Court
would have to accept the confessional statement as voluntary and truthful.
Page No.# 8/14
20. As it has been stated in the confessional statement that the deceased had
first assaulted the appellant, the same implies that the action of the appellant is a
retaliation. Further, in the normal course of events, it is not expected that death would
occur due to two blows by a bamboo on a fully able-bodied person. However, the
deceased has expired due to the retaliation by the appellant. Thus, we are of the view
that the medical report enabled the doctors to ascertain as to whether only two blows
have been given by the appellant to the deceased.
21. The evidence of PW-8, who is the doctor is to the effect that there was a 1.5
inches diameter injury with irregular margins over left aspect of forehead with blood.
Injury over upper eyelid and 105 inches length lascerated injury below lower eyelid
with damage eye caused by blunt object. The bruise around the injury mark was due
to trauma by blunt big stick but the injury around the left eye due to sharp object. In
the opinion of PW-8, the cause of death was due to hemorrhagic cardio respiratory
arrest as a result of homicidal head injury.
22. On a perusal of the post-mortem report dated 13/07/2018, it is seen that
there was injury over the left forehead, over the upper and lower eyelid of the
deceased, which damaged the frontal bone on the left side of the scalp. The injuries
do not appear to show that there was more than two blows given on the deceased.
23. The above being said, the confessional statement of the appellant can be
said to indicate that the appellant knew that the injuries inflicted on the deceased
could lead to his death. However, there appears to be no intention to cause death, as
he left the place of occurrence after the alleged fight and only later came to know that
the appellant had died.
24. The chance meeting of the appellant and the deceased on the banks of the
river ‘Kala’ and the facts narrated in the 164 Cr.P.C. statement made by the appellant,
shows that the deceased had first threatened and assaulted the appellant. Keeping in
view Section 96 and Exception 2 to Section 300 IPC, there does not appear to be any
Page No.# 9/14
intention to kill the deceased. It appears that the present case is a case of culpable
homicide not amounting to murder, which is covered under Exception 2 to Section 300
IPC. Further, there does not appear to be any premeditation on the part of the
appellant to kill the deceased.
25. The examination of the appellant under section 313 Cr.P.C shows that he has
denied the evidence that has been adduced against him. Though a negative inference
can be drawn against the appellant due to his blanket denial, the evidence connecting
the appellant to the death of the deceased is primarily his confessional statement
which has been retracted.
26. In the case of Wazir Khan Vs. State of Uttarakhand [(2023) 8 SCC
597], the Supreme Court has held that in a case of circumstantial evidence, where no
eye witnesses is available, another principle of law which has to be kept in mind is
that when incriminating circumstances are put to the accused and the accused either
offers no explanation or offers an explanation, which is found to be untrue, then the
same becomes an additional link in the chain of circumstances to make it complete.
Though, an inference can be raised that the ignorance shown by the appellant with
regard to the death of the deceased points to the guilt of the appellant, the fact
remains that the retracted confessional statement of the appellant, when read in its
entirety, does not in itself prove that a case of murder has been made out, though, it
can be said that the act of the appellant, was so done with the knowledge that it
would likely to cause death, without any intention of causing death or to cause such
bodily injury, as is likely to cause death.
27. In the case of Rabindra Kumar Pal alias Dara Singh (supra), the Supreme
Court while setting out the various principles with regard to recording of a confessional
statement under Section 164 Cr.P.C has held that who is desirous of giving a
confessional statement under Section 164 Cr.P.C should be assured of protection from
any sort of apprehended torture or pressure from the police in case he declines to
Page No.# 10/14
make a confessional statement
28. With regard to the submission of the learned Amicus Curiae that the learned
Magistrate recording the confessional statement of the appellant did not assure the
appellant from protection from any sort of apprehended torture from the Police in case
the appellant declined to make a confessional statement, we find that in the
confessional statement form used by the Magistrate under section 164 Cr.P.C., the
Magistrate had assured the appellant that he would not be remanded/sent back to the
Police custody even if he did not confess. This, in our view, would amount to giving
assurance to the accused, that he would be protected from any sort of apprehended
torture or coercion from the Police, in case the accused declined to make a
confessional statement. In view of the above reasons, we are of the opinion that the
requirement of giving of assurance to an accused that he would be protected from
police torture or coercion in case he declines to make confessional statement under
section 164 Cr.P.C, which has been provided the judgment of the Supreme Court in
the case of Rabindra Kumar Pal alias Dara Singh (Supra), has been complied
with.
29. As stated earlier, the weapon apparently used by the appellant is a bamboo and
in the case of Camilo Vaz (Supra), where the appellant therein had hit head of the
deceased with a “Danda”, which resulted in death, the Supreme Court stated that
knowledge has to be imputed to the accused that the act was done with the
knowledge it was likely to cause death, but without any intention to cause death or
such bodily injury likely to cause death and that the case would fall under 304 Part-II
IPC. The above, in the opinion of this Court, is not to say that the use of a danda or
bamboo would mean that murder could not be committed, only because a danda or
bamboo is used. The same would depend on other factors also.
30. In the case of Singapagu Anjaiah vs. State of A.P. reported in (2010) 9
SCC 799, the Supreme Court has held that the intention has to be gathered from the
Page No.# 11/14
weapon used, part of the body chosen for assault and the nature of injuries caused. In
the present case, the appellant had used a bamboo for the assault which he had
apparently used twice on the deceased, when they had met on the banks of the river
‘Kala”. On considering the contents of the confessional statement, which is to the
effect that the deceased had assaulted the appellant first, which led to retaliation by
the appellant with a bamboo, we are of the view that there was no intention on the
part of the appellant to kill the deceased. No doubt, a vital part of the body had been
hit. However, the same could have landed there unintentionally. Further, in view of the
facts and circumstances of the chance meeting of the parties, we are of the view that
some benefit of doubt should be given to the appellant.
31. In the present case, the appellant was assaulted by the deceased and the
appellant thereafter hit the deceased twice with the bamboo, once on the body and
once on the head of the deceased, as per his confessional statement. Keeping in view
the fact that the appellant came to know of the death of the deceased only later, we
are of the view that there was no intention on the part of the appellant to kill the
deceased, though the appellant may have the knowledge that his act was likely to
cause death or such bodily injury as was likely to cause death.
32. Keeping in view the facts and circumstances of the case, we find that the case
would come within the provisions of Exception 4 of Section 300 IPC, inasmuch as, the
confessional statement of the appellant is to the effect that the deceased had
threatened him and assaulted him on the bank of the river ‘Kala’ during the chance
meeting. Thereafter, the appellant had hit the deceased on the back of his body and
on his head with a piece of bamboo. In the absence of any evidence regarding what
had actually transpired in the place of occurrence, which led to the assault on the
deceased, we are bound to consider the contents of the retracted confessional
statement, inasmuch as, the same has been the basis for conviction of the appellant.
A reading of the same leads us to believe that there was provocation and a sudden
fight between the appellant and the deceased. We also find that there is no
Page No.# 12/14
inculpatory statement made by the appellant except to the admission that he hit the
deceased twice with a bamboo. Further, there is nothing to show that the appellant’s
action was cruel, except that the retaliation by the appellant may not have been
proportionate to the assault made by the deceased.
33. Exception 4 to section 300 IPC states as follows :-
“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.”
34. In the case of Paramananda Pegu (supra) the Supreme Court has held that
in order to be assured of the truth of a confessional statement, a rule of credence has
evolved that the Court should look for corroboration from other evidence. In
substance, the Court should have assurance from all angles that the retracted
confession was voluntary and it must have been true. It has also held there can be no
absolute rule that a retracted confession cannot be acted upon unless the same is
corroborated materially.
35. In the case of Shankaria (supra), the Supreme Court has held that the
confessional statement made under Section 164 Cr.P.C was voluntary despite the same
having been retracted, on the ground that the said confessional statement had not
been retracted as the earliest opportunity. In the present case, the appellant has
simply denied making the confessional statement in his examination under Section
313 Cr.P.C, even though the Judicial Magistrate First Class (CW-1), who had recorded
the confessional statement had proved the confessional statement. In the cross-
examination of CW-1, no suggestion had been put by the appellant, to the effect that
the appellant had not made a confessional statement under Section 164 Cr.P.C. or that
the contents of the same were untrue.
36. As the appellant had made a voluntary confession under section 164 Cr.P.C. and
Page No.# 13/14
as the Magistrate who had recorded the said confession had proved the said
confession, we find nothing to indicate that the confessional statement was untrue or
not voluntarily made. Though the appellant in his examination under section 313
Cr.P.C. has stated that he did not make a confession statement, which had led to an
inference that he had retracted his confession, we hold that the retracted confessional
statement of the appellant is voluntary and can be acted upon.
37. As the retracted confession had also been corroborated by PW-4, the same can
be the basis for conviction in terms of the judgement of the Supreme Court in the
case of Balbir Singh Vs. State of Punjab [AIR 1957 SC 216] . However, the
confessional statement does not show that there was any intention on the part of the
appellant to kill the deceased, though he can be said to have the knowledge that his
action was likely to cause death or to cause such bodily injury, as was likely to cause
death.
38. On considering all the above, we are accordingly of the view that the Exception
4 to section 300 IPC is attracted to the facts of this case and as such, the act of the
appellant amounts to culpable homicide not amounting to murder. However, as the
appellant can be said to have the knowledge that his action was likely to cause death
or cause bodily injury as was likely to cause death, though without any intention to
cause death, the provisions of Section 304 Part- II of the IPC would be attracted.
Thus, keeping in view the decision of the Supreme Court in the case of Camilo Vaz
(Supra), we are of the view that the present case falls within the provision of section
304 Part-II IPC and not under section 302 IPC.
39. In view of the above reasons, we the appellant is convicted under section 304
Part-II IPC, as section 302 IPC is not attracted to the facts of this case. Consequently,
the charge under section 302 IPC is altered to section 304 Part-II IPC.
40. The appellant is, accordingly sentenced to undergo imprisonment for a period
of 7 (seven) years with a fine of Rs. 20,000/- (Rupees twenty thousand), in default,
Page No.# 14/14
imprisonment for another 3 (three) months. The impugned judgement dated
25/11/2021 passed by the Sessions Judge, Baksa, Mushalpur, in Sessions Case No.
20/2019 arising out of Tamulpur PS case No. 258/2018 is set aside to the extent
indicated above, i.e. in so far as the appellant has been convicted under section 302
IPC.
41. The sentence imposed upon the appellant to undergo rigorous imprisonment
for life with a fine of Rs. 2,000/-, in default rigorous imprisonment for 2 (two) months,
vide sentence order dated 26/11/2021 passed by the learned trial Court, is also
accordingly set aside.
42. The appeal is accordingly allowed to the extent indicated above.
43. Send back the TCR.
44. In view of the assistance provided by the learned Amicus Curiae, the fees
applicable to the Amicus Curiae should be paid by the Assam State Legal Services
Authority.
JUDGE JUDGE Comparing Assistant