When the evidence confirms a fatal injury but fails to prove a clear intention to cause death, the offense is more appropriately classified as culpable homicide not amounting to murder. In such cases, the court may convert a conviction of murder to one under Section 304 Part II IPC.

JUDGMENT :

Mr. Pranjal Das, J.

Heard Mr. B. Baruah, learned counsel for the appellant. Also heard Mr. R. R. Kaushik, learned Additional Public Prosecutor, Assam for the State respondent and Mr. B. K. Sen, learned counsel for the respondent No. 2.

2. The instant criminal appeal has been filed by the convict appellant Daineisang Pudaite against the judgment dated 27.09.2023 and sentence and order dated 05.10.2023 passed by the learned Sessions Judge, Dima Hasao, Haflong in Sessions Case No.28/2015, whereby, the convict appellant has been convicted under Sections 302/341 IPC and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- in default to undergo further imprisonment for 6(six) months.

3. The prosecution case in brief, which was before the learned Trial Court was that an FIR was lodged on 31.03.2015 by one Babul Acharjee at the Harangajao police station in district of Dima Hasao alleging that on 28.03.2015 at about 9.00 P.M. one Doya Hmar of Hrangchal along with two of his associates confined his brother Haradhan Acharjee and severely assaulted him.

4. Upon receipt of the FIR, Harangajao P.S. Case No. 04/2015 was registered under Sections 341/325/34 IPC and investigation started.

Subsequently, the victim of the alleged assault died and after completion of investigation, the I/O submitted charge-sheet against the present convict appellant and three other accused persons, namely Pangin Hmar @ Gin, Khupming Houlong and Routsang Murte under Sections 341/302/34 IPC and showing the other three accused persons as absconders.

5. Subsequently, after committal of the case and other formalities charges were framed against the present convict appellant by the learned trial Court on 14.02.2019 under Sections 341/302 IPC. The charges being denied, led to commencement of the trial, during which, the prosecution examined 9(nine) witnesses.

6. After completion of prosecution evidence, the convict appellant was examined under section 313 Cr.P.C., which was followed by defence evidence, during which, the defence adduced the evidence of two witnesses. After completion of the trial, the learned Trial court convicted and sentenced the appellant as already stated above. Aggrieved by the same, the present appeal has been filed.

7. Mr. Baruah, the learned counsel for the appellant submits that the impugned judgment suffers from infirmity and that conviction of the appellant was recorded on mistaken identity. It is submitted that the victim was alive for two and a half months but dying declaration though recorded was not exhibited. It is submitted that P.W-1 in his testimony did not state his father's name and address and that P.W-1 could be some other person also. It is submitted that during the investigation, no Test Identification Parade (TIP) was held. It is submitted that P. W. 3 reveals in his testimony that he does not know the identity of the accused and that the testimony of P.W-4 is mere hearsay.

8. It is reiterated and submitted that witnesses have not stated about the appellant's father's name and address and that nowhere in the evidence, it has been revealed that the name of the appellant is Daya.