Finding that the Trial Court has not considered the infirmities and failed to consider that the prosecution has failed to prove the manner, motive of occurrence and cause of death beyond all reasonable doubts, the Gauhati High Court acquitted the appellant by giving him the benefit of doubt.

The Division Bench of Justice Lanusungkum Jamir and Justice Malasri Nandi observed that “though the postmortem report is admissible under Section 32(2) of the Indian Evidence Act, however, the prosecution has certainly caused serious prejudice to the defence by not examining any competent person of medical science and the appellant is entitled to benefit of the same”.

Advocate P Goswami appeared for the Petitioner, whereas Public Prosecutor appeared for the Respondent.

The brief facts of the case were that the informant lodged an FIR stating that while his father and the appellant were roaming, they went to the house of the accused/ appellant, where an altercation took place followed by a quarrel between them. Then the appellant suddenly stabbed his father on various parts of his body with a dagger causing grievous injury. Resultantly, his father became unconscious and was kept lying in the house of the accused, whereas the accused fled away from the place of occurrence. Although being taken to the hospital, the victim died. Accordingly, a case was registered under Section 302 IPC and the Trial Court convicted the appellant. Hence, the appellant approached the High Court.

After considering the submission, the Bench found that there is no eye witness to the incident and the prosecution may have relied upon the oral dying declaration made before the prosecution witness.

“That cannot be in dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, and reliable”, added the Bench while noting that the dying declaration was not recorded by any person either the doctor or the Magistrate.

The Bench further observed that “Though P.W.6 and P.W.7 deposed before the court that when they reached the house of the deceased, they found the deceased in an injured condition but he was able to speak and on being asked, the deceased disclosed that the accused had stabbed him with a knife. According to P.W.6, he was informed by Samram Basumatary, brother of the deceased that the appellant had stabbed the deceased with a knife but Samram Basumatary was not examined in this case”.

The High Court clarified that the evidence of a hostile witness remains admissible in evidence and it is open to the court to rely upon the dependable part of that evidence which is found to be acceptable and duly corroborated by some other reliable evidence available on record.

“Materials available on record, disclose that in this case, the doctor has not been examined who conducted the autopsy, though post mortem report has been brought on record and proved by P.W.12, who proved the handwriting and signature of the doctor and the court below has also found the postmortem report admissible under Section 32(2) of the Indian Evidence Act. However, he is not a doctor or expert nor there is any evidence that he was present at the time of postmortem”, observed the Court.

Accordingly, the High Court set aside the conviction and sentence recorded by the Additional Sessions Judge against the accused/appellant in connection with Sessions Case No. 62(B)/2018 under Section 302 IPC.

Cause Title: Lena Basumatary v. State of Assam and Anr.

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Gauhati High CourtJustice Lanusungkum JamirJustice Malasri Nandi

Pankaj Bajpai