31 July 2023 6:01 AM GMT
The Gauhati High Court has set aside the murder conviction in a case dating back to 2009 on the ground that the prosecution did not examine any competent person of medical science with regard to the post-mortem report which was found admissible under Section 32(2) of Indian Evidence Act by the trial court. The division bench of Justice Lanusungkum Jamir and Justice Malasri Nandi said the...
The Gauhati High Court has set aside the murder conviction in a case dating back to 2009 on the ground that the prosecution did not examine any competent person of medical science with regard to the post-mortem report which was found admissible under Section 32(2) of Indian Evidence Act by the trial court.
The division bench of Justice Lanusungkum Jamir and Justice Malasri Nandi said the Ward Master of RNB Civil Hospital, Kokrajhar, who proved the handwriting and signature of the doctor who had conducted the post mortem, "is not a doctor or expert nor there is any evidence that he was present at the time of postmortem". The doctor himself had not been examined.
“... though the postmortem report is admissible under Section 32(2) of the Indian Evidence Act, however, prosecution has certainly caused serious prejudice to the defence by not examining any competent person of medical science and the appellant is entitled for benefit of the same.”
On September 03, 2009, the FIR was lodged, stating that on that day at around 5 p.m. the informant's father and the appellant were roaming around together and thereafter, they went to the house of the accused-appellant, where an altercation took place followed by a quarrel between them. It was stated that the accused-appellant suddenly stabbed his father on various parts of his body with a dagger causing grievous injury on his person as a result of which he became unconscious and was kept lying in the house of the accused. Later on, the villagers took the informant's father to Swagat Hospital, Bongaigaon but he died there.
The accused was convicted in the case on February 14, 2019 and sentenced to undergo rigorous imprisonment for life. In appeal, the Counsel appearing for the petitioner submitted that the prosecution case is based on circumstantial evidence and the chain is not complete to convict him under Section 302 IPC. It was further submitted that there are lots of contradictions in the evidence of the witnesses.
The court noted that that there is no eye witness to the incident and the accused-appellant was convicted on the basis of oral dying declaration made before PW 6 and PW 7 by the deceased.
“It is interesting to note that the wife of the deceased did not support the case of the prosecution. Though P.W.6 and P.W.7 stated that when they came to the house of the deceased, the deceased was able to speak but P.W.9 stated that when she came back home, she saw her husband in injured condition nearby her house. Though, he was alive but he was not in a position to speak,” it added.
The court said the trial court has not considered the infirmities and it also failed to consider that the prosecution failed to prove the manner, motive of occurrence and cause of death beyond all reasonable doubts.
"Hence, the accused/appellant is acquitted on benefit of doubt," said the court.
Case Title: Lena Basumatary @ Lena Gayari v. The State of Assam & Anr
Citation: 2023 LiveLaw (Gau) 74
Click Here to Read/Download Judgment