15 Aug 2023 6:00 AM GMT
The Gauhati High Court recently set aside a Murder conviction passed by the Trial Court under Section 302 of IPC on the ground that the evidence of the witnesses, who allegedly heard the deceased making dying declaration, was contradicted during their cross examination.The division bench of Justice Michael Zothankhuma and Justice Malasri Nandi observed:“The learned Trial Court has come to...
The Gauhati High Court recently set aside a Murder conviction passed by the Trial Court under Section 302 of IPC on the ground that the evidence of the witnesses, who allegedly heard the deceased making dying declaration, was contradicted during their cross examination.
The division bench of Justice Michael Zothankhuma and Justice Malasri Nandi observed:
“The learned Trial Court has come to a finding that the evidence of PW-3, PW-4, PW-9 and PW-10, which is to the effect that they heard the deceased stating that she had been forcibly administered poison by her husband and the appellants amounted to a dying declaration. However, as stated earlier, the evidence of PW-3, PW-4, PW-9 and PW-10 have been contradicted. As such, it cannot be said that the deceased had made a dying declaration implicating the appellants, as the persons who had forcibly administered poison to her.”
The case of the prosecution was that the informant (PW2) submitted an FIR in May 2010 to the Officer-in-Charge, Dholai Police Station stating that his daughter was poisoned by her husband and his two relatives (appellants), by forcibly administering her poison due to which she died.
On the basis of the FIR, a case was registered against the appellants. After the completion of investigation, a chargesheet was submitted against the husband under Section 306 IPC. The Investigating Officer in the chargesheet prayed for the discharge of other two accused persons on the ground that he could not find any evidence against them.
However, the Trial Court framed charges against all the three accused persons under Section 302 read with Section 34 of IPC.
During the trial proceedings, the husband of the deceased expired. The Trial Court thereafter came to a finding that the two remaining accused i.e. the appellants herein, were guilty of the offence of having murdered the deceased by poisoning her and accordingly convicted them under Sections 302/34 IPC and sentenced them to undergo rigorous imprisonment for life.
The Counsel appearing for the appellants submitted that though the evidence of the Prosecution Witnesses No. (PW) 2, 3, 9 and 10 are to the effect that the deceased had been administered poison forcibly by all the three accused persons, the evidence of the said witnesses had been contradicted, by confronting them with their statements made under Section 161 CrPC, which was subsequently confirmed by the I.O.
The Court noted that as PW2, PW3, PW9 and PW10 were confronted with their statements made under Section 161 CrPC, which were not in sync with their evidence recorded before the Trial Court, thus, their evidence has been found to be contradicted by the appellants.
The Court relied upon the judgments of the Supreme Court in V.K. Mishra & Anr. v. State of Uttarakhand & Anr. (2015) 9 SCC 588 wherein it was held that a witness should be confronted with his previous statement made before the Police under Section 161 of CrPC, to contradict his statement at the time of recording of his evidence, to discredit the witness.
The Court observed:
“As can be seen from the evidence given by prosecution witnesses Nos. 2, 3, 9 and 10, they had reported to have heard the deceased accuse her husband and the appellants in forcibly administering poison to her, due to which, she apparently passed away. However, the evidence given by them has been contradicted on the basis of their statement made under Section 161 CrPC during their cross examination. These contradictions have been proved by the case I.O (PW-13) at the time of his cross examination by the learned Trial Court.”
Thus, the Court opined that the Trial Court erred in coming to a finding that the deceased had made a dying declaration implicating the appellants, who forcibly administered poison to her.
“As there is no evidence to show the involvement of the appellants in the death of the deceased, we hold that the appellants would have to be acquitted of the charge under Sections 302/34 IPC, as the prosecution has not been able to prove the guilt of the appellants beyond all reasonable doubt,” the Court held.
Case Title: Smti Puspa Rani Dey & Anr. v. The State of Assam & Anr.
Citation: 2023 LiveLaw (Gau) 81
Coram: Justice Michael Zothankhuma and Justice Malasri Nandi
Click Here to Read/Download Judgment