(A)Indian Penal Code, 1860 – Section 302 – Murder – Convection set aside – No competent person of medical science examined for postmortem report – No eye witness of murder – Verbal dying declaration before two witnesses, who are not doctor/magistrate – The person who told about murder to dying declaration witness, not examined – Wife of the diseased not supported prosecution – Even the doctor, who conducted post mortem examination was not examined nor any specialist in the medical field to get the postmortem report proved/examined – Held: 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.
We find that the learned trial court has not considered the infirmities discussed above and failed to consider that the prosecution has 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. Conviction set aside.(Para 44, 48, 49)
(B)Dying Declaration – Conviction – It is not 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. In case, a person recording the dying declaration is satisfied that the declarant is a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. The real test is as to whether the dying declaration is truthful and voluntary. (Para 18)
(C)Evidence – Hostile Witness – 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. (Para 42)
GAUHATI HIGH COURT
Citation: 2023 STPL(Web) 1 Gauhati
Lena Basumatary @ Lena Gayari Appellant Vs. State Of Assam And Anr. Rep. By Pp, Assam Respondent
CRL.A(J)/59 of 2019–Decided on 28-07-2023
https://stpllaw.in/wp-content/uploads/2023/08/2023-STPLWeb-1-Gauhati.pdf
