Indian Penal Code, 1860 – Section 302, 326, 341 – Murder – Conviction set aside – No eye witness – Contradictions – No examination of important witnesses – Oral dying declaration not trustworthy – Doctor, who conducted autopsy upon the dead body of the deceased, was not examined (Para 13, 19, 21)
An important fact which requires to be highlighted is that in the FIR (Exhibit-1) lodged on 29.08.2013, i.e. next day of the alleged incident, there is no reference to the fact that Bimal Basumatary made an oral dying declaration in presence of his son Temna Basumatary (PW-2) and Lohen Basumatary (PW-3) that the accused/appellant had stabbed him by a Khukri. (Para 13)
A perusal of the above statement clearly reflects that thought the trial Court put questions pertaining to the depositions of Temna Basumatary (PW-2) and Lohen Basumatary (PW-3) to the accused but the pertinent fact regarding the injured having made the oral dying declaration before these 2(two) witnesses was not incorporated in this statement. (Para 19)
Had there been an iota of truth in the prosecution theory that Bimal Basumatary, while he was in an injured condition made an oral dying declaration in presence of his son Temna Basumatary (PW-2) and his neighbor Lohen Basumatary (PW-3), then this fact would definitely have been incorporated in the written report (Exhibit-1), which came to be lodged by another son of the deceased, namely, Rajendra Basumatary (PW-1) on the next day of the incident more particularly when both the witnesses to the alleged oral dying declaration had accompanied Rajendra to the Police Station for lodging the report. Furthermore, there is an inherent contradiction in the version as stated by Temna Basumatary (PW-2) regarding the number of injuries inflicted to the deceased as per the oral dying declaration (three to four blows on the head and seven to eight blows on the entire body) and the post mortem report (Exhbit-2), which takes note of only three injuries described (supra) on the body of the deceased when the autopsy was carried out. (Para 21)
GAUHATI HIGH COURT
2023 STPL(Web) 96 Gauhati
[GAHC010081802019]
Somna Boro @ Chamna Narzary, Son Of Dharam Narzary Vs. The State Of Assam
Criminal Appeal No. 191 of 2019-Decided on 15-9-2023
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