Gauhati High Court
Crl.A./191/2019 on 15 September, 2023
GAHC010081802019
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal No.191 of 2019
Somna Boro @ Chamna Narzary,
Son of Dharam Narzary,
Village: Kachugaon, PO: Kachugaon, PS:
Kachugaon, District: Kokrajhar (BTAD),
Assam, PIN - 783360.
........Appellant
-Versus-
1. The State of Assam, represented by
Public Prosecutor, Assam.
2. Rajendra Basumatary,
Son of Late Bimal Basumatary,
Village: Amlaiguri, PO: Gangia, PS:
Kachugaon, District: Kokrajhar (BTAD),
Assam, PIN - 783350.
...........Respondents
- BEFORE -
HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
For the Appellant : Mr. P.K. Das, Advocate.
For the Respondents : Ms. B. Bhuyan, Additional Public
Prosecutor, Assam, assisted by Ms.
P. Borah, Advocate.
Date of Hearing : 31st August, 2023.
Date of Judgment & Order : 15 th September, 2023.
Criminal Appeal No.191/2019 1|Page
JUDGMENT & ORDER
[Sandeep Mehta, CJ]
The appellant herein, namely, Somna Boro @
Chamna Narzary, has preferred the instant appeal under
Section 374(2) of the Cr.PC for assailing the judgment
dated 25.01.2019 passed by the learned Sessions Judge,
Kokrajhar in Sessions Case No.112/2018, whereby he was
convicted for the offence punishable under Sections 341/
326/302 IPC and sentenced as below:-
"Accused Somna Boro is hereby convicted under
sections 341/326/302 IPC and sentenced to undergo
Rigorous Imprisonment for life along with fine of
Rs.3,000/- (Rupees three thousand) only for convicted
offence under Section 302 IPC. In default of payment of
fine will undergo imprisonment for another period of
6(six) months. Further, he is sentenced with Rigorous
Imprisonment for 5(five) years along with fine of
Rs.1000/- (Rupees one thousand) only for convicted
offence under section 326 IPC. In default of payment of
fine will undergo imprisonment for another period of
2(two) months. The accused is also sentenced with a
fine of Rs.500/- (Rupees five hundred) for convicted
offence under section 341 IPC. In default of payment of
fine will undergo simple imprisonment for 15(fifteen)
days. The sentences will run concurrently."
2. Brief facts relevant and essential for disposal of
the appeal are noted herein below.
On 29.08.2013, one Rajendra Basumatary (PW-
1) lodged a written report (Exhibit-1) with the Officer-in-
Charge of Kachugaon Police Station alleging inter alia that
on the previous day, i.e. on 28.08.2013 at around 6:30
PM, while his father Bimal Basumatary was coming from
Hell Bridge Bazaar on his bicycle, suddenly he was
Criminal Appeal No.191/2019 2|Page
attacked by the accused/appellant, namely, Somna Boro,
somewhere on the way to Dudua Gate near Gongia river.
According to Bimal Basumatary, the accused/appellant
was trying to finish him at the spot but somehow he
managed to escape from the hands of the accused/
appellant.
Immediately thereafter, Bimal Basumatary
(father of the informant) was admitted to Kachugaon
Block Primary Health Care. As the condition of his father
was very serious, the Doctor advised that the injured
should be provided with a better medical attention.
On the basis of this written report, a formal FIR
No.37/2013 came to be registered at the Kachugaon
Police Station for the offences punishable under Sections
341/326/307 IPC and investigation was commenced.
3. Shri Bimal Basumatary expired on 29.08.2013
while undergoing treatment at MJN Medical Hospital,
Cooch Behar, upon which the dead body was subjected to
autopsy by the Medical Officer of the said Hospital,
namely, Dr. Subrata Haldar, who prepared the post
mortem report (Exhibit-2), taking note of the following
injuries:-
(i) One sharp cut injury was noted at left cheek
admeasuring 7 CM bone deep.
(ii) Surgical stitches with silk were noted at
forehead. On dissection, one sharp cut injury was
noted admeasuring 10 Cm in length and was bone
deep.
Criminal Appeal No.191/2019 3|Page
(iii) Surgical stitches at parietal region. On
dissection, one sharp cut injury was noted
admeasuring 15 CM long upto bone deep. On
dissection, clotted of blood into brain tissue was
found.
The cause of death as per the findings in the
post mortem report was shock and hemorrhage because
of the injuries which were opined to be homicidal and
sufficient in the ordinary course of nature to cause death.
4. After the death of Shri Bimal Basumatary,
offence punishable under Section 302 IPC was added to
the case. Statements of various witnesses were recorded
under Section 161 Cr.PC. The accused/appellant
absconded and thus, proceedings of proclamation and
attachment were taken against him. Charge-sheet was
filed against the accused/appellant in his abscondence.
The accused/appellant surrendered in the Court of the
Sub-Divisional Judicial Magistrate, Gossaigaon on
08.06.2016, on which the case was committed to the
Court of Sessions Judge, Kokrajhar. Charges were framed
against the accused/appellant for the offences punishable
under Sections 341/326 and 302 IPC. He pleaded not
guilty and claimed trial.
5. The prosecution examined as many as 4(four)
witnesses in an endeavour to prove its case. It is
noteworthy that the Doctor at Cooch Behar, who treated
Bimal Basumatary in his injured condition and after his
Criminal Appeal No.191/2019 4|Page
death, conducted autopsy upon the dead body, was not
examined during the course of the trial because the
prosecution could not produce him for deposition. The trial
Court closed the evidence of the Doctor by order dated
14.11.2018. The statement of the accused/appellant was
recorded under Section 313 Cr.PC. He denied the
circumstances projected against him by the prosecution in
its evidence and claimed to be innocent. 2(two) witnesses
were examined in defence.
6. After hearing the arguments advanced by the
learned Public Prosecutor and the defence counsel and
upon appreciating the evidence available on record, the
learned trial Judge, proceeded to convict and sentence the
accused/appellant, as above, by the impugned judgment
dated 25.01.2019, which is subject matter of challenge in
this appeal.
7. Mr. P.K. Das, learned counsel appearing for the
appellant, vehemently and fervently contended that there
is no plausible evidence on the record of the case so as to
affirm the guilt of the accused/appellant. The prosecution
case is purely based on the evidence of oral dying
declaration, allegedly made by the victim Bimal
Basumatary. He urged that the testimony of witnesses
Temna Basumatary (PW-2) and Lohen Basumatary (PW-
3), who claimed in their evidence that the deceased made
an oral dying declaration in their presence implicating the
accused/appellant for having attacked him by a Khukri, is
Criminal Appeal No.191/2019 5|Page
totally cooked up and unacceptable on the face of the
record. He contended that both the witnesses stated in
their evidence that this oral dying declaration was made
by the deceased in their presence at his house soon after
the incident which took place on 28.08.2013. However,
the fact regarding the deceased having made an oral
dying declaration before the aforesaid 2(two) witnesses
was not mentioned in the FIR (Exhibit-1) lodged by the
son of the deceased, i.e. Shri Rajendra Basumatary (PW-
1) and that this omission completely discredits the
prosecution theory regarding the deceased having made
an oral dying declaration in presence of the aforesaid
2(two) witnesses. He further contended that the accused/
appellant had no motive to assault the deceased and thus,
the prosecution allegation that the accused/appellant
herein stabbed the deceased by a Khukri and thereby
killed him, is totally unbelievable and unsubstantiated by
plausible evidence.
8. Learned counsel for the accused/appellant
further contended that the prosecution theory of oral
dying declaration made by Shri Bimal Basumatary was not
corroborated by even a semblance of medical evidence to
satisfy that he was in a position to make such a
statement. He further contended that Lohen Basumatary
(PW-3) admitted that when he arrived at the house of the
deceased, there were about 5 to 6 persons from which, he
specifically identified Endla Basumatary and Rakesh
Brahma. These 2(two) persons testified in defence as DW-
Criminal Appeal No.191/2019 6|Page
1 and DW-2, respectively, and stated that when they
reached the home of Bimal Basumatary, he was lying in
his courtyard and was not in a position to speak. Rather,
the witnesses specifically stated that Bimal Basumatary
(the deceased) was unconscious. The learned counsel for
the accused/ appellant thus, urged that the theory put
forth by the prosecution regarding the victim having made
the oral dying declaration as above is absolutely
unbelievable and the learned Trial Court was unjustified in
placing reliance on the evidence of Temna Basumatary
(PW-2) and Lohen Basumatary (PW-3) on this aspect. He
further urged that the prosecution has failed to lead
appropriate evidence to show that the deceased received
injuries at the time and in the manner alleged by the
prosecution. The trial Court acted with gross illegality in
permitting the post mortem report (Exhibit-2) to be
proved during the testimony of the Investigating Officer
Meloram Basumatary (PW-4), who himself being an ASI,
was not even competent to conduct the investigation. As
per the learned counsel for the accused/appellant, there
was no reason as to why the Medical Jurist was not
examined to prove the post mortem report and hence, the
post mortem report (Exhibit-2) cannot be read in evidence
and has to be discarded. He concluded his submissions
urging that the prosecution has failed to bring home the
charges against the accused/appellant by reliable evidence
and hence, the impugned judgment deserves to be set
aside and the accused/appellant is entitled to an acquittal.
Criminal Appeal No.191/2019 7|Page
9. Per contra, Ms. B. Bhuyan, learned Additional
Public Prosecutor, Assam, vehemently and fervently
opposed the submissions advanced by the appellant's
counsel. She urged that there is a reference to the oral
dying declaration of Bimal Basumatary (the deceased) in
the written report (Exhibit-1), wherein it is stated that
Bimal Basumatary told that Somna Boro (accused/
appellant) was trying to destroy him but he somehow
escaped from the hands of Somna Boro. Learned Additional
Public Prosecutor further urged that the fact regarding the
deceased having made the oral dying declaration in
presence of Temna Basumatary (PW-2) and Lohen
Basumatary (PW-3) cannot be doubted because these
2(two) witnesses had no reason so as to falsely implicate
the accused/appellant in the case. The evidence of these
2(two) witnesses is corroborated by the post mortem
report (Exhibit-2). She contended that the prosecution
was not responsible for the non-examination of the
medical jurist Dr. Subrata Haldar because he was cited in
the calendar of witnesses but despite service of summons
sent by registered post, he failed to appear in the Court.
As per the learned Additional Public Prosecutor, it was the
duty of the trial Court to have ensured presence of the
Medical Jurist by issuing bailable warrant or warrant of
arrest, as the situation required. She urged that this Court
should consider exercising power under Section 391 Cr.PC
to summon the medical jurist and examine him for proving
the post mortem report. Without prejudice to the above,
she contended that as the defence has not disputed the
Criminal Appeal No.191/2019 8|Page
genuineness of the post mortem report, the trial Court
was justified in admitting the same in evidence and in
relying upon the document for holding that the death of
Bimal Basumatary was homicidal in nature. On these
grounds, she implored the Court to dismiss the appeal and
affirm the impugned judgment.
10. We have given our thoughtful consideration to
the submissions advanced at bar and have gone through
the impugned judgment and have carefully re-appreciated
the evidence available on record.
11. At the outset, we may note that admittedly, there
was no eye witness to the incident and the entire case of
the prosecution as against the accused/appellant is based
purely on the evidence in form of oral dying declaration
purportedly made by Shri Bimal Basumatary in presence of
Temna Basumatary (PW-2) and Lohen Basumatary (PW-
3). Thus, we would proceed to appreciate the evidence of
these 2(two) witnesses to find out whether their version is
reliable so as to believe the theory of oral dying
declaration. Before that, we would like to make a brief
reference to the evidence of Rajendra Basumatary (PW-1),
the first informant.
12. In his deposition, the informant Rajendra
Basumatary (PW-1) stated that the accused/appellant
Somna Boro committed murder of his father Bimal
Basumatary by stabbing him with a Khukri at about 6:30
PM. As per this witness, the accused/appellant stabbed his
Criminal Appeal No.191/2019 9|Page
father three times on the head and seven to eight times all
over the body. However, his father somehow managed to
reach home in an injured condition and told his younger
brother Temna Basumatary (PW-2) that the accused/
appellant had stabbed him. At that time, the informant
was present at his own house. Immediately thereafter, his
father was taken to the RNB Hospital, Kokrajhar but the
Doctor there, refused to provide treatment without
registration of the case and thus, they came back to the
Kachugaon Police Station. After the FIR had been
registered, the police advised them to take the injured
Bimal Basumatary to the hospital for treatment and thus,
he was taken to Cooch Behar and was got admitted in the
hospital. However, while undergoing treatment at Cooch
Behar their father expired on 29.08.2013. The post
mortem was conducted, the body was cremated and
thereafter he lodged the FIR (Exhibit-1).
In cross-examination, the witness stated that the
village of his father, namely, Thaijauguri, is located at a
distance of around 6/7 Kms from his village Amlaiguri. He
came to know about the incident at about 10:00 PM.
However, he did not proceed to his father's village in the
night. He heard about the incident from his brother. His
father was initially taken to the RNB Civil Hospital but on
denial of admission, his father was brought back to the
Amlaiguri village. He emphatically denied the suggestion
given by the defence that he did not visit the house of his
father at Thaijauguri but rather his body was brought to
his house at Amlaiguri. He also denied the defence
Criminal Appeal No.191/2019 10 | P a g e
suggestion that he was giving a false deposition regarding
the accused/appellant having stabbed his father.
13. 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.
14. Temna Basumatary (PW-2), son of the deceased,
stated on oath that while his father was returning home
after closing his medicine shop, the accused/appellant
accosted him near the Gongia river and demanded money.
When his father refused, the accused/ appellant stabbed
him by Khukri at different parts of his body. The accused/
appellant gave three to four blows on the head and face
and seven to eight blows on the entire body of the
deceased. While the accused/appellant was stabbing his
father, suddenly the Khukri fell down on ground and when
the accused/appellant was trying to trace it out, taking
advantage, his father somehow managed to escape from
the scene with serious injuries on his whole body and
returned home. The witness claimed to be present at his
house and stated that his father informed that the
accused/appellant had stabbed him near the Dudua Gate.
Initially Bimal Basumatary was taken to the RNB Civil
Hospital, Kokrajhar but the Doctor refused to provide
Criminal Appeal No.191/2019 11 | P a g e
treatment without registration of a police case on which,
his father was brought back to the MRM Hospital, where
some stitches, etc., were applied and then the injured was
taken to the house of his brother, i.e. the informant. On
the next day, his father was taken to the Hospital at
Cooch Behar where he expired while undergoing
treatment.
In cross-examination, the witness stated that
when his father was present at the hospital and the Police
Station, he was in his senses and talked with the police.
He also talked with Doctor at Cooch Behar. He was initially
taken to the Kachugaon State Dispensary but no
treatment was provided to him. Similar was the situation
in the Civil Hospital, Kokrajhar. He denied the defence
suggestion that the accused/appellant did not stab his
father and that he was giving false evidence in the Court.
The witness admitted in his cross-examination that there
are 8(eight) houses near his house and the neighbors
numbering about 20(twenty) gathered in his house after
the incident. He also admitted that his wife and his mother
were both present when his father returned home in an
injured condition.
15. Lohen Basumatary (PW-3) being the neighbor of
the deceased, testified on oath that at about 6:30 PM,
Bimal Basumatary while coming back after selling
medicines was accosted by the accused who demanded
money from him. As the demand was not satisfied, the
accused/appellant attacked Bimal Basumatary with a
Criminal Appeal No.191/2019 12 | P a g e
Khukri and stabbed him at different parts of his body and
as a result, Bimal sustained multiple injuries all over his
body. Somehow Bimal Basumatary managed to reach his
house and was crying out in pain. The witness also
claimed to have arrived at the house of the deceased
where he saw Bimal Basumatary who was profusely
bleeding from wounds all over the body. On enquiry,
Bimal Basumatary told that accused had attacked him near
Gongia river. Thereafter, the injured was taken by the
family members for treatment to different hospitals.
In cross-examination, the witness stated that he
came to know about the incident at about 7:00 PM.
Temna Basumatary (PW-2)came to his house and told him
about the incident. He rushed to the house of Temna
Basumatary where 5/6 persons were present from whom
he could identify Mergha, Kunta, Gudang, Rakesh, Bishnu
and Endla. All these persons also came to know about the
incident. On the next day at about 3:00 PM, he along with
Temna Basumatary (PW-2) and Rajendra Basumatary
(PW-1) went to Kachugaon Police Station for lodging the
report. He denied the defence suggestion that the
deceased did not tell them about the incident and that
they had conspired and lodged a false case against the
accused/ appellant.
16. Meloram Basumatary (PW-4), ASI of Kachugaon
Police Station, investigated the case. He stated on oath
that on 28.08.2013 at about 10:00 AM, the injured Bimal
Basumatary was brought to the Police Station with
Criminal Appeal No.191/2019 13 | P a g e
multiple injuries with the information that on the previous
night, he was attacked by the accused/appellant Somna
Boro with a Khukri for which he sustained multiple injuries
all over his body. The FIR was lodged with the Officer-in-
Charge of the Kachugaon Police Station and thereafter,
the case was endorsed to Meloram for investigation. This
witness further stated that he came to know that the
Khukri held by the accused fell down on ground. He
started searching for the weapon and taking advantage,
the deceased managed to escape. The witness deposed
that after coming to know that the injured had expired at
the Hospital in Cooch Behar, he collected the post mortem
report and proved the same as Exhibit-2. He also proved
the charge-sheet.
In cross-examination, the witness stated that the
injured was brought to the Kachugaon Police Station but
his statement could not be recorded as he was in a
serious condition and was not in a position to speak. He
recorded the statements of Temna Basumatary (PW-2)
and Lohen Basumatary (PW-3) at the place of incident on
28.08.2013. He neither visited the Hospital at Cooch
Behar nor did he talk with the Doctor about the treatment
provided to the injured. He did not record the statement
of the Doctor of the Kachugaon PHC though he made a
verbal enquiry from him. He furnished a requisition to the
Doctor for recording the dying declaration of the
deceased. When the injured was brought to the Police
Station, he had bandages on the cut injuries received by
Criminal Appeal No.191/2019 14 | P a g e
him which had been applied at the Kachugaon PHC. He did
not collect any medical report from the Kachugaon PHC.
17. The defence witness Endla Basumatary (DW-1)
deposed that he saw the victim Bimal lying in his
courtyard in an injured condition. He had gone thereupon
hearing the commotion. He tried to make an enquiry from
Bimal Basumatary, who was in an unconscious state and
was not in a position to speak. Defence witness Rakesh
Brahma (DW-2) stated that he visited the house of the
deceased Bimal Basumatary and saw him in an injured
condition. His family members were trying to move him
into the veranda of the house from the courtyard and he
was not in a position to speak.
The prosecution declined the opportunity to
cross-examine both the witnesses and thus, their
testimony remained uncontroverted.
18. The statement of the accused recorded by the
trial Court under Section 313 Cr.PC makes an interesting
reading and is reproduced herein below for the sake of
further future reference:-
"Question No.1:- There is an allegation brought against
you that on 27.8.13 at about 6.30 P.M. while the father
of the informant was coming from the hell bridge
bazaar on his bi-cycle you suddenly attacked him with
the sharp weapon for the injury sustained by the father
of the informant he died during treatment. Is it true?
Answer:- No it is not true. I am innocent. I have not
assaulted the father of the informant nor I committed
murder.
Criminal Appeal No.191/2019 15 | P a g e
Question No.2:- PW1 informant of this case, son of the
deceased deposed that his father was coming from hell
bridge bazaar selling medicine and when he reached
near Gangia river at about 6.30 P.M. you stabbed him
with 'Khukri'. Immediately his father was taken to RNB
Civil Hospital, Kokrajhar and thereafter they again
came to Kochugaon P.S. lodging the FIR and during his
treatment his father died due to serious injuries
sustained by him. Is it true?
Answer:- No it is not true. I am innocent. I have not
committed any such offence nor I stabbed the
deceased by the Khukri.
Question No.3:- PW2 another son of the deceased also
deposed that when his father reached near Gangia
river you asked money from him and on his refusal you
gave 3/4 blows on his head and face and other 7/8
blows on his entire body by the Khukri and
subsequently his father died during his treatment at
Cooch-bihar for severe injuries sustained by him. Is it
true?
Answer:- No it is not true. I am innocent. I have not
committed any such offence nor I stabbed the
deceased by the Khukri.
Question No.4:- PW3 deposed in his evidence that
when you met the deceased near Gangia river you
asked him money and on his refusal there was quarrel
between you and deceased and finally you attacked
the deceased with the Khukri and stabbed him in
different parts of his body for which he sustained
multiple grievous injuries. The family members took
him to hospital but, during treatment he died. This
witness also deposed that you enquired the matter to
deceased and he reported the matter that you attacked
him near Gangia river causing grievous injuries on his
person. Is it true?
Answer:- No it is not true. I am innocent. I have not
committed any such offence nor I stabbed the
deceased by the Khukri.
Question No.5:- PW4 I.O. of this case during enquiry he
found sufficient incriminating materials against you
Criminal Appeal No.191/2019 16 | P a g e
and collecting all the materials from Kotiwali P.S. P.M.
report etc. he filed the charge sheet against you. Is it
true?
Answer:- No it is not true. I am innocent. I.O. filed the
charge sheet against me without any material.
Question No.6:- Do you want to say anything else?
Answer:- Yes, I am innocent. I am not involved with the
alleged offence.
Question No.7:- Do you want to give evidence in
support of your defence?
Answer:- No, I will give defence witness."
19. 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.
Be that as it may, the fact remains that the FIR
(Exhibit-1) came to be registered on 29.08.2013, i.e. on
the next day of the incident. As per the prosecution case,
Lohen Basumatary (PW-3) and Temna Basumatary (PW-2)
accompanied Rajendra Basumatary (PW-1) to Kachugaon
Police Station for lodging the report (Exhibit-1).
Notwithstanding this, there is no indication in the report
that the injured Bimal Basumatary had made an oral dying
declaration in presence of Temna Basumatary and Lohen
Basumatary regarding the manner in which he was
assaulted. The FIR also narrates the fact that the injured
was forthwith admitted to Kachugaon Block Primary
Criminal Appeal No.191/2019 17 | P a g e
Health Care Centre. However, the Investigating Officer did
not care to collect any document/medical report from the
said establishment. Furthermore, even the statement of
the Doctor from the said Hospital was not recorded.
20. The impact of omission in FIR was examined by
Hon'ble the Supreme Court in the case of Ram Kumar
Pandey -Vs- State of M.P., reported in AIR 1975 SC
1026. A few relevant observations from the said
judgment are reproduced herein below:-
"7. The prosecution case, as set out, in the first
information report was: Uttam Singh, PW 1, residing at
Ganj Parao, on the first floor, went home at about 3.30
p.m. on March 23, 1970 and was preparing to have a
bath when Suresh Ahuja came down from an upper
storey of the house and complained that Uttam Singh
had been quarrelling with members of his family. Uttam
Singh requested him to take his seat and promised to
look into the matter. This angered Suresh Ahuja.
Thereafter, his elder brother arrived and started
quarrelling with Uttam Singh's daughter. At this stage,
the landlord Mulkraj Ahuja, accompanied by the
appellant Ram Kumar Pandey, who lives with his family
in a side room on the ground floor, entered and
immediately gave him a blow on his eye-brow. Uttam
Singh fell down. As Uttam Singh got up, the appellant
struck him with a knife from behind. Mulkraj asked
Pandey to run downstairs. Both the accused tried to run
away. Uttam Singh tried to catch them but failed. Uttam
Singh then asked his son Harbinder Singh to make a
telephone call. At this point, Suresh, son of Mulkraj,
stabbed Harbinder Singh who fell down in the lane.
Uttam Jingh saw Harbinder Singh lying near the house
of Saudagar Shah with an injury on his chest which
was bleeding profusely. Harbinder Singh was carried to
a hospital on a cart and Gurcharan Singh telephoned
the police. Joginder Singh also came while the injuries
were being inflicted. Uttam Singh's daughters Amarjit
Kaur and Taranjit Kaur saw Uttam Singh wrapping a
Criminal Appeal No.191/2019 18 | P a g e
chadar on the wound of Harbinder Singh. Raj Jaggi had
seen Harbinder Singh falling down. The motive for this
incident was that Mulkraj Ahuja, the landlord, wanted
his house vacated by Uttam Singh. Harbinder Singh had
died while being taken to hospital.
8. The abovementioned first information report was
lodged at Police Station Ganj on March 23, 1970 at 9.15
p.m. The time of the incident is stated to be 5 p.m. The
only person mentioned as an eye-witness to the murder
of Harbinder Singh is Joginder Singh. The two
daughters Taranjit Kaur, PW 2, and Amarjit Kaur, PW 6,
are mentioned in the FIR only as persons who saw the
wrapping of the chadar on the wound of Harbinder
Singh. What is most significant is that it is nowhere
mentioned in the FIR that the appellant had stabbed
Harbinder Singh at all. It seems inconceivable that by
9'15 p.m. it would not be known to Uttam Singh, the
father of Harbinder Singh, that the appellant had
inflicted one of the two stab wounds on the body of
Harbinder Singh.
9. No doubt, an FIR is a previous statement which
can, strictly speaking, be only used to corroborate or
contradict the maker of it. But, in this case, it had been
made by the father of the murdered boy to whom all the
important facts of the occurrence, so far as they were
known up to 9-15 p.m. on March 23, 1970, were bound
to have been communicated. If his daughers had seen
the appellant inflicting a blow on Harbinder Singh, the
father would certainly have mentioned it in the FIR We
think that omissions of such important facts, affecting
the probabilities of the case, are relevant under Section
11 of the Evidence Act in judging the veracity of the
prosecution case.
10. Even Joginder Singh, PW 8, was not an
eyewitness of the occurrence. He merely proves an
alleged dying declaration. He stated that Harbinder
Singh (described by his pet name as "Pappi") rushed out
of his house by opening its door, and held his hand on
his chest with blood flowing down from it. He deposed
that, when he asked Pappi what had happened, Pappi
had stated that Suresh and Pandey had injured him. It
is clear from the FIR that Joginder Singh had met Uttam
Singh before the FIR was made. Uttam Singh did not
Criminal Appeal No.191/2019 19 | P a g e
mention there that any dying declaration, indicating that
the appellant had also injured Harbinder Singh, was
made by Harbinder Singh. The omission to mention any
injury inflicted on Harbinder Singh by the appellant in
the FIR seems very significant in the circumstances of
this case. Indeed, according to the version in the FIR,
Joginder Singh, who was in the lane, is said to have
arrived while Harbinder Singh was being injured.
Therefore, if this was correct, the two injuries on
Harbinder Singh must also have been inflicted in the
lane outside.
11. Satwant Kaur, PW 7, the wife of Uttam Singh,
who claimed to have been an eyewitness of the whole
occurrence, was also not mentioned in the FIR Suresh
had, according to her, stabbed Harbinder Singh on the
right side of the chest at the door of the kitchen, and,
thereafter, Pandey was said to have attacked him.
12. Again, we find that Taranjit Kaur, PW 2, and
Amarjit Kaur, PW 6, daughters of Uttam Singh, have
figured as eyewitnesses of the whole occurrence
including the stabbing of Harbinder Singh by the
appellant. As already indicated, they are not mentioned
in the FIR as eyewitnesses of the murder. This is also
very significant in the present case. They have been
mentioned only as witnesses of wrapping a chadar on
the wound of Harbinder Singh who was then said to be
lying in the lane after the occurrence.
17. As regards the second and third points, we are
unable to give credence to the version of the three
alleged eyewitnesses as they were not mentioned as
eyewitnesses in the FIR made in the circumstances
indicated above.
18. Lastly, the alleged dying declaration is also not
mentioned in the FIR On the other hand, the FIR,
mentions Joginder Singh who tried to prove the dying
declaration only, as an eyewitness."
Seen in light of the observations made by Hon'ble
the Supreme Court in the case of Ram Kumar Pandey
(supra), omission of the fact regarding presence of the
Criminal Appeal No.191/2019 20 | P a g e
eye witnesses at the spot and so also the omission
regarding the alleged dying declaration would be fatal to
the prosecution.
21. The situation in the case at hand is almost
identical. 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.
22. There is another important fact which persuades
the Court to not rely upon the theory of the oral dying
declaration. As per the statement of Rajendra Basumatary
(PW-1) and Temna Basumatary (PW-2), immediately after
Criminal Appeal No.191/2019 21 | P a g e
the incident, the injured was taken to the RNB Civil
Hospital, Kokrajhar and Kachugaon Block Primary Health
Centre. However, the Investigating Officer, made no effort
whatsoever to collect the medical report, if any, of the
victim prepared in these 2(two) hospitals. Furthermore,
statement of the Medical Officers, who attended the
injured in either of these 2(two) hospitals, were also not
recorded by the Investigating Officer. There is no material
on record of the case which can satisfy the Court that
after receiving the injuries as alleged, the injured was in a
position to speak or to make a coherent statement. As
stated above, the 2(two) defene witnesses, i.e. Endla
Basumatary (DW-1) and Rakesh Brahma (DW-2), whose
presence at the house of the deceased was admitted by
Lohen Basumatary (PW-3), made an empathetic
deposition that Bimal Basumatary was unconscious and
not in a position to speak when they reached his house
soon after the incident.
Temna Basumatary (PW-2) made a categoric
assertion that when Bimal Basumatary came to the house
in an injured condition, at that time, his wife and his
mother (wife of the deceased) were present. However,
neither of these 2(two) ladies were examined in evidence
so as to lead corroboration to the flimsy theory of oral
dying declaration projected in the evidence of Temna
Basumatary (PW-2) and Lohen Basumatary (PW-3).
23. Another aspect of the case which discredits the
prosecution is that the Doctor, who conducted autopsy
Criminal Appeal No.191/2019 22 | P a g e
upon the dead body of the deceased, was not examined in
evidence even though he was cited in the list of witnesses.
In this regard, on a perusal of the record of the trial
Court, it becomes clear that summons by registered post
was sent to the Doctor and as he did not appear
presumably despite service, the evidence of the Doctor
was closed. In our opinion, this approach of the trial Court
cannot be appreciated. As a matter of fact, there is
nothing on record which could have satisfied the trial
Court that the summons was actually served to the
Doctor. Thus, the evidence of the Medical Jurist being a
witness of vital import should not have been closed in
such a casual manner. Furthermore, the prosecution
should have been more vigilant and proper effort should
have been made to serve the summons to the Doctor by
hand through of the Officer-in-Charge of the Police Station
concerned. If the witness did not appear despite service of
summons, coercive measures should have been sought
for.
24. In an appropriate case, this Court could have
exercised jurisdiction under Section 391 Cr.PC and the
Doctor could have been summoned for giving evidence
even at the appellate stage, but in view of the preceding
findings, wherein we have discarded the prosecution
theory regarding the oral dying declaration made by the
deceased, which is the only palpable evidence relied upon
by the prosecution so as to bring home the charges
against the accused, this Court is not inclined to exercise
Criminal Appeal No.191/2019 23 | P a g e
powers under Section 391 Cr.PC so as to summon and
examine the doctor at this stage as it would be nothing
short of an exercise in futility.
25. In wake of the discussion made above, we have
no hesitation in holding that the prosecution failed to lead
plausible and reliable evidence so as bring home the
charges against the accused, who deserves to be
acquitted by giving him the benefit of doubt.
26. Resultantly, the impugned judgment dated
25.01.2019 passed by the learned Sessions Judge,
Kokrajhar in Sessions Case No.112/2018 convicting and
sentencing the accused/ appellant, as above, is hereby
reversed and set aside. The accused/appellant, namely,
Somna Boro @ Chamna Narzary, is acquitted of the
charges. He is in custody and shall be released from
prison forthwith, if not wanted in any other case.
27. However, keeping in view the provisions of
Section 437-A Cr.PC, the appellant Somna Boro @ Chamna
Narzary is directed to furnish a personal bond in the sum
of 30,000/- (Rupees Thirty Thousand) and a surety bond
in the like amount before the learned trial Court, which
shall be effective for a period of 6(six) months to the
effect that in the event of filing of a Special Leave Petition
against the present judgment on receipt of notice thereof,
the appellant shall appear before the Hon'ble Supreme
Court.
Criminal Appeal No.191/2019 24 | P a g e
28. The appeal is allowed accordingly.
29. Registry is directed to send back the LCR to the
learned trial Court forthwith.
JUDGE CHIEF JUSTICE
Mukut
Comparing Assistant
Criminal Appeal No.191/2019 25 | P a g e
