Gauhati High Court
CRL.A(J)/98/2019 on 6 May, 2024
Page 1 of 29
GAHC010278062019
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal (J) No. 98/2019
1. Anil Basumatary,
Sonitpur, Tezpur, Assam.
2. Lakhimaya Basumatary,
Sonitpur, Tezpur, Assam.
Appellants
-Versus-
1. The State of Assam
Respondent
For Appellant(s) : Ms. B. Sarma, Amicus Curiae.
For Respondent : Ms. S. Jahan, Additional Public Prosecutor.
Date of judgment : 06.05.2024
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
1. Heard Ms. B. Sarma, learned Amicus Curiae for the appellants.
Also heard Ms. S.Jahan, learned Additional Public Prosecutor
for the State of Assam.
Crl.Appeal (J)./98/2019 Page 1
2. This jail appeal has been registered on receipt of an appeal
petition filed by the appellants, namely, Sri Anil Basumatary
and Smt. Lakhimaya Basumatary, through the Superintendent,
Central Jail, Tezpur, impugning the judgment and order dated
07.05.2019, passed by the learned Sessions Judge, Sonitpur,
Tezpur in Sessions Case No. 96/2018.
3. By the impugned judgment, the appellants are convicted
under Section 304 Part I/34 of the Indian Penal Code and
have been sentenced to undergo rigorous imprisonment for
7(seven) years each, with a fine of Rs. 5,000/- each and in
default of payment of fine to undergo simple imprisonment for
2(two) months each. Both the appellants are presently
detained in the Central Jail, Tezpur, Sonitpur.
4. The facts relevant for consideration of the present appeal, in
brief, are as follows:-
i. That on 18.02.2018, at about 8:23 PM, one Smt.
Junu Musahary had lodged an FIR before the
Officer-In-Charge of Missamari Police Station, inter-
alia, alleging that on 17.02.2018, at about 10:00
PM, the present appellants engaged in an
altercation with the father of the first informant,
namely, Keshram Musahary and they also assaulted
him causing grievous injuries on his person. As a
Crl.Appeal (J)./98/2019 Page 2
result the father of the first informant sustained
injuries and he died on 18.02.2018. At the time of
his death, the deceased was 70 years of age.
ii. On receipt of the said FIR, the Officer-In-Charge of
Missamari Police Station registered Missamari P.S.
Case No. 29/2018 under Section 302 of the Indian
Penal Code and initiated the investigation.
iii. During investigation, the Investigating Officer
recorded the statements of witnesses under Section
161 of the Code of Criminal Procedure, 1973. He
visited the place of occurrence and drew a sketch
map of the place of occurrence. He collected the
post-mortem examination report and arrested both
the appellants, and ultimately, on completion of the
investigation a charge-sheet was laid under Section
302 of the Indian Penal Code against both the
above named appellants.
iv. Both the above named appellants faced the trial
while remaining on bail granted by the Trial Court
on 31.05.2018. After considering the materials on
record and hearing both the sides, the Trial Court
framed charges under Section 302/34 of the Indian
Penal Code against both the above named
Crl.Appeal (J)./98/2019 Page 3
appellants. When the said charge was read over and
explained to them, they pleaded not guilty and
claimed to be tried.
v. The prosecution side examined 10(ten) prosecution
witnesses to bring home charge against the
appellants. The appellants were examined under
Section 313 of the Code of Criminal Procedure,
1973, during which they denied the truthfulness of
the testimony of prosecution witnesses and pleaded
their innocence. However, they declined to adduce
any evidence in their defence.
vi. Ultimately, by the judgment which has been
impugned in this appeal, the above named
appellants were convicted and sentenced by the
Trial Court in the manner as already described in
Paragraph No. 2 hereinabove.
5. The point for determination before the learned Sessions
Judge, Sonitpur, Tezpur in Sessions Case No. 96/2018 was as
follows:-
"Whether the accused Anil Basumatary
and Lakhimaya Basumatary, in
furtherance of the common intention, on
17-02-2018, at about 10 p.m. at No.1
Bherbheri under Missamari PS, assaulted
Crl.Appeal (J)./98/2019 Page 4
Kesharam Mushahary as a result of which
he succumbed to the injuries on the next
day i.e. on 18-02-2018 and thereby
committed an offence punishable u/s
302/34 of the IPC?"
6. Before considering the rival submissions of the learned Amicus
Curiae as well as the learned Additional Public Prosecutor,
Assam, let us go through the evidence available on record.
7. PW-1, Nirmal Swargiary, the son-in-law of the deceased,
deposed that on 17.02.2018, the deceased Kesharam
Mushahary, along with his wife Jogeswari Mushahary, went to
Shamshan (Cremation ground) to offer Puja (prayers) at
around 11:00 PM and after returning from Puja, an altercation
took place in the house of Subhash Boro between the
deceased and the appellants. Thereafter, the deceased along
with his wife returned home, and on the same night, the
appellants came to the house of the deceased and picked up a
quarrel again. He deposed that both the appellants had
assaulted the deceased with a bamboo lathi. On hearing
commotion (hulla) in the house of the deceased, he rushed
there and found the deceased in a bending position. He also
saw both the accused standing near the deceased, and a lathi
was lying at the place of occurrence. On the next day, at
around 2:00 PM, the deceased died. PW-1 has further deposed
Crl.Appeal (J)./98/2019 Page 5
that he saw injury on the left side of the chest of the
deceased. PW-1 has cited that on the next day, wife of the
deceased also informed him about the incident. He exhibited
the inquest report as Exhibit-1 and his signature thereon as
Exhibit-1(1).
8. During cross-examination, PW-1 has stated that he had not
seen as to who assaulted the deceased and how the incident
took place. He had also deposed that he does not know the
contents of the inquest report as Exhibit-1. PW-1 has also
deposed that his father Kesharam Masahary used to drink
liquor and on the day of incident, he had consumed liquor. He
has also deposed that police did not seized the bamboo lathi
from the place of occurrence. He was asked certain suggestive
questions by the learned defence counsel which were
answered in negative by him. He has also deposed that he
made statement before police that as the injuries was not so
serious so they did not feel to take his father to the hospital.
9. PW-2, Smt. Anima Swarglary, the daughter of the deceased as
well as the wife of PW-1, has deposed that on 17.02.2018, at
night after having dinner when they went to bed to sleep, they
heard commotion (hulla) in the campus of Someswar Boro, the
son-in-law of the appellants. She has also deposed that on the
same night, Siba Boro came to their house and woke them up,
Crl.Appeal (J)./98/2019 Page 6
and informed them about the incident. They immediately
rushed to the place of occurrence, and Someswar and Siba
Boro brought her father to his house. She has also deposed
that on regaining his sense, her father told that the appellants
Lakhi and Anil had assaulted him. She asked the appellants to
take the injured to the doctor, but on the next day her father
died. PW-2 has also deposed that due to the assault by the
appellants, her father sustained fracture on the chest bone.
10. During cross-examination, PW-2 has deposed that she along
with her husband resided in the same campus with her
parents. On hearing the incident, she and her husband rushed
to the place of occurrence. She has also deposed that he
deceased father told her that the appellants came to his house
and took him from the bed to the boundary of Someswar,
where they assaulted him. She has also deposed that as
initially they did not notice any injury on their father and as
they had no money, they could not take their father to
hospital immediately. She further stated that her deceased
father used to consume liquor and on the relevant day also
her father consumed liquor on the day of incident in the Puja.
She has answered in negative to a suggestive question put to
her that she have not stated to police that when her father
Crl.Appeal (J)./98/2019 Page 7
regained his sense, he told that the appellants Anil and
Lakshmi had assaulted him.
11. PW-3 Dr. Achinta Kr. Baruah, the Medical Officer has deposed
that on 19.02.2018, he conducted post-mortem examination
on the dead body of Kesharam Mushahary and found the
following:
External appearance:
An elderly male in fresh condition with presence of rigor
mortis. Ecchymosis on the left side of the chest, back and
flank.
Thorax: Walls, ribs and cartilages. Fracture of ribs: 9th, 10th
and 11th
Pleurae - haemothorax, left lung-congested.
Abdomen:Spleen: ruptured.
All other organs are healthy. The injuries are ante-
mortem caused by blunt weapon.
The doctor opined that the cause of death was due to
shock and haemorrhage as a result of the injuries sustained
and the injuries are sufficient to cause the death of a person.
The doctor proved the Post-mortem report as Exhibit-2.
12. PW-4 Sri Siba Boro, has deposed that on 17.02.2018, at
around 10:30 PM, hearing commotion (hulla), he rushed to the
place of occurrence and saw Kesharam Mushahary in the
Crl.Appeal (J)./98/2019 Page 8
boundary of Someswar Boro. He also saw the appellants
standing near Kesharam Mushahary. Then he along with
Someswar Boro brought the injured to the room. At that time,
the deceased told him that he was assaulted but, as they did
not notice any injury on the victim, so they did not take the
injured to the hospital and on the next day, he died.
13. During cross-examination, PW-4 has deposed that when he
reached the place of occurrence, he had seen only the
appellants. He heard the sound of "dhapdhup" at the place of
occurrence. He had not seen the incident. He further stated
that on the day, there was a Puja in their village where the
deceased acted as a priest and in the Puja liquor was offered.
He has answered in negative to a suggestion put to him that
he had not stated before police that "I saw Keshram Musahary
in the boundary of Someswar Bora. I saw accuesed persons
standing near Kesharam Musahary. During that time Kesharam
told me that he has been assaulted."
14. PW-5, Smt Junu Mushahary, the daughter of the deceased,
has deposed that on the day of the incident she was in
Tezpur. She has further deposed that on the next day of the
occurrence, her elder sister Anima Swargiary called her,
informing her that Laxmi and Anil had assaulted their father
and he was in serious condition. She has deposed that she
Crl.Appeal (J)./98/2019 Page 9
met her father in injured condition and he told her that Laxmi
and Anil assaulted him in the boundary of Someswar Boro.
She has also deposed that her father also told her that he
sustained pain in his chest, head and stomach. She had also
deposed that they asked the accused persons to take the
injured to the hospital but they did not do so. In the mean
time, her father died. She has deposed that then she went to
the police station and lodged the FIR. She has exhibited the
FIR as Exhibit-3 and her signature thereon as Exhibit-3(1).
15. During cross examination she has deposed that she received
information from her elder sister at about 9:00 AM. She has
also deposed that her father used to consume liquor. She has
answered in negative to certain suggestive questions put to
her by learned defence counsel. She has denied the
suggestion put to her by the defence counsel that she has not
stated before the police that her father told her that the
appellants have assaulted him.
16. PW-6, Smt. Jogeswari Mushahary, who is the wife of the
deceased, has deposed that on the day of the incident, after
having dinner she and her husband were sleeping. She has
also deposed that her husband used to sleep in the front side
room of their house. At night at around 3:00 AM her husband
asked her for a glass of water and told her that both the
Crl.Appeal (J)./98/2019 Page 10
appellants had assaulted him with a batam (a piece of wood).
She has also deposed that on the next day at about 10:00 AM
her husband died.
17. During cross examination, she has deposed that after the
death of her husband at about 10:00 AM, she informed the
matter to her nephew Numal Swargiary about the incident and
he informed the matter to police. PW-6 has also deposed that
her husband came to the house after attending the Puja and
after consuming liquor, went to sleep. She has also deposed
that she had seen injuries on the waist, chest and back of her
husband.
18. PW-7, Sri Subhash Boro, has deposed that the incident took
place in the month of March at night, on that day, Puja was
performed in the house. He has also deposed that the
deceased Kesharam also attended the Puja and went back to
his house. He has deposed that at about 9.30 PM, a
commotion (hulla) took place in the house of the deceased,
Kesharam, and then he rushed there, he saw both of the
appellant quarrelling with the deceased. He has deposed that
on the next day, Kesharam died in his house. PW-7 was
declared as hostile and during his cross examination by the
prosecution side, he denied that he had stated before the
Crl.Appeal (J)./98/2019 Page 11
police that the appellants assaulted Kesharam due to which he
sustained injuries and thereafter, died.
19. During cross examination by the defence side, PW-7 has
deposed that there are house of Nana Basumatary, Pranav
Basumatary and Jiten Tanti near the house of the appellants
and the deceased. He has deposed that deceased performed
puja as a priest and he left the house of PW-7 at about 9.30
PM after consuming liquor. He has also deposed that he had
not seen any altercation taking place in the house of the
deceased. He was asked certain suggestive questions by
learned defence counsel to which he has answered in
negative.
20. PW-8, Someswar Boro, has deposed that on the night, on
which the incident occurred, while he was sleeping, he woke
up to attend nature's call. At that time he heard commotion
(hulla) near the house of the deceased. He has deposed that
he rushed there and saw the Kesharam in a kneel down
position, he was bending towards the bamboo fencing near
the side of the road. PW-8 has deposed that he heard from
the public that appellant Lakhimaya had assaulted the
deceased with a stick (Lathi), as a result of which Kesharam
sustained injuries. He has also deposed that the injured was
Crl.Appeal (J)./98/2019 Page 12
not brought to the hospital immediately, and at around 3:00
PM Kesharam died.
21. During cross examination, PW-8 has stated that he had not
seen any incident personally. He has also deposed that it was
after 10:00 PM when he saw the deceased kneel down and
bending his head towards the bamboo fencing. He has also
deposed that at that time, the deceased was in a drunken
state. He has also deposed that after his arrival, when Siba
Boro reached there, he along with Siba Boro brought the
deceased to the home. He has also deposed that during that
time, the deceased did not say anything to them. He has also
deposed that he had not seen any injury on the body of
Kesharam and he does not know as to how Kesharam died.
22. PW-9 Shyam Terang, the Investigating Officer, has deposed
that before filing the FIR, informant Junu Mushahary appeared
at the police station and informed about the incident. On the
basis of the said information, he made Missamari PS GDE No.
391/2018 dated 18.02.2018, at around 3:20 PM. The said GD
Entry has been exhibited as Exhibit-4. He has further deposed
that thereafter, on receipt of the FIR which is exhibited as
Exhibit-3, he registered the same and himself took up the
investigation of the case. He visited the place of occurrence,
recorded the statements of witnesses, conducted an inquest
Crl.Appeal (J)./98/2019 Page 13
on the dead body, sent the dead body for post mortem
examination, prepared a sketch map of the place of
occurrence, which is exhibited as Exhibit-5, apprehended the
accused persons, collected the post mortem report and on
completion of the investigation laid the charge-sheet against
the accused persons under Section 302 of the Indian Penal
Code, which is exhibited as Exhibit-6. He has also deposed
that Subhas Boro (PW-7) has stated before him under Section
161 of Code of Criminal Procedure, 1973 that "altercation all
started, then about some boundary dispute between
Kesharam Bora and Someshwar Bora, son of Anil and
Laxmimaya Basumatary, later on, the same night, they had
altercation, Anil and his wife assaulted the Kesharam to which
the he sustained injuries and died today." He exhibited the
case diary as Exhibit-7 and the statement of Subhash Boro as
Exhibit-7(1).
23. During cross examination, he stated that on the basis of GDE,
he had first visited the place of occurrence, prepared the
sketch map, conducted an inquest, recorded the statements of
witnesses and as it was night, so on the next morning, he sent
the dead body for post mortem examination. He has further
stated that he took all these steps on the basis of GD Entry
and he received the FIR (Ejahar) on 6.15 PM on 18.02.2013.
Crl.Appeal (J)./98/2019 Page 14
PW-9 has deposed that the Exhibit-3, i.e., the FIR and the
Exhibit-4, i.e., the GD Entry No. 319/2018 of Missamary P.S.
are silent regarding the dying declaration made before the
informant Junu Swargiary, Anima Swargiary, or any other
witness. PW-9 has also deposed that Nirmal Swargiary (PW-1)
did not stay before him that "after returning from puja an
altercation took place in the house of Subhash Boro in
between the deceased and the accused persons. Thereafter,
the deceased came to his house along with his wife. On the
said night both the accused persons came to the house of the
deceased and again took quarrel. On hearing hulla, I went to
the house of the deceased and saw deceased was found
bending and near the deceased both the accused were
standing. I have also seen one lathi lying at the place of
occurrence."
24. PW-9 has also deposed that he has not seized any weapon in
connection with this case. He has also deposed that Anima
Swarglary did not state before him that "My deceased father
told us that the accused persons came to the house of the
deceased and took him from the bed to the boundary of
Someswar where my father was assaulted by the accused
persons. As my father told about the incident before us so we
came to know about the incident. We kept our father at home
Crl.Appeal (J)./98/2019 Page 15
as because we have not seen any injury at first. We do not
have any money so in spite of our willingness we did not take
our father to the hospital for treatment immediately." PW-9
has also deposed that Anima Swargiary has stated that "my
father told us that accused Anil Basumatary and his wife Laxmi
assaulted me."
25. PW-9 has also deposed that PW 4 Siba Bora did not state
before him that "I saw Kesharam Muchahary in the boundary
of Someswar Boro. I saw accused persons standing near
Kesharam Muchahary. During that time Kesharam told me that
he has been assaulted."
26. PW-9 has also deposed that Junu Muchahary (PW-5) did not
state before him that "On the next day of the incident my
elder sister Anima Swargiary called me to my parental house
at Bherbheri stating that Laxmi and Anil assaulted our father
and so he was in serious condition. I met my father in injured
condition and my father told me that Laxmi and Anil assaulted
him in the boundary of Someswar Boro. My father also told me
that he sustained pain in his chest, head and stomach. Then,
we asked accused persons to our house to see my father and
to take him to hospital but they did not come. Then I went to
the police station to inform the matter. In the meantime my
father was died. Then I lodged the ejahar." PW-9 has also
Crl.Appeal (J)./98/2019 Page 16
deposed that Junu Muchahary (PW-5) stated before him that
"I came to know about the Incident as informed from home."
27. PW-9 has also deposed that Jugeswari Muchahary (PW-6) in
her statement made before him did not state that "after
having dinner, I along with my husband were sleeping. My
husband used to sleep in the front side room of our house. At
night at about 3 p.m. my husband asked a glass of water to
drink. During that time he told me that the accused persons
Laxmi and Anil assaulted him by means of a "batam" after
calling him out. Next day of the incident at about 10 a.m. my
husband died." He has denied the suggestion given to him by
the learned defence counsel that he recorded the statements
of the witnesses in the police station. He has answered in
negative to some other suggestive questions put to him by the
learned defence counsel.
28. PW-10, Sri Lakhya Jyoti Das, has deposed that on 18.02.2018,
he was posted as Executive Magistrate-cum-Circle Officer at
Thelamara and on that day in reference to GD Entry No. 391
dated 18.02.2018 of Misamari Police Station, he conducted the
inquest upon the dead body of Keshram Musahary and found
following:
Crl.Appeal (J)./98/2019 Page 17
Description of the dead body- male age 70 years, approximate
date of death 18.12.2018. Dead body was found at bedroom
of the deceased house at No.1 Bherberi Village, as reported.
Dead body was old. position of dead body- lying on the bed in
upper face.
Description of injury mark-swollen face, blackish spot on back.
Swollen in the right side of the chest. Opinion of witnesses
and police about the cause of death and weapon/instrument
use-as per the statement of witnesses, death occurred due to
assault on his body due to physical fight. He exhibited the
inquest report as Exhibit-1 and his signatures and Exhibit 1(1).
29. During cross examination, PW-10 has deposed that Junu
Mushahary was not cited as a witness. He has also deposed
that since the inquest was conducted by him, so he did not
take the signature of the Investigating Officer. He has also
stated that there is no mention in the Exhibit-1 that it was
written by the Investigating Officer on his dictation. He has
denied a suggestion that in fact he saw no injuries as
mentioned in the Exhibit-1.
30. During their examination under Section 313 of the Code of
Criminal Procedure, 1973, both the appellants have denied the
truthfulness of testimony of prosecution witnesses. Both of
Crl.Appeal (J)./98/2019 Page 18
them have stated that they have not assaulted Keshram
Musahary and have pleaded their innocence.
31. Ms. B. Sharma, learned Amicus Curiae has submitted that in
the instant case there is no eye witness to the incident of
assault and the entire case is based only on circumstantial
evidence. She has also submitted that the circumstances
culled out by the Trial Court in Paragraph No. 35 of the
impugned judgement do not lead to the inference only of guilt
of the present appellant. She has also submitted that the
circumstances on which the Trial Court has relied for arriving
at the decision of the guilt of the present appellant have not
been fully established. She has also submitted that though the
testimony of prosecution witnesses were contradicted by the
Investigating Officer with reference to their previous
statement made by the witnesses before him, however, the
Trial Court has not taken into consideration the contradictions
in the testimony of the witnesses and have relied on the
evidence which ought not to have been relied upon. She has
submitted that the entire prosecution case is based on the oral
dying declaration given by the deceased to the PW-2,
however, the Trial Court has failed to take into consideration
the fact that the deceased was in an inebriated condition as
admittedly, he was in a habit of drinking liquor and even on
Crl.Appeal (J)./98/2019 Page 19
the date of the incident he consumed liquor before the
incident and, therefore, it is submitted by learned Amicus
Curiae that Trial Court has erred in relying on uncorroborated
oral dying declaration of the deceased which was made to his
daughter, i.e., PW-2. She has also submitted that in the FIR
the first informant has not mentioned anything about the oral
dying declaration. She has also submitted that the Trial Court
also failed to take into consideration that all the witnesses who
had implicated the present appellants were relative and were
interested witnesses.
32. Learned Amicus Curiae has also deposed that PW-6, who is
the wife of the deceased and who was with the deceased on
the date of the incident has not stated anything about the
incident and she has deposed that she came to know about
the incident, only at around 3.00 AM., when her husband told
her that he was assaulted by the appellants. However, learned
Amicus Curiae has submitted that it is very unnatural that PW-
6 did not know about the incident before she was told about it
by the deceased. Learned Amicus Curiae has submitted that if
there was a hue and cry and the people gathered there, the
PW 6, who is the wife of the deceased, would have known
about the incident had such incident of assault had actually
happened.
Crl.Appeal (J)./98/2019 Page 20
33. On the other hand, Ms. S. Jahan, learned Additional Public
Prosecutor, has fairly submitted that the testimony of most of
the prosecution witnesses have been contradicted, and this
fact was not taken into consideration by the learned Session
Judge, Sonitpur, while coming to the finding of the guilt of the
present appellants. She has submitted that only the testimony
of PW-2 to the effect that the deceased told her that the
accused Anil Basumatari and his wife Lakshmi assaulted him
remain uncontroverted. She has also submitted that though,
there is no bar in convicting an accused solely on the basis of
oral dying declaration, however, prudence demand that such
oral dying declaration should be corroborated by some other
independent evidence before it is relied upon.
34. I have considered the submissions made by learned counsel
for both the sides and have perused the materials available on
record very carefully.
35. It appears from the record that in the instant case, there is no
eye witness to the incident of assault on the deceased
Kesharam Musahari, and the prosecution case is based on the
circumstantial evidences only.
Crl.Appeal (J)./98/2019 Page 21
36. It appears that the Trial Court has based its finding of guilt of
the present appellants on the circumstances, which are culled
out in Paragraph No. 35 of the impugned judgment. For the
sake of convenience, the circumstances culled out by the Trial
Court in Paragraph No. 35 of the impugned judgment are
quoted herein below:
"(i) On the day of incident, at around 9.30
p.m., the deceased after attending Puja in the
house of PW 7 Subhash Boro while returning
home, altercation took place between the
accused persons and the deceased.
(ii) The deceased used to consume liquor and
on the fateful night also he consumed liquor
in the house of PW 7 where he acted as priest
in the Puja performed in his house.
(iii) Hearing hulla PW 1 came out and saw the
deceased in bending position and near him
both the accused were standing and also saw
one lathi lying at the place of occurrence.
(iv) PW 4 hearing hulla, when came to the
place of occurrence, saw the deceased in the
boundary of PW 8 and saw the accused
persons standing near the deceased.
(v) After being assaulted when the deceased
was brought home, on regaining sense he
told before his daughter PW 2 that accused
Anil Basumatary and Laxmi Basumatary taking
him from bed to the boundary of PW 8, had
assaulted him.
Crl.Appeal (J)./98/2019 Page 22
(vi) Since the time of oral information, the
witnesses pointed both the accused persons
as perpetrator of the crime.
(vii) As per post mortem report the deceased
sustained fracture of ribs of the left side chest
and spleen was ruptured."
37. From the testimony of the prosecution witnesses, more
specifically the cross examination of the PW-9 Shri Shyam
Terang, who was the Investigating Officer of the case, it
appears that the testimony of PW-1, PW-2, PW-4, PW-5 and
PW-6, where they have stated that the deceased told them
about the assault by the present appellant was contradicted as
the said fact was not stated before the Investigating Officer by
the aforesaid witnesses when they were examined under
Section 161 of the Code of Criminal Procedure, 1973. Hence,
their testimony, while deposing as prosecution witnesses
before the Court during the trial to the effect that the
deceased told them that the appellants had assaulted them
may not be safe to be relied upon, as it was for the first time
that they have stated so before the Trial Court. Therefore,
there is no reliable evidence, on record, to come to the finding
that altercation took place between the appellants and the
deceased at around 9.30 PM. The circumstances enumerated
by the Trial Court in Paragraph No. 35 of the impugned
Crl.Appeal (J)./98/2019 Page 23
judgment, therefore, have not been fully established except
the circumstance No. (v), wherein the deceased has told his
daughter, i.e., PW-2 that the appellants Anil Basumatari and
Lakshmi Basumatari had assaulted him. In this case, if we look
at the testimony of PW-2 also, it appears that she was not told
by the deceased as to how the appellants had assaulted him.
No weapon of offence was seized by the investigating officer
in this case. Moreover, there is no reliable evidence on record
to corroborated testimony of PW-2.
38. In the case of "Heikrujam Chaoba Singh Vs. State of Manipur"
reported in (1999) 8 SCC 458, the Apex Court has observed that
though an oral dying declaration can form the basis of the
conviction, however, rule of prudence requires corroboration
of the same, before it can be acted upon. In the instant case,
it appears that the only uncontroverted evidence which is
available on record is the testimony of PW-2 to the effect that
her father informed her that the appellants had assaulted him.
However, there is no other evidence to corroborate the said
evidence as the testimony of other witnesses were
contradicted and in the considered opinion of this Court, it is
not safe to be relied upon.
Crl.Appeal (J)./98/2019 Page 24
39. In the case of "Sharad Birdhichand Sarda Vs. State of
Maharashtra", reported in (1984) 4 SCC 116, the Supreme
Court of India has observed as follows:
"153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court
indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical but a legal distinction
between "may be proved" and "must be
or should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State
of Maharashtra [(1973) 2 SCC 793 : 1973
SCC (Cri) 1033 : 1973 Crl LJ 1783] where
the observations were made: [SCC para
19, p. 807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that
the accused must be and not merely may be
guilty before a court can convict and the
mental distance between „may be‟ and „must
be‟ is long and divides vague conjectures
from sure conclusions."
(2) the facts so established should be
consistent only with the hypothesis
of the guilt of the accused, that is
to say, they should not be
explainable on any other
hypothesis except that the accused
is guilty,
Crl.Appeal (J)./98/2019 Page 25
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be
proved, and
(5) there must be a chain of evidence
so complete as not to leave any
reasonable ground for the
conclusion consistent with the
innocence of the accused and must
show that in all human probability
the act must have been done by
the accused."
40. Thus, from the above mentioned ruling of the Apex Court, it is
clear that the circumstances from which the conclusion of guilt
of the appellant is to be drawn should be fully established and
the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, those
circumstances should not be explainable on any other
hypothesis, except that the accused is guilty.
41. However, in the instant case as discussed in the foregoing
paragraphs, it appears that the only uncontroverted evidence
on record is the extrajudicial dying declaration of the deceased
given before the PW-2. It is also important for the Court that it
must be satisfied about the truthfulness of such extrajudicial
dying declaration and that the same was made by the
deceased while he was in fit condition to make such a
statement.
Crl.Appeal (J)./98/2019 Page 26
42. In the instant case, almost all the witnesses have deposed
that the deceased was in habit of drinking and on the date of
incident also he had consumed liquor even before going to
bed. So, it cannot be stated that even if it is believed that he
made a statement implicating the present appellants before
his daughter, i.e., PW2, he was in a fit state of mind and that
he was not in an inebriated condition. Moreover, the testimony
of PW-2 that her father had made such a statement to her
implicating the appellants has not been corroborated by the
testimony of other witnesses. As already discussed herein
above, the testimonies of other witnesses have been
contradicted by their previous statement as well as testimony
of the Investigating Officer and, therefore, same are not safe
to be relied upon.
43. This court is therefore of the considered opinion that the
circumstances enumerated by the Trial Court in Paragraph No.
35 of the impugned judgment cannot be held to be fully
established.
44. This Court also of the considered opinion that the prosecution
side has miserably failed to fulfill the conditions enumerated
by the Supreme Court of India in Paragraph No. 153 of the
judgment in the case of "Sharad Birdhichand Sarda Vs. State of
Maharashtra" (Supra). Hence, this Court is of the considered
Crl.Appeal (J)./98/2019 Page 27
opinion that the Trial Court had failed to take into
consideration that the deceased was in an inebriated condition
on the day of incident as well as when he made statement
before PW-2 incriminating the present appellants. Moreover,
the Trial Court also failed to take into consideration, before
arriving at the conclusion of guilt of the present appellants,
that the testimonies of other witnesses have been contradicted
and therefore, it was not safe to rely upon such testimonies.
The testimony of PW-2 thus, remained uncorroborated and in
the considered opinion of this Court it is not safe to rely on
such an uncorroborated testimony under the facts and
circumstances of this case and, therefore, the trial court had
erred in arriving at the conclusion of guilt of the present
appellants mainly on the basis of oral lying declaration of the
deceased given before PW-2. So, this Court is of considered
opinion that under the facts and circumstances of this case,
the appellants are entitled to get benefit of doubt and the
impugned judgment is liable to be set aside.
45. For the reasons mentioned herein above, the conviction and
sentence imposed on the present appellants by the impugned
judgment are hereby set aside.
46. The appellants are set at liberty forthwith unless they are
required to be detained in connection with some other case.
Crl.Appeal (J)./98/2019 Page 28
47. Let the case record of Sessions Case No. 96/2018 along with
the connected files as well as a copy of this judgment be sent
to the Court of learned Sessions Judge, Sonitpur, Tezpur.
48. Let a copy of this judgment be also sent to the Superintendent
Central Jail, Tezpur.
49. The learned Amicus Curiae shall be entitled to the honorarium
as per the prevailing rules.
50. This Criminal Appeal is accordingly, allowed.
JUDGE
Comparing Assistant
Crl.Appeal (J)./98/2019 Page 29
