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GAHC010057952022

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./73/2022

MUSTT. MIRIJA BEGUM

W/O- HABIBUR RAHMAN, R/O- VILLAGE BARAMBOI , P.S.- HAJO, DIST-

KAMRUP, ASSAM.

VERSUS

THE STATE OF ASSAM AND ANR.

REPRESENTED BY PUBLIC PROSECUTOR, ASSAM.

2:SAMIR ALI

S/O- LATE SADEK ALI

R/O- VILLAGE BARAMBOI

P.S.- HAJO

DIST- KAMRUP

ASSA

Advocates for the appellant : Mr. D.K. Bhattacharyya. ....Advocate.

Advocates for the respondent no.1 : Ms. B. Bhuyan. ..Sr. Counsel. & Addl. P.P., Assam.

:::BEFORE:::

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

Date on which judgment is reserved : 25.02.2026

Date of pronouncement of judgment : 26.02.2026

Whether the pronouncement is of the : N/A

operative part of the judgment ?

Whether the full judgment has been : Yes

pronounced?

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JUDGMENT & ORDER (CAV)

(M. Zothankhuma, J)

1. Heard Mr. D.K. Bhattacharyya, learned counsel for the appellant. Also heard Ms. B.

Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam,

assisted by Ms. R. Das, learned advocate for the State.

2. This is an appeal against the conviction of the appellant under Section 302

IPC, pursuant to the impugned judgment dated 27.02.2018 passed by the

learned Court of the Sessions Judge, Kamrup, Amingaon in Sessions Case

No.208/2014 and the sentence imposed upon the appellant to undergo rigorous

imprisonment for life, with a fine of Rs.2,000/-, in default, to undergo simple

imprisonment for another 2 months.

3. The appellant’s case is that while the offence of the appellant hacking the

neck of the victim with a dao was alleged to have been committed on

18.05.2007, the FIR has been filed 12 days later i.e. 30.05.2007. Though the

deceased had been allegedly cut in the neck with a dao by the appellant on

18.05.2007 and the deceased was taken to Hajo Primary Health Centre and

then to the Guwahati Medical College & Hospital (GMCH) and had died one day

after being discharged from GMCH, no report regarding the attack on the

deceased by the appellant had been made to the police by anybody prior to

30.05.2007. There is also no medical document whatsoever, to show the nature

of injury that had been suffered by the deceased on 18.05.2007. The evidence

of the Doctor, i.e. PW-3, who conducted the Post-mortem Examination on

30.05.2007, is to the effect that there was one injury on the head of the victim

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which was stated to be-

“An old stitched wound over the right tempero, prarito occipital region, 18

cm in length.

The thoracic organs are congested and healthy.

In the abdomen organs were healthy, stomach was healthy and empty.

In the cranial spinal canal, injuries to the scalp is already described, on

the skull, there were fractures involving the right parietal and occipital

bones, Vitribe was healthy. Membrence are cut over the right parietal and

the occipital region, (..Illegible..) as subarachnoid hamarage is present on

the right side.

Brain is cut in the right occipital region”.

4. The learned counsel for the appellant submits that if any serious injury had

been made by the appellant on the deceased on 18.05.2007, the same should

have been informed to the police. However, there has been an inordinate delay

in filing the FIR, which raises doubts about the truthfulness of the allegations

made by the witnesses and the Prosecution against the appellant. In this

respect, he has relied upon the judgment of the Supreme Court in the case of

Manoj Kumar Sharma & Others vs. State of Chhattisgarh & Another,

reported in (2016) 9 SCC 1.

5. The learned counsel for the appellant submits that the original copy of the

Post-mortem Report had not been submitted to the learned Trial Court and only

a carbon copy of the same had been submitted, without any signature of the

maker of the said Post-mortem Report. The original copy not having been

produced, the learned Trial Judge could not have allowed the Prosecution to

prove the Post-mortem Report, as it was inadmissible in evidence. In this

regard, he has relied upon the judgment of the Supreme Court in the case of

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Vijender vs. State of Delhi, reported in (1997) 6 SCC 171.

6. The learned counsel for the appellant submits that no doctor, who had

treated the deceased during the period between 18.05.2007 to 30.05.2007 had

been made a Prosecution Witness or examined by the Court. He submits that

there was no proof that the injury on the deceased had been made on

18.05.2007, as the learned Court failed to examine the said Doctor/s, who could

have proved that the injury stated in the Post-mortem Report was the injury

that had been received by the deceased on 18.05.2007. He also submits that no

weapon of assault has been seized by the police.

7. The learned counsel for the appellant submits that where death is due to

injuries or wounds caused by a lethal weapon, the guilt of the appellant would

require the Prosecution to prove the whole of that case in all respects. He

submits that when there is nothing to show that the appellant had caused the

injury on the deceased and in the absence of any information being given by

the informant or the Doctors of the Hospitals in which the deceased had been

treated, it could not be said that the Prosecution had been able to prove the

guilt of the appellant beyond all reasonable doubt. He accordingly submits that

the appellant should be acquitted of the charge under Section 302 IPC.

8. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand,

submits that the delay in lodging the FIR is not fatal to the Prosecution and that

the evidence of PW-1 was enough to convict the appellant, as his evidence was

credible evidence. In support of her submission, she has relied upon the

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judgment of the Supreme Court in the case of Prasad Pradhan & Another

vs. State of Chhattisgarh, reported in (2023) 11 SCC 320.

9. We have heard the learned counsels for the parties.

10. The contents of the FIR dated 30.05.2007 submitted by the informant,

who is PW-1 and his evidence given before the learned Trial Court are

reproduced hereinbelow as follows :

“FIR dated 30.05.2007

Humble submission is that around 10 o' clock on 18.5.2007, the said

accused person hacked my wife Hasan Banu with a sharp dao from

behind as a result of which she sustained grievous injury. She was initially

treated in Hajo Primary Health Care Centre and thereafter she was

referred to GMCH for better treatment. Yesterday, i.e on 29/5/2007, the

injured woman was released from GMCH and was allowed to come home

but around 4 a.m. on 30.5.2007 i.e. today, the said injured woman

breathed her last.

I therefore pray to you to take necessary action regarding this

incident and oblige.”

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

“EVIDENCE BEFORE LEARNED TRIAL COURT

On Oath

The accused of this case namely Mirija Begum is my daughter-in-law.

Deceased Hasan Banu was my wife. About 6/7 years ago, Hasan Banu

died. Around 9 a.m. on the day of the incident, I was milking the cow. My

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deceased wife Hasan Banu was holding the calf near me. At that time, my

daughter-in-law Mirija Begum came taking a dao in her hand and hacked

on the head of my wife Hasan Banu. Then, I left that task of milking the

cow and held my wife's head. After hacking my wife with the dao, I saw

Mirija running away from the place of occurrence. Thereafter, my

neighbour Khateja and I lifted my wife to a 'Sumo' vehicle and took her to

the medical. Since she was referred from Hajo medical to Gauhati Medical,

I took her there. My wife was treated in Gauhati Medical for 6/7 days.

Thereafter, as she recovered to some extent, I took her to the house from

Gauhati Medical. After staying in the house for 2 days, Hasan Banu died in

the house itself. Thereafter, I lodged an ejahar at Hajo P.S. in connection

with this incident. Ext. 1 is the ejahar lodged by me and Ext. 1(1) is my

signature. After lodging of the ejahar, police held inquest on the dead

body of my wife. I put my signature in the inquest report as a witness.

Ext. 2 is the inquest report and Ext. 2(1) is my signature therein.

XXXXXXXXXXXX

After the incident, the police questioned me. I did not state before

the police that blood was coming out from the injury of my wife. I did not

state before the police that Khateja and I had lifted my wife to the Sumo

vehicle and had taken her to the medical. My daughter-in-law Mirija and

my son live together. Mirija does not have any mental illness. I cannot say

as to why my daughter-in-law Mirija had hacked my wife. On the day of

the incident, I did not lodge the ejahar, I lodged it after the death of my

wife. It is not a fact that Mirija Begum was not mentally sound and that if

she did anything under mentally unstable condition; it was not a

conscious act on her part.

It is not a fact that my daughter-in-law Mirija lost her stability at the

time of the incident and that she was not aware of what she had done.”

11. The evidence of PW-2 is to the effect that she heard a hue and cry in the

house of the informant and when she went there, she saw her sister-in-law

(deceased) was lying with an injury to her head. Her brother-in-law Samir Ali

told her that the appellant had hacked the deceased. Later, PW-1 and PW-2

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wrapped the head of the deceased with a cloth and took her to Hajo Medical

Health Centre in a vehicle. The Doctor/s stitched her injury and thereafter she

was taken to GMCH, where she was treated. After staying for a few days in

GMCH, the deceased was taken home. However, she died after staying a few

days in her house. Thereafter PW-1 filed an FIR.

12. The evidence of PW-3, who is the Professor & Head of Forensic Medicines

in GMCH, is to the effect that he performed the Post-mortem examination on

the body of the deceased on 30.05.2007 and his findings and opinion on the

injury and cause of death of the deceased are as follows :

“External appearance

Female dead body of about 50 years wearing blouse and a mekhela. Eyes

and mouth were closed, external orifices are healthy. Rigormortis was

present in both upper and lower limbs.

Injury No 1 An old stitched wound over the right tempero, prarito occipital

reason, 18 cm in length.

The thoracic organs are congested and healthy.

In the abdomen organs were healthy, stomach was healthy and

empty.

In the cranial spinal canal, injuries to the scalp is already described,

on the skull, there is an fractures involving the right parietal and occipital

bones, Vitribe was healthy. Membrence are cut over the right parietal and

the accipital reasons, (..Illegible..) as subarachnoid hamarage is present

on the right side.

Brain is cut in the right occipital reason.”

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Opinion

In my opinion death was due to coma as a result of injuries on the

head the injuries were anti mortem being cause by heavy sharp cutting

weapon and were homicidal in nature. Time since death 6 to 12 hours.

Ext.'3' is the post mortem report and Ext. 3(1) and 3(2) are my

signatures.

XXXXXXXXXXXXXX

Ext. '3' is the carbon copy including my signatures. I found only one

injury.”

13. The evidence of PW-4 is to the effect that on hearing a hue and cry in the

house of PW-1, she was told by PW-1 that the appellant had hacked the head of

the deceased with a dao. When she arrived at the place of occurrence, she saw

the deceased in the courtyard in an injured condition with PW-1 who was

holding her. Thereafter the injured was taken to the hospital. PW-4 also stated

that the deceased died 6/7 days after the incident.

14. The evidence of PW-5, who is the Investigating Officer, is that on

12.12.2009 while working as the O/C of the Hajo Police Station, he received the

Case Diary of Hajo P.S. Case No.103/2007. On perusing the Case Diary, he found

that the case had already been investigated by Sub-Inspector M. Rahman. On

07.06.2008, the Case Diary had been handed over to the then O/C who

endorsed the same to Sub-Inspector Mukul Saikia on 25.05.2009 for

investigation. Thereafter on transfer of S.I. Mukul Saikia, the case was endorsed

to S.I. Mukul Das on 18.08.2009. On transfer of S.I. Mukul Das, the case was

transferred to PW-5. The further evidence of PW-5 is to the effect that as per

the Case Diary, the previous I/O had searched for the appellant, but could not

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find her. On finding sufficient materials in the documents given to him, PW-5

submitted a Charge-sheet against the appellant under Section 302 IPC,

indicating her as an absconder.

15. PW-5 in his cross-examination also stated that no reason for the delay in

lodging the FIR has been mentioned and that no statement of the deceased had

been recorded prior to her death. He also stated that the victim was discharged

from GMCH on 29.05.2007 and expired on the next day. The Discharge

Certificate was not available in the Case Diary and he could not say whether any

injuries were indicated in the Discharge Certificate of the victim.

The above being said, it is surprising to see that PW-5 has referred the

accused person as “him”.

16. In the examination of the appellant under Section 313 Cr.P.C, the appellant

stated that she was innocent and did not know about the Medical Report. She

also stated that she had been falsely implicated in the case.

17. The learned Trial Court thereafter came to a finding that the probable

sequence of events of the incident, as per the testimony of the Prosecution

Witnesses, which is reflected in paragraph-18 of the impugned judgment,

showed the following–

“18) From the foregoing discussion of the testimony of witnesses I like to

draw the probable sequence of happenings as per testimony of

prosecution witnesses. The circumstance that has been emerged and the

sequence of happenings derived from the evidence on record is of the

following nature-

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(i) It was around 10 A.M. in the morning the informant was milking his

cow and he was assisted by his wife, the deceased.

(ii) Suddenly, the accused who is none but the daughter in law of the

deceased came with a dao and gave a blow on her head and fled

away from there.

(iii) The informant while holding his wife with a severe head injury one

of his close relative (wife of the brother of the informant) arrived

who bandaged on the wound of the deceased and thereafter they

altogether took the victim to hospital.

(iv) The incident was immediately informed by the informant to P.W. 2

i.e. his wife of his brother and also another P.W. 4 a neighbor.

(v) The deceased was admitted at GMCH from the date of incident till

29.05.2007 and after discharge from hospital she died on

30.05.2007.

(vi) The prosecution case was initiated only after the death of the

deceased and release from hospital.

(vii) Thereafter on the death of the victim the FIR was lodged and the

post-mortem was conducted over the dead body and Medical Officer

opined that the death was due to coma as a result of Injury on the

head and according to him the injuries were ante-mortem and

caused by sharp cutting weapon.

(viii) The accused woman was absconding and the Police submitted

charge sheet against the accused showing her as absconder.”

18. The learned Trial Court thereafter held that in view of the evidence of the

eyewitness, who had seen the incident and the fact that the deceased had been

first taken to Hajo Medical Health Centre and then to GMCH, there was no scope

to have any suspicion with regard to the fact that the appellant was the person

who had killed the deceased. The learned Trial Court further held that the

evidence of the other eyewitnesses corroborated the evidence of PW-1. Besides

the above, the appellant was not found and she had been absconding. Thus,

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the totality of the evidence on record proved that a case under Section 302 IPC

had been made out

19. In the case of Manoj Kumar Sharma (supra), the Supreme Court held

that delay in lodging the FIR often results in embellishment, which is a creature

of an afterthought. It further stated that the danger in a delayed FIR is that

there is a danger of introduction of a coloured version or exaggerated story

creeping it. Paragraph 30 of the said judgment is reproduced hereinbelow as

follows :

“18) Delay in lodging the FIR often results in embellishment, which is a

creature of an afterthought. On account of delay, the FIR not only gets

bereft of the advantage of spontaneity, danger also creeps in of the

introduction of a coloured version or exaggerated story. In our opinion,

such extraordinary delay in lodging the FIR raises grave doubt about the

truthfulness of allegations made by Respondent No. 2 herein against the

appellants, which are, in any case, general in nature. We have no doubt

that by making such reckless and vague allegations, Respondent No. 2

herein has tried to rope the appellants in criminal proceedings. We are of

the confirmed opinion that continuation of the criminal proceedings

against the appellants pursuant to this FIR is an abuse of the process of

law. Therefore, in the interest of justice, the FIR deserves to be

quashed. In this context, it is apt to quote the following decision of this

Court in Jai Prakash Singh vs. State of Bihar & Anr.(2012) 4 SCC 379

wherein it was held as under:-

“12. The FIR in a criminal case is a vital and valuable piece of

evidence though may not be substantive piece of evidence. The

object of insisting upon prompt lodging of the FIR in respect of the

commission of an offence is to obtain early information regarding

the circumstances in which the crime was committed, the names of

the actual culprits and the part played by them as well as the names

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of the eyewitnesses present at the scene of occurrence. If there is a

delay in lodging the FIR, it loses the advantage of spontaneity,

danger creeps in of the introduction of coloured version,

exaggerated account or concocted story as a result of large number

of consultations/deliberations. Undoubtedly, the promptness in

lodging the FIR is an assurance regarding truth of the informant’s

version. A promptly lodged FIR reflects the first-hand account of

what has actually happened, and who was responsible for the

offence in question.”

20. In the case of Vijender (supra), the Supreme Court held that the Trial

Court should not have allowed the Prosecution to prove the Post-mortem

Report, as it was not the original report but only a carbon copy thereof, and that

too not certified. The relevant portion of the said judgment which is at

paragraph-19 is reproduced hereinbelow –

“……The other reason for which the trial Judge ought not to have allowed

the prosecution to prove the post-mortem report is that it was not the

original report but only a carbon copy thereof, and that too not certified.

Under Section 64 of the Evidence Act document must be proved by

primary b evidence, that is to say, by producing the document itself

except in the cases mentioned in Section 65 thereof. Since the copy of the

post-mortem report did not come within the purview of any of the clauses

of Section 65 it was not admissible on this score also.”

21. In the present case also the Post-mortem report is only a carbon copy

and though there is a seal, there is no original signature of any person on the

said Post-mortem Examination Report. As such, we are also of the view that the

document has not been proved in terms of Section 64 of the Evidence Act.

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22. In the case of Md. Abdul Azit vs. State of Assam (Criminal Appeal

No.222/2018), which was disposed of vide judgment dated 26.02.2021, the

Division Bench of this Court had taken into consideration the fact that the

Prosecution did not examine the surgeon who undertook the surgical operation

upon the deceased, nor had it examined any doctor who treated the deceased

during the time the deceased was in the hospital. This Court held that in the

absence of such evidence, it was difficult to arrive at an unhesitant view that

the genesis of the death of the deceased was the assault allegedly inflicted on

him on the date of the alleged incident. Further, no weapon of assault had been

recovered and there was no medical evidence as regards the use of any

weapon, which ultimately led to the death of the deceased.

In the present case also, the Doctor/s who had allegedly treated the

deceased in Hajo Medical Health Centre and GMCH, prior to her discharge on

29.05.2007, have not been examined, not only by the Police, Prosecution but

also by the learned Trial Court. Further, no weapon of assault has been

recovered. Even though it can be assumed that a dao could have been the

weapon of assault, the fact remains that no doctor of the Hajo Medical Health

Centre or GMCH has been examined. No medical documents or the treatment

provided in Hajo Medical Health Centre and GMCH have been produced. All

these lead us to believe that there is something not quite right, with regard to

the allegation of the appellant having killed the deceased.

23. In the case of Mohinder Singh vs. State, reported in AIR 1953 SC

415, the Supreme Court has held at paragraph 18 as follows :

“18. In a case where death is due to injuries or wounds caused by a

lethal weapon, it has always been considered to be the duty of the

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prosecution to prove by expert evidence that it was likely or at least

possible for the injuries to have been caused with the weapon with which

and in the manner in which they are alleged to have been caused. It

is elementary that where the prosecution has a definite or positive case, it

must prove the whole of that case.

24. In the case of Hariprasad alias Kishan Sahu Vs. State of

Chattisgarh, reported in (2024) 2 SCC 557, the Hon’ble Supreme Court held

that the delay in lodging an FIR, by itself cannot be regarded as sufficient

ground to draw an adverse inference against the prosecution case, nor could it

be treated to be fatal to the case of prosecution. The Court has to ascertain the

causes for the delay, having regard to the facts and circumstances of the case.

If the causes are not attributable to any effort to concoct a version, mere delay

by itself would not be fatal to the case of the prosecution.

25. In the above case of Hariprasad alias Kishan Sahu (supra), the

Supreme Court further held that the object of insisting upon prompt lodging of

the report to the police in respect of the commission of an offence is to obtain

early information regarding the circumstances in which the crime was

committed, the names of actual culprits and the part played by them as well as

names of the eye witnesses present at the scene of occurrence.

26. In the case of Apren Joseph alias Current Kunjunju and Ors. Vs.

The State of Kerala, reported in (1973) 3 SCC 114, the Hon’ble Supreme

Court has held that FIR is very useful if recorded before there is time and

opportunity to embellish, or before the informant’s memory fades. Undue or

unreasonable delay in lodging the FIR, therefore, may give rise to suspicion

which put the Court on guard to look for the possible motive and the

explanation for the delay and consider its effect on the trustworthiness or

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otherwise of the prosecution version.

27. In the present case, there is no reason given as to why there was a delay

in filing the FIR. The incident having occurred on 18.05.2007 and the deceased

having been treated in Hajo Hospital and GMCH for around 11 days, prior to her

discharge from hospital, there was ample time for lodging an FIR with respect

to the alleged crime. Even after the deceased was discharged from the hospital,

no action was taken by the informant or other prosecution witnesses, for

lodging an FIR with regard to the alleged crime. It was only after the death of

the deceased on 30.07.2007 that an FIR was lodged. There could have been a

variety of genuine causes for not lodging the FIR promptly. However, there is no

whisper made by any of the prosecution witnesses, as to why FIR had not been

lodged earlier by the informant or the Doctors in the two hospitals or the

prosecution witnesses, with regard to the alleged crime. It is not the case of the

respondents that they were ignorant or that there was lack of transport facilities

to the Police Station to report the alleged crime or that they were inflicted with

some ailment, which prevented them from filing the FIR on time. Though delay

in filing an FIR by itself may not be a ground to doubt the prosecution case, the

absence of any attempt to give any reason for the delay in filing the FIR in this

case raises a suspicion, that the allegation of murder made against the

appellant may not be completely true. It raises a suspicion that there has been

a concoction and embellishment of facts. No Doctor who had examined or

treated the deceased had been examined. No document showing the medical

treatment or the injuries sustained on the deceased at the time of treatment

has been produced by the prosecution. If the injury was of such a serious

nature, due to hacking the neck of the deceased with a dao, the Doctors in the

two hospitals who had treated the deceased would have surely reported the

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matter to the police, as it was a medico legal case. The entire evidence

against the appellant is based entirely on the sole testimony of PW-1

(informant). Though the Doctor (PW-3) stated, that in his opinion that death

was due to coma as a result of the injuries on the head caused by a heavy

sharp cutting weapon which were homicidal in nature, there is no evidence

given by any of the other prosecution witnesses that the deceased fell into a

coma after being discharged from the GMCH. Further, the post-mortem

examination report being a carbon copy without the original being produced by

the prosecution, we are unable to convince ourselves that the contents of the

carbon copy of the post-mortem examination report proved that the appellant

had caused the death of the deceased.

28. As stated above, the deceased had been discharged from GMCH which

implied that the deceased had recovered from whatever medical problem or

injury that might have been inflicted upon her. Once the deceased had been

discharged from GMCH, the subsequent death of the deceased cannot be said

to be due to the injuries sustained by her on 18.05.2007. The evidence of PW-3

cannot be proved that the deceased had died due to the alleged injuries

sustained by her on 18.05.2007, when we do not know what injuries sustained

by her on 18.05.2007.

29. There is no evidence to show that the deceased was not able to speak

between the date of the incident and the date of her death. Interestingly, there

is no evidence to the effect that the deceased had stated to anybody that the

appellant had inflicted the wound which had been stitched over in terms of the

evidence of PW-3.

30. In the present case the various deficiencies in the prosecution case,

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especially with regard to non-filing of the FIR at the earliest coupled with the

non-recovery of any weapon makes us wary of accepting the decision of the

learned Trial Court in convicting the appellant only on the basis of the testimony

of PW-1. There is no corroboration of the evidence of PW-1 which would prove

the guilt of the appellant beyond all reasonable doubt.

31. The above being said, we find that the appellant had absconded. In fact,

the evidence of PW-1 is to the effect that after the appellant had hacked the

victim’s head with a dao, he saw the appellant running away. The evidence of

the prosecution witnesses and the records show that the appellant was

absconded due to which Warrant of Arrest and a Proclamation of being an

absconder had been issued by the learned Trial Court against the appellant. The

issue to be decided is whether the act of absconding by the appellant would

tantamount to admitting her guilt to the office of murder.

32. In the case of Matru Alias Girish Chandra vs. State of Uttar

Pradesh, reported in (1971) 2 SCC 75, the Supreme Court has held that

mere absconding by itself does not necessarily lead to a firm conclusion of guilty

mind. Even an innocent man may feel panicky and try to evade arrest when

wrongly suspected of a grave crime which is the instinct of self-Preservation.

The act of absconding is no doubt relevant piece of evidence to be considered

along with other evidence, but its value would always depend on the

circumstances of each case. It further held that normally the Courts are

disinclined to attach much importance to the act of absconding, treating it as a

very small item in the evidence for sustaining conviction. It can scarcely be held

as a determining link in completing the chain of circumstantial evidence which

must admit of no other reasonable hypothesis than that of the guilt of the

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accused.

33. In the case of Surendra Mishra Vs. State of Jharkhand reported in

(2011) 11 SCC 495, the Supreme Court had held that the act of the accused

in running away from the scene of the crime subsequent to the commission of

the offence, clearly suggest that he knew that whatever he had done was wrong

and illegal.

34. In the case of Chetan Vs. State of Kartanaka, reported in (2025) 9

SCC 31, the Supreme Court reiterated the decision of the Supreme Court in the

case of Matru Alias Girish Chandra (supra). However, it has also said that

the act of absconding is certainly a relevant piece of evidence to be considered

along with other evidence and is a conduct under Section 8 of the Evidence Act,

1872, which points to it’s guilty mind. The needle of suspicion gets strengthened

by his act.

35. Though the Supreme Court in the case of Matru Alias Girish Chandra

(supra) had stated that the evidence of the act of absconding would always

depend on the circumstance of each case, the fact in this case is that the

eyewitness saw the appellant absconding after she had allegedly hacked the

victim with a dao.

36. On considering all the above three judgments, it clearly suggest that the

appellant had a guilty mind and thus the needle of suspicion regarding the

murder of the victim by the appellant gets strengthened. However, even if we

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are to assume that the appellant had hit the victim with a dao, the question as

to whether the injury allegedly inflicted on the victim was the cause of death of

the victim is a disputed question of fact. Though PW-3, who conducted the Post

Mortem examination on the victim has stated that in his opinion death was due

to a coma, as a result of injuries on the head of the victim, there is no evidence

given by PW-1 or any other prosecution witness that the victim was in coma.

The victim having died in her house. PW-3 could not have seen the victim alive.

This is also borne out by the Post Mortem examination report, wherein the

victim was brought dead to the hospital. No evidence being laid between the

date of the incident and the filing of the FIR, as to the injury caused to the head

of the victim and the treatment that had been given, which led to her discharge

from hospital, there is no way for the learned Trial Court to have come to a

finding that the alleged injuries sustained by her on 18.05.2007 was the cause

of death of the deceased. Thus, taking all the evidences in totality including the

fact that there was an unexplained delay of 12 days in filing the FIR, non-

recovery of the weapon and no evidence being laid to show the seriousness or

otherwise of the injury sustained by the victim, we are of the view that the

learned Trial Court committed an error in convicting the appellant on the basis

of circumstantial evidence, which we find does not form a complete chain. Thus,

we find that the prosecution did not prove the case of murder against the

appellant beyond all reasonable doubt.

37. The above being said, when we look at the examination of the appellant

under Section 313 Cr.P.C, we find that the appellant has not been asked to give

her explanation as to why she had absconded, so as to allow the appellant to

establish her innocence. The same not being done, the learned Trial Court

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committed an error in using the fact of the appellant absconding from the place

of occurrence as one of the reasons for coming to a finding of guilt of the

appellant. In this respect, it would be profitable to refer to the decision of the

Supreme Court in the case of Reena Hazarika vs. State of Assam, reported

in (2019) 13 SCC 289, wherein it has held that Section 313 Cr.P.C cannot be

simply seen as a part of audi alteram partem. It confers a valuable right upon

an accused to establish his innocence and can well be considered beyond a

statutory right as a constitutional right to a fair trial under Article 21 of the

Constitution, even if it is not to be considered as a piece of substantive

evidence, not being on oath under Section 313(2) Cr.P.C. Paragraph 19 of the

said judgment is reproduced hereinbelow as follows :

“19. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram

partem. It confers a valuable right upon an accused to establish his

innocence and can well be considered beyond a statutory right as a

constitutional right to a fair trial under Article 21 of the Constitution, even

if it is not to be considered as a piece of substantive evidence, not being

on oath under Section 313(2) Cr.P.C. The importance of this right has

been considered time and again by this court, but it yet remains to be

applied in practice as we shall see presently in the discussion to follow. If

the accused takes a defence after the prosecution evidence is closed,

under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section

313(4) Cr.P.C. to consider the same. The mere use of the word ‘may’

cannot be held to confer a discretionary power on the court to consider or

not to consider such defence, since it constitutes a valuable right of an

accused for access to justice, and the likelihood of the prejudice that may

be caused thereby. Whether the defence is acceptable or not and whether

it is compatible or incompatible with the evidence available is an entirely

different matter. If there has been no consideration at all of the defence

taken under Section 313 Cr.P.C., in the given facts of a case, the

conviction may well stand vitiated. To our mind, a solemn duty is cast on

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the court in dispensation of justice to adequately consider the defence of

the accused taken under Section 313 Cr.P.C. and to either accept or reject

the same for reasons specified in writing.”

38. In view of the judgment of the Supreme Court in the case of Reena

Hazarika (supra), it is clear that the failure of the learned Trial Court to

examine the appellant under Section 313 Cr.P.C on the question of her

absconding cause prejudice to the appellant and thereby denial her right to put

forward a reasonable defence which could be true.

39. Accordingly, we are of the view that the benefit of doubt has to be given

to the appellant in view of the reasons stated in the foregoing paragraph. The

appellant is acquitted from the charge framed against him under Section 302

IPC. Consequently, the impugned judgment dated 27.02.2018 passed by the

Sessions Judge, Kamrup, Amingaon in Sessions Case No.208/2014 is hereby set

aside. The appellant is to be released immediately from judicial custody, if not

wanted in any other case.

40. The appeal is accordingly allowed.

41. Send back the TCR.

JUDGE JUDGE

Comparing Assistant