Conviction of an accused based primarily on the testimony of victim, who had not seen him committing the offence, deserves to be set aside

Orissa High Court: A Single Judge Bench of A.K. Sahoo, J., allowed an appeal filed against the order of the trial court, whereby the appellant was convicted for the offence of attempt to murder under Section 307 of the Indian Penal Code, 1860.

The main issue that arose before the Court was whether the trial court had rightly convicted the accused under Section 307 IPC.

The Court observed that there were several infirmities in the story put forth by the prosecution. The star witness of prosecution in the instant matter was the victim himself, who was sleeping in his ward at the time when the appellant attacked him. As per the story of prosecution there were two other inmates present in the same ward where the appellant and the victim were present but they are silent about the incident in the sense that they did not see the appellant hitting the victim with a brick. Even the victim himself did not see the appellant hitting him with a brick since he was sleeping with his face covered in a blanket, at the time when he got the first blow. According to the victim, as soon as he received the first blow he removed the blanket from his face and saw the appellant raising the brick once again but in the meantime, he lost his sense. To sum up it can be said that nobody saw the appellant hitting the victim with a brick and mere presence of the accused, along with 2 other inmates, in the same ward with the victim does not prove his guilt. Further, the prosecution had not even tried to prove the motive behind the assault.

The Court held that the start witness of the prosecution did not see the appellant hitting him with a brick and the presence of a brick inside the ward appears to be a doubtful feature as the same was produced before the investigating officer by the jailor who had failed to show from where he recovered the brick. In the presence of so many infirmities in the story of the prosecution, it cannot be said that the trial court was justified in convicting the appellant for the offence of attempt to murder under Section 307 of the IPC. Resultantly, the appeal was allowed and the conviction of the appellant was set aside.[Birasingh Say v. State of Orissa,2018 SCC OnLine Ori 416, order dated 15-11-2018]

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