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7. Let us now consider whether the judgment dated 26th June, 1997 passed by the learned Additional Sessions Judge, 2nd Court at Alipore can be sustained or not?

8. Mr. Shekhar Basu, learned Advocate appearing on behalf of the appellant with Mr. Debasish Roy drawing our attention to the charges framed against the appellant as also his examination under Section 313 of Cr. PC submitted that the appellant faced joint trial with the other accused persons acquitted in this case. That apart the oral dying declaration made by the victim Ashim @ Rabi Mazumder before P.W.1, father of the victim and P.W.5, brother of the victim should not be accepted by this Court to warrant conviction of the accused because in view of the evidence of P.W. 11, Dr. D.P. Das, the victim with multiple injuries had no capacity to speak. It is further submitted by Mr. Basu that the dying declaration at page 72 of bed head ticket relied upon by the Trial Judge to warrant conviction of the appellant should not be accepted by this Court because it is not proved according to law. Moreover, in view of the evidence adduced by doctors at S.S.K.M. Hospital the victim who was gasping and undergone tracheotomy and kept under saline and in deep coma, was not in a position to speak disclosing the names of the assailants. Therefore, conviction of the appellant is unfounded and there is no eye-witness of the incident to show that it was the appellant who actually killed the victim by throwing bomb. Mr. Basu further submitted that the appellant who faced joint trial with the other accused persons should not have been convicted under Section 302 without framing a specific charge against him. In this connection he relied upon particularly two decisions Suroj Pal v. State of Uttar Pradesh and 1993 SCC (Cri) 583, Subran @ Subramaniam and Ors. v. State of Kerala and submitted that after framing charges for offence under Sections 148, 149, 302, 307 of IPC the appellant cannot be convicted for substantive offence under Section 302 of IPC simpliciter because there is no direct individual charge against the appellant for specific offence under Section 302 of IPC and therefore conviction of the appellant for an offence under Section 302 is not permissible. It is therefore, submitted by him under the circumstances for want of evidence and the error committed by the Trial Court by not framing specific charge against the appellant, the judgment passed by the learned Trial Court should not be sustained by this Court and it should be set aside. It is further submitted by him that there was miscarriage of justice because had any specific charge under Section 302 of IPC been framed against the appellant by the Trial Court the appellant would have availed the opportunity under the law to cross-examine the prosecution witnesses concerning material facts relied upon by the prosecution. He further submitted that the judgment passed by the learned Trial Court should not be upheld by this Court.

11. Learned P.P. left the matter to be argued by Mr. Swapan Mullick on behalf of the State. Mr. Mullick appearing on behalf of the State in reply conceded the argument advanced by the learned Advocate for the appellant. It is submitted by him that this Court after considering the evidence-on-record and attending circumstances of the case should decide this appeal.

12. Admittedly the incident occurred on 14th September, 1994 at about 10.00 a.m. firstly near a welding shop at Budge Budge Trank Road while the victim Ashim @ Rabi Mazumder along with Buno @ Bimal Hazari, P.W.3 were returning from Khalpole and proceeding towards Mollah Gate near a welding shop they were attacked with bombs etc. and thereafter second attack was made upon the victim Ashim @ Rabi near Mollah Gate by the side of Saha's house shown in the index, Exhibit 11 without any sketch map prepared by the first I.O., P.W. 19. When the first attack was made P.W. 3 was riding bycycle carrying the victim Ashim @ Rabi in the back seat and after the attack both of them fell to the ground with injury and at that time P.W. 3 found the victim running to save his life. He also heard the sound of bombs and firing and he thought that the miscreants did this. P.W. 3 as he was injured rushed to S.S.K.M. Hospital by hiring a taxi and admitted there but, he did not disclose the names of the assailants who attacked him. Soon after hearing sound of bomb and a hue and cry, P.W.1, Kalimohan Mazumder, father of the victim rushed to the place near Mollah Gate and found his son, the victim lying with bleeding injuries and his left hand was separated from his body and it was hanging. He did not go to the hospital nor his relation went to the hospital and the victim after arrival of the police was sent to S.S.K.M. Hospital by a taxi for treatment where he was admitted but, the victim could not disclose the name of the assailant at the time of admission. The victim was admitted on 10.30 a.m. at S.S.K.M. Hospital in semi-conscious state with severe injuries on left arm, left leg and neck and he was gasping and as such, the doctors attending the victim did tracheotomy and it was done by P.W. 17 assisted by P.W. 18 in order to overcome the crisis and to facilitate ventilation. According to P.W. 17 the patient was under saline and he was in deep coma. The patient was admitted at S.S.K.M. Hospital under P.W. 10, Dr. T. Sen and P.W. 16 who proved the admission form of the victim also found multiple lacerated injuries with compound fracture of left leg, left arm and neck and he confirmed death of the victim on 14th September, 1994 at 12.50 p.m.

16. It transpires from the evidence of attending doctors of the S.S.K.M. Hospital, namely, P.W.10, P.W.14, P.W.15, P.W.16, P.W.17 and P.W.18 that the patient was admitted in semi-conscious state and he was gasping and in order to give some relief to him Tracheotomy was done in order to facilitate ventilation. It further transpires from the evidence of the doctors that the patient was under saline and he was in deep coma with severe injuries on his body. As a whole, the patient was in crisis. The learned Trial Judge practically on the basis of the entries at page 72 of the bed head ticket came to a conclusion that it was the appellant Bablu Das who killed the victim by hurling bomb etc., as in the said statement the name of Bablu Das appeared. But this document could not be proved by the prosecution by adducing cogent and convincing evidence that the victim made any dying declaration implicating the appellant as assailant. It transpires from the evidence adduced by doctors of S.S.K.M. Hospital that the patient was operated upon in order to facilitate ventilation and he was given saline and that he was in deep coma. The testimonies of doctors as a whole go to show that the patient with multiple injuries was in crisis and fighting for life. As regards the entries made at page 72 of bed head ticket, P.W. 16 Dr. Ashim Kr. Biswas stated in his evidence that he does not know who wrote the bed head ticket of the patient Ashim @ Rabi and even he does not know who wrote the bed head ticket of the patient as to how he was injured and by whom he was injured. P.W. 17, Dr. A.K. Ghosh, RMO, E.N.T. Department, S.S.K.M. Hospital has stated in his evidence that the entries made at page 72 of bed head ticket was neither written by him not it was signed by him. P.W. 18, Dr. S.K. Gupta, House Surgeon of S.S.K.M. Hospital who attended the victim and assisted P.W. 17 for the purpose of Tracheotomy has stated in his evidence that the bed head ticket of the patient is not in his handwriting and it does not bear his signature. He could not say the name of the patient examined by him. So the prosecution in this case has failed to prove who made the entries at page 72 of the bed head ticket. It is not proved by the prosecution by whom the dying declaration was recorded and who made such dying declaration. Therefore, entries at page 72 of the bed head ticket as produced by the prosecution cannot be said a part of the bed head ticket of the victim and it cannot be said a dying declaration of the victim. So the attempt made by the prosecution to forestall the entries at page 72 as dying declaration of the patient is not proved in this case. Therefore, it is not accepted as dying declaration of the victim. So the conviction on the appellant on the basis of the entries made at page 72 not proved in this case in accordance with law by the Trial Court cannot be sustained.

17. It appears from the FIR Exhibit 1, and the testimony of P.W.1, father of the victim that his son Ashim @ Rabi told him the names of the accused persons involved in the incident while he was being taken to the hospital. P.W. 1 did not see the incident of assault upon his son and hearing a hue and cry and sound of bomb he rushed to the place of occurrence and he found that his son lying with bleeding injuries and his left hand was separated from his body and it was hanging. It is stated by him that his son told the names of the accused persons to him before his arrival to the hospital. It is claimed by P.W.4, Prabir Debnath, that he also heard the names of the accused persons from P.W.1 but the evidence of P.W.1 disclosed that he did not tell the names of the accused persons to P.W.4 and, therefore, the evidence of P.W.4 disclosing the names of the accused persons being the assailant of the victim becomes hear-say and it is not admissible in evidence. This witness is not an eye-witness to the incident. The evidence of P.W.1 does not show that P.W.5 met him at the P.O. on the date of the incident and from his evidence it transpires that neither he nor any of his relation accompanied the victim Ashim @ Rabi to the hospital. Therefore, the evidence of P.W.5 to the effect that he went to the P.O. and met his father on the date of the incident is a myth. However, P.W.5, Ashok Mazumder, son of P.W.1 has stated in his evidence that from his brother, Rabi, he came to know at about 11.00 a.m. on 14th September, 1994 the names of the accused persons at hospital and his brother Rabi expired on the same day at 12.30 p.m. at the S.S.K.M. Hospital. Now, the question is whether Rabi @ Ashim Mazumder was in a position to tell the names of the accused persons either to P.W.1 at the P.O. or to P.W.5 on 14th September, 1994 at the S.S.K.M. Hospital. It is evidently clear that at the time of admission of the victim the names of the assailant were not disclosed in the admission form. That apart, the patient was in semi-conscious state and he was gasping due to multiple injuries with compound fracture and to revive his condition tracheotomy was done at the O.T. of S.S.K.M. Hospital to facilitate ventilation and he was under saline and in deep coma. This critical condition of the victim has been depicted by all the attending doctors of the said hospital. Now if we take into account the evidence of P.W. 1 in the light of the condition of the patient depicted by the doctors of the S.S.K.M. Hospital we cannot but accept the opinion of P.W.11, Dr. P.B. Das, who held P.M. examination on the deadbody of the victim that after sustaining such injuries the victim was not in a position to run away and he was not in a position to speak. Therefore, considering the evidence of doctors and the attending facts and circumstances, it cannot be said with definite degree of certainty beyond any shadow of doubt that the victim in that critical condition was in a position to speak and tell the names of the assailants, i.e. the accused persons. Therefore, the oral dying declaration made by the victim to P.W. 1 and P.W.5 cannot be accepted as trustworthy and convincing. There is no eye-witness to the incident, even P.W.3 who was admitted to S.S.K.M. Hospital with injury could not disclose the names of his assailants as also the victim. Since evidence adduced by the prosecution in this regard was not convincing, the learned Trial Judge acquitted Babul Das, Dulal Das, Sanjoy Dutta, Kamal Dutta and Dijen Dutta from all the charges framed against them, for which no appeal has been preferred by the State. However, the learned Judge convicted the appellant under Section 302 of IPC and sentenced him accordingly relying upon the entries made at page 72 of bed head ticket which according to us was not proved in accordance with law. In this case the prosecution has failed to prove the oral as well as written dying declaration of the victim and it is crystal clear that the victim was not in a position to speak sustaining injuries soon after the incident till his death at 12.50 p.m. on 14th September, 1994, and he was not in a position to run as opined by Dr. P.B. Das, P.W. 11 buttressed by the evidence of doctors at S.S.K.M. Hospital which falsifies the evidence of P.W.3 that the victim ran away with injuries to save his life.