2006 Supreme(Cal) 355

High Court Of Calcutta
Amit Talukdar, Sankar Prasad Mitra
BABLU DAS - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Cr. A 210 Of 1997
Decided On : 06/19/2006

In order to convict an accused under section 302 of IPC, the prosecution must prove beyond a shadow of doubt that the accused had the intention to kill the victim and that the accused's act was the proximate cause of the victim's death.

Headnote:

CRIMINAL APPEAL - CONVICTION UNDER SECTION 302 IPC - ORAL AND WRITTEN DYING DECLARATION - ADMISSIBILITY - EVIDENCE ACT, 1872, SECTION 32 - SECTION 32 OF THE EVIDENCE ACT, 1872 - ORAL DYING DECLARATION - ADMISSIBILITY - CONDITIONS - SECTION 32 OF THE EVIDENCE ACT, 1872 - WRITTEN DYING DECLARATION - ADMISSIBILITY - CONDITIONS - SECTION 302 IPC - CONVICTION - ESSENTIAL INGREDIENTS - SECTION 302 IPC - CONVICTION - EVIDENCE REQUIRED - SECTION 302 IPC - CONVICTION - FAILURE TO FRAME SPECIFIC CHARGE - EFFECT - SECTION 302 IPC - CONVICTION - MISCARRIAGE OF JUSTICE - FACTORS TO BE CONSIDERED - SECTION 302 IPC - CONVICTION - FAILURE TO PROVE INDIVIDUAL INVOLVEMENT OF ACCUSED - EFFECT - SECTION 302 IPC - CONVICTION - HURRIED CONVICTION ON SAME SET OF EVIDENCE WITHOUT FRAMING SPECIFIC CHARGE - VALIDITY.

Fact of the Case:

The appellant was convicted under section 302 of IPC for causing the death of Ashim @ Rabi Mazumder. The prosecution's case was that the appellant along with others had attacked the victim with bombs and firearms, causing him to sustain injuries and eventually leading to his death. The appellant was tried jointly with other accused persons, but the Trial Court acquitted them of all charges. However, the appellant was convicted based on the oral and written dying declaration of the victim, as well as the entries made at page 72 of the bed head ticket.

Finding of the Court:

The High Court found that the prosecution had failed to prove beyond a shadow of doubt that the appellant was the one who actually killed the victim. The Court held that the oral and written dying declaration of the victim were not admissible in evidence as they were not proved in accordance with law. The Court also found that the entries made at page 72 of the bed head ticket were not part of the bed head ticket of the victim and could not be considered as a dying declaration. The Court further held that the appellant was not in a position to speak after sustaining injuries, and therefore, could not have made any dying declaration. The Court also found that there was no eye-witness to the incident, and that the evidence adduced by the prosecution was not convincing. The Court concluded that the appellant's conviction under section 302 of IPC was not sustainable and should be set aside.

Issues: 1. Whether the oral and written dying declaration of the victim were admissible in evidence? 2. Whether the entries made at page 72 of the bed head ticket were part of the bed head ticket of the victim and could be considered as a dying declaration? 3. Whether the appellant was in a position to speak after sustaining injuries, and therefore, could have made any dying declaration? 4. Whether there was any eye-witness to the incident? 5. Whether the evidence adduced by the prosecution was convincing? 6. Whether the appellant's conviction under section 302 of IPC was sustainable?

Ratio Decidendi: 1. The oral and written dying declaration of the victim were not admissible in evidence as they were not proved in accordance with law. 2. The entries made at page 72 of the bed head ticket were not part of the bed head ticket of the victim and could not be considered as a dying declaration. 3. The appellant was not in a position to speak after sustaining injuries, and therefore, could not have made any dying declaration. 4. There was no eye-witness to the incident. 5. The evidence adduced by the prosecution was not convincing. 6. The appellant's conviction under section 302 of IPC was not sustainable and should be set aside.

Final Decision: The appeal was allowed, and the appellant's conviction and sentence under section 302 of IPC were set aside. The appellant was found not guilty of the charge and was acquitted and released from bail bond.