JUDGMENT Sujit Barman Roy, J. This appeal is directed against the judgment dated 23.9.1988 passed by the learned Additional Sessions Judge, 14th Court, Alipore in Sessions Trial No. 2(8) 1986 [Session Case No. 30(9) 1985] convicting the appellant under section 302 IPC and sentencing him thereunder to suffer imprisonment for life. 2. Prosecution case, in short, is that P.W.2 Hrishikesh Das lodged an F.I.R. before a police officer of Ultadanga Police Station on 9.3.1983 stating, inter alia, that at about 12.30 p.m. on that very day suddenly he heard sound of a bomb explosion from the western side of the Ultadanga Main Road when P.W.2 was working as a Sales Assistant in the shop of his employer. Hearing the said sound, he came out of the shop and noticed smoke of bomb explosion at nearby Bus stoppage at Muchi Bazar and he could further notice that Ratan, Netai, Gour Das, Kana Gautam and the appellant were escaping towards Murari Pukur. There were about 10/12 unknown boys apart from the aforesaid persons. Meanwhile, some boys assembled before Telega Bagan on the northern side of Ultadanga Main Road. At about 10.00 in the morning said Gour Das, Ratan, Kana Gautam, Netai, appellant and some 10/15 boys came to the northern side of Ultandanga Main Road and at that time appellant was carrying a pointed sharp cutting weapon locally called "Nepala" and other boys were carrying bombs in their hands. Accused Kana Gautam threw a bomb at Telega Bagan and it exploded with terrible sound. Again some boys collected at the entrance of Adhar Das Lane when the appellant and the aforesaid Gour Das, Ratan, Netai, Kana Gautam and 10/15 boys chased away the other group of boys who were standing in front of the shop where this witness was working as an employee. Subal Das (since deceased) out of fear entered the shop of this witness followed by the appellant and accused Ratan, Netai, Gour Das, Kana Gautam and 10/15 other boys. The appellant and his companions then entered the shop of this witness following the deceased. In the corner of the said shop room where this witness was working, appellant gave repeated blows with a Nepala on the abdomen and left hand of the deceased. Others also assaulted the deceased. Deceased was bleeding profusely. Thereafter, the appellant with blood stained nepala and other miscreants proceeded towards Ultadanga Main Road. In the corner of the said shop room where this witness was working, appellant gave repeated blows with a Nepala on the abdomen and left hand of the deceased. Others also assaulted the deceased. Deceased was bleeding profusely. Thereafter, the appellant with blood stained nepala and other miscreants proceeded towards Ultadanga Main Road. Before coming out of the said shop, one of the miscreants threw another bomb which exploded with great sound near the deceased in the north west corner of the said shop room. Meanwhile, P.W.3 Raghunath Das being the brother of the deceased came to the place of occurrence and with the help of other local men brought the deceased in front of the shop room and went away in a taxi with the deceased. It is further alleged in the said F.I.R. that the miscreants again threw bomb near the taxi which also exploded with great sound. Subsequently, this witness could learn that deceased was shifted to N.R.S. Hospital and in the said Hospital deceased succumbed to his injuries at about 3.40 p.m. On the basis of the said complaint, an F.I.R. was registered at the said P.S. against the appellant and other accused, namely, Gour Das, Ratan, Nemai, Kana Gautam under sections 148/149/302 I.P.C. After usual investigation police submitted charge-sheet against the appellant and six other accused. 3. In course of time, the case was committed to the Court of Sessions Judge and ultimately on transfer it was tried in the Court of the learned Additional Sessions Judge, 14th Court, Alipore. Upon perusal of the materials on record, the learned Trial Court framed charges under sections 148, 302/149 I.P.C. and section 3 of the Explosive Substances Act, 1908, read with section 149 I.P.C. against the appellant and seven other accused (since acquitted) to which all of them pleaded not guilty. In course of the trial, prosecution in all examined as many as 21 P.Ws. None was examined on behalf of the accused. The defence of the accused including the appellant in course of the trial was that of complete denial of the prosecution case. On conclusion of the trial all the accused except the appellant were acquitted from the aforesaid charges. Appellant alone was convicted, and sentenced under section 302 I.P.C. However, appellant was acquitted from the charges under sections 148, 302 read with section 149 I.P.C. and section 3 of the Explosive Substances Act. 4. On conclusion of the trial all the accused except the appellant were acquitted from the aforesaid charges. Appellant alone was convicted, and sentenced under section 302 I.P.C. However, appellant was acquitted from the charges under sections 148, 302 read with section 149 I.P.C. and section 3 of the Explosive Substances Act. 4. We have already given the gist of the allegations made by P.W.2 in his F.I.R. As a matter of fact, in the Trial Court this witness gave evidence only against the appellant and did not implicate the other accused. If further appears that as this witness did not support the prosecution case in respect of other accused, and he resiled from his earlier statement, he was declared hostile and was cross-examined by the prosecution with leave of the Court. During his examination-in-chief, this witness stated that the deceased was a tailor by profession and he had a tailoring shop at Ultadanga Refugee Market. On 9.3.1983 at about 1 p.m. when this witness was inside his own hotel, he noticed some hue and cry in front of his shop on Ultadanga Main Road. All of a sudden, appellant entered the hotel of this witness and started assaulting the deceased with a bhojali. Customers of the hotel left the hotel out of fear. Deceased told the appellant "why are you assaulting me? What have I done?" This witness after seeing this incident, came out of his hotel and heard sound of a bomb explosion. He also noticed smoke arising out of bomb blast. After the appellant left the hotel, other customers and this witness himself entered the hotel again a minute or two later. Inside the hotel he found deceased lying on the ground with bleeding injuries. He then called his friend Bablu who was also owner of a hotel situated nearby. Meanwhile, P.W.3 Raghu Nath Das, who was brother of the deceased, came to the spot and said Raghu Nath Das and another took away the deceased in a taxi, Sometime thereafter he got information that the deceased expired. He was declared hostile by the prosecution as he resiled from his earlier statement in respect of other accused and accordingly, he was cross examined by the prosecution with leave of the Court. He was declared hostile by the prosecution as he resiled from his earlier statement in respect of other accused and accordingly, he was cross examined by the prosecution with leave of the Court. From cross examination of this witness we find that his hotel was situated on the footpath only though in the F.I.R. as well as during his examination-in-chief this witness stated that the deceased was assaulted by the appellant with Nepala inside the hotel room. He further stated in cross examination that he did not state in the F.I.R. lodged by him that thereafter 10/15 boys came to the North of Ultadanga Main Road when the appellant had a Nepala in his hand and others were carrying bombs. This is in short what this witness stated in his evidence. 5. P.W.3 Raghunath Das is the brother of the deceased. In his evidence he stated that at the time of occurrence he was working in a shop situated at a distance of about 30/40 yards. He first heard the sound of bomb blast. Upon hearing the bomb blast this witness rushed towards Ultadanga Main Road, and found that many persons had already collected there. Again he heard sound of another explosion of bomb inside the hotel of P.W.2. His brother died of bomb injury inside the hotel of P.W.2. After about 1½ minutes since then he found 10/12 persons emerging from the said hotel. He also noticed blood stained Nepala in the hand of the appellant who came out of the hotel alongwith 10/12 others. Except the appellant he could not identify any other miscreant. This is in short the material part of his evidence stated in course of examination-in-chief. However, from his cross examination as well as the evidence of P.W. 21(I.O.) we find that this witness did not state before the Police that he saw the appellant coming out of the hotel room with a blood stained Nepala in his hand. We find that may such important matters about which he gave evidence before the Trial Court were omitted to be mentioned in his statement before the Police. We find that may such important matters about which he gave evidence before the Trial Court were omitted to be mentioned in his statement before the Police. In view of the aforesaid circumstances that he never disclosed before the police that he saw the appellant coming out of the hotel room with blood stained Nepala in his hand, we are constrained to hold that on his evidence the appellant cannot be convicted under section 302 I.P.C. That a part P.W. 2 clearly admitted in course of his cross examination that he had a hotel on footpath of the road selling boiled rice and some vegetables. His hotel was, therefore, not run from any room. In these circumstances we are left with no option but to hold that the story that P.W. 3 saw the appellant emerging from the hotel room of P.W.2 alongwith others carrying a blood stained Nepala cannot be acted upon for holding the appellant guilty under section 302 I.P.C. 6. The next important witness in this regard is P.W. 5 Babulal Khetry. In his evidence this witness stated that about 5 years back at about 1/1-15 p.m. he came to a Pan Shop in front of the hotel of P.W.2 and then he saw the appellant with a Nepala in his hand running away from the side of the hotel. He did not state that he saw anybody else running away from the side of the hotel alongwith the appellant. Therefore, to this extent his evidence contradicts the evidence of P.W.2. It further appears that he is aged about 68 years. In cross examination he stated that he can not identify a person from a distance of even 5/6 cubits due to his poor eye sight. It also appears from evidence of P.W. 21(I.O) that P.W. 5 did not state to Police in his statement that to purchase some medicine, he came to the Pan Shop in front of the hotel of P.W.2 on the opposite side of the road. P.W.5 also did not tell I.O. that when he heard sound of bomb explosion, he also saw appellant running with a nepala. Be that as it may, it is clear from his evidence that the road in question is 60 ft. P.W.5 also did not tell I.O. that when he heard sound of bomb explosion, he also saw appellant running with a nepala. Be that as it may, it is clear from his evidence that the road in question is 60 ft. broad and the shop to which he came to purchase medicine was situated on the other side of the road opposite to the hotel of P.W. 2. In these circumstances, it is not understood as to how he could identify the appellant with such poor eye sight when admittedly he cannot identify a person from a distance of even 5/6 cubits. He further admitted that he did not disclose it to the Police that when he went to the Pan Shop he heard sound of any bomb explosion and saw appellant running with a Nepala in his hand. Of course he was emphatic when he stated that he disclosed it to the Police that when he heard the sound of bomb explosion he saw the appellant' running with a Nepala in his hand. But we find from the evidence of P.W. 21 (I.O.) that this witness did not state in his statement before the Police that he saw the appellant running with a Nepala in his hand. Therefore, apparently evidence of this witness also does not help the prosecution inasmuch as the very statement he made in course of his examination-in-chief regarding involvement of appellant was omitted by him in his statement before the Police. Therefore, we have no hesitation to hold that the evidence of this witness does not help the prosecution. Even if he really saw the appellant running away with a blood stained Nepala from the side of the hotel of P.W.2, deceased being his own brother, he would not have omitted to mention this most important fact to the police when his statement was recorded by the I.O. 7. The learned Addl. Public Prosecutor, submitted that in this case except the evidence of P.Ws. 2, 3 and 5 there is no other eye witness account. We are, therefore, left with the evidence of P.W.2 only inasmuch as it is unsafe to place any reliance on evidence of P.Ws. 3 & 5. One aspect has already been pointed out above in this judgment that P.W.2 runs his hotel on footpath. 2, 3 and 5 there is no other eye witness account. We are, therefore, left with the evidence of P.W.2 only inasmuch as it is unsafe to place any reliance on evidence of P.Ws. 3 & 5. One aspect has already been pointed out above in this judgment that P.W.2 runs his hotel on footpath. Therefore, his entire story in course of examination-in-chief as also in the F.I.R. that the deceased was assaulted by the appellant with a Nepala in his hotel room is unacceptable to us inasmuch as this witness had no such room from which he conducted his hotel business. P.W.2 himself admitted that he had a hotel on the footpath from which he sold boiled rice and vegetables. 8. However, this judgment will remain incomplete unless we refer to the medical evidence on record. P.W.19 Dr. Ranjit Kumar Das at the material time on 9.3.83 was posted as Medical Officer at N.R.S. Medical College Hospital. On that day he was on duty in the Emergency Ward of the said hospital. At about 2-45 p.m. he examined the deceased with bomb injury. He was brought to him and identified by one Partha Das of Ultadanga Main Road. On examination he noticed bomb injury on the person of the deceased and thereafter the deceased was admitted in the hospital as an indoor patient in the Surgical Ward under Unit No. 3. Therefore, the evidence of this witness discloses that deceased had bomb injury alone. There is not even a whisper in his evidence that the deceased had any punctured or incised wound on any part of his body. His evidence, therefore, contradicts evidence of alleged eye witnesses. 9. P.W.6 Dr. D.K. Debnath held post mortem examination over the dead-body of the deceased. His evidence is also cryptic. He does not give particulars of the injuries which he found on the person of the deceased during post mortem examination. In his evidence he merely stated that injury No. 1 in his view was inflicted by sharp cutting pointed weapon such as knife, Nepala etc. In his opinion injury No. 1 was sufficient to cause death of the victim. In this case the post mortem report was also marked ext. 2. The evidence given by this witness before the Court does not disclose anything about the length, breadth and the depth of the injury No. 1. In his opinion injury No. 1 was sufficient to cause death of the victim. In this case the post mortem report was also marked ext. 2. The evidence given by this witness before the Court does not disclose anything about the length, breadth and the depth of the injury No. 1. His evidence is absolutely silent about any bomb injury suffered by the deceased. Therefore, we are really unable to form our own independent opinion as to whether injury No. 1 was really sufficient to cause death of the deceased in ordinary course of nature. Even we tried to read the post mortem report with great difficulty in view of the nature of the handwriting of the author of the said document. Major part of the post mortem report appears to be substantially torn. We have noted already that this witness was of the view that injury No. 1 was sufficient to cause death in ordinary course of nature and it could be inflicted by pointed sharp cutting weapon like knife or Nepala etc. To verify the correctness of such a statement/opinion, we have consulted the said post mortem report though major part of it is illegible. It has been described in the post mortem report that the injury No. 1 was incised penetrating would measuring 1.3" x 0.3" x abdomen cavity with clear cut edges placed obliquely over left side of anterior abdominal wall. The lower medial extremity wound having sharp angle was placed 1/2" to the left of the midline of abdomen and 4" above and a little to the left of the centre of the umbilical and upper lateral extremity more or less rounded of the place 1-6", left of the midline of the abdomen. Tract of the wound cut through the underline soft tissues (illegible). Entering into abdominal easily. The track then cut across the greater............. (illegible) of the stomach. 8/10" X 4/10" cavity of the stomach placed 5½" distal to the cardiac No. The track then terminated after cutting through the anterior superior surface of the stomach 1/2" X 3/10" placed 1" above 1/2" below wound No; 1 and the lower margin was placed. Rest of the description of injury No. 1 as given in the post mortem report could not be deciphered by us or by the learned Counsel for the parties. Rest of the description of injury No. 1 as given in the post mortem report could not be deciphered by us or by the learned Counsel for the parties. It also appears from the post mortem report that deceased also suffered bomb injuries as large number of foreign bodies were recovered from deep inside the abdomen of the deceased. It further appears that the deceased suffered large number of injuries on the abdomen caused in all probability by flying splinters from bomb explosion. Some of the injuries were found to have scorching marks around them on the surface of the abdomen of the deceased. We are, therefore, not sure as to how and in what manner injury No. 1 and other injuries were inflicted as most of the description about these injuries as given in the P.M. report could not deciphered despite our all efforts with the assistance of the learned Counsels for the parties. 10. It is, therefore, apparent that the deceased suffered large number of bomb injuries. Metallic splinters were found embedded deep inside the abdomen. In these circumstances, we are unable to accept the testimony of P.W.6 Dr. D.K. Debnath as to the cause of the death. Though P.W.6 stated in his evidence that injury No. 1 could be inflicted by knife or Nepala and that in his opinion death was caused due to injury No. 1, yet we find that such opinion is absolutely unsafe to act upon inasmuch as we also find from the opinion of the very same doctor as given in the post mortem report that death was caused due to combined effect of injury No. 1 as well as bomb injuries. In these circumstances, it is really strange as to how P.W.6 Dr. Debnath could express the opinion that death was due to injury No. 1 alone or that it could be inflicted by a sharp pointed weapon such as knife or Nepala. High speed flying splinters from bombs are also capable of inflicting penetrating as well as incised wounds. In this regard Mr. Debnath could express the opinion that death was due to injury No. 1 alone or that it could be inflicted by a sharp pointed weapon such as knife or Nepala. High speed flying splinters from bombs are also capable of inflicting penetrating as well as incised wounds. In this regard Mr. D.K. Dutta, the learned Counsel for the appellant submitted that no charge was framed against the appellant under section 302 I.P.C. The material charge framed against the appellant and seven other accused was under section 302/149 I.P.C. At the end of the trial when the judgment was delivered by the Trial Court, the appellant to his utter surprise found that he was convicted under section 302 I.P.C. though no charge was framed against him under section 302 I.P.C. The learned Counsel for the appellant, therefore, contended that the appellant was seriously prejudiced in his defence. 11. Mr. Sudipta Moitra, the learned Addl. Public Prosecutor on the other hand contended that the appellant can not get any benefit merely because he was convicted under section 302 I.P.C. though no such charge was framed against him, unless the accused satisfies the Court that he was prejudiced. To buttress his aforesaid contention in this regard Mr. D.K. Dutta, the learned Counsel for the appellant relied upon the decision of the Apex Court in Nanak Chand vs. State of Punjab, AIR 1955 SC 274 . In that case it has been held by the Apex Court that a charge for a substantive offence under section 302 or under section 325 is for a distinct and separate offence from that under section 302/149 or section 325/149 I.P.C. A person charged for an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed as required under section 233 of the old Cr. P.C. The Apex Court also held that conviction under section 302/34 cannot be equally converted into one under section 302 I.P.C. If there is a conviction for a charge not framed, it is an illegality and not an irregularity curable by the provisions of section 537 or 539 of the old Code. P.C. The Apex Court also held that conviction under section 302/34 cannot be equally converted into one under section 302 I.P.C. If there is a conviction for a charge not framed, it is an illegality and not an irregularity curable by the provisions of section 537 or 539 of the old Code. It was further held that even if it was assumed for a moment that there was merely an irregularity which was curable in the circumstances of that case such irregularity was not curable because the appellant was misled in his defence by the absence of the charge under section 302. By framing a charge under section 302 read with section 149 I.P.C. against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 I.P.C. was to convict him for an offence with which he had not been charged. 12. Mr. Dutta, the learned Counsel for the appellant further relied upon another decision of the Apex Court in Suraj Pal vs. State of U.P., AIR 1955 SC 419 . We find the same view expressed in the case of Nanak Chand (supra) was reiterated in this case also. Again in a comparatively recent decision of the Supreme Court in Subran vs. State of Kerala, 1993 Cr.L.J. 1387, it was, inter alia, held that a person charged for an offence under section 302 read with section 149 I.P.C. cannot be convicted for the substantive offence under section 302 when a specific charge has not been framed against him as envisaged by law. However, Mr. Moitra, the learned Addl. Public Prosecutor referred to certain decision of the Apex Court from which it seems that a principle has been laid down that unless a case of prejudice is made out by an accused his conviction for the substantive offence under section 302 cannot be interfered with merely because no such charge under section 302 was framed against him and further that only a charge under section 302/149 I.P.C. was framed. 13. 13. Without entering into any controversy as to the correctness of this proposition on the question of prejudice theory, whether in favour of the prosecution or against the prosecution, we are of the view that the appellant was certainly prejudiced in this case by the absence of a charge under section 302 I.P.C. Had the appellant been charged under section 302 I.P.C., he could have effectively cross-examined the witnesses including the author of the post mortem report to show that the injuries found on the person of the deceased could not have been inflicted by a pointed or sharp cutting weapon inasmuch as the only act attributed to the appellant was that he inflicted the injuries with a pointed weapon like Nepala which ultimately resulted in the death of the deceased. If the appellant had sufficient notice since the framing of charge that he was to meet a case also under section 302 I.P.C. he would have surely taken greater care to effectively cross examine the prosecution witness and the medical persons who gave medical evidence in this case to show that the most of injuries found in the person of the deceased or which have been proved to be fatal could not be inflicted by a pointed weapon like Nepala. To this extent, we have no hesitation in our mind that the appellant was indeed misled in his defence as he did not have sufficient notice that he was to meet a case under section 302 I.P.C. 14. In this connection we may quote hereunder certain observations made by the Apex Court in the case of Nanak Chand in paragraph 14 of the report :- "By framing a charge under section 302 read with section 149 I.P.C. against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 I.P.C. was to convict him of an offence with which he had not been charged. In defending himself, the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case. Attention has been drawn to the medical evidence. With reference to injury No. 1 the Doctor stated that the wounds were not very clean cut. In defending himself, the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case. Attention has been drawn to the medical evidence. With reference to injury No. 1 the Doctor stated that the wounds were not very clean cut. It is further pointed out that the other incised injuries on the head were bone deep. The bone, however, had not been cut. The injuries on the head although inflicted by a blunt weapon may some time assume the characteristics of an incised wound. Reference was made to Glainter Medical Jurisprudence 9th Edn. at page 241 where it is stated that under certain circumstances and in certain situation on the body, wounds produced by blunt instrument may simulate the appearance of an incised wound. These wounds are usually found over the bone which is generally covered by tissues, in the regions of the head, forehead, eyebrow, cheek and lower jaw and others. It is also pointed that Vas Deb, P.W. 2 had admitted that Mitu took away the Takwa from the appellant after Sadhu Ram had been dragged out of the shop but no Takwa blow was given outside the shop. Prodash Chand P.W.4 another eye witness who admitted that Mitu had taken the Takwa from the appellant when they had come out of the shop. It was urged that if a specific charge for murder had been framed against the appellant he would have questioned the Doctor more closely about the incised injuries on the head of the deceased as well as the prosecution witnesses. It is difficult to hold in the circumstances of the present case that the appellant was not prejudiced by non-framing of a charge under section 302 I.P.C." 15. The facts of the case presently we are dealing with are not very different from the facts of the case of Nanak Chand (supra). Due to absence of any charge under section 302 I.P.C. the appellant was certainly misled in his defence inasmuch as he failed to concentrate on the question as to what could be the cause of the injuries including the injury No. 1 found in the person of the deceased. He could have more effectively cross examined the P.Ws. Due to absence of any charge under section 302 I.P.C. the appellant was certainly misled in his defence inasmuch as he failed to concentrate on the question as to what could be the cause of the injuries including the injury No. 1 found in the person of the deceased. He could have more effectively cross examined the P.Ws. including those witnesses who gave medical evidence and could have tried to show that injury No. 1 and other injuries could not have been inflicted by pointed weapon. We are not sure as to how the injury No. 1 was caused. We have tried our utmost with the assistance of the learned Counsels for the respective parties to decipher the contents of the post mortem report, yet it did not help us much. 16. Therefore, we are constrained to hold that the appellant was certainly misled by absence of a charge under section 302 I.P.C. Hence he was seriously prejudiced and he should not have been convicted for the substantive offence without framing the charge in the Trial Court. 17. In the result, we allow this appeal and set aside the impugned judgment. The bail bond executed by the appellant pursuant to an order for bail granted in his favour is discharged. Ranjan Kumar Mazumder, J. : I agree. Appeal allowed.