In Sessions Case No.45 of 1992 the four accused appellants were convicted and sentenced by the learned Sessions Judge, Silchar under section 148/304/149 IPC and sentenced to suffer imprisonment for seven years and a fine of Rs.2,000 under section 304/149 IPC and imprisonment for 2 years and a fine of Rs.1,000 under section 148 IPC. 2. On 8.5.87 at about 11 PM one Dasu Basak informed the police that his nephew Babul Basak has been stabbed by some miscreants and the injured is lying near the Subhas Nagar NCC Office. The injured was later on removed to 'hospital where he succumbed to his injuries. An FIR was lodged and after usual investigation charge sheet was submitted. In this case the death of the deceased Babul Basak as a result of the anti mortem injuries sustained by him is not disputed. There is overwhelming oral and medical evidence and it is not disputed that this is a case of homicide. In this case admittedly there are no eye witnesses that is, none of the witnesses saw the deceased being assaulted. The conviction has been rendered on the basis of the following: (1) Oral dying declaration of the deceased; (2) Circumstantial evidence regarding fleeing of the accused persons from the place of occurrence; (3) The enmity between the parties. 3. The prosecution case is that while the injured was removed to a hospital in a car, he made an oral statement in presence of PWs 3, 4 and 5 naming the accused persons as the assailant. The learned trial Judge has held that in the instant case the dying declaration was not made immediately after the occurrence when the witnesses arrived at the place of occurrence but later on, while removed to a hospital in a car. The allegation that the alleged statement was made in the presence of interested witnesses only was brushed aside by the trial Court stating that only interested persons are expected to be near the victim at such hours and as such they are natural witnesses. I find no fault with the above reasoning. However, the moot point for consideration is whether the deceased was in a position to make the alleged statement as claimed by the 3 witnesses. Admittedly, the dying declaration is not in writing and it was oral. I find no fault with the above reasoning. However, the moot point for consideration is whether the deceased was in a position to make the alleged statement as claimed by the 3 witnesses. Admittedly, the dying declaration is not in writing and it was oral. The Doctor who examined the injured prior to his death has not been examined by the prosecution for the reasons best known to them. PW 8 is Dr. BK Bora, Professor and Head of the Department, of Forensic Science, Silchar Medical College who held the autopsy of the dead body. The Doctor found the following 7 injuries: “(1) A lacerated wound over the left parietal eminence region of the scalp measuring 8 x 4 cm through which brain matter came out; (2) A lacerated injury on the left ear at me middle part and transversely placed measuring about 12 x 6 cm; (3) A laceration on the occipital region of about 7 x 3 cm; (4) A laceration on the lower part of the occipital region of about 6 x 2 cm; (5) An abrasion on the right frontal eminence region of about 4x3 cm; (6) An abrasion on the right half of the face of about 10 x 7 cm; (7) Bruises over the left scapular region covering an area of 18 x 16 cm. All the injuries arefante mortem. Cranium and Spinal cord: Scalp : Bruises present on the inner surface of injury Nos 1, 2 and 3. Skull : Depressed communicated fracture of the left parietal and temporal bone under Injury No.1 measuring about 12 x 8 cm area through which brain matter from the cranial cavity was coming out. Membrane : Lacerated by the fracture ends of the bones. The left half of the hemisphere of the parietal and temporal region lacerated by the fracture ends of the bone with haemorrhage from it.” When cross-examined by the defence the doctor has stated as below: “By the word I used 'coming out' I mean that the brain matter came out. Scalp is the outer layer of the head and the skull lies beneath it and beneath the skull is meanings under which the brain matter is there. The brain matter cannot come out without tearing scalp, skull and meanings. A heavy blow on the head will result in such coming out of the brain matter. Scalp is the outer layer of the head and the skull lies beneath it and beneath the skull is meanings under which the brain matter is there. The brain matter cannot come out without tearing scalp, skull and meanings. A heavy blow on the head will result in such coming out of the brain matter. Such type of blow will cause severe injury to the brain. There will be a collection and haemorrhage of blood between the skull and the dura matter, between the dura matter and the brain and in the substance of the brain matter itself. Extra dural haemorrhage also will take place meningeal arteries also were ruptured. Brain was already injured and it was open. In the parietal and temporal region or lobe, there will be an elaboration of motor activities efface, lips and tongue for production of speech. The injuries or the brain, parietal and temporal region, as in the present case, will interfere with the sensationalist speech path ways and manifest by causing complete inability to understand any word or to produce any speech. The patient was in coma in the instant case and he would not be in a position to speak. With so many injuries on the head of the patient, he would lose consciousness instantaneously.” 4. The medical evidence on record, therefore, clearly shows that the patient was not in a position to speak as he fell into coma immediately on receipt of the head injury which resulted in coming out of the brain material. The oral evidence also shows that when the witnesses arrived at the place of occurrence the injured was not in a position to speak and did not utter a single word. Hence the claim of the 3 witnesses that on the way to hospital the injured spoke or named the accused person is a blatant lie. The nature of the injuries sustained by the deceased was such that it was impossible for him to have made the dying declaration attributed to him by PWs 3. 4 and 5. The moment the brain matter came out the patient was in coma due to shock and he would not be in a position to talk. The nature of the injuries sustained by the deceased was such that it was impossible for him to have made the dying declaration attributed to him by PWs 3. 4 and 5. The moment the brain matter came out the patient was in coma due to shock and he would not be in a position to talk. As the deceased was not in a free state of mind and cannot make any amount of credible statement, the alleged oral dying declaration cannot be relied upon for any purpose and must be excluded from consideration. 5. PW 4 Modhu Basak is the elder brother of the deceased and it was he who first came out of the house at that hour of night. The witness has stated that while he was in the latrine, which is situated at a certain distance, he heard the sound of his scooter. After returning back to the room, he was informed by the mother that the deceased Babul Basak has not returned home. PW 4, therefore, ventured out and saw the gate open. He also saw some persons standing in front of his house and seeing him some of them ran towards East and some towards the West. According to this witness, the person who ran towards the East were the accused persons. The witness further states: “1 followed the persons who were running towards the East to see their faces and on the way I saw a person lying on the road whom I recognised as my brother Babul.” If PW 4 had recognised the accused persons, where is the question of following them to see their faces. Admittedly PW 4 did not see his brother being assaulted which implies that his brother was already assaulted before the arrival of this witness. Hence the question arises is as to why the accused person will keep standing in front of the house of the deceased? Admittedly the assault did not take place in front of the house of PW 4. The place of occurrence is more than 100 feet away, which means that after the assault the accused persons came back and were standing in front of the house of PW 4 so that the inmates may come out and recognise them and once the recognition was allowed, they took to their heels. The place of occurrence is more than 100 feet away, which means that after the assault the accused persons came back and were standing in front of the house of PW 4 so that the inmates may come out and recognise them and once the recognition was allowed, they took to their heels. It is further stated that a vehicle was waiting on the junction of the road and the accused persons fled away in the said vehicle. It may be mentioned here that the tracker in question was detained by the Police on the night of the incident itself, where four persons (not the accused) were found to be occupants. The above occupants have not been impleaded in this case. If the vehicle was waiting when the job was accomplished there was no earthly reason for the assailants to remain standing there, as claimed by the witness. 6. There is another aspect of the matter also. PW 4 claims that he followed the accused persons to see their faces which means that he could not see their faces when they were running away. The question therefore arises is as to how the accused persons' were recognised, and what was the source of recognition. In the examination in chief PW 4 has not stated a single word about the source of light in which he recognised the accused persons. As the incident took place at night, the witnesses have stated that it was a dark night, the Court recalled the witness on the next date and on being asked by the Court PW 4 stated that there was an electric road side light and he could recognise the assailant in the said light. The above statement was challenged in cross examination and the Investigating Police Officer has supported the defence. The IO has not stated anything about the existence of street light either at the place of occurrence or in front of the house of PW 4. Ext 14 is the sketch map wherein also it is not shown that any street light was there at the place of occurrence. PW 4 also admits in cross examination “I did not state to anybody regarding the medium of recognition during the last six years.” 7. Ext 14 is the sketch map wherein also it is not shown that any street light was there at the place of occurrence. PW 4 also admits in cross examination “I did not state to anybody regarding the medium of recognition during the last six years.” 7. After the departure of the assailants from the scene of occurrence, the neighbours, PWs 4 and 2 and other relations arrived at the place of occurrence but surprisingly enough PW 4 did not state the name of the assailants before them or that he had recognised the accused persons. PW 1 and 2 has categorically stated that even on their asking, no names were disclosed at that time. PW 4 also admits that he did not tell the name of the four accused persons to his mother, brother and neighbours as he was not in a mental condition. The explanation is not believable at all. We find that even in the GD Entry made immediately after the occurrence, the accused persons were not named and it was stated that some unknown assailants has left Babul Basak on the road after assaulting him. 8.1, therefore, find that the claim of PW 4 that he recognised the accused persons is an after thought and may be due to the existing enmity between the parties. PW 4 admits that he was accused in a murder case for killing a military person. The accused Madhab Paul had also instituted a criminal case against him in the year 1986 for assault and robbery and the said case was pending at the time of the occurrence. The sword of enmity cuts both ways. It may be the motive for assault and at the same time it may be the reason for false accusation. Hence, on the basis of the admitted enmity between the parties the accused persons cannot be convicted in criminal trial on the basis of unreliable testimony of PW 4. 9. After excluding the dying declaration and the alleged recognition of the accused person fleeing the place of occurrence soon after the incident from consideration, I find that there is absolutely no material to hold that the accused persons participated in the above incident or they were anyway connected with the killing of Babul Basak. 10. In the result, the appeal is allowed. 10. In the result, the appeal is allowed. The conviction and sentence is set aside and all the four accused persons who are on bail, are acquitted of the charges and set at liberty. They need not be surrender to their bail bonds