CRIMINAL APPEAL No.321 OF 2003 ******** Against the judgment and order of conviction and sentence dated 20.2.2003/21.2.2003, passed by the Additional Sessions Judge – IV, Khagaria in S.T. No. 243 of 1999. Md. Leyaquat, son of late Hakru Mina, resident of village – Belaganj, P.S. Khagaria (Gurgaon), District – Khagaria ……………….(Appellant) Versus State Of Bihar …………………..(Respondent) ******** For the Appellant : Sarvashri Ram Sumiran Rai Anita Kumari, Advocates For the Respondent : Shri Ashwini Kumar Sinha, Public Prosecutor ******** P R E S E N T THE HON'BLE SRI JUSTICE C.M.PRASAD & THE HON'BLE SRI JUSTICE DHARNIDHAR JHA *********** C.M. Prasad & Dharnidhar Jha, JJ - The sole appellant, Md. Leyaquat, was tried by the learned 4th Additional Sessions Judge, Khagaria in Sessions Trial No. 243 of 1999 for charges under sections 302, 307 and 341 of the Indian Penal Code and by judgment and order of conviction dated 20th February, 2003, the appellant was held guilty of committing offence under sections 302 and 341 of the Indian Penal Code. While hearing on sentence, the learned Trial Judge directed the appellant to suffer imprisonment for life under section 2 302 of the Indian Penal Code and imprisonment of six months under section 341 of the Code. The judgment and order of conviction and that of sentence dated 21.2.2003 are being assailed through the present appeal. 2. The prosecution case is contained in Exht. 2, which is the fardbeyan of the deceased Md. Nuro, which was recorded in Sadar hospital, Khagaria where he had been shifted for treatment. The deceased stated that the present appellant came to his house and took him out of it on the pretext of offering Namaz and they went together towards the Government bungalow where the appellant started inflicting choora blows to the deceased which fell on his left neck, right hand, fingers and belly. The injury on belly caused the omentum to come out. The deceased raised a halla which attracted the village people who brought him to hospital. 3. The motive for the commission of the offence, as alleged in the fardbeyan by the deceased, was that the appellant had attempted to ravish ten year‟s old daughter of the deceased some times in the months of Jyesth/Baishakh when she had gone to graze the goats, which act of the appellant was revealed by the young girl to her father and they had stopped her to go out for grazing goats. Thereafter, the appellant used to call the deceased for going together to offer Namaz. However, on that particular day, the appellant came inside the Angan of the deceased to take him with him which was protested by the wife of the deceased who forbade 3 the appellant to venture inside the Angan further which caused annoyance and, as such, the offence was committed by the appellant. 4. Exht. 2, the fardbeyan, was sent to the police station and on that basis the First Information Report of the case (Exht. 4) was drawn up. The deceased appears dying on 17.12.1998. The postmortem examination was held on the dead body on 18.12.1998. 5. It appears that after institution of the case the same was investigated by A.S.I. Vijay Kumar Gupta (P.W. 8) who went to the place of occurrence village to inspect the place of occurrence, as narrated by him in paragraph 2 of his evidence. He obtained the postmortem examination report (Exht. 1) and also recorded the statement of the witnesses and handed over the charge of investigation to P.W. 7, A.S.I., Ramji Singh who submitted the charge sheet sending up the appellant for trial. This is how the appellant was put on trial and was convicted by the learned Trial Judge. 6. Sri Ram Sumiran Rai, learned counsel for the appellant, has taken us through the evidence of the witnesses and has submitted that P.Ws 1, 2 and 3 did not support the prosecution case inspite of the fact that P.W. 1 Md. Fekan was a witness to the First Information Report having signed it at the time of its recording. The other witnesses like Jasima Khatoon, P.W. 4 and Jainab Khatoon, P.W. 5 are the daughter and wife respectively of the deceased and it 4 expected that they must support the case on account of being interested in the prosecution of the appellant. The contention further was that there is some vital variance in the statement of the witnesses as regards their statements being recorded by the I.O. and there could be all probabilities that the deceased could not have been in a state of health so as to make the statement. It was submitted by Sri Rai that the probability appears that the deceased was a man who had connections with dreaded criminals and who could also be indulging in such activities and there might have been some dispute between the deceased and the criminals and, probably, the deceased was killed by his own companions. It was contended that a suggestion was given to the above effect to P.W. 5 with further suggestion that the lady was set up by the villagers on account of some village politics to implicate the appellant falsely. 7. As against the above, Sri Ashwini Kumar Sinha, Public Prosecutor, has submitted that the very fardbeyan has assumed the nature of a dying declaration which is admissible under section 32 of the Evidence Act and that declaration appears reiterated by two witnesses, i.e., P.Ws. 4 and 5 who also stated that they had seen the appellant running away. It was contended that the evidence of the witnesses appear without any improvement inasmuch as, had they intended to improve upon the story so as to implicate the appellant falsely, they could not have fairly admitted that night was dark and the occurrence took place in darkness. They could have improved 5 the story by imaginatively introducing some source of light and putting forth a story of identifying the appellant. It was further contended that the manner of occurrence gets corroborated by the evidence of P.W. 6 Dr. Purushottam Kumar Sinha and in the face of the evidence which is available to the court, there does not appear any room for interfering with the findings recorded by the learned trial Judge. 8. It had been a question of debate for some time as to whether a statement of a person, who is dead, revealing the cause of his death, could be admissible under section 32 of the Evidence Act if it had been recorded by a police officer. The issue appears taken up for the decision by the Supreme Court in the case of Ramawati Devi Vs. State of Bihar, reported in AIR 1983 Supreme Court 164. Two earlier decisions of the Supreme Court which had taken some what contrary view that such statements as recorded by a police officer which are sought to be admitted under section 32 of the Evidence Act, should be viewed with some suspicion and should not generally and readily be accepted as admissible, were noticed by the Supreme Court, as may appear from the above decision. The final opinion of the court appears expressed in paragraph 7 of the report and we are tempted to quote the relevant part of the same which is as under: “In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay 6 down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the cause of that person‟s death comes into question, becomes admissible under section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case.” 9. Thus, it remains a concluded point of law that statement of a person who is dead as to the cause of his death or as to any of the circumstances of his transaction which resulted in his death in cases in which the cause of that person‟s death comes into question is relevant even if it was recorded by a police officer. Thus, we find that there could not be any scope of eliminating a statement of the dead person which was proved by P.W. 8 from the plethora of evidence which was produced by the prosecution in support of the proof of the charges. 10. The other part of the evidence is constituted by the evidence of P.Ws. 4 and 5. P.W. 4 who is the daughter of the deceased and P.W. 5 is his wife. Both claimed in their evidence that they reached the place of occurrence soon after the occurrence. This appears to us a natural human conduct, more so, when we find P.W. 4 claiming that as soon as she reached the place of occurrence, she found her father lying in an injured condition and she collected her 7 father amidst her arms. This is the most natural conduct of a daughter. Likewise, the wife has stated that she and her daughter accompanied him upto the hospital. Naturally, their conduct would have been to make enquiries from the deceased about the manner and the person who could have injured him. Both P.Ws. 4 and 5 stated that they were told by the deceased that it was this appellant who had ripped open his stomach bringing the omentum out by assaulting him with Choora. Both the witnesses have stated the name of the present appellant. If one considers the provision of section 32 (1) of the Evidence Act may find that the statements which are either written or verbal of a dead person regarding the cause of his death or the circumstances of the transaction resulting into his death are admissible under section 32 of the Evidence Act. Thus, we find that not only there is a written dying declaration in the form of Exht. 2, there is yet another dying declaration which comes to the court orally through P.Ws. 4 and 5. This court has taken the view which consistently has been taken by the Apex Court that when a court is called upon to consider the evidence of oral dying declaration, the only hallmark about which the court has to remind itself, is that the oral declaration which are produced by the witnesses before a court should be consistent. This court‟s decision in the case of Vivekanand Mishra Vs. State of Bihar reported in 2008(2) PLJR 764 is a decision taking the above view which appears in paragraph 13 of the report. 8 11. Sri Rai, learned counsel for the appellant was submitting that the deceased was not in a fit state of health of making any statement and was referring to the evidence of P.W. 5 but when we consider the evidence of P.W. 4 in paragraph 5 as also the evidence of P.W. 5 in paragraphs 9 and 16, we find that there could be only one probability and that could be that the deceased was speaking out quite well and was making statement to different persons. P.W. 4 has stated that she was speaking quite well and never lost his consciousness. Similarly, P.W. 5 in paragraphs 9 and 16 of her evidence stated that her husband never lost his consciousness and was speaking till he breathed his last. These are the witnesses whom we have believed to have accompanied the deceased up to Khagaria as they claimed to have accompanied the deceased. There is no reason for us to discard their claim of accompanying the deceased and remaining by his side till his death. As such, we do not have any reason to discard the evidence of these witnesses on the point of the deceased being conscious and making statement to the witnesses and others. 12. Three witnesses have turned hostile. They are Md. Fekan (PW 1), Samalat Ali, (PW 2) and Habib Mian (PW 3). If one carefully reads the evidence of P.W. 1, one could find that he stated to have rushed to the scene of occurrence after hearing the voice of the deceased Nuro Mian. When he reached there, he found that the stomach of Nuro Mian had been ripped open. The witness has 9 stated that the deceased did not state the name of his assailant on account of the night being dark, but he has admitted that the deceased was brought to Khagaria hospital. The evidence of PW 1 indicates that the deceased was in a state to make some statement and as such, his voice was picked up by P.W. 1. This also goes to support the prosecution version that the deceased was in a fit state of health to make the statement. 13. P.Ws 4 and 5 might be the daughter and wife of the deceased, but the defence has not brought any material to satisfy the court that indeed the deceased had any criminal antecedent which could be suggestive of his involvement and association with crime and criminals. The record and the evidence on it does not contain even an iota of evidence to indicate that the present appellant had animosity of the class which could have impelled the family members of the deceased to implicate him falsely by leaving out the real culprit. If the defence was submitting that the appellant was falsely implicated, then it was expected of it that it ought to have brought on record the material probabilising such conclusion by any court of fact. We fail to isolate any fact convincing us that the real culprit would be given up so as to implicate the present appellant. 14. The motive appears established. The appellant was, as may appear from the evidence of P.Ws 4 and 5, pressurizing the deceased to get one of his daughters married to him. The deceased 10 was not ready for that as it was told by P.W. 5, the wife of the deceased who is supposed to be a person who could be acquainted with these aspects of the matter. There was a Panchayati also but the appellant appears adamant to take the hand of the young girl who was merely nine or ten years of age, as appears from the evidence of P.W. 5. 15. The other aspect of the case is that the I.O. of the case Vijay Kumar Gupta ( P.W. 8) has stated that the place of occurrence where the deceased was assaulted and stabbed so as to be killed, as appears from the evidence of P.W. 6, Dr. Purushottam Kumar Sinha, was quite nearby. It was at a distance of 100 yards from the government bungalow and was well connected by a village pathway which further connected the house of the deceased and other houses to the brick laden road. The I.O. has found copious blood on Arhar and turmeric plants besides finding it on the ground also. The very proximity of the place of occurrence makes it all the more acceptable the claim of the witnesses when they say that they heard the sound of cries of the deceased and rushed towards it to find him lying injured as also in a pool of blood. P.Ws 4 and 5 both have stated in their evidence that the place of occurrence was simply 4 – 5 laggas away from their houses. P.W. 5 has stated in her evidence in paragraph 9 that a lagga was 10 cubits long and thus, the whole distance from the house of the deceased of the place of occurrence could be around 40 - 50 cubits, i.e., well under 100 ft., making it 11 quite possible to his family members to rush out to help the deceased out. 16. After having considered the evidence and contentions, we find that the appellant was rightly convicted of the offence under section 302 of the Indian Penal Code. As regards his conviction under section 341 of the Indian Penal Code, we have certain reservations in upholding the same. The offence under section 341 of the IPC is punishment for wrongful restraint. „Wrongful restraint‟ has been defined by section 339 of the Indian Penal Code which reads as under: “339. Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.” 17. A perusal of the above provision may indicate that voluntarily obstructing any person from proceeding in a particular direction is the chief ingredient of the offence. There is no evidence on record that the appellant had really obstructed the deceased from proceeding in a particular direction and his resistance or anything like that had triggered the offence. In fact, the facts of the case, to us, do not appear constituting wrongful restraint. It was simply a case of misleading a person to a trap which the appellant had planned in his mind and ultimately stabbed him to death. We, as such, set aside the conviction of the appellant under section 341 of the Indian Penal Code and also set aside the sentence passed against 12 the appellant in that behalf. We uphold the conviction of the appellant under section 302 of the Indian Penal Code and also the sentence which was passed against the appellant. 18. With the above modification in conviction and sentence, we find no merit in the present appeal. The same is dismissed. (C. M. Prasad, J.) (Dharnidhar Jha, J.) Patna High Court, The 8th October, 2009 NAFR/Anil/