Research › Search › Judgment

Gauhati High Court · body

2001 DIGILAW 194 (GAU)

Nripendra Das v. State of Assam

2001-07-20

A.K.PATNAIK, AFTAB H.SAIKIA

body2001
A. H. Saikia, J. — The appellant before us was convicted under section 302 IPC by the learned Sessions Judge, Cachar at Silchar by the impugned judgment , and order dated 31.3.98 in Sessions Case No.27/1997 and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000 and in default to pay fine, further rigorous imprisonment for four years. The judgment and order dated 31.3.98 is under challenge in this criminal appeal. 2. The prosecution case as contained in the FIR Ext 2 and emerged from the statements of eye witnesses i.e. PWs 1 and 2, in brief, is that on 17.8.94 at c about 5 PM when Subal Das, the younger brother of PW 5, Sri Sajal Das, was on his way back home after watching football match, the two accused persons namely, Sri Subhas Das son of late Pangoi Ram Das and Sri Nripendra Das (present appellant) son of Sri Sushi Mohan Das detained Subal Das on the way. The appellant caught hold of the deceased and the accused Subhas Das stabbed the deceased in the right side below the chest with a sharp dagger which he had in his hand causing grievous injuries to him. PWs 1 and 2 who were near the place of occurrence saw that the appellant caught hold of the deceased and the accused Subhas stabbed the deceased. On screams when neighbouring people came to the place of occurrence, the two accused persons including the appellant ran and fled away from the place of occurrence. PW 5, Sajal Das the informant who was at his residence at mat time hearing hue and cry ran to the place of occurrence and found the deceased Subal Das lying in injured condition on the ground and on his asking the deceased told him that the appellant Nripendra Das caught hold of him and accused Subhas Das dealt a dagger blow on his chest. With the help of PWs 1,2,3,4 and other neighbouring people PW 5 took the injured to Katigorh Dispensary where the hospital authority referred the case to Silchar Medical College Hospital and the deceased Subhas Das succumbed to his injuries on the way to the hospital where Doctor after examining the deceased declared him dead. 3. The FIR in this case, Ext 2 was lodged at 9 AM on 18.8.94 by PW 5, the eldest brother of the deceased. 3. The FIR in this case, Ext 2 was lodged at 9 AM on 18.8.94 by PW 5, the eldest brother of the deceased. It was transcribed by one Kripesh Das, a local Deed Writer who however, was not examined at the trial. In the FIR both the accused Subhas Das and appellant Nripen Das were named with their parentage. According to FIR, the appellant and the other accused detained the deceased and the accused No.l Sri Subhas Das stabbed the deceased with a dagger. But it was not mentioned in the said FIR that the deceased told the PW 5, the complainant, that the appellant caught hold of him and the other accused Subhas Das stabbed him, though FIR was filed on the next morning after the occurrence. , 4. Pursuant to the said FIR, investigation ensued and autopsy on the dead body of Subal Das conducted by PW 9, Dr. BK Bora at Silchar Medical College and Hospital, who at the relevant time was Professor and Head of the Department of Forensic Medicine therein. Post-mortem report as regards to the injury is extracted below: "Body of a male with average built about i 9 years of age wearing on Jin Longpant and printer underwear only. Rigor mortis present on the limbs. There was stain of blood on the hands and body. There was application of bandages on the thorax and abdomen which were stained with blood. Stitch were removed and found as follows: Injury: One stab wound of 4 cm x 0.5 cm size situated on the right half of the anterior chest wall at the mid clavicular plan and entered into the right thoron cavity cutting the 6th/7th cenetol certiloges and ribs, inside the throresic cavity it has gone into the right lung lower lobe cutting . The lower lobs of the right being shows stab wound of 2.5 x 0.25 cm x 7 cm. The total depth of the wound from the interior chest wall to the end point of the wound on the lung is 15 cm approximately. The shape of the wound is spindle shaped and the length of the wound is vertically placed. All injuries are anti-mortem. Approximate time since death 36 to 48 hours." 5. The total depth of the wound from the interior chest wall to the end point of the wound on the lung is 15 cm approximately. The shape of the wound is spindle shaped and the length of the wound is vertically placed. All injuries are anti-mortem. Approximate time since death 36 to 48 hours." 5. The police registered a case under section 341/302/34 IPC and after investigation, submitted charge sheet against the two accused persons under sections 341/302/34 IPC showing the accused Subhas Das as absconder. 6. Sri Subhas Das, the accused named in the FIR who had stabbed the deceased, as evident from the FIR as well as from the evidence of the prosecution witnesses, could not be procured before the trial Magistrate at Silchar and he was declared absconder. As a result, the case was committed against the appellant only for trial. 7. The Sessions Judge, Silchar on perusal of the record and hearing, prima facie case under section 302/34 IPC was found to Jiave been made out against the appellant and charge was framed and explained to him to which the appellant pleaded not guilty. 8. On behalf of the prosecution as many as 9 witnesses were examined. PWs 1 and 2, namely Nandi Das and Gopendra Das were examined as eye witnesses giving the details of the occurrence. PW 3, Juntu Das and PW 4 Sukendra Das were examined along with PW 1 to corroborate the dying declaration of the deceased saying that when the appellant caught hold of the deceased, the accused Subhas Das gave a fatal blow by dagger. PW 5, Sajal Das, the informant and elder brother of the deceased, stated about the dying declaration of deceased. PW 6, Pradip Thakuria was examined as the Investigating Officer, PW 7, Sri Faizur Rahman Borlaskar, ASI, Ghoongur Out­post held inquest examination on the dead body of the deceased and prepared the inquest report and referred the dead body for post-mortem examination to Silchar Medical College Hospital. PW 8 another police official involved in issuing requisition to send the injured to the Silchar Medical College Hospital when he was brought to Katigorh PS. PW 9 Dr. BK Bora was examined who stated about the post-mortem examination conducted on the dead body of Subol Das and injury found on the person of the deceased, already narrated above. 9. The defence case was of total denial. PW 9 Dr. BK Bora was examined who stated about the post-mortem examination conducted on the dead body of Subol Das and injury found on the person of the deceased, already narrated above. 9. The defence case was of total denial. The appellant was examined under section 313 Cr PC. In his statement recorded under the said section, the appellant submitted that he was innocent and at the time of occurrence he was not present at his house and he was on telephone duty. In order to prove of such alibi the defence examined 3 witnesses as DW 1, Ram Kumar Mollah, DW 2, Asish Kumar Deb and DW 3, Babul Chandra Paul. On consideration of the evidence of the prosecution witnesses, the Sessions Judge did not at all convince on such plea of alibi taken by the defence. 10. The trial Court on appreciation of the evidence available on record, found the accused/appellant personally liable for the offence of murder and convicting him under section 302 IPC without the aid of section 34 IPC and accordingly, convicted under section 302 IPC and sentenced him accordingly vide the judgment impugned in this appeal. 11. We have heard Mr. CR De, learned senior counsel assisted by Mrs A. Begum, learned counsel appearing on behalf of the appellant. Also heard Mrs K. Deka, learned Public Prosecutor, Assam. 12. The prosecution relies mainly on the evidence of PWs 1 and 2 projecting them only as the eye witnesses. According to prosecution both of the witnesses arrived at the scene of occurrence and claimed to have seen that the appellant caught hold of the deceased and other accused Subhas stabbed the deceased. In addition, the prosecution further relies on the statement of the deceased made to PWs 1, 3,4 and 5 as dying declaration. 13. According to Mr. De, learned senior counsel for the appellant, his argument is of three fold firstly, whether the evidence of PWs 1 and 2 can be accepted as eye witnesses to prove the fact of 'caught hold of the deceased', secondly, whether the appellant can be convicted on the basis of dying declaration of the deceased as claimed the prosecution, while the deceased was not in a position to give such declaration as evident from the medical evidence and thirdly, that there was delay and defect in the FIR. 14. 14. In support of his first contention, learned senior counsel has stated that the evidence of PWs 1 and 2 cannot be relied on for the glaring contradictions of their evidences. PW 1 said that appellant caught hold of the deceased from the front side and gagged his mouth while PW 2 said that the appellant caught hold of the deceased on the right and directed the accused Subhas Das to stab the deceased and accordingly accused Subhas Das stabbed the deceased. 15. Now to examine the veracity of the evidence of those two witnesses, let us go through the evidence of PWs 1 and 2.& 16. PW 1 said that while he was grazing cows to the South-East of his house, he saw the appellant and Subhas Das came out from the LP School near the jungle and attacked the deceased Subol. The appellant caught hold of the deceased and gagged his mouth. The deceased raised alarm and PW 1 immediately proceeded to the place of occurrence and saw the accused Subhas assaulted the deceased with a dagger, being asked by the appellant. The accused Subhas Das also attempted to kill PW 1 but he made hue and cry. Then both the accused including the appellant ran away towards the Barak river on the South. He saw deceased Subol with a dagger injury on his right side of the chest who fell down on the ground. In the meantime, PWs 2, 3, 4 and 5 one Rantu Das came to the police of occurrence. When people assembled, the injured told them that he was assaulted by the accused Subhas with a dagger being caught hold by the appellant. In cross examination, the said witness stated that the appellant caught the deceased from the front side. He stated before the police that the accused and the appellant came out from the school and the appellant caught and gagged the mouth of the deceased. He further stated to the police that the appellant asked the accused Subhas to kill the deceased with dagger and Subhas did give the dagger blow on the deceased. The accused Subhas Das also attempted to kill him and he raised alarm. The accused after the assault ran towards the Barak river. 17. He further stated to the police that the appellant asked the accused Subhas to kill the deceased with dagger and Subhas did give the dagger blow on the deceased. The accused Subhas Das also attempted to kill him and he raised alarm. The accused after the assault ran towards the Barak river. 17. PW 2 adduced that on the day of occurrence at about 5 PM while he reached the LP School on his way to Barak river he saw the appellant caught hold of the deceased on the road and directed the accused Subhas to stab the deceased. Accordingly, accused Subhas stabbed the deceased. He raised alarm and the PW 1 who grazing his cows near the place of occurrence also raised alarm. PW 2 with PW 1 both ran towards the place of occurrence. Then the appellant and accused Subhas started running towards South of Barak river. They also chased the accused a little further. When, they came back to the place of occurrence, PW 2 saw the deceased in a pool of blood with injuries. Then he, PWs 1, 3 and others lifted the deceased to his house. They brought bandage to the deceased and took him by a boat to Katigorh PS. The police sent the deceased immediately to the hospital. Thereafter, the deceased was sent immediately to the Silchar Medical College Hospital where he died which he came to know afterwards. In cross examination, this witness has stated that he told the police that appellant directed Subhas to stab the deceased and appellant caught hold of the deceased and accused Subhas assaulted him with dagger. 18. Mr. De, learned senior counsel appearing on behalf of the appellant submits that the evidence of both PWs 1 and 2 are apparently contradictory and cannot be believed as regards the fact of catching hold of the deceased. In course of his argument in order to dislodge the evidence of PWs 1 and 2, the learned senior counsel has taken us to the evidence of IO, PW 6. According to PW 6, Investigating Officer, PW 1 did not tell him that the appellant and Subhas came out from the school and the appellant asked the accused Subhas to give a dagger blow on the deceased. The said witness also did not tell him that the PWs 2,3,4, 5 and Saj al 's mother came to the place of occurrence. The said witness also did not tell him that the PWs 2,3,4, 5 and Saj al 's mother came to the place of occurrence. PW 1 did not tell him that the injured told his brother that the accused assaulted him. As regards PW 2, the said Investigating Officer, PW 6, adduced that the PW 2 did not tell him that the appellant assaulted the deceased. Hence, there was clear discrepancies and inconsistencies in the evidence of PW 1 and PW 2 and the same is not believable for conviction of the appellant under section 302 IPC. That apart, according to the learned senior counsel for the appellant, the medical evidence would pointedly show that injury recorded was only the stab wound of 4 cm x .5 cm on the right half of the interior chest wall. When as per evidence of PW 1, the appellant caught hold of the deceased from the front side, how is it acceptable that injury could be caused on the right half of the chest wall. Should this factual position be carefully scrutinised, the evidence of the PWs 1 and 2 has no leg to stand Therefore, on this count alone, the appellant is entitled to acquittal on benefit of doubt. 19. In support of his submission, the learned senior counsel for the appellant has relied on the following authorities of the Apex Court: (1) State of Bihar vs. Ram Padarath Singh, ( AIR 1998 SC 2606 ); (2) Bhogirath vs. State of Haryana, ( AIR 1997 SC 234 ); (3) Sharad Birdhi Chand Sarda vs. State of , Maharashtra, ( AIR 1984 SC 1622 ); (4) Pawan Kumar & others vs. State of Haryana reported in (1998) 3 SCC 309 . 20. In Ram Padarath Singh's case (supra), the Apex Court held that evidence of eyewitness though not consistent with the medical evidence it can be accepted by giving good reasons notwithstanding certain discrepancies. However, the sentence of death of the appellant in the said case was committed c to life imprisonment. Further it was held that veracity of the eyewitness cannot be doubted on the ground that no independent witness from near by the place examined by the prosecution. 21. However, the sentence of death of the appellant in the said case was committed c to life imprisonment. Further it was held that veracity of the eyewitness cannot be doubted on the ground that no independent witness from near by the place examined by the prosecution. 21. The Apex Court in Bhogirath's case (supra) held that the testimony of the witnesses who deposed that the accused fired pistol shot at deceased from the close range, cannot be discarded merely because of some contradictions in the deposition when the same is corroborated by the medical evidence. 22. The learned senior counsel for the appellant has placed much reliance on Sharad Birdhi's case (supra) being a celebrated decision on circumstantial evidence and benefit of doubt. The Apex Court laid down certain conditions which must be fulfilled before a case against an accused based on circumstantial evidence can be fully established and those are as follows: "(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved. (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction." 23. On the other hand as regards the benefit of doubt Apex Court held that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. Taking help of the ratio laid down in Sharad Birdhi's case (supra), Mr. Taking help of the ratio laid down in Sharad Birdhi's case (supra), Mr. De, learned senior counsel wants to impress this Court by arguing that if the evidentiary value of the eye witnesses PWs 1 and 2 are totally discarded, the conditions laid down in Sharad Birdhi's case (supra) to be fulfilled for conviction of the appellant on the basis of circumstantial evidence which did not occur in the present case and the appellant is entitled to get benefit of doubt. 24. The concept of benefit of doubt was also discussed in Pawan Kumar's case (supra) and the Apex Court held that the benefit of doubt to the accused would be available provided there is supporting evidence from the record. For creating doubt or granting benefit of doubt, the evidence must be such which may lead to such doubt 25. Keeping in view the ratio of all the above cited cases, we are of the opinion that those rulings would not help the appellant's case to disbelieve the evidence of PWs 1 and 2 making the appellant to be entitled for benefit of doubt. 26. A mere reading of the evidence of PWs 1 and 2 would testify that the appellant caught hold of die deceased allowing the accused Subhas for stabbing. Since there is corroboration of the evidence of the two eye witnesses as regards the caught hold of the deceased by the appellant, we do not find that the statement of these two eye witnesses can be brushed aside only for such minor contradiction.. Further, it appears that these two eye witnesses are disinterested witnesses who happened to be present at the place of occurrence by chance. It is settled position of law mat any minor discrepancies shall not negativate the corroborated evidence of the witnesses. 27. Arguing the second contention, the learned senior counsel has vehemently urged that considering the nature of injury as per medical evidence, the deceased e was not in a position to make any dying declaration as claimed by the prosecution and as such, the conviction of the appellant on the basis of dying declaration was not at all justified It is stated that as per evidence of Doctor PW 9, it was difficult to say how long the injured could survive out of such one injury with which a person may collapse instantly. 28. 28. Challenging the conviction of the appellant on the basis of dying declaration of the deceased, the learned senior counsel has relied on a decision of the Apex Court in Bhagawan Das & another vs. State of Rajasthan reported in AIR 1957 SC 589 . In the said case the Court observed that when from the Doctor's evidence it was found that it was improbable that the deceased would have been in a position either to walk or to speak so as to make a dying declaration, the evidence of the eyewitness regarding dying declaration was found to deserve being disregarded. In the instant case, what we have found is that Doctor, the PW 9, in his deposition, opined that it was difficult to say how long the injured can survive after sustaining such injury. For better appreciation of the evidence of the Doctor, the relevant portion of his deposition in cross-examination is quoted below: "There was only one injury. It is difficult to say how long the injured can survive after sustaining such injury. He may collapse instantly. The wound was on the right half of the chest It is difficult to say from which side the assailant had assaulted the deceased. From a plain reading of the said deposition, it cannot be held that the deceased was not in a position to make any statement or he died instantly. PW 5 specifically stated in cross examination that the moment when he met his injured brother at the place of occurrence he was in a position to talk. 29. Considering the evidence of the Doctor, PW 9 vis-a-vis, the PWs 1,3,4 and 5, we are of the considered view that the deceased was in a position to make the said dying declaration of PWs 1, 3, 4 and 5. It cannot be said that having regard to the conditions of the injury, deceased was not in a position to make any statement to be treated as dying declaration. Accordingly we are in agreement to disapprove the submission made on behalf of the appellant that the dying declaration stated to PWs 1, 3, 4 and 5 cannot be accepted. 30. It is well settled that before relying upon dying declaration the Court should be satisfied that the deceased was in a fit state of mind to make statement. Accordingly we are in agreement to disapprove the submission made on behalf of the appellant that the dying declaration stated to PWs 1, 3, 4 and 5 cannot be accepted. 30. It is well settled that before relying upon dying declaration the Court should be satisfied that the deceased was in a fit state of mind to make statement. Once the Court is satisfied that the dying declaration was made voluntarily and not influenced by any extraneous consideration, it can be accepted without any other further corroboration. 31. The Supreme Court dealing with the law of dying declaration in Uka Ram vs. State of Rajasthan, (2001) 5 SCC 254 indicated in paragraph 6 as follows: "Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose " attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts under the circumstances enumerated under sub-sections (1) to (8) of section 32 of the Act. When the statement is made by a person as to cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person's death comes into question is admissible in evidence being relevant whether the person was or was not, at the time when they were made, under expectation of death, and whether may be the nature of the proceeding in which the cause of his death comes into question. Such statements in law are compendiously called dying declarations. The admissibility of the dying declaration rests upon the principle that a sense of impending death ,-produces in a man's mind the same feeling as mat of a conscientious and virtuous man under oath - nemo moriturus praesumintur mentire. Such statements are admitted, upon consideration that their declarations made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. Such statements are admitted, upon consideration that their declarations made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim 'nemo moritunis praesumintur mentire' i.e., a man will not meet his maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross examination, it is essential for the Court to insist that dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind, made the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence." 32. In the instant case if we accept the evidence of the Doctor as regards the physical condition of the deceased at the time of making such dying declaration , vis-a-vis PW 5 we can safely hold that the deceased was in a position to make his statement as regards caught hold of him by the appellant allowing the accused Subhash to stab and at least that much physical strength and condition he retained at the time of making such statement. Bearing in mind the evidence of PWs 1,3, 4 and 5, the dying declaration of the deceased can be relied on beyond reasonable doubt. 33. Advancing his third condition, Mr. De, learned senior counsel submits that there was delay and defect in the FIR and as such the same is not admissible under the law. Bearing in mind the evidence of PWs 1,3, 4 and 5, the dying declaration of the deceased can be relied on beyond reasonable doubt. 33. Advancing his third condition, Mr. De, learned senior counsel submits that there was delay and defect in the FIR and as such the same is not admissible under the law. He has stated that the occurrence took place at about 5 PM on 17.8.94 and FIR was lodged on the next day i.e. 18.8.94 at 9 AM causing a delay of atleast 16 hours. More importantly in the FIR the informant, PW 5, did not mention that the deceased told him that the appellant caught hold of him and asked the accused Subash to stab him. The omission of mentioning the said dying declaration of the deceased in the FIR has clouded the prosecution case which was manufactured only and simply to rope the appellant under section 302/34 IPC. 34. In support of his submission, the learned senior counsel relied on the decision of Ram Kumar Pandey vs. State of MP reported in 1975 SCC (Crl) 225 in which the Supreme Court held that failure to mention persons alleged to be the witnesses in the FIR was detrimental and more so, failure to mention dying declaration was also fatal. But in an another case reported in (1998) 6 SCC 240 (State of Bihar vs. Ram Padarath Singh & others) the Apex Court held that though the fact that the names of the eye witnesses did not appear in the FIR was relevant circumstances, evidence of each of these eye witnesses was required to be appreciated on its own merit and the evidence of the eye witnesses cannot be rejected on the ground of non-mentioning of the names of those eye witnesses in the FIR. Taking in view such legal position, we feel that the said case is not applicable in the present case. 35. As regards the delay in filing the FIR, the learned senior counsel has tried to impress upon us that the delay of 16 hours has not been explained properly to the satisfaction of the Court which itself was fatal to the prosecution case. But the position of PW 5 would clearly show that he stayed at Medical College Hospital for the night and on the following day he filed the ejahar. But the position of PW 5 would clearly show that he stayed at Medical College Hospital for the night and on the following day he filed the ejahar. From the perusal of the impugned judgment it would also appear that the Sessions Judge has observed that the brother of the deceased, the PW 5 had to stay at Silchar Medical College Hospital along with the dead body and coming home in the next morning along with the dead body, he could only inform the police and the said fact itself was explanation for the delay. We are also in full agreement with the said finding of the Sessions Judge to the effect that the delay was properly explained and there is no impediment in accepting the FIR. 36. Regarding delay in filing the FIR the Supreme Court in a recent decision of Raghbir Singh vs. State of Haryana reported in (2000) 9 SCC 88 held that attending to the injured first by way of rushing of the victim to the hospital to save his life instead of first going to the police station was satisfactory explanation for the delay in making the complaint. In another case of State of Rajasthan vs. NK reported in (2000) 5 SCC 30 the Apex Court has emphasised as below : , "A mere delay in lodging the FIR, cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution." Having regard to those decisions of the Apex Court and also finding of the Sessions Judge, we are disinclined to accept the contention of the appellant that the delay in filing the FIR was not properly explained. 37. In addition to the above emphasized contentions, the learned senior counsel for the appellant has also urged that the blood clot found in the place of occurrence where the deceased was lying sustaining injury was not seized by the police when it was the duty of the Investigating Officer to seize the blood clot , and non-seizure of the same has vitiated the investigation. Supporting his contention, the learned senior counsel has taken us to a decision of this Court in Nasir Ahmed vs. State of Assam reported in (1996) 3 GLR 27 (1996 (2) GLJ 419). In the said case, this Court held that it is the duty of me Police Officer to perform a proper investigation and to place unvarnished truth before the Court and it is not part of the duty of the Police to bolster up a false case. We e are not at all impressed by the submission of the learned counsel on this point due to the fact that non-seizure and non-examination of the blood clot has not effected the prosecution case at all which stood on its own leg on the basis of the evidence of the eye witnesses supported by the dying declaration. 38. Supporting the conviction and sentence of the appellant, Mrs K. Deka, learned Public Prosecutor, has submitted that the trial Court has passed a reasoned judgment after careful consideration of the materials on record and the evidence of the eye witnesses as well as other witnesses adduced in the case in hand in full details by giving very cogent reason for its finding. It is further submitted that there is no perversity and illegality committed by the Sessions Judge in appreciating the evidence. The view taken up by the Sessions Judge is not at all perverse but quite consistent with the evidence recorded in the case and, as such, in any event, there is no occasion to this Court to interfere with the well reasoned order of conviction passed by the Sessions Judge. 39. Mrs K. Deka, learned Public Prosecutor, also submitted that on the basis of dying declaration, a conviction can be based provided the Court can come to a clear finding that such dying declaration was made honestly without any motive to falsely implicate any accused. In the instant case, the trial Court has given cogent reason why dying declaration was accepted as genuine one and free from all doubts. It is submitted that taking into consideration the evidence of PW 9, the Doctor, the deceased at the relevant time was in a position to make such statements to PWs 1,3,4 and 5 having enough time to tell that the appellant caught hold of him and accused Subash dealt dagger blow. 40. It is submitted that taking into consideration the evidence of PW 9, the Doctor, the deceased at the relevant time was in a position to make such statements to PWs 1,3,4 and 5 having enough time to tell that the appellant caught hold of him and accused Subash dealt dagger blow. 40. In a bid to claim support of her submission, learned Public Prosecutor, has referred the following decisions-(1) Mafabhai Nagarbhai Raval vs. State of Gu jar at reported in (1992) 4 SCC 69 ; (2) Om Prakash vs. State of Punjab, (1992) 4 SCC 212 ; (3) Prakash & another vs. State of Madhya Pradesh, (1992) 4 SCC 225 ; (4) Bhagirath vs. State of Haryana, ( AIR 1997 SC 234 ); (5) Prata Paneni Ravi Kumar & another vs. State of Andhra Pradesh reported in AIR 1997 SC 2810 ; (6) Gulam Hussain & another vs. State of Delhi reported in (2000) 7 SCC 254 . 41. The ratio of those cases is that the deceased even after sustaining the fatal injury was in a position to make statement which can be accepted as dying declaration. 42. Having regard to the authorities cited by the learned Public Prosecutor above mentioned and also on appreciation of the evidences of PWs 1,3,4 and 5 we can safely hold that the deceased, taking into account the injury sustained by him, was in a position to make the dying declaration which deserves to be accepted as held by the Sessions Judge. 43. Now it is to be examined as to whether the appellant can be convicted for the offence of murder under section 302, BPC or for some other offence. As discussed above, it appears from the evidence of PWs 1 and 2 as well as dying declaration of the deceased that the appellant caught hold of the deceased. If there is evidence that the appellant caught hold of the deceased till the other accused Subhash stabbed the deceased, then obviously the appellant could be roped in for the offence of murder under section 302, IPC with the aid of section 34, IPC inasmuch as it can be held that the appellant shared the common intention of Subhash to kill the deceased. But the evidence of PW 1, the eyewitness, is that the appellant caught hold the deceased from the front side while the evidence of PW 9, the Doctor who carried on the post-mortem on the body of the deceased, is that there was one stab would of 4 x 5 cm situated in the right at the interior chest on account of which the deceased died. Since the fatal stab was given by Subhash from the front side of the deceased, it is difficult to hold that the appellant continued to catch hold of the deceased at the time when Subhash stabbed the deceased on his chest to kill him. In our considered opinion, therefore, the appellant cannot be said to be participant directly in the offence of murder under section 302, IPC or to have shared the common intention to Subhash for committing the offence under section 302, IPC. For these reasons, we hold that the trial Court committed grave error in holding that the appellant was personally liable for the offence of murder and in convicting him under section 302, IPC. 44. The factual position of the case in hand a close resemblance to a recent case of the Apex Court in Shambu Kuer vs. State of Bihar reported in AIR 1982 SC 1228 . The factual matrix of the said case was that Shambu Kuer, appellant caught hold of the deceased and one Mandip gave three blows to the deceased with a knife. Out of three accused persons, one Kailash was acquitted by the trial Court while other two were convicted. Mandip was convicted under section 302 IPC while Shambu Kuer, the appellant also convicted under section 302 IPC read with 34 IPC. During the pendency of the appeal the accused Mandip was released by the Government on the ground of serious illness. For which his appeal was dismissed as in fructuous. On the other hand the conviction of the appellant Shambu Kuer was upheld by the High Court with the finding that he continued to hold the deceased till the assault was completed by Mandip. One of the three injuries on the deceased which perched the right lunge was, according to the medical witnesses, sufficient to cause death in the ordinary course. One of the three injuries on the deceased which perched the right lunge was, according to the medical witnesses, sufficient to cause death in the ordinary course. The Apex Court, against this back drop, held that from the mere fact that the appellant caught hold of the deceased and scuffle with him while other accused Mandip took out a knife and commenced his assault, it cannot be inferred beyond reasonable doubt that he showed common intention of Mandip to murder the deceased. At the best he was vicariously liable for an offence under section 326 read with section 34 IPC and accordingly, allowing the appeal, the conviction of the appellant was altered to under section 326 read with section 34 IPC and sentenced him to imprisonment already undergone. 45. In the instant case, as evident from the discussions of the evidences of the above mentioned PWs, it is undoubtedly established that while appellant caught hold of the deceased the other accused Subhash commenced the assault on the deceased with the knife. Against such back drop of the case in hand, the ratio of Shambu Kumar's case, in our opinion, is applicable in the instant case. 46. Besides, the acceptance of caught hold of theory against the appellant, as held above, has made us to ponder over another important question i.e. whether the appellant was also involved in an offence of wrongful confinement within the meaning of section 340 IPC. From the meticulous appreciation of evidence it would clearly appear that though the appellant had not stabbed the deceased directly, the fact remains, as revealed from the evidence of the prosecution witnesses as discussed above, that the appellant participated in detaining the deceased by catching hold of him in a bid to prevent the deceased from proceeding beyond a circumscribing limit, that is, the place of occurrence, accommodating Subhas, the accused to thrust the dagger blow. Having carefully gone through the testimony of the witnesses, we do not have any hesitation to convict the appellant also for wrongful confinement of the deceased within the definition of section 340 IPC punishable under section 342 IPC. Be it noted that it goes without saying that by no stretch of imagination, the appellant could be held guilty under S section 302 IPC and the conviction and sentence handed down on this count by the Sessions Judge deserves to be set aside. 47. Be it noted that it goes without saying that by no stretch of imagination, the appellant could be held guilty under S section 302 IPC and the conviction and sentence handed down on this count by the Sessions Judge deserves to be set aside. 47. Having regard to ratio of Shambu Kuer's case (supra) and also after going through the entirely of the factual position supported by proper appreciation of the evidence, we hold that at the best the appellant can be convicted under section 326/342 IPC read with section 34 IPC instead of section 302 IPC. Accordingly we are of the view that the sentence from life imprisonment of the appellant deserves to be altered to one under section 326/342 IPC read with section 34 IPC. It is stated at the bar that the appellant has been in jail since 31.3.1998. Since the main accused Subhas could not be tried in view of his absconding and the appellant has already suffered an imprisonment of about 3 years 4 months, we feel the ends of justice would be met if the sentence of life imprisonment of the appellant is modified by sentencing him to imprisonment already undergone. For the forgoing reasons, we allow the appeal by altering the conviction of the appellant from section 302 IPC to under section 326/342 IPC read with section 34 IPC and he is sentenced to imprisonment for the period undergone is mentioned above.