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Criminal Revision No. 904 of 1963, decided on 31st October 1968.

S. 32‑Offence under S. 354, P. P. C.‑Complainant dying prior to commencement of trial and first information report not formally proved in Court‑Statement of complainant made before police not referring to actual cause of her death or to transaction resulting in her death‑Death also not shown to have been caused or accelerated by injury received by complainant at lime of commission of offence‑Statement of complainant, held, not admissible under S. 32, in circumstances of case.

Kappinaial and another v. Emperor A I R 1931 Mad. 233(2) and Imperatrix v. Rudra I L R 25 Bom. 45 ref.

S. 354‑Assault or criminal force to woman‑‑Eye‑witnesses trying to exaggerate incident at trial‑F. I. R. having not been proved at trial excluded from consideration‑Material evidence missing‑Conviction and sentence set aside.

M. Ismail Bhatti for Petitioner.

Mufti Nazar Muhammad for the State.

Date of hearing : 25th October 1968.

Muhammad Yar petitioner was convicted under section 354, P. P. C. and sentenced to one year's rigorous imprisonment by a Magistrate 1st Class, Lyallpur, vide his order dated the 15th of June 1963. His appeal was dismissed by the learned Sessions Judge, Lyallpur, vide his order dated 4th October 1963. Aggrieved by that order the petitioner has preferred this revision.

2. One Muhammad Ali, who was dealing in cattle, had gone out of his house about 15 or 16 days prior to the occurrence, under consideration. His daughter, Mst. Adam Khatoon, used to feed his cattle during his absence. Their fodder was lying in the square of one Rajab and she used to go to that square every day to order to bring fodder for the cattle. On 18th June 1961, at about dopehrwela, when she was returning to her house with a bundle of fodder on her head and had reached near the tubewell of one Haji Allah Wassaya the petitioner suddenly came out and threw down her bundle of fodder, which was on her head, and caught hold of her by her breasts. She raised an alarm, which brought Jahangir (P. W. 1) and Allah Yar (P. W. 2) to the spot. The petitioner on seeing them ran away. Assistant Sub‑Inspector Muhammad Husain Shah (P. W. 3) who happened to be present in the village, on that day at 5‑15 p. m., recorded statement Exh. P. A. of Mst. Asfam Khatoon and sent it to the police station, where formal first information report Exh. P. A./1 was drawn up at 6‑30 p.m. by Sub‑Inspector Abdullah Khan (not examined).

3. The petitioner denied his guilt and stated that he had been falsely implicated in this case due to his previous enmity with the P. Ws. He examined as many as five witnesses, namely, Raja, Muhammad Khan, Neka, Ibrahim and Khan Muhammad, school teacher.

4. Mst. Adam Khatoon could not appear in Court as she had died about 8 or 10 days prior to 13th October 1962, when the statement of first prosecution witness in this case was recorded. The first information report, therefore, was not A formally proved in Court. Both the Courts below, however, relied on the first information report by treating it as dying declaration under section 32 of the Evidence Act. It is contended by the learned counsel for the petitioner that this evidence was inadmissible. Section 32 of the Evidence Act reads 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 in the following cases : ‑‑

(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

(3) When the statement is against the pecuniary or pro prietary interest of the person making it, or when if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.

(4) When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter has arisen.

(5) When the statement relates to the existence of any relationship (by blood, marriage or adoption) between person as to whose relationship (by blood, marriage or adoption) the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) When the statement relates to the existence of any relationship (by blood, marriage or adoption) between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tomb stone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

(7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).

(8) When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

From the perusal of the above section it is obvious that her statement does not come within any of its clauses. In case Kappinaial and others v. Emperor (A I R 1931 Mad. 233 (2)) it was held :‑

"Section 32 refers to actual cause of death, or to the transaction resulting in death. If a woman is raped and decides three days later to commit suicide, the rape is not the cause of her death or transaction resulting in death, though it may be the contingent motive. A statement made by the woman to her mother‑in‑law immediately after the rape does not become admissible under section 32."

In Imperatrix v. Rudra (I L R 25 Bom. 45) the appellant was convicted and sentenced to transportation for life on a charge of dacoity. The most material evidence for the prosecution was the statement, in the nature of a dying declaration, made to the Jamadar of Police by one Fakiria Shimpi, who received wounds during the dacoity and who died before the trial commenced. The Assistant Surgeon, who made the post‑mortem examination on the deceased, was not called, being on leave, but the Civil Surgeon, on a perusal of the notices left by the Assistant Surgeon, gave evidence that the cause of death of the deceased was pneumonia aggravated by a stab. In the notes themselves no cause of death was given, and there was no evidence as to how the pneumonia was aggravated. No explanation was given as to how the opinion was formed that the pneumonia was aggravated by the injury, and there was nothing in the notes to support it. Held

"That the statement of the deceased ought not to have been admitted in evidence in the absence of evidence to show that his death was caused or accelerated by the wounds received at the dacoity, or that the dacoity was the transaction which resulted in his death."

The statement of Mst. Aslam Khatoon does not refer to the actual cause of death or to the transaction resulting in her death. It is also not shown that her death was caused or accelerated by B the wound received by her at the time of the commission of the offence. Under these circumstances her statement is not admissible under section 32 of the Evidence Act.

5. I am now left with the testimony of Jahangir and Allah Yar P. Ws. They have tried to exaggerate the incident at the trial when they stated that the petitioner had caught hold the breasts of the girl and had thrown her on the ground. In their previous statements, however, they did not mention that the, petitioner had thrown her on the ground. Their statements, therefore, is to the effect that they had seen the petitioner putting his hands on the breasts of the girl. In view of the exclusion of the F. I. R. from consideration the material evidence in this case is missing. From the evidence of these two witnesses it is, by no means, certain that the petitioner had put his hands on the breasts of the girl in order to outrage her modesty. Who knows that he may have done so with the consent of the girl. Under these circumstances the case against the petitioner has become doubtful. I, accordingly, accept the revision petition, set aside the conviction and sentence of the petitioner and acquit him. He is on bail and should be discharged from his bail bond.

Petition accepted.

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