Manish Kumar Nigam, J.

1. The criminal appeal No. 2109 of 2016 has been filed against the judgment and order of conviction dated 19.04.2016 passed by District Judge, Rampur in Sessions Trial No. 525 of 2013 whereby the learned District Judge, Rampur has convicted the accused appellants Smt. Gangotri Devi and Madan Lal for the offences punishable under Section 307 I.P.C. read with Section 34 I.P.C. and sentenced them to ten years rigorous imprisonment along with a fine of Rs. 5,000/-. In case of default of payment of fine, the accused appellants had to further suffer six months additional imprisonment. They were further convicted under Section 302 read with Section 34 I.P.C. and were sentenced to life imprisonment and fine of Rs. 20,000/- each. In case of default in payment of fine, the accused appellants had to further undergo additional imprisonment for a period of two years.

2. Criminal Appeal No. 2110 of 2016 was filed by the appellant Daulat Ram against the judgment and order dated 19.04.2016 passed by learned District Judge, Rampur in S.T. No. 42 of 2015 (State v. Daulat Ram) and convicted him for the offences punishable under Section 307 I.P.C. read with Section 34 I.P.C. and sentenced him for ten years rigorous imprisonment along with a fine of Rs. 5,000/-. In the case of default, the accused appellant had to further suffer six months additional imprisonment. The appellant was also convicted under Section 302 read with Section 34 I.P.C. and was sentenced to life imprisonment with a fine of Rs. 20,000/-. In case of default in payment of fine, the accused appellant had to further undergo an additional imprisonment for a period of two years.

3. Both the Sessions Trials i.e. S.T. No. 525 of 2013 and S.T. No. 42 of 2015 arose from the Case Crime No. 217 of 2013 under Section 307, 302 I.P.C. read with Section 34 of I.P.C., Police Station Milak, District Rampur. As both the Sessions Trials arose from the same Crime number i.e. Case Crime No. 217 of 2013, they were tried together and decided by a common judgment and order dated 19.04.2016 by District Judge, Rampur.

4. The factual matrix of the case is that the informant namely Prabhu Dayal S/o Natthu Lal submitted a written complaint dated 15.05.2013 paper no. 50Ka (Ex. K-1) on which a First Information Report paper no. 52Ka (Ex. Ka-3) was registered in Case Crime No. 217 of 2013, under Section 307, 302 I.P.C. read with Section 34 I.P.C., P.S. Milak, District Rampur.

5. As per the First Information Report, the informant stated that the marriage of the informant was settled with one Kamla D/o Sher Singh. After the settlement of marriage, father of Kamla expired. It has been further stated that mother of Kamla had died earlier and in the family of Kamla there was a younger sister named Suman and one elder brother by the name of Bablu.

6. Rahul s/o Bablu and Smt. Gangotri, mother of Rahul used to quarrel with Kamla and Suman for a share in the property which had come in the share of Kamla and Suman after the death of their father. Because of this reason at about 11:00AM on 15.03.2013, Rahul s/o Gajendra @ Bablu, his mother Smt Gangotri W/o Gajendra and their relative Daulat Ram and Madan Lal started quarrel with Suman and Kamla and Madan Lal and Daulat Ram exhorted Rahul and Gangotri to kill Kamla and Suman. Upon this goading, Rahul shot Suman with a country made pistol (Tamancha) and thereafter also tried to kill Kamla. Suman died on the spot while Kamla was brought to the police station. On the spot, Harish and many other villagers were present. The scribe of the complaint was one Devesh Kumar S/o Horilal.

7. After the First Information Report was lodged, the police investigated the crime and after collecting evidence, a charge sheet paper no. 53 Ka (Ex. Ka-4) was submitted under Section 173 (2) Cr.P.C. against Smt. Gangotri and Madan Lal. A separate charge sheet (paper no. 66 Ka (Ex. Ka-17) was submitted against Daulat Ram.

8. The accused Rahul S/o Gajendra was a minor, therefore the matter proceeded against Rahul before Juvenile Justice Board, Rampur.

9. The learned Magistrate after taking cognizance and after complying with the provisions of Section 207 Cr.P.C. committed the case for trial to the Court of Sessions. On 14.09.2015, Smt. Gangotri and Madan Lal were charged under Section 307 I.P.C. for attempting to murder Kamla, under Section 302 I.P.C. and for murder of Suman under Section 302 I.P.C. read with Section 34 I.P.C. in Sessions Trial No. 525 of 2013.

10. The learned Magistrate charged Daulat Ram under Section 307 I.P.C. for attempting to murder Kamla and under Section 302 of I.P.C. for the murder of Suman read with Section 34 I.P.C. in Sessions Trial No. 42 of 2015 on 14.09.2015.

11. During trial, statements of six persons namely Prabhu Dayal PW-1, Km. Usha PW-2, Mansi Devi PW-3, Harpal Singh @ Harish PW-4, Dr. Sanjeev PW-5 and the Investigating Officer Sunit Kumar were recorded. Statement of Pankaj Kumar, S.I. was also recorded as Court Witness no. 1.

12. The prosecution produced written complaint (Ex. Ka-1), postmortem report (Ex. Ka-2) Chik F.I.R. (Ex. Ka-3), Charge Sheet (Ex. Ka-4), Naksha Nazri site map (Ex. Ka-5), Medical Report of Kamla (Injured) (Ex. Ka-6), Fard Mitti (Ex. Ka-7), Fard Cement (Ex. Ka8), Fard Khokha (Ex. Ka-9), Report P.S. Milak (Ex. Ka-10), Challan lash (Ex. Ka-11), Inquest Report (Ex. Ka-12), Photo lash (Ex. Ka-13) Letter S.I. (Ex. Ka-14), Specimen Mohar (C) (Ex. Ka15), Nakal G.D. (Ex. Ka-16), Charge Sheet (Ex. Ka-17) and death report of Kamla (Ex.-18) as documentary evidence during trial.

13. Statements of accused were also recorded under Section 313 Cr.P.C. in which they denied the incident and claimed that they had been falsely implicated.

14. Additional statement of accused were also recorded in which accused Smt. Gangotri deposed that she was not at home and had gone to hospital in connection with the illness of her husband. Accused Madan Lal has stated that he was in his village Loha which is at a distance of 15KM from the place of incidence and the accused Daulat Ram deposed that he was at his village Sigra which is 12 KM from the place of incident.

15. After considering the entire evidence, learned Sessions Judge, Rampur convicted accused appellants namely Smt. Gangotri, Madan Lal and Daulat Ram under Section 307 read with Section 34 I.P.C. for attempting to murder Kamla and also sentenced them to undergo rigorous imprisonment of ten years along with fine of Rs. 5,000/-. He also convicted the accused appellants under Section 302 I.P.C. read with Section 34 I.P.C. for murdering Suman and sentenced them with imprisonment for life with fine of Rs. 20,000/-.

16. Heard learned counsel for the appellants and learned A.G.A. for the State and perused the record.

17. Since both the appeals arise out of a common judgment dated 19.04.2016, they are being decided together.

18. Learned counsel for the appellants vehemently assailed the order of conviction and made the following submissions.

"(1) The accused appellants are innocent and have not committed the alleged crime. The order of conviction is passed on conjectures and surmises.

(2) The informant Prabhu Dayal was not an eye-witness of the incident and has admitted in his statement that he had lodged the First Information Report on the basis of information given to him by Kamla.

(3) It has also been stated in his cross-examination by PW-1 that neither the police nor the informant had any talks with Kamla as she was unconscious.

(4) Kamla was not examined as witness as she died during the pendency of the trial. It was further contended that prosecution had failed to prove the date, time and cause of death of Kamla. There was no evidence to the effect that Kamla died because of injuries sustained in the alleged incident.

(5) All the other witnesses of fact produced by the prosecution failed to prove involvement of the appellants Smt. Gangotri Devi, Madan Lal and Daulat Ram in the crime in question and rather they have stated that they had not seen the appellants committing the crime and even denied their presence at the spot.

(6) PW-2 Usha and PW-3 Mansi Devi had only given evidence against Rahul and had not seen Gangotri, Madan Lal and Daulat Ram and as such there was no eye witness account against the accused appellants.

(7) Accused Rahul who was a minor, his case was not before the trial court.

(8) PW-4 Harpal was declared hostile.

(9) The statement of Kamla was recorded by the investigating officer after ten days of the incident and there is no reason mentioned for recording the statement after such a delay of the alleged injured witness.

(10) The statement recorded under Section 161 Cr.P.C. of Kamla, who died after one year could not be relied upon as a dying declaration under Section 32(1)of the Evidence Act. The statement of Kamla recorded under Section 161 Cr.P.C. was neither signed by Kamla nor was recorded in presence of any other witness.

(11) The trial court has erred in law in treating the statement under Section 161 Cr.P.C. as dying declaration under Section 32(1) of the Evidence Act and there was no corroboration to the aforesaid statement of Kamla.

(12) Lastly it was submitted by the learned counsel for the appellants that the appellants were not confronted with the statement of Kamla recorded under Section 161 Cr.P.C. which was treated as a dying declaration at the time of recording their statement under Section 313 Cr.P.C and therefore, the same cannot be relied upon."

19. Per contra, learned A.G.A. for the State refuted the submissions made by the learned counsel for the appellants and made the following submissions:

"(1) The trial court has rightly relied upon the statement of Kamla recorded under Section 161 Cr.P.C. as dying declaration.

(2) There is no impediment in convicting the accused only on the basis of dying declaration without there being any corroborative evidence.

(3) The statement of Kamla recorded under Section 161 Cr.P.C. was proved by Sunit Kumar. PW-6 (Investigating Officer) who recorded the said statement.

(4) PW-6 was an independent witness and there was no suggestion by the defence as to why PW-6 will give false evidence against the accused appellants.

(5) Not putting the question to the accused appellants with regard to the statement of deceased Kamla recorded under Section 161 Cr.P.C. during questioning the accused under Section 313 Cr.P.C. would not vitiate the trial and the accused appellants had to establish the prejudice caused to them and lastly it was submitted that the trial court rightly passed the judgment convicting the accused appellants after considering the entire evidence and the appeal had no merits and is liable to be dismissed."

20. With the help of both the counsels, learned counsel for the appellants and learned A.G.A. for the State, we have perused the record of the case.

21. The informant Prabhu Dayal PW-1 in his examination-in-chief has stated that his marriage was settled with Kamla D/o Sher Singh and after the settlement of marriage Sher Singh died. After the death of the father of Kamla her sister Suman, brother Bablu, nephew Rahul and sister-in-law Gangotri and three small kids remained in the family. Rahul S/o Bablu and Gangotri used to quarrel with Kamla and Suman regarding his share in the land which came in the name of Kamla and Suman after the death of their father Sher Singh. He has further stated that on 15.05.2013 at about 11:00 AM, there was a fight between Rahul, Gangotri, Madan Lal and Daulat Ram with Kamla and Suman. Daulat Ram and Madan Lal exhorted to kill them, then Rahul shot Suman and thereafter Kamla and Suman ran towards the roof to save their lives. Gangotri caught Kamla’s leg and thereafter Rahul shot Kamla. Suman thereafter jumped from the roof. Rahul, Gangotri, Daulat Ram and Madan Lal shot several fire shots on Suman who died on the spot. Kamla was injured and she was taken to the Milak Hospital by the informant. It has been further stated by PW-1, who had witnessed the incident that the incident was not within the knowledge of the informant. The entire sequence of events was told to the informant by Kamla. The informant got the complaint written by Devesh Kumar and after reading the same he had put his signatures. It has been further stated that the written complaint was filed by the informant in the police station. In his crossexamination, PW1 has stated that he had not witnessed the incident and had also not disclosed in the F.I.R. about direct knowledge of the incident. In fact he has stated that he was informed by Kamla. After hearing the news of murder, he first went to the Police Station Milak and informed the police that some incident had occurred in the village Bihta and at that point of time, the police personnel did not lodge the First Information Report. It has been further stated by the informant that the informant reached police station Milak at around 11: ½, 11: ¾ hours and it took him 10-15 minutes at the police station. It has been further stated that the police personnel accompanied the informant to village Bihta. At the house of Sher Singh, informant met uncle of Kamla namely Sompal but it was further stated that he did not have conversation with Sompal. When police personnel reached Sher Singh’s house, Kamla was lying on the zina (stairs). It was also stated by the informant that police personnel did not have talks with Kamla and the police personnel did not ask Kamla regarding her injuries. Also no enquiry was made as to who had assaulted her. Kamla was unconscious at that point of time therefore, neither, the police personnel nor the informant had conversation with Kamla. It was further stated by the informant that in the First Information Report, he had mentioned the name of Harish as witness as there was no other witness. It was still further stated that the informant had taken the injured Kamla in a police vehicle along with two constables to the hospital. It was also stated by the informant that when he reached the hospital at Milak, doctor said after examining the injured Kamla that there was excessive bleeding and also advised him to take her to Bareilly. Thereafter the informant got the written complaint drafted by Devesh Kumar and had given the same in the police station. It was further stated that at about 01:00 PM or some time after 01:00 PM he had taken Kamla to Bareilly and had admitted her in a Hospital. After admitting Kamla it was stated by the informant that he remained with Kamla and only after being called by the inspector came to the police station after 2-3 days. It was further stated by the informant in his cross-examination that he had gone from Bihta to hospital and had not gone to the police station along with Kamla. It was further stated that when the police had taken statement of Kamla at Bareilly, informant was not present as he was removed from there. It has also been stated that he had not mentioned in the F.I.R. that he had come along with Kamla to the police station and he states that how reverse facts had been stated in the First Information Report, he could not say. It had also been stated by the PW1 that he had not gone to the police station on the date of incident.

22. PW2 Km. Usha in her examination-in-chief has stated that on 15.05.2013 she along with her sister-in-law Mansi was at her house and his brother Harish was not there at the house and came later on after hearing the news. It was stated by PW-2 that at about 11:00AM, she heard the sound of fire and the younger daughter of master Sher Singh came to her house running and thereafter Rahul came with a Tamancha (Pistol) in his hand and shot Suman twice. It has been further stated that Gangotri Devi, Daulat Ram and Madan Lal did not come to her house nor she had seen them there.

23. PW-3 Mansi Devi in her examination-in-chief has stated that at about 11:00AM, on 15.05.2013, she was in the verandah of her house and her sister in law was reading in the verandah. It has been further stated that her husband Harish was not present in the house. It was also stated by PW-3 that she heard sounds of two fire shots from the neighbouring area. It was further stated that the younger daughter of Sher Singh Suman came running in an injured condition and fell down near the tap. Rahul came with a tamancha (pistol) in his hand and had shot Suman and thereafter had repeating the shooting and then had ran away. It has been further stated by PW-3 that Gangotri Devi, Madan Lal and Daulat Ram did not come to her house nor she had witnessed them there. It was further stated in her cross-examination that Kamla, Gangotri and Prabhu Dayal did not come with police to her house.

24. PW-4 Harpal @ Harish has stated in his examination-in-chief that on 15.05.2013, he has gone to Karkheda in connection with the work of the company and his wife Mansi and sister Usha were present in the house. It was further stated that his house is neighbouring the house of Sher Singh. The daughter of Sher Singh did not come to his house in his presence as he was not there at the time of incident. He has not seen Rahul firing on Suman. It has been further stated that he has not witnessed Gangotri Devi, Madan Lal and Daulat Ram coming to his house. PW-4 was declared hostile by the prosecution. It has been stated by the PW4 in her cross-examination that he has not heard any dispute between Kamla and Suman with Gangotri and Rahul.

25. PW-5 Dr. Sanjeev Malik has proved the post-mortem report.

26. PW-6 Sunit Kumar retired inspector of police has stated that on the information of informant Prabhu Dayal regarding the incident dated 15.05.2013 which occurred at about 11:00AM in which her would be wife Kamla was injured and would be sister-in-law Suman was murdered by nephew of Kamla namley Rahul her mother Gangoti Devi and relatives Daulat Ram and Madan Lal. The First Information Report was registered and PW6 has investigated the crime. It was further stated that on 15.05.2013, the statement of Prabhu Dayal under Section 161 Cr.P.C. was recorded and on the instructions of the informant the spot inspection was made and Naksha Nazri was prepared which is Ex.Ka-5. It was further stated by PW-6 on 25.05.2013, he has recorded the statement of Kamla at Osker hospital, Bareilly and whatever stated by Kamla was written in diary word by word and after the completion of investigation, charge sheet was submitted by PW-6. In his cross-examination, it has been stated by PW-6 that it is incorrect that prior to lodging of F.I.R. Prabhu Dayal came to the police station and thereafter PW-6 has gone to the spot and after coming from there has lodged the F.I.R. Prabhu Dayal has not claimed to have witnessed the incident but has mentioned the incident on the information given by Kamla. It was also stated by PW-6 that on 15.05.2013 he did not met Kamla. It was also stated by PW-6 that as Kamla told Prabhu Dayal, on the basis of the same, Prabhu Dayal got the spot inspection done and PW-6 prepared Naksha Nazri. On questioning of the court, it was informed by PW-6, when he has recorded the statement, she was conscious and only her lower limbs were not functioning. It was further stated by PW-6 that dying declaration was not recorded before the Magistrate for the reason that there was no likelihood of the death of Kamla.

27. Contention of the learned counsel for the appellants is that the trial court has erroneously treated the statement of Kamla recorded by investigating officer under Section 161 Cr.P.C. to be a dying declaration. Except for the aforesaid statement, all the witnesses of fact had not supported the prosecution version. The statement recorded by the investigating officer under Section 161 Cr.P.C. in the present case, cannot be treated as dying declaration under Section 32(1) of Evidence Act. It has been further contended that there were two charges against the accused/appellants. First under Section 302 I.P.C. for causing murder of deceased Suman and the other under Section 307 I.P.C. for causing such injuries to Kamla which would amount to attempting to murder Kamla, who had died subsequently.

28. Per contra, learned A.G.A. has contended that there was no bar to treat a statement recorded by an investigating officer under Section 161 Cr.P.C. as a dying declaration, after the death of the person, who has given such statement. In the present case, after recording of statement of Kamla under Section 161 Cr.P.C. by the investigating officer, Kamla had died and she could not be produced as a witness in trial and, therefore, her statement would fall within the purview of Section 32(1) of Evidence Act, as dying declaration.

29. Before we proceed further to consider rival submissions, it would be appropriate to look into the provisions of Section 32(1) of the Evidence Act:

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. — 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 it relates to cause of death. —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)….., (3)……, (4)….., (5)…., (6)……, (7)….., (8) …."

30. Section 32(1) of Evidence Act renders a statement relevant which was made by a person who is dead, in cases, in which cause of his death comes into question, but its admissibility depends upon one of the two conditions, i.e. either such statement should relate to cause of his death or it should relate to any of the circumstances of transaction which resulted in the death.

31. Unless the statement of a dead person would fall within the purview of Section 32(1) of Evidence Act, there is no other provision under which the same can be admitted in evidence. In order to make statement of a dead person admissible in law, (written or verbal), the statement must be as to the cause of death or with regard to any of the circumstance of the transaction which resulted in the death, in cases, in which cause of death comes into question. In the present case, there is no dispute that after recording the statement of Kamla under Section 161 Cr.P.C., Kamla died and could not be produced as witness during trial because of her death. The appellants were charged under Section 307 I.P.C. for attempting to murder Kamla. In a charge under Section 307 I.P.C., the question of death of Kamla was not an issue for consideration. It has rightly been contended by learned counsel for the appellants that since while dealing with the charge under Section 307 I.P.C., the death of the person in question was not an issue for consideration, Section 32(1) of the Evidence Act would stand at bay and the statement recorded under Section 161 could not be considered at all. The question of the death of the person was not an issue. Rather it was the injuries which were caused to the person which were being investigated into. Except for the statement under Section 161 Cr.P.C. of Kamla, none of the prosecution witnesses had deposed as to the involvement of the appellants in the causing of such injuries to Kamla which might result in her killing.

32. Learned counsel for the appellant relied upon the judgment of Supreme Court in case of Indrapal v. State of M.P. reported in (2001) 10 SCC 76 wherein it has been held that unless the statement of deceased comes within the purview of Section 32(1) of the Evidence Act, it cannot be admitted in evidence. Such statement must be regarding cause of death of the deceased or as to any of the circumstance of the transaction which resulted in her death. Paragraph nos, 4, 5, 6 & 7 of Inderpal v. State of M.P. (Supra) are quoted as under:

“4. We will consider at first the contention as to whether there is any evidence against the appellant which can be used against him for entering upon a finding that he subjected Damyanti to cruelty as contemplated in Section 498A, IPC. PW1 - father of the deceased and PW8 - mother of the deceased have stated that Damyanti had complained to them of her plight in the house of her husband and particularly about the conduct of appellant. PW-4 - sister of the deceased and PW5 - a relative of the deceased have also spoken more or less in the same line. Exhibit P-7 and Exhibit P-8 are letters said to have been written by Damyanti. In those two letters reference has been made to her life in the house of her in-laws and in one of the letters she said that her husband had subjected her to beating.

5. Apart from the statement attributed to the deceased none of the witnesses had spoken to anything which they had seen directly. The question is whether the statements attributed to the deceased could be used as evidence in this case including the contents of Exhibits P-7 and P-8 (letters).

6. Before deciding that question we have to point out that the High Court came to a conclusion that the allegation that she committed suicide was not substantiated. A dying declaration was recorded by the Executive Magistrate in which deceased had stated that she got burns accidentally from a stove. If that be so, death could not be the result of either any harassment or any cruelty which she was subjected to. In this context we may point out that the State has not challenged the finding of the High Court that death of Damyanti was not due to commission of suicide.

7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P7 or Exhibit P8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498A, IPC disjuncted from the offence under 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.”

33. In case of State of U.P. v. Shashi Shekhar and others reported in 2004 SCC OnLine ALL 1822, the Division Bench of this Court has held that in case, the person who had made the statement before his death dies in some other incident and the cause of death was not in question in that trial, his statement would not be relevant under Section 32(1) of the Evidence Act. It will be useful to note the facts of the aforesaid case in brief. One Dr. Ved Bhushan was kidnapped and later on recovered by the police. He gave a statement at the time of recovery inculpating the accused therein but when the matter of kidnapping went into trial, Dr. Ved Bhushan died in some other incident and could not be produced as witness. The Division Bench of this Court in paragraph no. 12 of the judgment in case of State of U.P. v. Shashi Shekhar (Supra) held as under:

“12. The statement made by Dr. Ved Bhushan under Section 161 Cr. P.C. could also not be utilised by the prosecution in its favour as his previous statement to fix up the culpability on the heads of the accused-respondents. As per Section 32(1) of the Indian Evidence Act, the statement made by a person who is dead can be used in evidence provided it relates to the 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. In the present case, Dr. Ved Bhushan was murdered in some other incident and cause of his death was not in question in this trial. Therefore, his statement made under Section 161 Cr.P.C. was hit by Section 162.”

34. In case of Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619, [LQ/SC/2002/181] the Apex Court has held that prosecution witness deposed prior to death that deceased woman has stated to the witness that she (the deceased) was not treated well by her husband and in-laws for non-fulfillment of balance dowry amount. Such evidence although admissible in respect of the offence under Section 304-B I.P.C. by virtue of Section 32(1) of Evidence Act but not admissible for the offence under Section 498-A of I.P.C. Paragraph no. 10 of Gananath Pattnaik v. State of Orissa (Supra) is quoted as under:

“10. Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW5, who is the sister of the deceased. In her deposition recorded in the court on 4.5.1990 PW5 had stated:

"Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfilment of balance dowry amount of scooter and twin one."

and added:

"On 3.6.1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused now-a-days. She further complained before us that the accused is taking away the child from and her, and that her mother in-law has come and some conspiracy is going against her (the deceased). She further told that "mate au banchei debenahin"."

Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the Hearsay Rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the Hearsay Rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused.”

35. Learned counsel for the appellant further relied upon the judgment of Apex Court in case of Moti Singh and another v. State of Uttar Pradesh reported in AIR 1964 SC 900 [LQ/SC/1963/14] , wherein in paragraph no. 15 of the aforesaid judgment, the Apex Court has held as under:

“15. The effect of this finding is that the alleged dying declaration of Gaya Charan,, Ex. Kha 75, cannot be admissible in evidence. Clause (1) of Section 32 of the evidence Act makes a statement of a person who has died relevant only when that 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. When Gaya Charan is not proved to have died as a result of the injuries received in the incident, his statement cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State.”

36. In case of Sukhar v. State of U.P. reported in (1999) 9 SCC 507, [LQ/SC/1999/950] it has been held by Apex Court that when the prosecution did not make any attempt to establish how the deceased died or whether his death was in any way connected with the injuries sustain to him on the relevant date of occurrence, the statement given by the injured to the investigating officer is not admissible as dying declaration under Section 32 of the Evidence Act. Relevant finding in case of Sukhar v. State of U.P. (Supra) as contained in paragraph no. 2 is quoted as under:

“2. The prosecution case in nutshell is that Nakkal appeared at the police station on the date of occurrence at 9.40 a.m. and narrated the incident as to how he was injured by the accused. The police then treated the said statement as First Information Report and started investigation. The informant was then taken to the hospital for medical examination. As per the FIR, the accused Sukhar is the nephew of Nakkal and had cultivated the land of Nakkal forcibly. When Nakkal demanded batai, Sukhar abused Nakhal and refused to give any batai. Thus,there was enmity between Nakkal and Sukhar. On the fateful day during the morning hours,while Nakkal was going on the road, Sukhar caught hold of his back and fired a pistol shot towards him. Nakkal raised an alarm on account of which Ram Kala and Pitam reached the scene of occurrence and at that point of time, Nakkal fell down and the accused made his escape. The two witnesses, Pitam and Ram Kala, brought Nakkal to the police station whereupon the police recorded the statement of Nakkal and started investigation. The said Nakkal was examined by PW 5, the Doctor who was on duty at the Primary Health Centre and gave the injury report, Exh. Ka-6. On completion of investigation, the police submitted the charge-sheet and ultimately the accused stood his trial. During trial, the prosecution witnesses, PW 1 and 2 merely stated as to what they heard from the injured at the relevant point of time and according to PW 2, the injured had told him that the assailant, Sukhar had fired upon him. It is to be stated that while the trial was pending the injured Nakkal died but the prosecution did not make any attempt to establish how he died or his death is in any way connected with the injury sustained by him on the relevant date of occurrence. Even it is not known as to when he died. The learned Sessions Judge was of the opinion that the FIR recorded by the Investigating Officer and the statement of Nakkal recorded under Section 161 of the Code of Criminal Procedure was admissible under Section 32 of the Evidence Act and relying upon the said material as well as the statement of PW 1 to the effect that the injured told him that the accused, Sukhar has fired at him, the learned Sessions Judge convicted the accused/appellant under Section 307 IPC and sentenced him to undergo rigorous imprisonment for five years. On an appeal, the High Court came to the conclusion that the FIR as well as the statement given by the injured to the Investigating Officer is not admissible as dying declaration under Section 32 of the Evidence Act and in our view, the said conclusion is unassailable. The High Court further came to the conclusion that the statement of the injured under Section 161 of the Code of Criminal Procedure could not be held admissible in evidence under Section 33 of the Evidence Act and we do not see any infirmity with the said conclusion…..”

37. In the present case, there is nothing upon record to indicate that the injury which Kamla received during occurrence was a circumstance of a transaction which resulted in her death. We have examined the evidence for ourselves and find that there is no evidence whatsoever on record as to how and when Kamla died. The prosecution has utterly failed to lead evidence with regard to the death of Kamla. Even the date of death of Kamla was not brought in evidence. The prosecution, in the present case, did not realise that if they wanted to rely upon the statement of Kamla recorded under Section 161 Cr.P.C., then it was their duty to show by satisfactory evidence that the statement was admissible under Section 32(1) of Evidence Act. The provisions of this Section are in the nature of exceptions and the onus of establishing circumstance that would bring a statement within any of the exceptions, contemplated by Section 32 of the Evidence Act lies clearly upon that party which wishes to avail itself of the statement. In our considered opinion, the prosecution in the present case, has failed to discharge that onus. Upon the evidence as recorded, it is not possible to say that the statement in question is admissible because it come within the terms of Section 32(1) of Evidence Act, in as much as there is nothing to show that the injury to which that statement is related was the cause of death of Kamla or that the circumstance under which it was received resulted in her death. We are also of the considered opinion that since, the prosecution has failed to bring on record by leading cogent evidence as to the cause of death of deceased Kamla or as to any of the circumstance of the transaction which resulted in her death, the statement recorded under Section 161 Cr.P.C. by the investigating officer cannot be held to be admissible under Section 32(1) of Evidence Act and thus has to be ignored. The aforesaid statement under Section 161 Cr.P.C. cannot be used for upholding the conviction of the appellants under Section 307 I.P.C., specially in view of the fact that there is no other evidence led by the prosecution to prove the same as all the witnesses of fact have not supported the prosecution case and have denied the involvement of accused-appellants in the incident.

38. So far as the charge under Section 302 I.P.C. against the appellants for committing the murder of Suman, it has been contended by learned counsel for the appellants that there is no evidence led by the prosecution to the effect that the appellants had committed the aforesaid offence. All the witnesses examined by prosecution have denied the involvement of appellants in the murder of Suman. It has been further contended by learned counsel for the appellants that the only evidence which was relied upon by the court below is the statement of Kamla recorded by the investigating officer under Section 161 Cr.P.C. which has been taken into consideration as dying declaration under Section 32 of Evidence Act. It has also been contended by learned counsel for the appellants that the statement of a deceased is admissible as dying declaration under Section 32(1) of the Evidence Act only if it relates to the cause of death of the person making the statement or to any of the circumstances relating to the death of the deceased in case, in which the cause of that person’s death come into question. As per the learned counsel appearing for the appellants, the statement as recorded under Section 161 Cr.P.C. by the investigating officer can be at best considered admissible so far as the death of Kamla who made such statement but cannot be considered as a evidence relevant and admissible, so far as the death of Suman is concerned. The statement of one dead person is not a relevant fact with respect to the question about the death of another person. In this regard, learned counsel for the appellant has relied upon a judgment in case of In re Peria Chelliah Nadar reported in AIR (29) 1942 Madras 450, it has been held by Madras High Court that statement of C to the village munshi recorded by him that P killed C’s husband while she was with P. C committed suicide after making the statement on the same evening. In trial of P for murder of C’s husband statement of C will not be admissible under Section 32 of Evidence Act. The relevant extract of In re Peria Chelliah Nadar (Supra) is quoted as under:

“…….The Village Munsif was sent for and she made a statement to him which he recorded in writing. This statement was admitted as Ex. H and in it Chellammal stated that her husband on the evening of the 13th had found her on the other side of the river with the accused Peria Chelliah Nadar, that a quarrel had ensued between the accused and her husband, and that the accused had cut her husband in the abdomen with an aruval. Chellammal the same evening committed suicide. The learned Sessions Judge was of opinion that her statement was admissible under Sections 32 and 35 of the Evidence Act. There can be no question that the statement was not admissible and the learned Public Prosecutor has not supported the view of the Sessions Judge. It is not admissible under Section 32, because the death of Chellammal did not come into question in the Sessions case, and it is not admissible under Section 35 because this statement recorded by the Village Munsif and attested by two witnesses is clearly not an entry in a public or official register or record within the meaning of Section 35 of the Evidence Act.”

39. Per contra, learned A.G.A. has relied upon the judgment in case of Lukka Ulahannan v. Travancore-Cohin State reported in AIR 1955 TRA-C 104, wherein it was held that a statement will be admissible under Section 32 of the Evidence Act. Paragraph 9 of the Lukka Ulahannan v. Travancore-Cohin State (Supra) is quoted as under:

“9. The first point raised was as to the admissibility of Mundan’s dying declaration in evidence with respect to the incident of the attack on P. W. 2. It was urged that if Mundan’s statement that accused 2 stabbed P.W. 2 was eschewed from evidence, the remaining evidence against him was not sufficient to warrant his conviction. The argument as to the admissibility of the dying declaration of Mundan as against accused 2 was that under S. 32(1), Evidence Act, 1972, statements made by a deceased person were relevant only when made by him as to the cause of his death, where the cause of his death is other reasons. Counsel argued that the statement of one dead person is not a relevant fact with respect to the question about the death of another person or with respect to the causing of hurt to a third. Though some support can be found for the view in the books we are afraid it is too narrow a view to commend itself for acceptance. The balance of judicial opinion would seem to us to be against it.

Section 32(1), Evidence Act, provides: When the cause of a person's death comes into question statements made by that person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death are relevant. In our opinion, to exclude from the evidence statements made by a deceased person as to incidents which occurred during the course of the transaction which resulted in his death, statements other than those relating to the cause of his death would be to import a limitation to the words used in the section which their natural meaning does not warrant. When a limitation like that is intended, the Legislature specially provides for it.”

40. The Allahabad High Court in case of Kunwarpal Singh and another v. Emperor-Crown reported in AIR 1948 All 170, [LQ/AllHC/1947/70] in paragraph no. 14 has held as under:

“14. It may be said at once that no case with respect to the murder of Megh Singh can be made out against the appellants on the material on the record. The dying declaration of Girwar Singh is not admissible in evidence with respect to the incident of the attack on Megh Singh. Section 32(1), Evidence Act, makes the statement of a person who is dead a relevant fact; 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. It follows that the-statement of one dead person is not a relevant fact with respect to the question about the death of another person.”

41. The Apex Court in case of Ratan Gond v. The State of Bihar reported in AIR 1959 SC 18 [LQ/SC/1958/106] , in paragraph no. 7 has held as under:

“7…….. In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death ; on the contrary, the statements relate to the death of her sister. We are, therefore, of the opinion that the statements do not come within S. 32(1) of the Evidence Act and, indeed, Mr. Dhebar appearing on behalf of the State, has conceded that S. 32(1) does not apply to the statements of Aghani.”

42. In view of law laid down by this Court, Apex Court as well as Madras High Court, we are unable to agree with the view taken by Travancore High Court. Even from the bare perusal of Section 32 of Evidence Act, it is clear that a statement made by deceased as to the cause of his/her death or to any of the circumstances of the transaction which resulted in his/her death, in cases, in which cause of that person’s death comes into question is relevant.

43. Thus, the statement recorded under Section 161 Cr.P.C. of Kamla will not be admissible under Section 32 of Evidence Act so far as it relates to the death of Suman, in view of the law discussed above.

44. Since in the present case, there is no other evidence led by the prosecution as to the murder of Suman by the appellants, except for the statement of Kamla recorded under Section 161 Cr.P.C., we are of the considered opinion that the prosecution has miserably failed to prove the charge under Section 302 I.P.C. against the appellants for murder of Suman.

45. Lastly, it was submitted by learned counsel for the appellants that the accused-appellants while examining under Section 313 Cr.P.C. were not confronted with the statement of Kamla recorded under Section 161 Cr.P.C. by the investigating officer and treated as dying declaration. In this regard, from the perusal of statement under Section 313 Cr.P.C. of the appellants, which is identical in case of all the three accused-appellants, we are quoting only statement of Gangotri Devi recorded under Section 313 Cr.P.C. which is as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

46. From the perusal of the statement quoted above, it is clear that the accused-appellants were not confronted with the statement of Kamla recorded under Section 161 Cr.P.C. by the investigating officer which was treated as dying declaration.

47. In case of Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in AIR 1984 SC 1622 [LQ/SC/1984/171] , it has been held by the Apex Court that if the circumstances, are not put to the accused in his statement under Section 313 Cr.P.C., they must be completely excluded from consideration because the accused did not have any chance to explain them. (para 142-144 of the judgment of Sharad Birdhichand Sarda’s (Supra) case.

48. In case of Sujit Biswas Vs. State of Assam, reported in (2013) 12 SCC 406, [LQ/SC/2013/602] it has been held by the Apex Court that the very purpose of examining the accused persons under Section 313 Cr.P.C., 1973 is to meet the requirements of principles of natural justice. The accused, thus, must be given an opportunity to explain the incriminating material that has surfaced against him and in the circumstances which are not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and must be excluded from consideration.

49. In view of the law laid down by the Apex Court, we are of the opinion that the incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principle of Audi Alteram Partem.

50. The Hon’ble Supreme Court in Asraf Ali v. State of Assam reported in (2008) 16 SCC 328 [LQ/SC/2008/1472] has made following observations in paragraph no. 21 & 22 of the judgment which is quoted as under:

“21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State (AIR 1976 Supreme Court 2140), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non- indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.”

51. Section 313 Cr.P.C., 1973 as amended by Act no. 5 of 2009, Section 22 (w.e.f. 31.12.2009) is quoted as under :-

"313. Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub- section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."

52. The forerunner of the said provision in the Old Code was Section 342 therein. It was worded thus :-

"342. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.

(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(4) No oath shall be administered to the accused when he is examined under sub-section (1)."

53. Per contra, learned A.G.A. has relied upon the judgment of the Apex Court in case of Shivaji Sahabrao Bobade Vs. State of Maharashtra reported in (1973) 2 SCC 793, [LQ/SC/1973/251] which considered the fall out of the omission to put the accused, a question on a vital circumstance appearing against him in the prosecution evidence, and the requirement that the accused’s attention should be drawn to every inculpatory material so as to enable him to explain it. Ordinarily, in such a situation, such material as not put to the accused must be eschewed. No doubt, it is recognized, that where there is a perfunctory examination under Section 313 of the Cr.P.C., 1973, the matter is capable of being remitted to the trail court, with the direction to retry from the stage at which the prosecution was closed.

54. The trial court though recoded the statement of the accusedappellants under Section 313 Cr.P.C., but has omitted to put the statement of Kamla recorded under Section 161 Cr.P.C. by investigating officer. The trial court while convicting the accused mainly relied upon the statement of Kamla recorded under Section 161 Cr.P.C. treating the same as dying declaration. It is really a matter of concern that the trial court did not frame any question specifically putting the incriminating material against the accusedappellants. A very important circumstance was thus lost. Apparently, the accused-appellants were not given opportunity to explain the same. Recording of statement under Section 313 Cr.P.C. is not an empty formality during the trial. Section 313 Cr.P.C. prescribes the procedure to safeguard the interest of the accused. Obviously, in the absence of confronting the accused-appellants with the statement of Kamla recorded under Section 161 Cr.P.C., prejudice is caused to the accused-appellants.

55. We may note that considering the importance of statement under Section 313 of Cr.P.C., sub-clause (5) has been added in Section 313 by amendment which permits the court to take help of prosecution and defence in preparing relevant questions which are to be put to the accused. One of the reasons for such amendment was to see that Court should not miss putting any incriminating circumstance to the accused while recording his statement.

56. In the result, the finding of guilt based on the statement of Kamla recorded under Section 161 Cr.P.C. for the reasons recorded above would not sustain.

57. To summarise, we hold that there was no evidence, whatsoever led by the prosecution to hold accused-appellants guilty. All the prosecution witnesses of fact had denied involvement of accused appellants in the aforesaid crime and had also denied their presence. The only material available with the trial court was the statement of Kamla recorded under Section 161 Cr.P.C. by the investigating officer prior to her death which was being treated as dying declaration by the trial court. In view of discussion made above, the same could not be relied upon against the appellants. Further, with regard to the charge under Section 302 I.P.C. for committing murder of Suman, the aforesaid statement of Kamla under Section 161 Cr.P.C. definitely cannot be relied upon as the same does not relate to the death of Kamla but in fact related to the death of Suman and was outside the purview of Section 32 of Evidence Act. Consequently, the appeal deserves to be allowed. The impugned judgment and order of conviction is set aside.

58. In view of that following order :-

(I) The appeal stands allowed.

(II) The judgment and order of conviction dated 19.04.2016 passed by District Judge, Rampur stands quashed and set aside.

(III) The accused-appellants, Smt. Gangotri Devi, Madan Lal and Daulat Ram are acquitted of the offence punishable under Section 302 I.P.C. and Section 307 I.P.C.

(IV) The accused be released from jail forthwith, if not required in any other offence.

(V) The amount of fine, if deposited, be refunded to the accused.