JUDGMENT M.N. Shukla, J. - This appeal is directed against the order of the learned Sessions Judge, Saharanpur dt. 13-1-1969. The Appellant Pritam Singh was convicted u/s 302 read with Section 149 IPC and sentenced to undergo imprisonment for life. He was further convicted u/s 323 read with Section 149 IPC and sentenced to three months' rigorous imprisonment and u/s 148 IPC and sentenced to 18 month's rigorous imprisonment. The remaining Appellants were convicted u/s 302 read with Section 149 IPC and sentenced to undergo life imprisonment each. They were further convicted Under Sections 323 read with Sections 149 IPC and 147 IPC and each of them was sentenced to three months' rigorous imprisonment and nine months' rigorous imprisonment respectively under those counts. The sentences awarded to the Appellants were directed to run concurrently. 2. The occurrence is alleged to have taken place on 20-6-1968 at 5.30 p.m. in village Sakoti, P.S. Manglaur in the distt. of Saharanpur. The person who lost his life was Sube Ram. The Appellants as well as the deceased were residents of the same village and they were connected inter se. Talab and Pritam Singh accused are brothers and Shera accused is the son of Raghubir accused. Rohtas accused is said to be the servant of Pritam Singh accused. Pritam Singh accused is alleged to have been armed with a spear whereas the other accused were armed with lathis. The houses of the deceased and Pritam Singh accused were situate close to each other. People visiting the gher of Pritam Singh were violating the privacy of the house of the deceased and his brother Vikram Singh. There was a small low wall between the house of the deceased and the gher of Pritam Singh. The latter was a history sheeter. It is alleged that bad characters used to visit his house. Sube Ram (deceased) took exception to it on the ground that respectable ladies were residing in the house. In fact, Pritam wanted to raise the height of the wall aforesaid but that would have caused obfuscation in the passage of the inmates of the house of Sube Ram. The latter therefore objected to the raising of the height of the wall. On 25-2-1968 at 9 p. m. there was a marpit between the parties A report was lodged by Sube Ram against Pritam Singh and Talab accused. The latter therefore objected to the raising of the height of the wall. On 25-2-1968 at 9 p. m. there was a marpit between the parties A report was lodged by Sube Ram against Pritam Singh and Talab accused. On the next day at 8 a.m. Talab accused had also lodged a report about the same occurrence on the basis whereof he filed a complaint before the Magistrate. At the time of the present occurrence that complaint was pending in the court of the Magistrate. A date was fixed in that case and it is alleged that Sube Ram (deceased) tried to win over the witnesses of the complaint. 3. On 20-6-1968 Sube Ram and his brother Vikram Singh had gone to their sugarcane field for the purpose of winnowing. At about 5-30 p.m. they were returning home. When they reached near the Kothri of Sita Ram all the five accused emerged out of the Kothri and started inflicting blows on Sube Ram and Vikram Singh. Pritam Singh was saying that he would teach Sube Ram a lesson for having beaten him. Vikram Singh ran to a distance of 10 or 12 paces and raised an alarm. In the meantime the five assailants concentrated their attention on Sube Ram and gave him repeated blows. The alarm raised by Vikram Singh attracted the witnesses to the spot and on their intervention the accused persons ran away. 4. As Sube Ram had been seriously injured it was advised that he should be taken in a taxi to the hospital at Roorkee. When they were near the level crossing just before entering Roorkee Sube Ram succumbed to his injuries. The taxi driver refused to take the dead body in his taxi and therefore, a rickshaw was engaged and the dead body was kept on the same and the party returned for proceeding to Manglaur. 5. The FIR of the occurrence was lodged at PS Manglaur by Vikram Singh (PW 5), brother of the deceased at 11.45 p.m. on 20-6-1968. The distance of the police station is nine miles from the place of occurrence. 6. The statement of Vikram Singh (PW 5) was recorded by the Investigating Officer and then accompanied by him he proceeded to the place of occurrence. He reached Sakoti at about 1.30 or 1.45 a.m. and inspected the spot in the early hours of morning. The distance of the police station is nine miles from the place of occurrence. 6. The statement of Vikram Singh (PW 5) was recorded by the Investigating Officer and then accompanied by him he proceeded to the place of occurrence. He reached Sakoti at about 1.30 or 1.45 a.m. and inspected the spot in the early hours of morning. He prepared the site plan etc. He took into his custody the two spades which were recovered from the chak of Sube Ram (deceased). One of the spades was blood stained. Vikram Singh was sent to the medical hospital, Roorkee for medical examination where his injuries were examined by Dr. B.M.S. Rastogi, Medical Officer, Incharge of the hospital on 21-6-1968 at 4.45 p.m. The following injuries were found on his person: 1. Contusion 3" 1 1/4" on the back of the left shoulder. 2. Differed contusion 4 1/2" 2" on the middle of the left side back. 3. Abrasion 1/4" 1/4" on the medial aspect of lower part of the right leg. 7. In the opinion of the doctor the injuries were simple and that injury No. 3 was caused due to friction against some hard substance while injuries Nos. 1 and 2 were caused by some blunt weapon. 8. The post mortem examination on the dead body of Sube Ram was conducted by Dr. S.S. Anand, Medical Officer, Incharge, G.D. Hospital, Hardwar on 21-6-1968 at 4.30 p.m. The following ante mortem injuries were found on the dead body: 1. Lacerated wound 1 1/2" 1/4" bone deep on the right side of head above the ear. 2. Contusion 5" 1 1/2" on the back and middle of right arm. 3. Stabbed wound 3/4" 1/8" 1/2" on the back of right arm, 1" above the elbow. 4. Abraded contusion 1" 1/8", 1" above injury No. 3. 5. Incised wound 1/2" 1/8" 1/2" on the back and upper side of right forearm, 2 1/2" above the wrist. 6. Multiple contusion 6 1/2" 5" on the right of back extending from the upper part of hip upwards. 7. Mass of contusion 6" 3" on the back and upper parts of left arm. 8. Lacerated wound 3/4" 1/6" 1/2" on the outer part of right leg, 1 3/4" above the ankle. 9. Stabbed wound 3/4" 1/6" 1 1/2" on the back of left arm 2 1/2 above the elbow. 10. 7. Mass of contusion 6" 3" on the back and upper parts of left arm. 8. Lacerated wound 3/4" 1/6" 1/2" on the outer part of right leg, 1 3/4" above the ankle. 9. Stabbed wound 3/4" 1/6" 1 1/2" on the back of left arm 2 1/2 above the elbow. 10. Lacerated wound 3/4" 1/8" 1/V, 1" above right arm pit. 11. Lacerated wound 1/2" 1/8" 1/4" on the outer side of right ankle. 12. Fractures of both bones of right leg just above the ankles 13. Lacerated wound 1" 1/4" 1/2" on the front of left leg 4" from the ankle. 9. On internal examination, a fracture of the 7th to 10th ribs was found, the heart was found empty, the right kidney was found ruptured and the abdominal cavity contained a pint of blood. In the opinion of the doctor the victim had died due to shock and haemorrhage as a result of the injuries. 10. The usual investigation followed and after completion of the same a charge sheet was submitted against the accused. 11. The plea of the accused was that of complete denial and false implication on account of enmity. 12. The prosecution relied on the testimony of four eye-witnesses, namely, Vikram Singh (PW 1), Bundi (PW 3), Sukhpal (PW 4) and Rumala (PW 5). Out of these witnesses the testimony of Bundi and Rumala was rejected by the learned trial Judge on the ground that their plots were situated at great distance from the place of occurrence and hence their presence at the time of the incident was rendered doubtful. We are not inclined to take a different view. Hence, there remains the evidence of only two eye-witnesses namely Vikram Singh and Sukhpal. Besides there is also the deposition of Jagdish Prasad Vaidya (PW 2) who is alleged to have been consulted by the deceased shortly after the occurrence. The result of this case hinges on the testimony of the aforesaid witnesses. 13. The first eye-witness namely Vikram Singh (PW 1) is the informant and the brother of the deceased. He may be regarded as the key witness in the case inasmuch as if his presence on the spot is rendered doubtful the prosecution case is bound to be profoundly shaken. 13. The first eye-witness namely Vikram Singh (PW 1) is the informant and the brother of the deceased. He may be regarded as the key witness in the case inasmuch as if his presence on the spot is rendered doubtful the prosecution case is bound to be profoundly shaken. In order to determine as to whether he is a natural and probable witness of the occurrence one test may be usefully applied i.e. whether he had actually received any injury. In case he was a genuine injured witness, his presence at the time of the occurrence would become highly probable. We have already referred to his injuries which were very minor in nature, being merely two contusions and one abrasion. They were examined on 21-6-1968 at 4.45 p.m. i.e. nearly 24 hours after the occurrence. It is significant that the doctor had not noted the colour of the contusions in his injury report. Dr. B.M.S. Rastogi (PW 8) admitted his inability to indicate the colour of the contusions. It is manifest that the question regarding the colour of the contusions was put to the doctor in cross-examination with a view fixing the probable duration of the injuries. If he had been able to mention the colour of the contusions it would have been of assistance in coming to the conclusion as to whether the injuries were fresh or of comparatively long duration. Thus, from the medical evidence in the case it cannot be inferred that the injuries found on the person of Vikram Singh were necessarily sustained in the incident. It is also significant that Sukhbir Singh (PW 6), the constable clerk, who scribed the FIR admitted in his cross-examination that he did not notice any apparent injury on the person of Vikram Singh. The report was lodged at the police station nearly six hours after the occurrence and by that time the colour of the contusions would have become visible. Still the general diary shows that no such injury of Vikram Singh was entered there and it was merely entered that the witness complained of pain. The witness stated further that he had shown his injuries to Diwan Ji at the thana when he went there to lodge the report. The witness was sent for medical examination to the Roorkee Hospital for medical examination next day i.e. on 21-6-1968. The witness stated further that he had shown his injuries to Diwan Ji at the thana when he went there to lodge the report. The witness was sent for medical examination to the Roorkee Hospital for medical examination next day i.e. on 21-6-1968. Bundi (PW 3) did not depose about the injuries of Vikram Singh (PW 1) either in his statement u/s 161 or u/s 164 Code of Criminal Procedure or in the committing court. Rumala (PW 5) stated for the first time in the sessions court that Vikram Singh had received injuries. Vikram Singh himself stated that one of the injuries was inflicted on his waist which fact is belied by the medical evidence. Further, if the incident had happened in the manner alleged by the prosecution Vikram Singh could not have escaped with such insignificant injuries. Infact, if the assault had been launched by all the Appellants simultaneously which was precisely the allegation in the FIR the whole assault would have finished in about two minutes considering the nature of the injuries inflicted on the deceased. The learned Sessions Judge made a local inspection and we find on record a note dated 23-12-1968 made by him. He observed therein that a man was made to run from the chak of Bundi witness to the spot and he took a little less than three minutes. It seems, therefore, that it became necessary to recall Sukhpal (PW 4) on 2-1- 1969 and make him add in his deposition that the marpit lasted for about five minutes. From these circumstances we are not convinced that Vikram Singh had really sustained injuries in the incident and therefore his presence at the time of the occurrence seems to be doubtful. 14. The other eye-witness in the case was Sukhpal (PW 4). He is supposed to have arrived on the scene from his chak. His presence on the spot appears to be problematic. His statement was recorded by the Investigating Officer at 4 a.m. on 21-6-1968. 14. The other eye-witness in the case was Sukhpal (PW 4). He is supposed to have arrived on the scene from his chak. His presence on the spot appears to be problematic. His statement was recorded by the Investigating Officer at 4 a.m. on 21-6-1968. It is clear from the inspection note made by the learned Sessions Judge that there were two chaks with which Sukhpal could claim to be associated, one which adjoined road on the other side and was at a distance of about 123 feet only from the spot and the other which was situate at a much longer distance and was near the chak of Rumala and Bundi at a distance of 592 feet towards north. Thus, there were two chaks one nearer to the spot and the other at a longer distance and the question is in which of these chaks Sukhpal happened to be before the incident. It may be noted that both these chaks irrespective of their distance were situate in Ujjad Mazra Jeetpur and not in village Sakoti itself. In his statement recorded u/s 164 Code of Criminal Procedure this witness had merely said that he was in the chak without specifying the same. So it is lot sure that he was in the nearer chak. The witness had no doubt deposed that le was in his chak which was at a distance of 20 or 25 paces from Sita Ram's Kothri where the assailants had hidden themselves. 15. The learned Dy Govt. Advocate sought corroboration for the presence of Sukhpal in the nearer chak by referring to his statement made u/s 161 Code of Criminal Procedure. He relied on Section 157 of the Indian Evidence Act which provides that the former statement of a witness may be proved to corroborate his latter testimony relating to the same fact. We are of the opinion that the prosecution cannot press into service the provisions of Section 157 of the Evidence Act in order to seek corroboration of Sukhpal's statement from his statement made before the Investigating Officer. That is clearly barred by Section 162 of the Code of Criminal Procedure. Under the Code the police have powers to investigate a crime but under the proviso to Section 162 Code of Criminal Procedure a statement made to the police in the course of the investigation u/Ch. That is clearly barred by Section 162 of the Code of Criminal Procedure. Under the Code the police have powers to investigate a crime but under the proviso to Section 162 Code of Criminal Procedure a statement made to the police in the course of the investigation u/Ch. XIV of the Code can be used only to contradict the witness u/s 145 of the Indian Evidence Act. In our opinion the general provisions of the Evidence Act are controlled by the sub-provision of Section 162 Code of Criminal Procedure which is a special enactment. So a statement made to the police can be used only for contradicting a witness in accordance with Section 145 of the Evidence Act and not for any other purpose such as corroborating the witness u/s 157 of the Evidence. Act. The legislative history of Sub-section (2) of Section 162 Code of Criminal Procedure also lends support to this view of law. Prior to the amendment of Sub-section (2) of Section 162 in 1941 there was a conflict of opinion on the question as to which provision was to prevail where a statement fell both within Section 162 of the Code of Criminal Procedure and Section 27 of the Evidence Act. In a Full Bench decision in the case of Baldeo v. Emperor 1940 AWR (HC) 229 it was held by the Allahabad High Court that Section 162 of the Code of Criminal Procedure was a specific provision within the meaning of Section 1(2) and affected Section 27, Evidence Act. It was held that a statement made by an accused to a police officer to the effect that the knife with which he and the other co-accused had murdered the deceased was at his house under a heap of pyal was inadmissible in evidence u/s 162 or Section 27 Evidence Act. A Full Bench of the Lahore High Court in AIR 1940 129 (Lahore) also came to the same conclusion. So did the Calcutta High Court in Naresh Chandra v. Emperor AIR 1942 Cat. 593. In order to set at rest the above conflict the amendment of Sub-section (2) of Section 162 of the Code of Criminal Procedure was made in 1941 by the addition of the words that the section would not affect the provisions of Section 27 of the Evidence Act. 593. In order to set at rest the above conflict the amendment of Sub-section (2) of Section 162 of the Code of Criminal Procedure was made in 1941 by the addition of the words that the section would not affect the provisions of Section 27 of the Evidence Act. For the same reason, therefore we do not think that it is competent for the prosecution to seek corroboration of the dying declaration from the statement made by Jagdish Prasad Vaidya (PW 2) u/s 161 Code of Criminal Procedure. Hence, Section 157 of the Evidence Act cannot be relied upon. 16. From the prosecution evidence itself it seems more probable that Sukhpal (PW 4) was not present in the nearer ohak. He himself stated that his chak was situate close to the chak of Rumala and Bundi witnesses and the chak which was close to the place of occurrence was entered in the name of his father and his three uncles. It was elicited in the cross-examination of Vikram Singh (PW 1) that Sukhpal's father Girwar and his four brothers carried on their separate cultivation. In the circumstances the presence of Sukhpal in the chak which was in proximity of the place of occurrence becomes highly improbable. His testimony suffers from other infirmities. He stated that two spades were left at the place of occurrence when the relatives of the deceased started from the spot along with the deceased and that one of the spades was stained with blood. It is very unlikely that the spades would not be stolen in the night and be picked up by the Investigating Officer next morning. Further no attempt was made by the Investigating Officer to send the spade to the Chemical Examiner and Serologist and prove that it was stained with human blood. It is not unlikely that the recovery of the spades was a faked one. Thus, this witness cannot be said to be worthy of credence. 17. The prosecution also essayed to derive corroboration from the testimony of another witness, namely Jagdish Prasad Vaidya (PW 2) practising in the neighboring village of Mohimmadapur. According to the prosecution the deceased made a dying declaration before him. Thus, this witness cannot be said to be worthy of credence. 17. The prosecution also essayed to derive corroboration from the testimony of another witness, namely Jagdish Prasad Vaidya (PW 2) practising in the neighboring village of Mohimmadapur. According to the prosecution the deceased made a dying declaration before him. The witness deposed that Vikram Singh and one Dhanantar had brought the deceased Sube Ram in a rickshaw to him, that the deceased was groaning and he (the witness) enquired from him as to what had happened and thereupon he narrated that a dispute had occurred and the accused persons had assaulted him. It is true that great sanctity attaches toadying declaration because a dying person is expected to utter the truth but a dying declaration can sustain the conviction of an accused provided it is itself reliable and does not suffer from infirmities. As observed by the Supreme Court in Khushal Rao Vs. The State of Bombay, AIR 1958 SC 22 of AIR a dying declaration must be subjected to a very close scrutiny in order to pass the test of reliability. The court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed in the night etc, On a scrutiny of the evidence of Jagdish Prasad Vaidya (PW 2) we are constrained to hold that the dying declaration relied upon by the prosecution cannot stand the test of reliability. It has been repeatedly emphasised by judicial pronouncements that as far as possible the statement of the deceased should be recorded in his own words and not by giving a substance of what he told the witnesses. These requirements have not been even remotely complied with in the instant case. Not only are the exact words of the deceased not reproduced but Jagdish Prasad admits that he had not reduced the statement of the deceased into writing. 18. What derogates further from the reliability of this dying declaration is the fact that in his statement u/s 161 Code of Criminal Procedure jagdish Prasad (PW 2) stated that all the persons were telling him that the accused Pritam, Talab, Raghubir, Shere and Rohtas had assaulted Sube Ram. 18. What derogates further from the reliability of this dying declaration is the fact that in his statement u/s 161 Code of Criminal Procedure jagdish Prasad (PW 2) stated that all the persons were telling him that the accused Pritam, Talab, Raghubir, Shere and Rohtas had assaulted Sube Ram. In other words, the statement was in very general terms alleged to have been made by all the persons meaning thereby those who had accompanied the deceased such as Dhanamar, Vikram Singh etc. The witness did not say that Sube Ram deceased had alone or exclusively made any declaration to him. In our opinion such an omnibus statement attributed to a group of persons including the deceased who are alleged to have met a witness and told him about the incident cannot be regarded as tantamount to an exclusive statement made by the deceased so as to be accepted as a piece of dying declaration. The rigour of a dying declaration which enjoins its being recorded in the very words of the deceased as far a possible would be completely dissipated if such general statements were accepted as the statement of the deceased, thereby the sanctity attaching to a dying declaration would be destroyed. 19. The learnt d counsel for the State advanced a rather ingenious argument that the statement of the deceased made to Jagdish Prasad (PW 2) was also admissible Under Sections 6 and 8 of the Evidence Act. In our opinion Sections 6 and 8 of the Evidence Act cannot be successfully invoked by the prosecution. Section 6 is attracted when facts which though not in issue are so connected as to form part of the same transaction. The reason for admitting these facts is that they form part of res gestae. The area of events covered by the term 'not' depends upon the circumstances of each particular case. Nevertheless, in order that a chain of acts may constitute the same transaction they must be connected together by proximity of time, unity or proximity of place, continuity of action and community of purpose or design. Where the act in question constitutes an independent event or the interval of time is such as to allow fabrication, such event cannot be regarded as res gestae. If the transaction had terminated when the statement was made, it would be irrelevant. In the instant case the assault had finished at 5. Where the act in question constitutes an independent event or the interval of time is such as to allow fabrication, such event cannot be regarded as res gestae. If the transaction had terminated when the statement was made, it would be irrelevant. In the instant case the assault had finished at 5. 30 p.m. whereas the deceased is said to have been taken to Jagdish Prasad Vaidya (PW 2) at 7 p.m. As such there could be room for fabrication of his alleged statement to Jagdish Prasad (PW 2) and we are not satisfied on the facts of this case that the alleged dying declaration made by the deceased to this witness was sufficiently connected by proximity of time or place or continuity of action so as to be regarded as a part of the transaction or the main event. In addition to this we are also averse to relying on the statement of Jagdish Prasad in as much as he did not maintain any register of patients. He could not produce any documentary proof of the fact that the deceased had gone to him for consultation after the assault and further the statement of this witness was recorded u/s 161 Code of Criminal Procedure about one month after the incident. 20. Section 8 of the Evidence Act is also not applicable to the facts of the present case. The contention of the learned by Govt. Advocate that the fact of the eceased approaching Jagdish Prasad Vaidya (PW 2) after the incident and making a statement to him proved the conduct of the party is not sound. The complainant or the deceased cannot be regarded as a "party" to the case. In a criminal prosecution such party is the State. Moreover, explanation 1 of Section 8 is important and merits special notice. It reads as follows: Explanation 1.-The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements but this explanation is not to effect the relevancy of statements under my other section of this Act. Obviously only those statements which accompany and explain acts other than statements can be regarded as conduct, otherwise statements are not synonymous with "conduct". The alleged statement of the deceased to Jagdish Prasad Vaidya neither accompanied any act of the deceased nor was it explanatory of any such act. Obviously only those statements which accompany and explain acts other than statements can be regarded as conduct, otherwise statements are not synonymous with "conduct". The alleged statement of the deceased to Jagdish Prasad Vaidya neither accompanied any act of the deceased nor was it explanatory of any such act. It is not any and every statement made by the deceased to which can be attributed the character of "conduct" so as to become admissible u/s 8 of the Evidence Act. For all these reasons we are not prepared to attach any value to the testimony of Jagdish Prasad Vaidya (PW 2). 21. Thus, on a close scrutiny of the entire evidence we find that the triple bedrock in the shape of the testimony of Vikram Singh, Sukhpal and Jagdish Prasad Vaidya on which the prosecution case was founded topples and there remains practically no appreciable evidence to sustain the conviction of the Appellants. 22. In the result we are constrained to allow the above appeal and set aside the conviction and sentences of the Appellants. They are in jail. They shall be released forthwith unless required in connection with any other case.