Judgment M.M. Gupta, J. 1. ON 12th September 1978 at 1.30 A. M. one Surya Prakash son of Chunni Lal resident of village Kara within the Police Circle Bhojipura in district Bareilly was brought by some persons at the Primary Health Centre, Fatehganj. He had a number of serious gaping stab injuries on his body. Dr. I. B. Gupta who was the medical Officer -in -Charge of the Primary Health Centre, Fatehganj immediately sent information of that Surya Prakash son of Sri Chunni Lal aged about 24 resident of village Kera in Bareilly district was brought to the Primary Health Centre with grievous injuries and his condition was serious. This intimation reached the Police Station through the Chowkidar of the village Suresh Kumar and its record in the General Diary of the Police Station was made at 1. 37 A. M. Sri Hari Singh Sharma, Station Officer, immediately proceeded towards the Primary Health Centre, Fatehganj, on Motor Bicycle. When he was half way between the Primary Health Centre and the Police Station he saw an Ambulance going towards Bareilly. He stopped the Ambulance and found Surya Prakash being taken to Bareilly by Dr. I. B. Gupta and Dr. P. E. Gangwar, who was also attached to the same Primary Health Centre. Sri H. S. Sharma S. O. immediately recorded the Statement of Surya Prakash under section 161 Cr. P.C. That statement was recorded by him at 1.55 A.M. While he was recording that statement the condition of Surya Prakash deteriorated and he noted in it: "Majroob Ke Munh Se Ulti Khoon Ki Aayee. Majroob Ne Swyam Kaha Tatha Choton Men Dard Jyada Hona Bataya. Atah Jyada Aur Pooch Tachh Is Samaya Mumkin Nahin Hai." Thereafter he made a request to Dr. I. B. Gupta to record the dying declaration of the deceased and went back to the Police Station. After that Dr. I. B. Gupta recorded the dying declatration, which he claims to have recorded at 1.45 P. M. and the dying declaration recorded by Dr. I. B. Gupta disclose that the deceased was going on a motor bicycle from Fatehganj to see the Dhuja fair in Agrass. ON another motor-bicycle Shampoo alias Surendra Pratap Singh on 11-9-1978 at about 10 P. M. and Subhash were going towards village Agrass to see the Mela of Dhuja. I. B. Gupta disclose that the deceased was going on a motor bicycle from Fatehganj to see the Dhuja fair in Agrass. ON another motor-bicycle Shampoo alias Surendra Pratap Singh on 11-9-1978 at about 10 P. M. and Subhash were going towards village Agrass to see the Mela of Dhuja. When Surya Prakash was between village Kurtara and Agrass near a grove Surendra Pratap Singh alias Shampoo son of Bhanu Pratap Singh gave him knife injuries and Subhash remained standing there. The Ambulance proceeded to the.District Hospital Bareilly. Throughout the journey Surya Prakash was accompanied by Dr. I. B. Gupta and Dr. K. P. Gang- war. The dying declaration! recorded by Dr. I. B. Gupta is Ex. Ka 5 on the record. 2. AFTER Surya Prakash was admiitted in the District Hospital, Bareilly his injuries were examined by Dr. P. K. Bass PW 3 on 12-9-1978 at 2.40 A.M. He found the following injuries on his person :- "1. Incised wound 3 cm x 1 cm on right side and outer aspect 11 cm away from umbilicus at 3 O'clock. Wound not probed. Omentum coming out fresh bleeding. 2. Lacerated wound 4 cm x 2 cm x muscle deep on front of left forearm 4 cm above wrist. The examination of other injuries was deferred as condition of Surya Prakash was very serious. The injuries were kept under observation. Injury no. 1 was caused by short weapon while injury no 2. was caued by blunt weapon. The injuries were fresh at the time of their examination. On 12-9-1978 Dr. P. K. Bass obtained the services of Sri S. B. Singh. Magistrate First Class for recording the dyingg declaration of Surya Prakash at 2.30 P. M. The dying declaration was recorded after Dr. P. K. Bass had certified about the fit mental condition of Surya Prakaslh for his dying declaration. That dying declaration recorded by Sri S. B. Singh PW 1 is Ex. Ka-2 on the record. According to that statement on the night of the occurrence at about 10 P. M. he was going from Fatehganj towards Agrass on a motor-bicycle. Surendra Pratap Singh alias Shampoo appellant and one Janardan Puri were also going on a motor-bicycle. One Deoki Nandan was also accompanying Surya Prakash on the motor-bicycle. When they reached the culvert of village Kurtara, Shampoo appellant asked him to lit his cigarette. Surendra Pratap Singh alias Shampoo appellant and one Janardan Puri were also going on a motor-bicycle. One Deoki Nandan was also accompanying Surya Prakash on the motor-bicycle. When they reached the culvert of village Kurtara, Shampoo appellant asked him to lit his cigarette. As he stopped he started stabbing him with a knife. When he was stabbing him Janardan Puri had caught hold of his hands. No one else came on the scene. He belonged to the Janta Party while the appellant belonged to the Congress Party. There was only political animosity between the two and there was no other motive for committing his murder. The appellant is the son of a former Member of the U. P. Legislative Assembly. 3. SRI H. S. Sharma continued the investigation He went to the Primary Health Centre, Fatehganj and recorded the statement of Suresh Kumar Chowkidar. He also examined the emergency Register of the Primary Health Centre. At about 3.15 A. M. on 12-9-1978 he reached the scene of occurrence. He left two Police Constables to watch the site of the occurrence. He proceeded to the Mela of Dhuja in village Agrass and found Dinesh Singh S. I. on duty. He informed him that he had seen Shampoo appellant in the Mela at about midnight with blood stained clothes. He recorded his statement. Me went back to the scene of occurrence at 7.30 A. M. He examined the scene of occurrence and prepared the site plan. He took the blood stained asphalt portion of the road and unstained portion of it and sealed them separately. He also found torn blood stained shirt lying on the scene. He took it in his possession. He also found the motor bicycle U. T. I. 172 and also took it in his possession. Thereafter he proceeded to the Primary Health Centre and recorded the statement of I. B. Gupta at 5 P. M. on 12-9-1978. On 13-9-1978 he obtained the copy of the dying declaration recorded by SRI S. B. Singh. On 16-9-1978 Surya Prakash succumbed to his injuries at 7.10 P. M. The inquest report and the diagram of the dead body were prepared by S. I. Jairaj. The body was sealed and was sent for postmortem. The post-mortem was performed by Dr. A. K. Pandey on 17-9-1978 at 4.15 P.M. According to Dr. A. K. Pandey the deceased was aged about 24. The body was sealed and was sent for postmortem. The post-mortem was performed by Dr. A. K. Pandey on 17-9-1978 at 4.15 P.M. According to Dr. A. K. Pandey the deceased was aged about 24. He had found the following antemortem injuries on his body:- * * * * Injuries nos. 2, 4 and 7 were caused as a result of operations conducted by the surgeon. Death in the opinion of Dr. A. K. Pandey, was due to shock and haemorrhage on account of the antemortem injuries. 4. THE appellant surrendered In court on 19-9-1978. He again recorded the statement of Dr. I. B. Gupta on 28-9-1978. He again recorded the statement of Deoki Nandan on 6-10-1978. Sri Hari Singh Sharma was transferred on 2-11-1978. THE investigation thereafter was continued by S.I. Om Prakash Singh who submitted the charge-sheet against the appellant and Subhash on 3-11-1978. The appellant Sampoo alias Surendra Pratap Singh denied having committed the murder of the deceased. He claimed that his father was a Congress M. L. A. and was also formerly a Deputy Minister. The deceased Surya Parkash was connected with the Jan Sangh. There ware strained relations between them. Dr. Om Prakash is the brother of Surya Prakash deceased. Sri Chunni Lal is their father. Dr. Om Prakash practices medicine in his house in Lodinager. He is very friendly to Dr. P. K. Gangwar. Both are also related to each other. Both of them had got very intimate friendship with Dr. I. B. Gupta. They had very good relations with the police of the Police Station Fatehganj. Constable Om Prakash had fired at one Bhairo Prasad. His father Bhanu Pratap Singh had accompanied Bhairo Prasad to the Police Station for lodging the report against Constable Om Prakash. Constable Om Prakash was suspended and a case under section 307 IPC was registered against him. In 1972 the: ornaments belonging to the daughter of Ram Chandra Gupta were stolen. The matter was reported at the Police Station but the police took no action against the culprits. Purushottam Gupta, son-in-law of Ram Chandra Gupta, had made several applications against the police authorities of Fatehganj. The Circle Offier had made enquiries against Sri Hari Singh Sharma and Om Prakash Sharma S. I. His father had supported Ram Chandra Gupta in his allegations against the police. The police was highly inimical against him. He was, therefore, falsely implicated. Purushottam Gupta, son-in-law of Ram Chandra Gupta, had made several applications against the police authorities of Fatehganj. The Circle Offier had made enquiries against Sri Hari Singh Sharma and Om Prakash Sharma S. I. His father had supported Ram Chandra Gupta in his allegations against the police. The police was highly inimical against him. He was, therefore, falsely implicated. Since Subhash was acquitted by the court below it will be quite unnecessary to mention his defence. 5. THE prosecution in support of its case examined PW 6 Deoki Nandan who is stated to have accompanied the deceased on his motor-bicyle at the time of the occurrence. PW 2 S. I. Dinesh Singh who had seen the appellant with blood stained clothes at about midnight between 11th and 12th September 1978 in the Dhuja Mela of Agrass, PW 7 Sri Hari Singh Sharma Investigating Officer of this case, who had also recorded the statement of the deceased under section 161 Cr. P.C., PW 4 Dr. I. B. Gupta who had recorded the dying declaration of the deceased, PW 3 Dr. P. K. Bass who had examined the injuries of the deceased at 2.30 P. M. on 12-9-1978, PW 5 Dr. A. K. Pandey had performed the autopsy on the dead body and PW 1 Sri S. B. Singh is the Magistrate who had recorded the dying declaration of the deceased. 6. THE appellant also examined DW 1 Ram Chandra Lal Gupta in his defence. One police Constable DW 2 Mahabir Singh was also examined to prove the General Diary of the Police Station Fatehganj on 12-1-1978. The charge against the appellant was framed under section 302 IPC simplicitor and under section 302 read with section 34 IPC was framed against Subhash acquitted by the court below. 7. PW 6 Deoki Nandan did not support the prosecution case and denied being present with the deceased at the time of the occurrence. The statement of S. I. Dinesh Singh PW 2 was not believed by the learned Sessions Judge. He discarded the dying declaration recorded by Sri S. B. Singh PW 1 in the District Hospital Bareilly on 12-9-1978 at 2.30 P. M. but ke relied on the statement of the deceased under section 161 Cr. P.C. recorded by Sri H. S. Sharma PW 7 and the dying declaration recorded by PW 4 Dr. He discarded the dying declaration recorded by Sri S. B. Singh PW 1 in the District Hospital Bareilly on 12-9-1978 at 2.30 P. M. but ke relied on the statement of the deceased under section 161 Cr. P.C. recorded by Sri H. S. Sharma PW 7 and the dying declaration recorded by PW 4 Dr. I. B. Gupta and accordingly convicted and sentenced the appellant but gave the benefit of doubt to Subhash and acquitted him. 8. THE learned counsel for the appellant has assailed the findings of the learned Sessions Judge and has contended that the reliance could not be placed on various dying declarations relied on by the prosecution In convicting the appellant. Before dealing with the dying declarations It may be stated that S. I. Dinesh Singh PW 2 had claimed that he was posted on Mela duty In village Agrass on the night between 11 and 12 September 1978 at about 12 in the night and he had seen the appellant accompanied by another person. THE appellant's patloon had blood stains on it at that time. He wanted to stop him for interrogating him about those blood stains as he had some suspicion against him but the appellant made his escape good. He tried to search for him but his efforts proved futile. THE learned Sessions Judge has held that this statement is not worthy of belief as it was unnatural that after the occurrence the deceased would have entered a crowded Mela with blood stained clothes on and the witness made no attempt to chase the appellant by raising an alarm. Moreover, no entry was made by him in the General Diary to that effect. In such circumstances he was fnlly justified in disbelieving this witness. PW 6 Deoki Nandan who was stated in one of the dying declarations by the deceased to have accompanied him has denied this fact. He was permitted to be cross-examined and the statement rexorded under section 161 Cr. P.C. was put to him in his cross-examination. However, the prosecution cannot take any advantage of that statement. Thus, only evidence against the appellant is that of the statement under section 161 Cr. P.C. and the two dying declarations. 9. WE shall first take up the dying declaration Ex. Ka. 5 recorded by Dr. I. B. Gupta PW 4. P.C. was put to him in his cross-examination. However, the prosecution cannot take any advantage of that statement. Thus, only evidence against the appellant is that of the statement under section 161 Cr. P.C. and the two dying declarations. 9. WE shall first take up the dying declaration Ex. Ka. 5 recorded by Dr. I. B. Gupta PW 4. This dying declaration runs as follows :- "Main Surya Prakhash Putra Sri Chunni Lal Kera Bayan Karta Hun Ki Main Kurtara Se Palli Taraf Ja Rahe The Motor Bicycle Se To Surendra Pratap Ne Chaku Se Mara Hai. Narajagt Koee Nahin Thi, Gaon Ki Party-Bandi Se Mara Hai. Vahan Par Meri Motor Bicycle Pari Rah Gayee Hai. Log Mujhe Aspatal Liva Laye. Yeh Karib 11 Baje Ki Bat Hai. Main Mela Dekhne Agrass Ja Raha Tha Ye Mujhe Mele Se Liva Kar Laye They. Iske Sath Dusra Sathi Subhash Tha Ve Bhi Motor Cycle Se They Asptal Ke Bahar Ye Log Karib Ek-Derh Ghante Bad Asptal Laye They. Ham Teeno Kasbe Aaye They Kasbe Se Ja Rahe They". 10. THIS dying declaration is signed by Dr. I. B. Gupta and it bears the date 12-9-1978 and records time of the dying declaration as 1.45 p.m. THIS statement is further signed by Dr. P. K. Gangwar who has put in the date of its recording as 12-9-1978 and time mentioned by him is also 1.45 p.m. Dr. I. B. Gupta has been produced to prove this dying declaration. Dr. I. B. Gupta in his statement has stated that Surya Prakash was brought by Puran Lal and Net Ram to the Primary Health Centre, Fatehganj. Since the injuried was in a serious condition and needed immediate surgical attention he sent the intimation to the Police. He claims to have recorded the statement of the deceased Ex. Ka. 5. It is quite significant to mention here that Dr. I. B. Gupta PW 4 does not state in his examination- in-chief the time at which he recorded the dying declaration of the deceased. In his cross-examination he claimed that the noting of timing as 1.45 p. m. by him and by Dr. P. K. Gangwar was noted by mistake. The time ought to have been 1.45 a. m. It is somewhat surprising that Dr. In his cross-examination he claimed that the noting of timing as 1.45 p. m. by him and by Dr. P. K. Gangwar was noted by mistake. The time ought to have been 1.45 a. m. It is somewhat surprising that Dr. I. B. Gupta who was recording the statement at the dead of the night could made a clerical error in noting p.m. instead of a. m. and that not only he committed this mistake but the same mistake in noting the timing as 1.45 p.m. was committed by Dr. Gangwar also. We will now examine whether the statement was genuinely recorded at 1.45 a.m. as is claimed by Dr. I. B. Gupta PW 4. The intimation of the arrival of the deceased at the Police Station Fatehganj was recorded at 1.37 a.m. Sri Hari Singh Sharma Investigating Officer claims that he immediately proceeded towards the Primary Health Centre at Fatehganj at that very time on a motor bicycle. At 1.55 a.m. he intercepted the Ambulance No. UPH 6205 going towards Bareilly. He stopped it. He found Surya Prakash in the Ambulance with injuries. He immediately recorded his statement Ex. 1 in the case Diary. The statement under Section 161, Cr. P.C. recorded by him (Ex. Ka-9) runs in about one page in which he has given a detailed statement about the manner in which he was given knife blow by the appellant and Subhash was standing there. He also gave out that the enmity was due to political reasons. Before he could complete the statement the note made by the Investigating Officer runs as follows :- "Mazroob Ke Muh Se Ulti Khoon Ki Aayee Majroob Ne Swyam Kaha Tatha Choton Men Dard Zyada Hona Bataya Atah Zyada Aur Poochh Tachh Is Samay Mumkin Nahin Hai. Maine M.O. I/C. Sri I. B. Gupta Se Prarthana Ki Vah Is Mazrook Ka Bayan Nizayye Le Len Aur Sheeghra Aspatal Sadar Ley Jayen." It is obvious from this statement that the deceased must have made his statement slowly and must have taken enough time. If he was in such a bad state as is mentioned by the Investigating Officer, it is difficult to believe how Dr. I. B. Gupta could record his statement Ex. Ka 5 when he was in a great hurry to take the deceased to the District Hospital, Bareilly. If he was in such a bad state as is mentioned by the Investigating Officer, it is difficult to believe how Dr. I. B. Gupta could record his statement Ex. Ka 5 when he was in a great hurry to take the deceased to the District Hospital, Bareilly. The noting by the Investigating Officer in his case diary which has been proved in this case does not state that Dr. I. B. Gupta had recorded any statement. Further in the dying declaration Ex. Ka-5 there is no note made by Dr. I. B. Gupta or by Dr. P. K. Gangwar that the deceased was in a fit mental state to make any statement. It is the first duty of the Doctor to certify about the fit mental condition before he can record the statement of a person who has received fatal injuries. In recording his statement under Sec. 161, CrPC the Investigating Officer would have at least taken 20 to 25 minutes, and if his condition was not such in which that statement could be recorded then Dr. I, B. Gupta would have taken some time to wait for him to be in a fit condition to make the statement. Thus it must be more than half an hour to 45 minutes before any statement could be made by the deceased. The Investigating Officer claims to have recorded the statement of Dr. I. B. Gupta under Section 161, CrPC on 12-9-1978 at 5 p.m. Dr. I. B. Gupta PW 4 was confronted with the statement under Section 161, CrPC in which he had stated : "Maine Majroob Ka Bayan Nahin Liya Tha Chun Ki Uski Halat Gambhir Thi Tatha Uski Jan Bachane Ki Jaldi Men Tha." The witness denied having made that statement but this statement has been proved by the Investigating Officer. It appears that later on finding this inconsistency the Investigating Officer again examined Dr. I. B. Gupta on 28th September, 1978 and in that statement he (Dr. I. B. Gupta) stated that he had recorded the dying declaration of the deceased at 1.45 a.m. on 12-9-1978. It is quite surprising that the witness who had recorded the dying declaration on 12th September, 1978 in the Ambulance forgot all about it at 5 p.m. when his statement under Section 161, Cr. P.C. was recorded but remembered it when his further statement was recorded under Section 161, Cr. It is quite surprising that the witness who had recorded the dying declaration on 12th September, 1978 in the Ambulance forgot all about it at 5 p.m. when his statement under Section 161, Cr. P.C. was recorded but remembered it when his further statement was recorded under Section 161, Cr. P.C. on 28-9-1978. We have therefore no doubt that subsequently at the instance of the Investigating Officer the dying declaration of the deceased was interpolated as the (tying declaration recorded by Sri S. B. Singh was not in conformity with the statement of the deceased recorded under Section 161 Cr. P.C. by Sri Hari Singh Sharma, regarding the participation of Subhash in the occurrence. The entire conduct of Dr. I. B. Gupta in the circumstances of the case is highly undeserving of a Medical Officer. He is not fit to be retained in Government service. The learned Sessions Judge was wholly unjustified in ignoring the serious infirmities in the statement of Dr. I. B. Gupta and placing reliance on the dying declaration recorded by him. It betrays a gross ignorance of law. 11. THE learned Sessions Judge has discarded the dying declaration recorded by Sri S. B. Singh on the ground that it was prompted and tutored by outsider which affected the voluntariness of the statement of the deceased and it was not likely that the persons who prompted or influenced the deceased to make that statement did not know that his statement had already been recorded by Dr. I. B. Gupta as none was present at that time. We have examined the statement of Sri S. B. Singh but we do not find any basis for the conclusion: drawn by the learned Sessions Judge about the dying declaration Ex. Ka-2 recorded by him as being not voluntary or its being tutored. 12. WE are now left with the statement of the deceased under section 161 CrPC recorded by Sri Hari Singh Sharma and the dying declaration recorded by Sri S. B. Singh PW 1. Both these statements are inconsistent regarding the role of the appellant and that of Subhash acquitted by the court below. The statement under section 161 CrPC states : "Mujhe Gher Kar Surendra Pratap Singh alias Shampoo Ne Chakuon Se Mara Tatha Subhash Shahi Pas Men Khara Raha". In the statement Ex. Both these statements are inconsistent regarding the role of the appellant and that of Subhash acquitted by the court below. The statement under section 161 CrPC states : "Mujhe Gher Kar Surendra Pratap Singh alias Shampoo Ne Chakuon Se Mara Tatha Subhash Shahi Pas Men Khara Raha". In the statement Ex. Ka 2 regarding the role of the appellant and the accused it is stated that: "Maine Jaise Hi Gari Roki Usne Chaku Marna Shuru Kar Diya. Main Utar Nahi Paya. Uske Sathi Janardan Puri Ne Chaku Marte Samaya Mere Hath Pakar Liye They." Thus the two statements are wholly inconsistent in respect of the name and role of the other companion. In one Subhash is mentioned while in the other Janardan Puri is mentioned. In the statement under section 161 Cr. P.C. no role is assigned to Subhash excepting of merely standing by while the appellant was causing stab injuries to the deceased. In Ex. Ka-2 Janardan Puri is stated to have caught hold of the hands of the deceased when the appellant caused him stab injuries. Apart from it in the statement under section 161 Cr. P.C. the presence of Deoki Nandan with the deceased is not mentioned while in Ex. Ka-2 the presence of Deoki Nandan is also mentioned. Thus both these statements are consistent only in respect of the role played by the appellant and wholly inconsistent in respect of the role played by the companion of the appellant. In Khushal Rao v. State of Bombay, AIR 1958 SC 22 one of the tests laid down by the Supreme Court was that for placing reliance on a dying declaration, if the deceased had made several statements, is that the statement has been consistent throughout if he had several opportunities of making dying declarations apart from a it official record of it. But, if the statement suffers from such infirmity then without corroboration it cannot form the basis of conviction. In Thurukani Pompiah v. State of Mysore, AIR 1965 SC 939 it was held by the Supreme Court that the two persons mentioned in the dying declaration as having attacked the deceased were found to be afterthought. It was held that the integral portion of the deceased's version was unreliable and that the dying declaration as a whole was not free from doubt. It was held that the integral portion of the deceased's version was unreliable and that the dying declaration as a whole was not free from doubt. Since the dying declaration suffered from such infirmity the accused were given the benefit of doubt and were acquitted. 13. THE learned counsel for the State contended that the main part of stabbing is assigned to the appellant which resulted in the death of the deceased. THE role of the other person is secondary. THE statement is, therefore, severable and the conviction of the appellant could be founded on them. THE learned counsel for the State has relied on Usha v. State of Orissa, AIR 1980 SC 559 in which in a dying declaration it was found that some persons who were not connected with the crime were falsely named, the Court thought it fit to rely on the dying declaration. THE main question on which the decision of this question would turn is whether the other person named in the dying declaration has played any role in the case which could not be separated from the act of the other accused. In the instant case the role assigned to Janardan Puri is of holding the hands of the deceased while the appellant stabbed the deceased. In the case of Subhash in the statement under section 161 Cr. P.C. the role assigned to him is of merely standing by while the appellant stabbed the deceased. THE role of Janardan Puri, in our opinion, cannot be separated from the act of the appellant in stabbing the deceased. THE acts of both of them form part of the same transaction. Thus part of the statement of the deceased can be held consistent in the two dying declarations and cannot be held to be reliable. In such circumstances, as laid down in Kushal Rao's case (supra) and in many other cases reliance cannot be placed on the statement of the deceased unless it is corroborated. 14. AS already stated the learned Sessions Judge has discarded the dying declaration recorded by Sri S. B. Singh (Ex. Ea-2). If that statement is discarded then, we are, left with the only statement of the deceased recorded under section 161 Cr. P.C. by Sri Hari Singh Sharma PW 7. Shri Hari Singh Sharma Investigating Officer PW 7 had proceeded from the Police Station after receiving communication from Dr. Ea-2). If that statement is discarded then, we are, left with the only statement of the deceased recorded under section 161 Cr. P.C. by Sri Hari Singh Sharma PW 7. Shri Hari Singh Sharma Investigating Officer PW 7 had proceeded from the Police Station after receiving communication from Dr. I. B. Gupta that Surya Prakash was brought to the Primary Health Centre on the motor bicycle and he intercepted the Ambulance in which the deceased was being taken by Dr. I. B. Gupta and Dr. P. K. Gangwar when he recorded his statement his condition was very serious as the note after recording his statement by the Investigating Officer shows. He, therefore, must have expected the deceased to die. He was, therefore, recording merely not his statement under section 161 Cr. P.C. but a dying declaration. The Police Regulation requires the Investigating Officer in such circumstances to get it witnessed by at least two witnesses. Since the two doctors were present when he recorded the statement it was not difficult for him to get it witnessed by those two doctors. It is no doubt true that a statement under section 161 Cr. P.C. recorded by the Investigating Officer is admissible in evidence as a dying declaration under section 32 (1) Indian Evidence Act but as a rule of caution the Courts do not convict a person on the sole evidence in the form of a statement under section 161 Cr. P.C. recorded by the Investigating Officer. The Supreme Court in Balak Ram v. State of U. P., AIR 1974 SC 2165 observed:- "The Investigating Officers are keenly interested in fruition of their efforts and though we do not suggest that any assumption can be made against their veracity, it is not prudent to base the conviction on a dying declaration made to an Investigating Officer." In the circumstances of the case discussed above, no reliance can be placed on any of the statements either recorded under section 161 Cr. P.C. or the dying declarations recorded by Dr. I. B. Gupta or by; Sri S.B. Singh for convicting the appellant, for the offence under section 302 IPC. The appellant is, therefore, entitled to get the denefit of doubt. 15. THE appeal is allowed. THE conviction and sentence imposed against the appellant are hereby set aside. THE appellant is on bail. He need not surrender. I. B. Gupta or by; Sri S.B. Singh for convicting the appellant, for the offence under section 302 IPC. The appellant is, therefore, entitled to get the denefit of doubt. 15. THE appeal is allowed. THE conviction and sentence imposed against the appellant are hereby set aside. THE appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties stand discharged. Let a copy of the Judgment be sent to the Chief Secretary U. P. Govt. for information regarding the conduct of Dr. I. B. Gupta. Appeal allowed.