Judgment Ram Nandan Prasad, J. 1. The sole appellant has been convicted under section 376 of the Indian Penal Code and has been sentenced to rigorous imprisonment for seven years. He has further been convicted under Sec.480 of the Penal Code and has been sentenced to undergo rigorous imprisonment for three years. Both the sentences have, however, been ordered to run concurrently. It appears that one Ambika Singh was also an accused in the case, but he died before the trial was taken up. 2. The prosecution case is that in night between 22th and 23rd May, 1975 the prosecutrix, namely, Sona Devi, was sleeping in her house, all alone on a cot as her husband was away in field. At about 11 p. m. she was disturbed from her sleep by some sound and then she saw the present appellant and accused ambika Singh standing near her. On seeing them, Sona Devi wanted to raise alarm, but they over-powered her and also put some cloths in her mouth. They also put her neck inside the ardwani of the cot. Thereafter both those persons committed rape upon her one after another. After satisfying their lust those two persons picked up her box containing clothes and ornaments and look it away. They also removed the ornaments from her person. After their departure she removed the cloth from her mouth and started crying which was initially heard by Sri Chand Mahto (P. W.2 ). On hearing her cries P. W.2 also raised alarm, where upon P. W.8 Lakhan Mahto and P. W.4 Chandrika mahto and P. W.6 Bindeshwari Mahto, who was ths husband of the victim lady, went to the boring of P. W.2 and from there all of them went together to the place of occurrence and learnt about the occurrence from Sana Devi. It has further been stated by them that they had seen the appellant and deceased Ambika Singh scaling over the wall of the house in which ths victim girl was sleeping and also fleeing away from there. After sometime P. W.6 took Sona Devi to Nawadah Sadar hospital where her fardbeyan was recorded the following day at 10 a. m. On the basis of the fardbeyan a case was registered at Akbarpur police station. After usual investigation the police submitted charge-sheet against the appellant as well as Ambika Singh. After sometime P. W.6 took Sona Devi to Nawadah Sadar hospital where her fardbeyan was recorded the following day at 10 a. m. On the basis of the fardbeyan a case was registered at Akbarpur police station. After usual investigation the police submitted charge-sheet against the appellant as well as Ambika Singh. As said above ambika Singh died before the trial could be taken up, and the appellant has been convicted and sentenced as per the details given above. 3. The defence of the appellant was that there was caste rivalry between koiris and Bhurmihars of the village in question and litigations were going on between them. The prosecutrix and the prosecution witnesses belong to Koiri community, whereas both the accused persons belong to Bhumihar community. It is said that this was the cause of their false implication. 4. At the trial the prosecution could not examine the prosecutrix, namely, sona Devi as she died before her evidence could be recorded. The learned additional Sessions Judge has, however, admitted her fardbeyan (Ext.4) in evidence and has used it as dying declaration and based his conviction thereon coupled with the evidence of P. Ws.1, 2, 4, 5 and 6. 5. According to the prosecution story itself, Sona Devi was the only witness to the occurrence relating to rape as well as theft. Now the question is as to whether her fardbeyan could be used as substantive evidence in the case as been done by the learned Additional Sessions Judge. It appears that the learned Additional Sessions Judge is of the view that her statement is relevant under Sec.8 of the Indian Evidence Act and is admissible under section 32 thereof. I am afraid Sec.32 of the Indian Evidence Act is not at all attracted in the facts of the present case, as it lays down that statements of a dead person can be used as evidence only when it relates to the cause of his or her death or made in course of business or was made against the interest of the (sic) or that statement gives opinion as to public right or matters of general importance or it relates to existence of relationship or is made in will or deed relating to family affairs or in a document relating to transaction mentioned in Sec.13 (a ). Apparently the learned Judge was used the fardbeyan under the first clause which relates to the cause of death as other clauses are wholly irrelevant in the present case. A bare perusal of Sec.32 (1) of the aforesaid Act shows that the statement of a dead person can be relevant only when it relates to the cause of his own death. It is nobodys case in the instant case that the rape was the cause of death of Sona Devi. Indeed, she is said to have died after two and a half years of the present occurrence and the cause of death was quite different. That being so, the present occurrence cannot be said to relate to the cause of her death and that being so her statement cannot be admissible under Sec.32 of the Indian Evidence Act and it also cannot be admissible under Sec.33 of the Indian Evidence Act, as the fardbeyan was not recorded in a judicial proceeding. 6. Thus it is manifest that the fardbeyan of Sona Devi cannot be admissible under Sec.32 or any other provision of the Indian Evidence Act, and as such it could not be used in the present case, if this goes out of consideration, there remains a legal evidence on record to prove the factum of rape and theft, of course, the evidence of P. Ws.1, 2, 4 and 6 is there, but none of them has claimed to have seen any par of the occurrence. The only thing which they have said against the appellant is that they had seen the appellant and Ambika Singh scaling over the house in question and thereafter fleeing away. Apart from the fact that this evidence by itself would not be sufficient to prove the factum of rape by the appellant or even theft by him, the evidence itself is not quite convincing. Firstly, none of those witnesses had told the investigating officer that they had seen the two accused person scaling over the wall of the house in question. So, chis part of the evidence is clearly an exaggeration. Not only that it is not quite probable that they could see this or even two accused persons fleeing away. Firstly, none of those witnesses had told the investigating officer that they had seen the two accused person scaling over the wall of the house in question. So, chis part of the evidence is clearly an exaggeration. Not only that it is not quite probable that they could see this or even two accused persons fleeing away. In this connection, would be relevant to point out that all the witnesses had collected at the boring of P. W.2 from where they went together to the house in question, according to the evidence of P. W.2 himself this boring is about 280 yards away from that house. His evidence further is that after hearing the cries of Sona Devi, which according to the prosecution case itself, was raised after the two accused persons left her house and she extricated the cloths, from her mouth, she raised alarm, whereupon P. Ws.2, 4 and 6 collected there and then all of them proceeded to go to the house in question. All these must have taken some time and in deed P. W.2 has admitted that he had reached the house ia question after half an hour of hearing the cries of Sona Devi P. W.4 has also made a similar statement and according to him, they had reached the house in question after 25 minutes of hearing the the cries of P. W.2. This also appeared more natural. In any event, it they reached after 25 or 30 minutes of cries by Sona Devi. I wonder how they see the two accused persons coming out of the house in question by scaling over the wall, As said above, this story was not told to the investigating officer and is clearly an after-thought. In deed, they are not expected to see even the accused persons coming out of that house after half an hour as the accused person could not be expected to wait there for arrival of the withesses. Then p. W.1 has stated that he had seen the two accused persons from a distance of 133 yards and no witness has spoken about any source of light. In such circumstances the identification of the two accused persons by those witnesses cannot he said to be free from doubt. Then p. W.1 has stated that he had seen the two accused persons from a distance of 133 yards and no witness has spoken about any source of light. In such circumstances the identification of the two accused persons by those witnesses cannot he said to be free from doubt. It is really surprising that even after seeing them witnesses one of whom was the husband of the victim woman, did not try to chase the accused persons and recover the box which they were said to be carrying. This circumstauce may indicate that they did not see the accused persons and this is why no attempt was made to chase them and even to raid their house after the occurrence. In such circumstance, it does not appear safe to act on the evidence of P. W.1, 2, 4 and 6 regarding the fact which they claimed to have seen. It may also be pertinent to state that p. W.2 has admitted about the rivalry between the Koiry and Bhumihar communities of the village as also the litigation going on between them. In such circumstance, the probability of false implication on account of suspicion or any other reason cannot be completely ruled out. 7. If the evidence of P. Ws.1, 2.4 and 6 is excluded from consideration so far it relates to their seeing the accused persons fleeing away, there remains no legal evidence on the record to prove the guilt of the appellant. It is really unfortunate that the victim woman died before her evidence could be recorded, otherwise the picture of the case would have been quite different; but in the situation in which the court is placed now, there is no option but to give benefit of doubt to the appellant and acquit him. 8. In the result, the appeal succeeds and the order of conviction and sentence recorded against the appellant is set aside and he is acquitted of the charges for which he has been convicted. Appeal allowed.