Y. B. SURYAVANSHI, J. ( 1 ) THE judgement in Criminal Appeal No. 1079 of 1984 (Ghurriya @ Rohini Baiswar and 2 others v. State of M. P.)shall govern disposal of Misc. Cri. Case No. 1458 of 1985 (Chakradhar Singh v. Ghurriya @ Rohini Baiswar and 2 others), as they arise out of common judgement, dated 15-10-1984 in S. T. No. 33/83. Ghurriya @ Rohini Baiswar and Rameshwar @ Lolwa have preferred this appeal against their convictions under Section 302/34 I. P. C. and u/s. 376 I. P. C Each of them has been sentenced to undergo imprisonment for life and seven years R. I. , respectively, with a direction that the sentences shall be concurrent. The third appellant Buddhsen has been convicted u/s. 201 I. P. C. and sentenced to undergo three years R. I. In Misc. Cri. Case No. 1458/85 the applicant Chakradhar Singh, Sub-Inspector, who has investigated this case, has prayed for expunging certain adverse remarks made in the above judgement. ( 2 ) IT is not in dispute that the appellant Rameshwar is son of appellant Buddhsen. The agricultural fields of Ghurriya and Buddhsen are near the field of P. W. 1 Bilsiya Bai, widowed mother of the deceased Thagiya Bai, aged 11 years. P. W. 2 Asrafilal is brother of the deceased. Admittedly, some incident occurred on 13-2-1983, and the appellant Buddhsen got Thagiya Bai admitted in the hospital at Byohari where she underwent some treatment, and ultimately died on 23-2-1983. Though there is no dispute that Thaigiya Bai "died because of injuries sustained in her private part resulting in excessive bleeding", the versions as projected by the prosecution and the defence are divergent. ( 3 ) ACCORDING to the prosecution, on 13-2-1983, at about 10. 30 a. m. , Thagiya Bai, along with her brother P. W. 2 Asrafilal had gone to the field for watching crop. Thereafter, P. W. 2 Asrafilal went in the jungle to collect firewood. It is alleged that the two appellants, Ghurriya and Rameshwar, committed rape on Thagiya Bai, and thereafter, Rameshwar thrust a bamboo in the vagina to concoct a story that Thagiya Bai fell down from the Mera and her private part struck against the bamboo and sustained that injury. Pausing here, Mera is a sort of temporary structure built in a field to watch the crops. Pausing here, Mera is a sort of temporary structure built in a field to watch the crops. About four logs of wood are used as pillars and bamboo matting is fixed in the middle, with a thatched roof on the top for protection against sun and rains. It is further alleged, that P. W. 2 Asrafilal, on his return to their field, did not find his sister, and he went to the neighbouring field. He enquired from appellant Rameshwar who told him that Thagiyabai got injured by a stick in the Mera. P. W. 2 went ahead and saw the appellant Ghurriya scaling down from the Mera. Further more, Ghurriya ran away and on this occasion P. W. 2 Asrafilal saw that his hand were stained with blood. His sister disclosed that she has been raped by the appellants Ghurriya and Rameshwar; and a stick has also been thrust in the private part. ( 4 ) IT is further alleged that thereafter, P. W. 2 Asrafilal managed to take Thagiya up to their house where Thagiyabai disclosed the incident also to her mother P. W. 1 Bilsiyabai. The latter disclosed this incident to D. W. 1 Ramphal who advised her to take her daughter to Buddhsen (appellant ). The incident was again disclosed to Buddhsen. The girl was bleeding profusely. It is alleged that the appellant Buddhsen told Bilesiyabai "not to worry about the matter - since he will report the matter, and will also take care of her treatment". Buddhsen (appellant) then arranged a taxi and the girl was taken and admitted in the hospital at Beohari. She was examined on 14-2-83 by P. W. 15 Dr. Mishra who found profused bleeding from the girl's private part. Dr. Mishra had written a letter Ex. P-23 dated 13-2-83 and informed S. O. P. S. Beohari that there is excessive bleeding from the private part of the girl, said to be due to insertion of stick. That was for information. This was entered in Sanha No. 411 dated 13-2-83. Another memo was sent to S. O. (Ex. Dr. Mishra had written a letter Ex. P-23 dated 13-2-83 and informed S. O. P. S. Beohari that there is excessive bleeding from the private part of the girl, said to be due to insertion of stick. That was for information. This was entered in Sanha No. 411 dated 13-2-83. Another memo was sent to S. O. (Ex. P-22) dated 22-2-83 informing that the girl Thagiyabai was admitted on 13-2-83 and her condition has again becomes serious; that, he had asked her to be sent to be examined by W. A. S. at Shandal which facility was not available in the hospital and M. I. C. examination form was also written, but still she continues to be in the hospital and therefore, the needful be done; that, on 21-2-83 Dr. Mishra had sent a memo to S. O. Beohari, repeating that the girl was admitted on 13-2-83, and her condition is serious. It further mentioned. The girl died on 23-2-83 at 9. 40 p. m. , and vide Ex. P. 11 Dr. Mishra informed that due to excessive bleeding from the private part, the girl was admitted on 13-2-83 but she died on 23-2-83, on basis of which a "marg report" Ex. P. 12 was registered, and later on, P. W. 14 Sheshmani prepared a Panchnama Laash Ex. P. 13 dated 24-2-83. The autopsy was performed on 24-2-83 by Dr. Mishra (P. M. Report Ex. P. 24 ). ( 5 ) IT seems that in spite of the post-mortem report, the investigation remained stand still till ultimately on 10-3-83, P. W. 16 Shri Chakradhar Singh S. O. visited the spot and recorded the statements of some witnesses. A site plan was drawn, and in presence of P. W. 3 Babulal and P. W. 6 Rohini Prasad s/o Loknath, blood stained earth and sample earth and a portion of bamboo matting and a green cloth (Art. C) were seized. Dehati Nalishi Ex. P. 8 was sent with P. W. 7 Yogendranath Tiwari on basis, of which, offences u/s. 302, 201/34, 376 were registered. The appellants Buddhsen and Ghurraiya were arrested on 10-3-83. ( 6 ) IT is further alleged that the appellant Ghuraiya alias Rohini Baiswar on being interrogated in the presence of Babulal (P. W. 3) and Rohini Prasad (P. W. 6) gave information (Ex. The appellants Buddhsen and Ghurraiya were arrested on 10-3-83. ( 6 ) IT is further alleged that the appellant Ghuraiya alias Rohini Baiswar on being interrogated in the presence of Babulal (P. W. 3) and Rohini Prasad (P. W. 6) gave information (Ex. P. 2) that a stick and Khadua (Rags of cloth) are kept in his house, and accordingly, a small bamboo stick of about 1' in length, along with 3 pieces of cloth (Arts. B-1, B-2 and B-3) were seized from his possession, at his instance (Ex. P. 3 ). Those articles were duly seized and sealed. It seems, that on 24-2-83, in connection with the inquest proceedings, P. W. 14 Sheshmani Tiwari had seized a Swab (blood stained cotton) from certain utensils or bedding said to be belonging to the appellant Buddhsen, in the hospital (Seizure memo Ex. P. 18), which was also sealed. The sealed articles were sent to F. S. L. Sagar; and according to the Report Ex. P. 25, the cotton-Swab, the earth seized from the place of the incident, the green rags of cloth were found to be stained with blood; and on Art. C, (green cloth), spermatozoa were also detected. ( 7 ) ALL the three accused were charge-sheeted. The appellant Rameshwar and Ghurraiya were charged, firstly, u/s. 376; secondly under Section 302, I. P. C. , in the alternative u/s. 302/34, I. P. C. , whereas, the third appellant Buddhsen was charged u/s. 201, I. P. C. All the accused denied the charges and stated, that they have been falsely implicated. The defence case is that the injury on the private part of Thagiyabai was due to a fall from the MERA. D. W. 1 Ramphal was examined in defence, besides D. W. 2 Rambhuvan Sharma, Tahsildar, Rewa, who had recorded the dying declaration dated 21-2-83 (Ex. D-4) which has been also relied on by the defence. ( 8 ) THE learned trial Court had elaborately considered all the evidentiary aspects, and in Para 51 of the Judgement, summarised the circumstantial evidence, and concluded, that the dying declaration of the deceased about the incident involving both the appellants Rameshwar and Ghurraiya are reliable evidence; and the dying declaration (Ex. D-4) recorded by the Tahsildar is "meaningless". ( 8 ) THE learned trial Court had elaborately considered all the evidentiary aspects, and in Para 51 of the Judgement, summarised the circumstantial evidence, and concluded, that the dying declaration of the deceased about the incident involving both the appellants Rameshwar and Ghurraiya are reliable evidence; and the dying declaration (Ex. D-4) recorded by the Tahsildar is "meaningless". In other words, the trial Court accepted the prosecution version, and rejected the defence story that the injury on the private part was due to a fall. Accordingly, the appellants have been convicted and sentenced as described in Para 1 of the Judgement. ( 9 ) THE pivotal controversy is, whether the injuries on the deceased Thagiyabai were sustained as alleged by the prosecution ? or were due to a fall from MERA, as contended by the defence ? There is no direct evidence, and the entire prosecution story rests on circumstantial evidence, and in particular, the dying declarations attributed to the deceased which are being read u/s. 32 (1) Evidence Act. The learned counsel urged, that the accused have been falsely implicated, and in any case no evidence u/s. 302, I. P. C. is made out. Apropos the dying declaration attributed to the deceased, the preliminary objection is, that it is inadmissible. Case law has been referred. In re : Peria Chelliah Nadar, AIR 1942 Mad 450 , the deceased B was married to a woman named C, who was not faithful to him and was on terms of intimacy with China Nadar. The accused was his elder brother. On 13th March, C and P. W. 6 went in the evening to the river. C did not return. P. W. 6 returned in the village and enquiries were made that night. The woman C had made a statement stating that her husband on the evening of 13th March, had found her on the other side of the river with the accused. A quarrel ensued between them and the accused had cut her husband. C the same evening committed suicide. It was held that the statement was not admissible u/s. 32Evidence Act because "the death of C did not come into question" in the sessions case, nor was it admissible u/s. 35 Evidence Act. A quarrel ensued between them and the accused had cut her husband. C the same evening committed suicide. It was held that the statement was not admissible u/s. 32Evidence Act because "the death of C did not come into question" in the sessions case, nor was it admissible u/s. 35 Evidence Act. Again in Kappinaiah v. Emperor, AIR 1931 Mad 233 (2), the appellants were convicted for raping a woman on 26th August, and after 3 days she committed suicide. The statement that she was raped was held not admissible u/s. 32. "section 32 is not applicable which refers to the actual cause of death or to the transaction resulting into death. The rape is not the cause of her death or transaction resulting into death though it may be the contingent motive". "it is different that her statement could only be relevant u/s. 6 if it so connected with her rape as that forms part of some transaction, what is known as res gestae". In Public Prosecutor v. Munigan, AIR 1941 Mad 359 , a murder case, evidence for alleged motive of murder derived from statements made by deceased prior to death viz. that the accused had been on intimate terms with certain girl and the deceased was attempting to arrange the marriage of that girl with another person. Thus, the evidence of this alleged motive for murder was derived from the statement said to have been made by the deceased prior to her death, which was held, inadmissible under Section 32 Evidence Act. All those three decisions cited by defence are quite distinguishable on their own facts. Section 32 (1) Evidence Act reads as under :"32 (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. "the expression "any of the circumstances of the transaction which resulted in his death," is wider in scope than the expression "the cause of his death". The words "resulted in his death" do not mean "caused his death". "the expression "any of the circumstances of the transaction which resulted in his death," is wider in scope than the expression "the cause of his death". The words "resulted in his death" do not mean "caused his death". In The State v. Ramprasad Singh, AIR 1953 Patna 354, it was observed, "that the test of relevancy of statement u/s. 32 (1) is not what the final finding in the case is, but whether the cause of the death of the person making the statements comes into question in the case". (Para 10 ). In a Division Bench case in In re Kalusingh Motisingh, AIR 1964 Madh Pra 30, a statement of the deceased made to other caste members before the attack but after the incident earlier in the morning, was held, admissible not regarding the cause of his death; but "as one regarding a circumstance of the transaction which resulted in his death". It was further observed", that the declarant need not have been actually apprehending death". ( 10 ) IN the instant case, looking to the proximity of relationship to the actual occurrence and the alleged dying declaration, the statement attributed to the deceased Thagiyabai as to any of the circumstances of the transaction which resulted in her death are admissible, as in this case, the cause of her death comes into question. ( 11 ) HAVING overruled the objection regarding admissibility, the next question for consideration is, what is the dying declaration by Thagiyabai ? and whether, in the circumstances of this case, it could be believed to have been made by her, which finding will further depend on the appreciation and reliability of the evidence of P. W. 1 and P. W. 2. To pick up the thread, P. W. 2 after his return to the field, as already described in Para 3 (supra) did not find Thagiyabai in their field, but found her on the MERA in the neighbouring field. The first dying declaration was on this occasion. Thagiyabai said : she was profusedly bleeding. Naturally, P. W. 1 helped his sister and when they reached home, according to P. W. 1 Bilasiyabai there was second time a dying declaration (for short, referred to as D. D. ). The first dying declaration was on this occasion. Thagiyabai said : she was profusedly bleeding. Naturally, P. W. 1 helped his sister and when they reached home, according to P. W. 1 Bilasiyabai there was second time a dying declaration (for short, referred to as D. D. ). P. W. 1 says : thereafter, she narrates, that she contacted D. W. 1 Ramphal who has admitted in his statement that P. W. 1's house was hardly 15-16 hands away from his house. He has also admitted that P. W. 1 met her at about 10 or 11 O'clock. Here comes diversion in their evidence. Because according to P. W. 1, when Ramphal came, Thagiyabai repeated her statement stated above and Ramphal advised her to take Thagiyabai to the house of Buddhsen, (Appellant ). This also seems natural because Buddhsen is a cousin of P. W. 2 and father of the appellant Ghurraiya. She, therefore, went with Thagiyabai to Buddhsen's house. Her version is, that Jageshwar (P. W. 4) andRamsumiran met her in the way. Pausing here, from the evidence of D. W. 1 Ramphal we find that he admits that P. W. 1 met him, but says, that P. W. 1 and the deceased told him. Suffice to state that the evidence of D. W. 1 Ramphal, which has been strongly relied upon by the appellants, is false. In para 7 he even denied the important circumstance and which has been admitted and also otherwise proved - that Buddhsen had taken Thagiyabai to the hospital in a taxi for treatment - and virtually from the date of the admission till her death, remained there throughout. ( 12 ) (I) On the other hand, the learned counsel Shri Datt urged, that those dying declarations referred above are falsified by other evidence and circumstances. It was stated that P. W. 11 Saroj Basu, the nurse who attended on Thagiyabai had stated that Thagiyabai did not tell her how she sustained that injury. But then, this witness has also stated that she also did not enquire how the injury has been sustained. (ii) Turning to the evidence of P. W. 15 Dr. Mishra it was urged that the doctor did not initially say about such dying declaration, but when recalled and questioned about the memo Ex. But then, this witness has also stated that she also did not enquire how the injury has been sustained. (ii) Turning to the evidence of P. W. 15 Dr. Mishra it was urged that the doctor did not initially say about such dying declaration, but when recalled and questioned about the memo Ex. P. 21, already referred in Para 14 (supra) admitted, that Thagiyabai did tell him that Buddhsen's son along with another boy committed rape and thereafter, a stick was inserted in her private part, and that is how this witness has explained the contents of Ex. P. 21. Doctor has further asserted that Buddhsen was the person who had remained throughout in the hospital. We will discuss about the nature of injuries later on. But so far as the statement of P. W. 15 Dr. Mishra is concerned, his statement also corroborates the evidence of P. W. 1 and P. W. 2 that the girl did make such statement. True, in para 5 he states that "in the beginning" she had also told him that she had fallen from MERA and had received injury by a piece of wood. In our view there are no reasons to disbelieve the above statement of Dr. Mishra; who has further denied the defence suggestion that he had written Ex. P. 21 being mixed up with the other side and at the instance of the police. ( 13 ) THE D. D. recorded by D. W. 2 Shri Sharma, Tahsildar, has been strongly relied upon by the appellants. It is Ex. D-4 dated 21-2-83. It bears Dr. Mishra's certificate (with time 9. 45 p. m.) that she is in a position to give a statement. All that Shri Sharma did was that he asked her name, father's name, place of residence and then asked what is the "takleef" ? Whether anyone had beaten her ? and in one line she said : (In direct ). (illegible ). Then she was asked whether she has been stopped by anyone from making disclosure, and she said "no. ". Then she was asked where is the pain ? and since when ? and she said, touching her private part this place; since yesterday or a day before yesterday. and in one line she said : (In direct ). (illegible ). Then she was asked whether she has been stopped by anyone from making disclosure, and she said "no. ". Then she was asked where is the pain ? and since when ? and she said, touching her private part this place; since yesterday or a day before yesterday. The last question was whether she wants to say anything and she said "nothing, I have got pain in the abdomen".( 14 ) TO say the least, this is not the way a Tahsildar who is also an Executing Magistrate, should record a dying declaration. As has been rightly criticised by the trial Court, and as admitted by the witness himself, Buddhsen and some boys were present when he recorded the statement; that her mother was not there. The doctor stated that D. D. was not recorded in his presence, and D. W. 2 Sharma himself admits that he had asked the doctor to go away, when in fact, it was the doctor's presence which was expected instead of the presence of all other outsiders and Buddhsen. Much said about this D. D. the better. We share the opinion of the trial Court that it has been recorded in a very casual and cryptic manner, and with the least sense of responsibility : We think, it would be proper to say a word about Dr. Mishra who probably does not know that a D. D. could be recorded in a case of emergency even by a Doctor or a police officer or any one and it is not always necessary that it must be only before a Magistrate, though a D. D. before a Magistrate ordinarily carries more weight. Doctor had clarified and elaborated what the girl told him. But on his part, he should have informed the police of what she had stated instead of beating about the bush by writing that her disclosures point out commission of some serious offence. ( 15 ) NEXT it was urged that the medical evidence belies the evidence of P. W. 1 and P. W. 2 who have deposed about the D. D. P. W. 15 Dr. Mishra on examining Thagiyabai, noticed that there was active profused bleeding through private part (genitals); "general condition is low, pulse was 120 p. m. and feeble; B. P. was 90/60; face and palm were pale. Mishra on examining Thagiyabai, noticed that there was active profused bleeding through private part (genitals); "general condition is low, pulse was 120 p. m. and feeble; B. P. was 90/60; face and palm were pale. W. A. S. was not available at P. H. C. so examination of private parts was not possible". Therefore, she was referred to District Hospital Shahdol or where W. A. S. was available. (Report Ex. P. 15-A) Memos had been sent which have already been referred. The postmortem was conducted on 24-2-83. Dr. Mishra found spots of clotted blood in the upper part of inner aspect of both thighs and external genitals; laceration of posterior vaginal wall extending from just above the external orifice to lateral left fornix Rectum and part of anal canal in relation with vaginal wall, tear was also to be found; lacerated margins of tear in vaginal wall and rectal wall tear were. . . . . . . . . . . . , this area was found to be filled with clotted blood. This injury "could have been caused by forceful impact by hard and blunt object". He opined, that death is due to excessive haemorrhage (bleeding) leading to shock. No definite opinion can be given whether the injury is accidental or not". (Ex. p. 24 ). However, in his deposition, when specifically questioned, after being called as a Court witness, he deposed, that this injury on vaginal part could be due to contact with a stick in a fall, but then "in such a situation, there would be injuries on other parts of the body". Then a question was asked that if during a fall, both the legs are wide apart, whether such injury on private part is possible ? and his reply is "that in such a situation, the exterior of the vagina would also have some injuries". He had not examined the private part on 14-2-83 but then, had there been any such external injuries on or about the vagina and also on other parts of the body, there would have been indications of such injuries though old or healed. To close this aspect, when considered this (medical opinion) along with other evidence and circumstances as found in this case, we are of the opinion that the medical evidence corroborates the prosecution version about the injury being caused by forceful thrust of a stick. To close this aspect, when considered this (medical opinion) along with other evidence and circumstances as found in this case, we are of the opinion that the medical evidence corroborates the prosecution version about the injury being caused by forceful thrust of a stick. ( 16 ) THE other criticism is, that the conduct, both of P. W. 1 and P. W. 2, is so unnatural that the story projected by them through the D. D. becomes doubtful. It was urged that P. W. 2 brought his sister home and then went away to collect fire wood. The Judges do not live in ivory towers; and realities of life and experience about habits and made of life of rustic villagers do have a dearing on appreciation of evidence. P. W. 2 belongs to a family of backward class, and to make two ends meet, he had to collect the fire-wood which is their main occupation to sustain their livelihood. So far as P. W. 1 is concerned, she is a hapless illiterate widow, and naturally her first reaction to this incident was tell about the incident to other persons, and it was Ramphal who had advised her to take the girl to Buddhsen. P. W. 3 Babulal is Sarpanch. She had approached him. He does not say what this woman told him, and yet he admits, that the girl was profusely bleeding and he tells her to go and report the matter to the police. Here we may ask why ? If she had complained about the bleeding due to a fall from MERA. Therefore, this witenss is not telling the whole truth. Then, this witness says that on 15-2-83, Jogeshwar (P. W. 4), Rohini Prasad (P. W. 6), Ramsumarin, Raghupati and Baijnath had again called him, and in this gathering all villagers had collected to find out whether really Thagiyabai had sustained injury at MERA. It seems that this Sarpanch is reluctant to tell certain facts. However, according to P. W. 4 Jogeshwar, P. W. 1 on that very day, while she crossed the way, complained : this person is from a different caste. He told her to consult the members of her community. P. W. 1 told him that Ramphal (D. W. 1) had advised to take her to Buddhsen, and thereafter, P. W. 4 and P. W. 1 were seen going to Buddhsen's house. He told her to consult the members of her community. P. W. 1 told him that Ramphal (D. W. 1) had advised to take her to Buddhsen, and thereafter, P. W. 4 and P. W. 1 were seen going to Buddhsen's house. She later on, in casual conversation, told him on return that Buddhsen had told her that she had no money, "you go home, I will take Thagiyabai to hospital". P. W. 1 had further told him, that she wanted to go to the hospital, but Buddhsen asked her to alight from the bus. Thus, this witness also corroborates the evidence of P. W. 1 wherein she says viz. that Buddhsen gave assurance that he will report the matter and will also get the girl treated in the hospital. From the evidence of P. W. 4 Jogeshwar, it further appears, that those elders in the village were keen for some clarification of the story which spread in the village itself and as this witness had said, that along with others he visited the spot and found bloodstains on the bamboo matting. But according to him during on the spot inspection, MERA was not at a great height, nor was there any peg of wood (Khunti) and therefore, they formed an opinion that the complaint of Bilasiyabai about the rape appears to be true. All these circumstances happened because of P. W. 1 had been complaining about rape. ( 17 ) THE next witness is P. W. 6 Rohini Prasad who is a Panch. He was declared hostile. He says, that Bilasiyabai did not tell him anything but P. W. 4 Jogeshwar had sent for Babulal (P. W. 3) Sarpanch, and the latter, in that gathering, told him that there has been an incident of rape by Ghurraiya and Rameshwar; and thereafter, they visited the spot. The purpose of discussing all those circumstances is to show that the conduct of P. W. 1 and P. W. 2 was not unnatural as is being argued and they did disclose in the village the incident of rape which occurred with Thagiyabai. P. W. 3 Babulal in para 1, (probably to save his face being a Sarpanch) admits that to verify what was told, they had visited the spot and thereafter, the Panches returned and decided to report the matter to the police. P. W. 3 Babulal in para 1, (probably to save his face being a Sarpanch) admits that to verify what was told, they had visited the spot and thereafter, the Panches returned and decided to report the matter to the police. He goes to the length of lying, in asserting, that on 15-2-83", "a report was written which was given to Ramsumarin, Sarpanch, who presented it at the police station in the presence of Tahsildar. " Neither Tahsildar nor I. O. have been asked anything about it, and we find from the evidence that except lip-service, none came forward to report this incident to the police. P. W. 4 Jogeshwar does not belong to their caste and therefore, it seems that his evidence in itself, satisfactorily corroborates P. W. 1's story. That is why, it seems, D. W. 1 Ramphal had been examined to say that since about 3 years ago there was enmity between Buddhsen and Jogeshwar because Buddhsen wanted to have some family arrangement of disputes with his son, and on that occasion of mediation Jogeshwar was told that he is neither their relation nor a casteman, therefore, he should keep his hands off. This seems to be a cock and bull story to have us believe that Jogeshwar has enmity with Buddhsen. ( 18 ) BY and large, the surrounding, circumstances do corroborate what P. W. 1 and P. W. 2 have stated about the dying declaration made by Thagiyabai. ( 19 ) IT is still more difficult to believe that the two appellants have been falsely implicated. Buddhsen (appellant) is the person who, according to the clinching evidence of P. W. 9 Ramdulare and P. W. 10 Rambali, on the date of the incident, pledged his golden ornament with P. W. 9, and obtained Rs. 2,000/-; and on 23-2-89, further obtained an amount of Rs. 2,200/- saying, that he needed money for medical treatment. Buddhsen had denied these circumstances about his conduct, but there are no reasons whatsoever to disbelieve the evidence of P. W. 9 and P. W. 10 which has a strong bearing on the conduct of appellant Buddhsen on this incident involving his son. We do not agree with the contention that all of a sudden, this appellant Buddhsen, on account of humanitarian considerations or charity or philonthropy played such a role. We do not agree with the contention that all of a sudden, this appellant Buddhsen, on account of humanitarian considerations or charity or philonthropy played such a role. ( 20 ) IN context of what is stated above, we find that the appellant Buddhsen assured this hapless widow P. W. 1 that he would report the matter and would also take care of the girl's treatment. It is also in P. W. 1's evidence, that on certain occasions she wanted to go herself to the police station which was on way to the hospital, but the appellant Buddhsen bluffed her saying that the matter has already been reported to the police. He further took precautions to see that whenever, sparingly, she visited the hospital, he accompanied her home to ensure that she does not go to the police station. In the hospital itself, it was Buddhsen who constantly attended the injured girl. Even Dr. Mishra had deposed that the girl was in a state of fright, which is natural for a girl of this age when instead of being in the company of her mother she was being attended and shadowed by Buddhsen, who is the father of the appellant Ghurraiya who committed the offence brutally. Therefore, we do not accept the contention that the conduct of P. W. 1 and P. W. 2 after the incident, is so unnatural that the story told by them about the D. D. should be disbelieved. Appellant Buddhsen's conduct, as it appears from the evidence, shows, that he was an influential person in the locality; whereas, P. W. 1 was a hapless widow, unsophisticated to the willy-ways of life, and was being bluffed and duped by the appellant Buddhsen. Buddhsen had even managed to be present when D. D. was being recorded before the Tahsildar; and in a state of fright as the girl was, naturally she was not in a position to freely tell about the incident in Buddhsen's presence. ( 21 ) IN spite of certain discrepancies we find that P. W. 6 Rohini Prasad and P. W. 3 Babulal support the prosecution version stated by P. W. 16 Shri Chakradhar Singh, S. O. that Ghurraiya made a discovery statement (Ex. ( 21 ) IN spite of certain discrepancies we find that P. W. 6 Rohini Prasad and P. W. 3 Babulal support the prosecution version stated by P. W. 16 Shri Chakradhar Singh, S. O. that Ghurraiya made a discovery statement (Ex. P. 2) that he has "hidden" a stick in his house (Art. A) with 3 blue coloured rags of cloth (Art. B-1, B-2 and B-3) which were also seized at his instance (Seizure memo Ex. P. 3 ). This is relevant u/s. 27; also u/s. 8 of the Evidence Act, and the report of the Chemical Examiner (Ex. P. 25) shows that the presence of blood was confirmed on Art. A. stick; and also the presence of spermatozoa on Art. B-2 (Fariya) and the piece of green cloth found on the spot. ( 22 ) A dying declaration, if believed, is a substantive piece of evidence. It stands on the same footing as any other piece of evidence and has to be judged in the light of the surrounding circumstances and with reference to the principles governing the weighing of evidence. There is no rule of law nor precedent that D. D. requires corroboration. This controversy has been set at rest in Khushal Rao v. State of Bombay, AIR 1958 SC 22 , and was reiterated in Harbans Singh v. State of Punjab, AIR 1962 SC 439 ; and also in Pandharinath Budhe Patil v. State of Maharashtra, 1969 Jab LJ (SN) 89 page 78 (2) (SC ). ( 23 ) IN the case before us, the appellants 1 and 2 were the known persons; and the alleged dying declaration gives a concise but complete picture of rape by both of them and thereafter, insertion of a stick in the vagina by Rameshwar. There was no enmity. Therefore, there was no question of false implication. The medical evidence corroborates the dying declaration. The consistent conduct of P. W. 1 and P. W. 2 who have deposed about the D. D. , considered in the light of surrounding circumstances, the report of the Chemical Examiner about the blood stains on the stick and presence of spermatozoa on a rag - all those circumstances lead us to believe the dying declaration involving the appellants Ghurraiya and Rameshwar in the incident of rape. Therefore, the findings of the learned trial Court which has considered all the evidentiary aspects do not call for any interference. ( 24 ) THOUGH we agree with the finding that Ghurraiya and Rameshwar committed rape on the minor girl, it is difficult to agree with the finding that they have committed an offence u/s. 302 or 302/34, I. P. C. It is unfortunate that Thagiyabai died because of constant and profuse bleeding. We agree with the learned counsel that the death was due to excessive haemorrhage (bleeding), which, in our view, could have been prevented by prompt and adequate treatment. The police seems to be negligent in not promptly sending the girl to W. A. S. available at Shahdol or elsewhere. No questions have been asked to Dr. Mishra but we fail to understand why in state of such emergency, with the consent of the mother or her de facto guardian, he did not examine her to give proper treatment immediately. Dr. Purandare and Dr. Shirodkar are Gynaecologists of international fame and are male doctors. Dr. Mishra could not have been ignorant about another famous Gynaecologist Dr. Jungawala in M. P. It seems to us that by proper and prompt treatment, the death could have been prevented. Looking to the nature of the injury it was caused with a brutal force by means of a stick. But in absence of evidence that it was sufficient in the ordinary course of nature to cause death, we can, at its best hold, that it was an injury which at least "endangered life", and such injury, according to Section 320 (clause eightly) is a "grievous hurt". Therefore, the convictions of the appellants Ghurraiya and Rameshwar under Sections 302/34 have to be set aside and altered to one under (sic ). ( 25 ) A propose the conviction of Buddhsen u/s. 201, I. P. C. this is not a case akin to the Illustration given in the Section. The ingredients of Section 201 are : That an offence has been committed; that the accused knew or had reason to believe that the offence was committed; that, the accused caused evidence of the committing of such offence to disappear; that the accused did so to screen the offender. This Section is designed to penalize "attempts to frustrate the course of justice". This Section is designed to penalize "attempts to frustrate the course of justice". In the instant case, Buddhsen knew, being told by the deceased, as also P. W. 1, that the other appellants have committed offences of rape. One of them viz. Ghurraiya is his son. True, as is urged, before us, no statutory duty was cast on him to lodge FIR or inform the police and Section 302, I. P. C. read with Sections 39 and 40 of the Code of Criminal Procedure are not attracted. But the matter does not rest there. The conduct and rule of Buddhsen has been described earlier which eloquently points out to his intention to screen the offenders. To briefly reiterate, this fox of a person persuaded and convinced the unsophisticated illiterate widow that he has already reported the matter; and gets the girl admitted in the hospital and creates an impression that he has done what he had said viz. that "p. W. 1 need not worry, he will report the matter and will also get the girl treated". She was duped. The results were obvious. No report was lodged. The other appellants could not be arrested in due course as otherwise could have been done. There could not be medical examination of the other appellants which in a rape case of a minor girl, would have been useful evidence. Even the blood-stained swab-ball of the hospital was retained by him in his belongings, which was seized. All those circumstances prove his intention to screen the offender and intention to cause disappearance of evidence particularly his false assurances to the mother of the minor girl that a report has been lodged, "was false information given to a person who was otherwise interested in bringing offender to justice" (In re : Kottayan alias Nambi Thevar, AIR 1960 Mad 9 , in which Pattammal In re : Pattammal, AIR 1940 Mad 898 has been referred, wherein it has been assumed "that information can be given to a person interested in bringing the offender to justice" and would make the informant offender culpable ). In re : Kuttayan alias Nambi Thevar (supra), it was observed (Para 24) : "section 201 looks upon a person giving false information with intent to screen an offenders an accessory after the fact and makes him culpable as an offender committing an offence against public justice, as the policy of the law is that even at the early stage of the enquiry nothing should be done which would lay false trails or cause the enquiry to be burked or weaken the prosecution and injuriously interfere against public justice. " in Chander Giani v. State AIR 1958 Punjab 183; Tekchand, J. observed (Para 13) :"the expression "any evidence of commission of that offence" refers not to evidence in the extensive sense in which that word is used in the Evidence Act, but to evidence in its primary sense, as meaning, anything that is likely to make the crime evident, such as the existence of a wounded corpse or blood stained clothes and weapons, fabricated documents, or similar material objects, indicating that an offence has been committed. . . . . . . . . . . . . . . . ". "the fact as to the removal of the corpse from the village to the Grant Trunk Road suggested that by removing the corpus delicti the intention was to avert the suspicion from the accused. The removal of the corpse to the Grant Trunk Road was presumably with a view to suggest that the man had been done to death by someone who was a passer by. This act was an attempt with a view to screen the real offenders. "misc. Cri. Case No. 1458/85( 26 ) THIS relates to an application by Chakradhar Singh, S. O. , who had been I. O. in this case. The prayer is to expunge certain disparaging remarks in the judgement, more particularly contained in paras 34, 40 and 41 of the judgement. The trial Court can certainly, while appreciating the evidence and on the basis of materials on record, make certain observations, which could not be denied, but the Court has to be circumspect in this regard. The applicant was the I. O. in this case. The offence occurred on 13-2-1983. However, it is shown that between 7-2-1983 and 15-2-1983, the applicant was on duty at Rewa, and not at the police station. The applicant was the I. O. in this case. The offence occurred on 13-2-1983. However, it is shown that between 7-2-1983 and 15-2-1983, the applicant was on duty at Rewa, and not at the police station. On 13-2-1983, he was out in connection with some dacoity case. Again from 21-2-1983 to 8-3-1983 he was out. Uma Shankar Singh, a probationer P. S. I. and Awadh Bihari Mishra, S. I. , were at the police station. The crux of the adverse remark is that the applicant was inactive in various ways. It would have been more appropriate to put specifically certain question to the I. O. about the various aspects so that he may have had an opportunity to explain his conduct. In par 59 it was observed that the conduct of the I. O. is highly suspicious; in a serious case like this, nothing was done by him between 13-2-1983 and 13-3-1983. The learned counsel Shri Ajit Singh urged that there are certain other features in this case. Budhsen appears to be the villain of the piece. He was wily and deceitful, and under his persuasion the report was lodged and the girl was sent for medical treatment. The girl being under his influence, she could not freely make any disclosure about the events, though feebly she made certain disclosures to the doctor, but the latter in his turn did not send these details to the police. Whether the applicant was inactive or other officers in-charge were callously negligent is a matter which requires some enquiry. Therefore, we feel, that in all fairness, the various aspects relating to inaction of the police officers involved needs a proper enquiry as enjoined in Rule 241 of "the Rules and Orders (Criminal) for the guidance of Criminal Courts subordinate to the "high Court" Instances of abuse of authority or misconduct by the police coming to the notice of the Presiding Officer to be reported to the D. M. so that after necessary action, he could report to the Sessions Judge about the action taken. Therefore, the disparaging remarks about the applicant in the judgement need to be expunged with a direction to the Sessions Judge to send a copy of the judgement of the trial Court together with a copy of the judgement of this Court to the District Magistrate who shall cause necessary enquiry relating to the inaction of the police officers concerned, which may also enable the authorities concerned to take such proper action against them as may be necessary. Accordingly, this application for expunging the remarks is allowed with the observations as stated above. ( 27 ) IN view of the above discussion, we conclude, that the convictions of the appellants Ghurraiya and Rameshwar under Section 376 IPC and the sentences of Seven Years' RI each are maintained. But, their convictions under Sections 302/34 IPC and the sentences of life imprisonment thereunder are set aside. Instead, each of those appellants, Ghurraiya and Rameshwar, is convicted u/s. 325/34 IPC, and looking to the mode and manner in which this offence appears to have been committed with a minor girl, in a helpless condition, they are awarded Seven years' RI each. The above sentences shall be concurrent. The conviction of the appellant Buddhsen u/s. 201 IPC and the sentence of three years' RI are maintained. Accordingly, the Criminal Appeal No. 1079/84 is partly allowed. Order accordingly. .