JUDGMENT : J. Das, J. - This is a petition u/s 482 Code of Criminal Procedure. 2. The Petitioner Dhaneswar Sahu is the informant. Opp. parties 1 to 24 are the accused persons in Sessions Trial No. 242 of 1388 pending in the Court of the Sessions Judge, Cuttack. It appears from the lower Court record that the evidence on behalf of the prosecution has been closed and the statements u/s 313, Code of Criminal Procedure of some of the accused persons have been recorded. Some more accused persons are yet to be examined u/s 313 of the Code of Criminal Procedure. At this stage the learned Addl. Public Prosecutor filed an application for making the statement of the deceased Lochan Dalai recorded u/s 161, Code of Criminal Procedure as an exhibit in this case for the purpose of treating the same as dying declaration. The trial Court i. e. 2nd Addl. Sessions Judge, Cuttack rejected the petition. Against that order this petition u/s 482, Code of Criminal Procedure. has been filed. 3. The learned advocate for the Petitioner argued that although a statement recorded u/s 161 Code of Criminal Procedure is not admissible u/s 162 Code of Criminal Procedure., still such a statement is admissible as a dying declaration u/s 32(1) of the Indian Evidence Act in view of exception provided under Sub-section (2) of Section 161, Code of Criminal Procedure. The learned advocate for the opp. parties argued that the statement of the deceased recorded u/s 161, Code of Criminal Procedure by the Investigating Officer must be distinguished from a statement u/s 32(1) of the Evidence Act and in no circumstance, the statement of the deceased recorded by the Investigating Officer u/s 161, Code of Criminal Procedure is admissible. He also argued that in order to be a dying declaration, the statement of the deceased must have been made in expectation of imminent death and in this case the deceased Lochan Dalai died a long time after he sustained the injuries and hence his statement on not be said to have been made in expectation of imminent death and hence his statement is not admissible u/s 32(1) of the Evidence Act. Subsequently the learned advocate for the opp. Subsequently the learned advocate for the opp. parties gave a written argument and in that written argument submitted that the statement of Lochan Dalai recorded u/s 161, Code of Criminal Procedure., is not admissible in the Sessions Trial as the statement is not as to the cause of death or as to any of the circumstance of transaction which resulted in death of Lochan Dalai. 4. Sub-section (2) of Section 162, Code of Criminal Procedure is as follows: 162(2); Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872) or to effect the provisions of Section 27 of that Act. According to the Sub-section (2) of Section 162, Code of Criminal Procedure, it is clear that prohibition u/s 162(1), Code of Criminal Procedure is not attracted, when the statement of the deceased can be treated as the dying declaration u/s 32(1) of the Evidence Act. Thus, this sub-section is on exception to the rule contained in Section 162, Code of Criminal Procedure. 5. Section 32(1) of the Evidence Act is as follows: 32. Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases. (1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expect ion of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 6. The Indian law is dearly distinguishable from the English law. Under the English law the statement of the deceased is admissible as "dying declaration" only when the deceased makes such a statement in expectation of imminent death. 6. The Indian law is dearly distinguishable from the English law. Under the English law the statement of the deceased is admissible as "dying declaration" only when the deceased makes such a statement in expectation of imminent death. In terms of Section 32(1) of the Evidence Act, Indian law differs materially from the English Rule as it is not required in the Indian law that the maker of the statement should be in expectation of imminent death. The dying declaration is admissible whatever the charge may be, provided the cause of death comes under enquiry. 7. In a decision reported in AIR 1370 S.C. 1566 Tapinder Singh v. State of Punjab and Anr. it has been held: The Appellant's submission is that since the police authorities had actually proceeded to the spot pursuant to this information, however exiguous it may appear to the Court, the dying declaration is hit by Section 162, Code of Criminal Procedure This submission is un acceptable on the short ground that Section 162(2), Code of Criminal Procedure in express terms excludes from its purview statements falling within the provisions of Section 32(1), Indian Evidence Act. Indisputably the dying declaration before us falls within Section 32(1), Indian Evidence Act and as such it is both relevant and outside the prohibition contained in Section 162(1), Code of Criminal Procedure. Thus according to the above observation of the Supreme Court, it is quite clear that a statement of the deceased recorded u/s 161, Code of Criminal Procedure is admissible and relevant, provided the statement is as to the cause of death of the deceased. 8. The learned advocate for the opp. parties paced reliance on a decision reported in Moti Singh and Another Vs. State of Uttar Pradesh, and only On the basis of that decision argued that when the deceased is not proved to have died as a result of the injuries received by him in the incident where the deceased is alleged to have been killed, his statement relating to that incident cannot be said to be the statement as to the case of his death and as to any of the circumstance of the transaction which remitted in his death and hence such a statement is neither relevant nor admissible. The learned advocate for the opp. The learned advocate for the opp. parties further argued that in this case the statement of the deceased Lochan Dalai is not admissible and relevant in the light of the decision reported in Moti Singh and Another Vs. State of Uttar Pradesh, as the statement of lochan Dalai is not as to the cause of his death. as he died due to supervening factor i.e. Titanus. 9. I do not agree with the contention of the learned advocate for the opp. parties. There is nothing to dispute the principles enunciated in the Moti Singh's case (supra) that when the deceased is not proved to have died as a result of the injuries receive by him in the incident where he was alleged to have been killed, his stateliest relating to that incident cannot be said as to the cause or any circumstance of the transaction which resulted in his death and hence such statement is neither relevant nor admissible. Although this is the established principle of law and this principle is also spelt out from the terms of the Section itself, still the facts in Mati Singh's case (supra) are quite distinguishable. In Moti Singh's case the facts are that the deceased Caya Charan received gun shot injuries on 5th February, 1960. The doctor who examined him gave the opinion that the injuries were dangerous to life. Gaya Charan reached treatment in the hospital and after treatment he left the hospital. It is not known as whether Gaya Charan was discharged from the hospital on the injuries healing up or left the hospital before the injuries healed up. There was nothing on record to show as to in what circumstance he left the hospital. He died on 1st March, 1960 and his dead body was also burnt before arrival of the Investigating Officer. Hence no post mortem examination was conducted over the dead body of deceased Gaya Chann. There was no evidence on record as to what caused Gaya Charan's death. In these circumstances, the Supreme Court observed that the finding of the Sessions Judge that Gaya Chann must have died on account of the injuries received in the incident which took place about 3 weeks before his death, cannot be said to be correct. There was no evidence on record as to what caused Gaya Charan's death. In these circumstances, the Supreme Court observed that the finding of the Sessions Judge that Gaya Chann must have died on account of the injuries received in the incident which took place about 3 weeks before his death, cannot be said to be correct. The Supreme Court on the other hand held that there is no evidence in support of the findings that Gaya Charan died due to the injuries received by him in the incident and hence the so called dying declaration of Gaya Charan cannot be admissible in evidence, as the said statement is not covered by Clause (1) of Section 32 of the Indian Evidence Act. To be more specific, the Supreme Court gave the clear finding that by so-called dying declaration, Gaya Charan is not proved to have died as a result of the injuries received in the incident and hence his statement cannot be said to be the statement as to the cause of his death or as any circumstance of the transaction which resulted in his death and hence his statement is not admissible in evidence. 10. The facts of the Supreme Court decision (supra) enumerated above are quite distinguishable from the facts of this case. In this case Lochan Dalai in his statement u/s 161, Code of Criminal Procedure state, regarding the circumstance leading to the incident and besides that he suted (Diga Parida gave a blow with the sharp side of the Farsa to my head, I fell down there Dama Parida also assaulted on may head with a 'Hata'. After that my sense was gone etc.). The above statement clearly goes to show that Lochan Dalai was assaulted by some of the accused persons at the time of the incident and there is evidence that on account of the injuries Lochan Dalai was in a semi-conscious stage and he was hospitalised at first in the Subarnaur P.H.C. and then he Was referred to Athagarh Sub-divisional hospital. Dr. Suniti Acharya (P.W. 10) conjucted the post mortem examination over the dead body of Lochan Dalai. It appears from the evidence of Dr. R.N. Panda (P.W. 18) who examined Lochan Dalai in the Subarnpur P.H.C. and Dr. Dr. Suniti Acharya (P.W. 10) conjucted the post mortem examination over the dead body of Lochan Dalai. It appears from the evidence of Dr. R.N. Panda (P.W. 18) who examined Lochan Dalai in the Subarnpur P.H.C. and Dr. Suniti Acharya (P.W. 10) who conducted the post mortem examination that the deceased Lochan Dalai received altogether 12 injuries all over his body including his head. Dr. Suniti Acharya (P. W. 10) has given the opinion that death was due to shock as a result of combined effect of injuries and complications thereof. P.W. 10 has also stated that death due to shock cannot be ruled out completely in case of mutiple injuries of this nature. Thus, from the evidence of P.W. 10 it is clear that the injuries sustained by Lochan Dabi contributed to his death. However, there is evidence that Lochan Dalai developed Titanus during the course of his treatment at Athagarh Sub-divisional Hospital and hence, he was referred to the S.C.B. Medical College Hospital, Cuttack. In cross-examination, P.W. 10 has stated it present it difficult to opine whether the person would have died only due to effect of the injuries present in his body, because during my examination, I found the effect of the injuries as well as the complications of the injuries like Titanus. The sum total of the evidence of P.W. 10 goes to show that the death of the deceased Lochan Dalai was on account of the injuries and resultant shock cannot be completely ruled out. Lochan Dalai has, however, developed Titanus. There is, however, no dear opinion that lochan Dalai could have survived without Titanus. In these circumstances, there is strong basis to hold that the deceased Lochan Dalai is proved to have died as a result of the injuries received by him in the incident and hence his statement relating to that incident can be said to be as to the cause or the circumstance of the transaction which resulted in his death, on set up the Titanus notwithstanding. It any also be stated that there is no evidence that the deceased Lochan Dalai died on account of the Titanus only and not on account of the injuries. Hence, the facts of this case are clearly distinguishable from the facts of Moti Singh's case (supra); and hence the decision of the Supreme Court (supra) is not applicable to this case. 11. Hence, the facts of this case are clearly distinguishable from the facts of Moti Singh's case (supra); and hence the decision of the Supreme Court (supra) is not applicable to this case. 11. The learned advocate for the opp. parties also cited some decisions of different High Courts, the facts of which decisions are almost similar to the facts of the decisions reported in 1964 S.C. 900 (supra) and hence I do not feel it necessary to discuss those decisions. 12. The learned advocate for the opp. parties also argued that the deceased Lochan Dalai died a long time after receiving the injuries and hence his statement u/s 161, Code of Criminal Procedure cannot come within the purview of Section 32(1) of the Indian Evidence Act. In a decision reported in Rajindra Kumar Vs. The State it has been held that in the English Law dying declaration should have been made under the sense, of impending death whereas under the Indian law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death and hence the statement of the deceased recorded by the police u/s 161, Code of Criminal Procedure is admissible u/s 32(1) of the Indian Evidence Act even though the deceased dies much later and was not in immediate apprehension of death when he made the statement. A Division Bench decision of the Punjab High Court reported in Kishan Singh Munsha Singh Vs. The State, has also taken the same view enunciated in Rajindra Kumar's case (supra). 13. In the circumstances discussed above, the statement of Lochan Dalai recorded u/s 161, Code of Criminal Procedure is admissible and relevant as it squarely falls within the ambit of Section 32(1) of the Indian Evidence Act and hence the impugned order passed by the learned 2nd Addl. Sessions Judge, Cuttack, rejecting the petition of the learned Addl. Public Prosecutor for making the statement of the deceased Lochan Dalai recorded u/s 161, Code of Criminal Procedure as an exhibit in the case for the purpose of treating the same as dying declaration is neither correct nor legal and hence the said impugned order must be set aside. 14. Before disposing of the Criminal Misc. Public Prosecutor for making the statement of the deceased Lochan Dalai recorded u/s 161, Code of Criminal Procedure as an exhibit in the case for the purpose of treating the same as dying declaration is neither correct nor legal and hence the said impugned order must be set aside. 14. Before disposing of the Criminal Misc. case, I think it desirable to state some points of caution as observed by the Supreme Court in AIR 1979 SC 1173 Dalip Singh and Ors. v. State of Punjab. In this decision the Supreme Court observed: We may aha add that although a dying declaration recorded by a police officer during the course of the investigation is admissible u/s 32 of the Indian Evidence Act in view of the exception provided in Sub-section (2) of Section 162 of the Code of; criminal Procedure, 1973, it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a Doctor. As observed by this Court in Munnu Raja and Another Vs. The State of Madhya Pradesh, the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged: We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method. I may also observe that admissibility of the statement of deceased lochan Dalai recorded u/s 161, Code of Criminal Procedure as dying declaration u/s 32(1) of the Indian Evidence Act is one thing and the weight and degree of credit to be attached to such a dying declaration is another thing. Even though the dying declaration of lochan Dalai is admitted in evidence, still while acting upon it, the Court has to observe necessary precautions as laid down by various judicial decisions. 15. In the result, subject to the above observations, the criminal miscellaneous case is allowed and the impugned order is set aside. Even though the dying declaration of lochan Dalai is admitted in evidence, still while acting upon it, the Court has to observe necessary precautions as laid down by various judicial decisions. 15. In the result, subject to the above observations, the criminal miscellaneous case is allowed and the impugned order is set aside. It is, however, directed that after admitting the settlement of Lochan Dalai recorded u/s 161, Code of Criminal Procedure as dying declaration u/s 32(1) of the Indian Evidence Act; the trial Court shall give adequate opportunity to the defence to cross-examine those witnesses whom they choose in regard to the credibility of the dying declination and necessary questions u/s 313, Code of Criminal Procedure regarding the dying declaration shall also be put to the accused persons. Misc. Case allowed. Final Result : Allowed