N. J. PANDYA, J. ( 1 ) THE first of the two appeals is filed by the accused of Sessions Case No. 39/91 of the Court of the learned Additional Sessions Judge Jamnagar. The accused-appellants were facing charge under Section 302 and other related offences all of Indian Penal Code. However the learned Trial Judge at the end of the trial was pleased to acquit them for offence under Section 302 of Indian Penal Code but was pleased to convict them for offence under Section 326 of the Indian Penal Code and had awarded various sentences. ( 2 ) THE State has come up in appeal by filing the second of the aforementioned appeals and it is against the order of acquittal with regard to the charge under Section 302 of Indian Penal Code. ( 3 ) NEEDLESS to say in their appeal No. 379/91 the accused are challenging the finding of suit given against them by the Trial Court under Section 326 of the Indian Penal Code. ( 4 ) WE have gone through the judgment and the evidence on record and in our opinion there is no alternative but to agree with the learned Trial Judge that there is no case of culpable homicide much less therefore of a murder. The reason is very simple. The deceased Madhabhai according to the prosecution case had received several injuries allegedly inflicted by the accused on his person. He survived for about six days after the date of the incident which is 29-12-1990 and succumbed to his injuries on 5-1-1991. The post-mortem notes had disclosed that his death is due to renal failure. Everyone took it till then that the death of Madhabhai was directly connected with the injuries that he had received. ( 5 ) THIS naturally resulted into admission of his dying declarations made in writing in form of a complaint as well as orally to witness Girdhar Jaga P. W. 6 Exh. 21 (page 139 of the paper book ). ( 6 ) IN the course of the trial case-papers of the deceased Madhabhai disclosing the treatment that was given to him were produced which revealed according to the defence several new facets of the case particularly with regard to the injury and the eventual death and therefore by application Exh. 21 (page 139 of the paper book ). ( 6 ) IN the course of the trial case-papers of the deceased Madhabhai disclosing the treatment that was given to him were produced which revealed according to the defence several new facets of the case particularly with regard to the injury and the eventual death and therefore by application Exh. 39 on behalf of the defence request was made that the doctor who performed the post-mortem examination may be recalled for further cross-examination. That request having been granted further cross-examination was made on 19-8-1991. This witness is Dr. Kalele P. W. 1 Exh. 12 page 106 of the paper book. To the credit of the learned Advocate appearing for the accused it must be recorded here that on account of his thorough preparation on several intricate medical problems involved and to the fairness of the witness Dr. Kalele also it must be recorded that very objectively he has responded to these questions and eventually at page 117 of the paper book we find the admission of this doctor that the death of deceased Madhabhai was in no way connected with the injuries on his person. ( 7 ) THIS admission on his part may be found very starting because till this additional cross-examination was carried out according to the post-mortem notes and the prosecution evidence led till filing of application Exh. 39. clearly was in the direction of death having been caused as a result of the injuries. ( 8 ) IN the additional cross-examination it has been found that though kidney itself was not damaged during the time that the deceased was under treatment because of the complications kidney was being affected and more particularly it did so on 31-12-1990 when out of two doses of gentamaye prescribed one was given and the second was found contra-indicated and therefore not given. All this has been brought out as stated above by the learned Advocate Mr. Daftary appearing for the accused in the trial Court and very precise and analytical approach adopted by Dr. Kalele during his further cross-examination. All this has been brought out as stated above by the learned Advocate Mr. Daftary appearing for the accused in the trial Court and very precise and analytical approach adopted by Dr. Kalele during his further cross-examination. At length the complications leading to renal failure have been discussed and this has been indicated to be the result of disturbance in electrolutic balance because of administration of drug when various potassium salts were discharged from the body and balance was not restored; coupled with this the injection of the aforesaid medicine and drug Manitol as referred to at page 116 of the Paper book during the said additional cross-examination of the doctor. ( 9 ) DR. Kalele has been gently taken by the learned Counsel in the Trial Court through various possibilities which will bring about death. The learned Counsel has fairly put as one of the possibilities the direct result of the injuries caused to the deceased and therefrom possibilities which would be available even in a death due to natural causes. In between that the grey area of new causes that intervene after injury and complications due to administration of drug has been very ably covered. As a result we find the aforesaid admission and clear-cut finding of death not being due to the injuries caused to the person of the deceased. The acquittal appeal filed by the State for offence under Section 302 will therefore lose its substance. ( 10 ) THE matter does not end there. We have to deal with the appeal against conviction under Section 326 of the Indian Penal Code and on merits according to the appellants the prosecution must fail. ( 11 ) FOR this the learned Advocate Shri A. D. Shah has drawn our attention to the fact that complaint according to the prosecution has been given by deceased Madhabhai and it has been brought on record at Exh. 44 almost at the end of the trial when investigation officer was being examined. This usually is the procedure in the Trial Court because that would obviate any complication that might arise if any information is found to have been lodged earlier in point of time than what is claimed to be First Information Report. 44 almost at the end of the trial when investigation officer was being examined. This usually is the procedure in the Trial Court because that would obviate any complication that might arise if any information is found to have been lodged earlier in point of time than what is claimed to be First Information Report. However the complaint having been given by the deceased it will have to meet with the requirement of Section 32 of the Indian Evidence Act because of the obvious reason that the maker of the statement is dead. Same is the situation with regard to the declaration made by the deceased before the said witness Girdhar Jaga Exh. 21 at page 139 of the paper-book. ( 12 ) THE moment we recall the fact that his death is not directly connected with the injuries caused the statements made orally before the said witness Girdhar Jaga and the FIR Exh. 44 both will lose the protection of Section 32 of the Indian Evidence Act and will be reduced to the category of an ordinary statement required to be proved like any other statement by direct hearsay evidence. It is also an exception to the rule that author of the statement must himself be examined to prove the statement. The reason is of convenience as well as of prudence. Section 32 covers the cases where witnesses are not available or cannot be brought before the Court without amount of delay etc. as enumerated therein. In the instant case the maker of the statement has died and therefore the case would fall under sub-section (1) of Section 32 of the Indian Evidence Act. ( 13 ) IT covers only the statements where cause of a death of the maker of the statement is given or he gives circumstances of the transaction which resulted in his death (Emphasis supplied.) as disclosed in the statement. ( 14 ) THE aforesaid factual position as disclosed from the cross-examination of Dr. Kalele clearly indicates that the FIR Exh. 44 and the oral dying declaration as deposed to by witness Girdhar Jaga Exh. 21 will come out of the purview of sub-section (1) of Section 32 of the Indian Evidence Act. ( 15 ) NO doubt as rightly pointed out by Mr. S. P. Dave learned Addl. Public Prosecutor there are other three witnesses also referring to this dying declaration. 21 will come out of the purview of sub-section (1) of Section 32 of the Indian Evidence Act. ( 15 ) NO doubt as rightly pointed out by Mr. S. P. Dave learned Addl. Public Prosecutor there are other three witnesses also referring to this dying declaration. But two of them have not supported the prosecution and one who has supported i. e. witness Jashabhai Kamabhai. p. w. 13 Exh. 42; his deposition will also suffer the same fate as the one suffered by the deposition of Girdhar Jaga Exh. 21. ( 16 ) IF any authority in this regard is needed we have got AIR 1964 SC 900 which has been referred to with approval and affirmation in AIR 1984 SC 1622 In our opinion therefore the conviction under Section 326 of the Indian Penal Code based on this material only cannot be sustained. ( 17 ) BY very nature there could not have been any evidence. The incident happened in a peculiar manner. The deceased had gone along with some of the accused and was returning in a tractor. At that time three other accused intercepted the tractor. These three accused who intercepted the vehicle were apparently waiting for them to pass by. These three persons along with the persons who were accompanying the deceased they all according to the prosecution-case had inflicated blows on the deceased. Obviously therefore there is no possibility of there being any evidence except the details given by the deceased in the afoesaid manner. ( 18 ) UNDER the circumstances we accept the appeal filed by the accused and allow the same. The conviction of the appellant- accused under Section 326 of the Indian Penal Code is hereby set aside. The accused are acquitted. They are ordered to be set at liberty forthwith if not required for any other purpose. Criminal Appeal No. 1097/91 is dismissed. .