Judgment A.S. Tripathi, J. 1. This appeal is directed against the judgment and order dated 9-12-1991 passed by IIIrd Additional Sessions Judge, Hamirpur, convicting the appellant under section 302, IPC and sentencing him to death. 2. The appellant was charged for having committed the murder of Smt. Rajrani aged about 30 years and her son, Vijai Bahadur aged about six years. The prosecution case was that the reporter, Ramphal, is the husband of Smt. Rajrani resident of village Khanna police station Khanna district Hamirpur. On 2-3-1989 government Harijan residential colony was being constructed and Ramphal had gone there to work as labourer. The wife of reporter, Ramphal, namely, Smt. Rajrani and their younger son, Vijai Bahadur aged about 5-6 years had gone to look after their fields which was about three kilometres towards west of the village. It was alleged, that Smt. Rajrani and Vijai Bahadur had also gone to collect some fodder from their field In nearby vicinity one Ram Ashrey of the same village was also looking after his field. At about 5 P.M. the appellant, Bachchu Yadav, went towards the field. He found Smt. Rajrani and her son, a boy of 5-6 years, alone on the menda of the field. It is alleged that the appellant having bad intention to his mind to have illicit intercourse with Smt. Rajrani caught hold of her dragged inside the field where wheat crop was standing. Smt. Rajrani was alleged to have resisted and raised alarms, whereupon Bachchu Yadav snatched stickle from Smt. Rajrani and then attacked with the same. Vijai Bahadur, a boy of 5-6 years started crying and embraced his mother to save her. Bachchu Yadav also attacked Vijai Bahadur in the same process with the same sickle. In the meantime the witness. Ram Ashrey and Bhauna rushed to intervene. Seeing these witnesses on the spot Ramphal ran towards jungle Baburani leaving Smt. Rajrani dead and Vijai Bahadur injured seriously. The witness, Ram Ashrey, PW2, at once went to village and informed Ramphal. Ramphal reached the spot and found Rajrani dead. Smt. Rajrani had received a number of injuries on her person. Vijai Bahadur was lying in injured condition. It is alleged that on enquiry Vijai Bahadur told other witnesses on the spot that accused, Bachchu Yadav killed Smt. Rajrani and injured him. 3. A written report, Ex. Ramphal reached the spot and found Rajrani dead. Smt. Rajrani had received a number of injuries on her person. Vijai Bahadur was lying in injured condition. It is alleged that on enquiry Vijai Bahadur told other witnesses on the spot that accused, Bachchu Yadav killed Smt. Rajrani and injured him. 3. A written report, Ex. Ka 1, of the occurrence was lodged at the police station Khanna same day on 2-3-1989 at 7-10 P.M. The police station was three kilometres away from the village abadi. 4. On the basis of the said report a case was registered and chick FIR Ex. Ka .8 was prepared. Entries were made in the G.D. (Ex. Ka 9) and injuries of Vijai Bahadur were also recorded. Vijai Bahadur, injured was sent for medical examination He was medically examined in the same night at 8 P.M. by Dr. U.C. Gupta, PW 7 who prepared injury report, Ex. Ka 18. Following injuries were found on the person of Vijai Bahadur : (i) Incised wound 1.5 cm x ½ cm x muscle deep, just below the right lower lip, margin smooth, clean and regular, clot of blood present. (ii) Incised wound 2.5 cm x 1 cm x muscle deep on the right upper lip at the right nostril, margin smooth, clean and regular, clot of blood present. (iii) Incised wound 3 cm x 1 cm x cavity deep on the pinna of right year, 10 cm above the lobule of right year, margin smooth, clean and regular, clot of blood present. (iv) Incised wound 1 cm x ½ cm x skin deep on the right side just 8 cm below the right nipple. Margin smooth, clean and regular, clot of blood present. (v) Incised wound ½ cm x ½ cm x skin deep on, the left side of abdomen 6 cm lateral to umbilicus and 9 cm below the injury no. 4, margins smooth, clean and regular, clot of blood present. 5. On 3-3-1989 Vijai Bahadur was shifted from Maudaha Hospital to civil hospital Hamirpur where he died on the same day at 11.55 A.M. 6. The investigation of the case was taken up by PW 8 Abdul. Raseed Siddiqui on 2-3-1989 itself. He had recorded the statement of Vijai Bahadur under section 161 CrPC at police station where he was brought from the place of occurrence. The investigation of the case was taken up by PW 8 Abdul. Raseed Siddiqui on 2-3-1989 itself. He had recorded the statement of Vijai Bahadur under section 161 CrPC at police station where he was brought from the place of occurrence. Then the investigation was taken up by Station Officer, Sri Gurdayal Singh PW 6. He went on the spot on the same night and inspected the spot, prepared Panchayatnama, Ex. Ka 8. On the next morning dead body of Rajrani was sent for post mortem under sealed cover. Photon as and Chalannas, Ex. Ka 9 and Ka 10 were prepared. Letter for postmortem, Ex. Ka 11, was also prepared. The postmortem examination of the dead body of Smt. Rajrani was conducted by Dr. M.R. Gautam, PW 9. Following ante-mortem injuries were found on the person of Smt. Rajrani vide postmortem report, Ex. Ka 19 (1) Incised wound 3 cm x 1 cm x bone deep on the right side of face 1 cm above the right lateral angle of mouth. (2) Incised wound 2 cm x 1 cm muscle deep 6 cm from left angle of mouth. (3) Incised wound 2 cm x 5 cm x bone deep on the left side of skull, 6 cm behind the left ear. (4) Incised wound 3 cm x 5 cm x bone deep on the left side of skull 6 cm behind the left ear. (5) Incised wound 2 cm x .5 cm x skull deep on the left side of temporal region 2 cm above the left ear. (6) Contusion 5 cm x 1 cm on the right side of face just anterior to right ear. (7) Contusion 2 cm x 1.5 cm on the right side of upper part of neck 3 cm below right ear. (8) Incised wound 2.5 cm x 1 cm x bone deep on the outer side of upper arm 3 cm above left elbow. (9) Incised wound 5 cm x 1 cm x - bone deep on the dorsal surface of left hand on the inner side 1 cm below left wrist. (10) Incised wound 3 cm x 1 cm x muscle deep on palmer surface of left hand 2 cm elbow left wrist joint. (11) Abraded contusion 2 cm x .5 cm on ante surface on right forearm, 4 cm above right wrist joint. (10) Incised wound 3 cm x 1 cm x muscle deep on palmer surface of left hand 2 cm elbow left wrist joint. (11) Abraded contusion 2 cm x .5 cm on ante surface on right forearm, 4 cm above right wrist joint. (12) Incised wound of 4 cm x 1.5 cm x cavity deep on the left lateral side of abdomen 2 cm below the left sub costal margin. (13) Incised wound 2 cm x .5 cm x muscle deep on left lateral surface of chest 7 cm above the injury no. 12. (14) Incised wound 1.5 cm x .5 cm x muscle deep 2 cm below the injury no. 13. (15) Incised wound 4 cm x 1 cm x cavity deep on the right side of back of chest just lateral to mid-line at the level of thoracic 12th vertebrae. (16) Incised wound 2 cm x .5 cm x muscle deep on lower part of lateral side of right leg 5 cm above the lateral malleolus. (17) Abraded contusion 1 cm x ½ cm on the right side of chest just below the right breast. (18) Abraded contusion of 1 cm x ½ cm on the right side of chest 1 cm below the injury no. 17. Vijai Bahadur also died in the civil hospital, Hamirpur and his bead body was sent for postmortem after recording Panchayatnama same day. The postmortem examination was conducted by PW 9, Dr. M.R. Gautam at 5 P.M. following ante-mortem injuries were found on the person of deceased, Vijay Bahadur : (1) Incised wound 3 cm x ½ on the right ear on the lateral part cartilage cut wound is stitched. (2) Incised wound 2 cm x ½ cm on the upper lip across lip wound stitched. (3) Incised wound 1 cm x ½ cm on the left side of chin stitched. (4) Incised wound ½ cm x ½ cm on the right side of lip stitched. (5) Abrasion 1½ cm x 1 cm on the left side of abdomen 6½ from umblicus. (6) Abrasion of 1 cm x ½ cm size a lower part of left side of chest 8 cm below the left nipple. (7) Contusion of 3 cm x 3 cm size on the right temporal region just ante to right ear. (8) Contusion of 3 cm x 2 cm size just below the right ear. 7. (6) Abrasion of 1 cm x ½ cm size a lower part of left side of chest 8 cm below the left nipple. (7) Contusion of 3 cm x 3 cm size on the right temporal region just ante to right ear. (8) Contusion of 3 cm x 2 cm size just below the right ear. 7. The Investigating Officer prepared site-plan on the spot, which is Ex. Ka 16. The Investigating Officer had also recovered Bichchiya, Bali, bangles form the body of Smt. Rajrani and after taking them in possession he prepared, memo, Ex. Ka.13. Broken bangles which were found on the spot were also taken in possession and memo, Ex Ka -14 was prepared. Blood stained and plain earth was also taken in possession by the Investigating Officer from the spot and the same were kept in separate sealed containers and memo, Ex. Ka 15 was prepared. Panchayatnama of the dead body of Vijai Bahadur was prepared en 3-3-1989 in the civil hospital which is Ex. Ka 3 photo nas and chalan nas, Ex Ka 4, was also prepared. The Investigating Officer also prepared letters for postmortem of the dead bodies, which are Ex. Ka 6 and Ka 7. The same were sent along with the sealed dead bodies for postmortem examination. 8. The Investigating Officer had recorded the statements of Ramphal. Bachchu Yadav, Ram Ashrey, Surajpal and others. The named accused, Bachchu Yadav was searched but he had absconded and was not available in the village. On the next date, i.e. 3-3-1989 Bachchu Yadav had surrendered in court at Hamirpur. 9. An application was moved for recovery of sickle from the possession of the appellant, Bachchu Yadav which was allowed by the trial court. That order was stayed by the District and Sessions Judge and the accused could not be taken in police custody for the same. 10. After completing the investigation charge sheet, Ex. Ka 17 was submitted under Section 302 IPC. The accused had denied the charge and stated that he was falsely implicated on account of village enmity. 11. The prosecution in support of its case examined PW 1 Ramphal, husband of Smt. Rajrani and father of Vijai Bahadur, deceased. He narrated the story given in the first in formation report. 12. Ka 17 was submitted under Section 302 IPC. The accused had denied the charge and stated that he was falsely implicated on account of village enmity. 11. The prosecution in support of its case examined PW 1 Ramphal, husband of Smt. Rajrani and father of Vijai Bahadur, deceased. He narrated the story given in the first in formation report. 12. PW 2 Ram Ashrey is an eye-witness who narrated the entire incident and the manner in which Smt. Rajrani was dragged and after resistance was given sickle blows by the appellant and the manner in which her son, Vijai Bahadur was also given sickle blows in the same process. PW 3 Tej Pratap Singh, station Officer, had prepared the Panchayatnama of the dead body of Vijai Bahadur in civil hospital and he proved the same. 13. PW 4 constable, Yugraj Singh had prepared Chik FIR Ex. Ka 8 and made' entries in the G.D. which is Ex. Ka 9. 14. An affidavit was filed by Constable, Kamla Prasad, who had taken the dead body of Smt. Rajrani for postmortem examination. PW 5 Suraj Pal is the scribe of the first information report, Ex. Ka 1. He proved the same in his statement. PW 6, Sri Gurudayal, is the Investigating Officer, who conducted the investigation and submitted the charge sheet. 15. PW 7 Dr. U.C. Gupta had medically examined [he injuries of Vijai Bahadur at Primary Health Centre Maudaha and he proved the injury report, Ex. Ka 18. PW 8, Sri Abdul Raseed Siddiqui, Sub-Inspector, had recorded the statement of Vijai Bahadur at the police station who died later on. He recorded the statement in the case diary and proved the same as Ex. Ka 8-A. 16. PW 9 Dr. M.R. Gautam, had conducted the postmortem examination of the dead bodies of Smt. Rajrani and her son, Vijai Bahadur had proved the postmortem report. The appellant did not lead any evidence in defence and simply pleaded that he was implicated on account of village enmity. 17. After examining the evidence on record the trial court came to the conclusion that the charge under section 302 IPC was fully established against the appellant. The learned Addl. Sessions Judge also found that heinous crime was committed by the appellant and he was accordingly sentenced to death. 18. Aggrieved by this judgment and order as mentioned above the appellant has preferred the present appeal. The learned Addl. Sessions Judge also found that heinous crime was committed by the appellant and he was accordingly sentenced to death. 18. Aggrieved by this judgment and order as mentioned above the appellant has preferred the present appeal. We have heard learned counsel for the parties at length and perused the record. 19. We proceed to examine the evidence adduced by prosecution in support of the charge. 20. PW 1, Ramphal, is the husband of Smt. Rajrani deceased, and father of Vijai Bahadur, deceased. He is not an eye witness of the actual incident. According to him he had gone in Harijan colony for doing the Labour work, in the same village. His wife, Smt. Rajrani, and his son, Vijai Bahadur had gone to their filed about three kilometers west to the village Abadi to collect fodder and to look after the standing crops. When he was returning back at about 5 P.M. he was informed by PW 2, Ram Ashrey, that accused-appellant, Bachchu Yadav had caused serious injuries to his wife and son in the field. The witness at once went on the spot and found that his wife, Smt. Rajrani was lying dead and his, son, Vijai Bahadur, was lying in injured condition near the dead body of Smt. Rajrani on being questioned the boy Vijai Bahadur atonce narrated to the witnes that the appellant," Bachchu Yadav had given sickle blows to his mother and himself. This witness had lodged the first information report scribed by one Suraj Pal an the narration given by the boy, Vijai Bahadur. The witness admitted that there was no previous enmity between him and the appellant Bachchu Yadav. According to the witness Bachchu Yadav might have developed lust and the dragged Smt. Rajrani for having illicit inter-course and on resistance, had given sickle blows which was in the hands of Smt. Rajrani for cutting the fooder. In the cross-examination the witness admitted that he had not seen with his own eyes the actual occurrence that the appellant had caught hold of the deccased with had intention. However, he asserted that this fact was narrated by his son, Vijai Bahadur, who also died later on. The witness also denied the suggestion that there was enmity between him and the appellant. However, he asserted that this fact was narrated by his son, Vijai Bahadur, who also died later on. The witness also denied the suggestion that there was enmity between him and the appellant. He also stated that the appellant, had taken away the sickle from the spot by which he had given the blows to two deceased, Smt. Rajrani and Vijai Bahadur. He further admitted that the first information report was scribed by one Surajpal on the basis of the narration given by the boy, Vijai Bahadur. He denied the suggestion that any police constable had reached the spot and then the first information report was scribed. He asserted that Vijai Bahadur was fully conscious and had given correct facts about the incident which was scribed is the first information report and lodged at the police station. He further asserted that the boy was taken to the police station where he was examined and statement recorded by the Investigating Officer and then he was shifted to Maudaha dispensary for medical treatment and from there to civil hospital Hamirpur, who died there next day. He also denied the suggestion that Smt. Rajrani and Vijai Bahadur was damaging the crops of others and they might have been beaten on that account. He also denied the suggestion that any Panchayat had taken place in the village at any time that his wife and son were damaging the crops of others. The other witness, Ram Ashrey, PW 2, is an eye witnesses of the incident. Ram Asrey has stated that at the time, of occurrence he was looking after his crops near in his nearby filed. 21. Another persons, namely, Bhawani Din, was also in his field near by in the village. The witness, however, stated that Bhawani Din was in collusion with the accused and would not depose. The version given by the witness was that he heard alarms of Smt. Rajrani and ran towards the spot. He saw that the appellant, Bachchu Yadav was attacking Smt. Rajrani with sickle. The boy, Vijai Bahadur had embraced his mother and the appellant had also attacked him with the same sickle causing injuries to this boy. After attacking with sickle Bachchu Yadav ran towards north along with sickle. Both, Smt. Rajrani and Vijai Bahadur fell on the grosnd having received serious injuries. The boy, Vijai Bahadur had embraced his mother and the appellant had also attacked him with the same sickle causing injuries to this boy. After attacking with sickle Bachchu Yadav ran towards north along with sickle. Both, Smt. Rajrani and Vijai Bahadur fell on the grosnd having received serious injuries. Smt. Rajrani was badly weeping and Vijai Bahadur was lying unconscious and was profusely bleeding. After some time Smt. Rajrani died on the spot and Vijai Bahadur gained consciousness. He atonce rushed towards the village Abadi. and had informed PW 1, Ramphal about the incident. Ramphal then rushed towards the spot. The witness was cross examined. The cross examination he again asserted the same story. He admitted that he was interrogated by the police the next day. After informing Ramphal he did not go back on the spot. He also asserted that he had taken the plot of Shiv Balak on Rehan and he was looking after the crops standing in that plot. Wheat crops were standing on the fields at that time. On further cross-examination he admitted that Smt. Rajrani after receiving injuries had few breathes and died. Vijai Bahadur was alive and was lying in an injured condition. One Siyarani had also met with him in the way while he was going towards the village Abadi. He instructed Siyarani to remain on the spot and went towards the village abadi. One Bhaunia remained near the dead body. He other persons were near the spot at that time. 22. The witness Bhaunia (Bhawani Din) was, however, not examined. These are the two witnesses of fact. Other witnesses examined in this case are formal in nature 23. It has come in evidence that broken bangles of the deceased, Smt. Rajrani were recovered from the spot. Sickle was not recovered from the spot when the Investigating Officer reached. At one stage PW 1, Ramphal stated in his cross-examination that sickle was lying nearby but in the neat breath he stated that Vijai Bahadur had informed him that accused, Bachchu Yadav had run away towards north taking away the sickle in his hand. In this way it is not material that sickle was not lying on the spot and in fact it has come in the statement that appellant after attacking Smt. Rajrani had run away with the sickle. In this way it is not material that sickle was not lying on the spot and in fact it has come in the statement that appellant after attacking Smt. Rajrani had run away with the sickle. This point was considered by the trial court in detail and the trial court rightly rejected the contention of the defence that this was a material contradiction. The trial court has Tightly appreciated the evidence on record that the presence of sickle on the spot was not a fact and sickle could not be recovered afterwards from possession of the appellant in view of the fact police remand was not granted by the revisional court, i.e. Sessions Judge, Hamipur. The witnesses are consistent on the point that the appellant had taken away the sickle while running from the spot. 24. Learned Counsel for the appellant laid emphasis on the fact that other material witness, Bhawani Din, was not produced by the prosecution. The witness Ram Ashrey has himself stated on oath that Bhawani Din was won over by the appellant and he would not depose. Since Bhawani Din was said to have been own over was not produced by the prosecution. No production of Bhawani Din does not discredit the prosecution story which was supported by Ramphal, Ram Ashrey and the attending circumstances including the version given by Vijai Bahadur in his statement under section 161, CrPC. The appellant himself has not given any positive version that there was enmity with the reporter. He has stated, in his statement under section 313, CrPC that there was village enmity (Gaondari Ki Ranjis). This vague statement given by the appellant does not lead him anywhere. The defence was not able to show that there was any enmity between the appellant and the reporter to advance any argument that there might be any chance of false Implication on that account. 25. We, therefore, find that prosecution has led positive evidence of Ram Ashrey who was an eye witness. The recovery of bangles etc. from the spot and the first information report being scribed on the version given by Vijai Bahadur, who was lying in injured condition, although a boy of six years, had established the charge. Blood stairs were found on the spot. The recovery of bangles etc. from the spot and the first information report being scribed on the version given by Vijai Bahadur, who was lying in injured condition, although a boy of six years, had established the charge. Blood stairs were found on the spot. The injury report of Vijai Bahadur and postmortem report of Smt. Rajrani also indicate and establish the same situation that they were attacked by sickle at the time of occurrence. 26. On behalf of prosecution emphasis was laid on the point that statement of Vijai Bahadur given under section 161 CrPC and recorded by the Investigating Officer at the police station during investigation was admissible in evidence as dying declaration. The same has been proved on record as Ex. Ka 8A. However, the learned counsel for the appellant argued that this statement of Vijai Bahadur, a child witness, could not be accepted as dying declaration and the same is not admissible in evidence. In our opinion this is a very important piece of evidence and we proceed to examine the admissibility and value of the same. The statement given by the child witness, Vijai Bahadur during investigation under section 161 CrPC lying in injured condition is reproduced below in verbetum : "Bayan Chashmdeed gawah wa daryaft Shri Vijai Bahadur umra kareem 5-6 versh, s/o Ramphal, jaati chamar niwasi Khanna thana Khanna jila Hamirpur ne taid F.I.R. karte huwe bataya ki aaj subah mere pita colony mein majdoori karne chale gaya the, meri amma mujhe saath lekar khet rakhne we hariyali karne gayee thee, mera khet gaon se bahut door hai. Khet per main tatha meri amma maujood the ki kahinse Bachchu chacha jo mere gaon ke hai. Ghosi hai. Aa gaya, main Bachchu chacha ke achechi tarah janta hun, wah meri amma ke pass aa ker kahne laga ki khet ke andar chal, hum log merh par baithe the. Meri amma ne kaha ki main jaugi to Bachchu chach ne meri amma haath pakarliya to amma chhurane lagi aur main bhi rone laga tatha Bachchu Chacha se kahne laga ki amma ko chhor do lekin wah nahin mana aur amma ko ghasit kar Babu Lal ke genhoon ke khet mein le jaane laga to meri amma usase larana lagi to Bachchu chacha ne amma ke hasiya chhura ker usi hasiya se amma ko marane laga. Meri amma wahin merh ke pass chillaker gir pari. Meri amma wahin merh ke pass chillaker gir pari. Bachchu chacha tab bhi nahin mana aur hasiya se use marta raha. Jab meri amma ka chilana band ho gaya wah meri taraf hasiya liye. jhapta. Main ro ker uske pairon se liptane laga to usne mujhe bhi hasiya se maara aur utha ker patak diya jisase main behos ho gaya phir nahin dekha ki wah kidhar bhag gaya. Thori der main hos aya to mere gaon ke Ram Ashrey wa Bhonia tatha auraten aa gaye thee. Ram Ashrey chilla ker gaon ki taraf bhaag ker aye, baad mein mera pita aur bahut se log aa gaye. Mujhse pita nein puchna to maine bata daya tha ki hum longon kee gaon ke Bachchu chacha ne mara hai. Wah log mujhe utha kar laaye, merepet mein dard ho raha hai. Bachchu Ghosi ne mujhe tatha meri amma ko din dubne se pahle mara tha. Us samay dhoop thee. Bachchu ghosi ke alava hum logon ko maarane main aur koi nahin tha. Bachchu nein hum logon kheton per akele pa ker aisa kiya hai." 27. The statement given by Vijai Bahadur, child Witness aged about six years, was recorded under section 161 CrPC by the Investigating Officer, the moment he reached the spot and Vijai Bahadur was fully conscious. It is noteworthy that the first information report itself was scribed on the narration given by child witness, Vijai Bahadur. The statement as recorder by the Investigating Officer appears to be in natural sequence of the evens. The accused was very well known to the witness. Although he was a body of six years, the accused was familiar to him being resident of the same village. The manner in which the occurrence had taken place, the witness, Vijai Bahadur, narrated the story in natural way. 28. Learned counsel for the appellant argued that the statement of Vijai Bahadur, since was not recorded by the Magistrate or Doctor the same could not be relied upon and could not be treated as a piece of dying declaration. However, it is established law that the statement of the witnesses after their death is admissible under section 32(1) of the Indian Evidence Act. However, it is established law that the statement of the witnesses after their death is admissible under section 32(1) of the Indian Evidence Act. In the case of Ramwati v. State of Bihar, 1983 Crimes 638, Hon'ble Supreme Court clearly held that the statements recorded by police officer during investigation can be accepted as dying declaration for establishing the charge of murder. 29. On the point of admissibility and reliability of dying declaration or the statements of deceased person to be used after his death law has been laid down in the leading case of Khushal Rao v. State of Bombay, AIR 1958 SC 22 . It has been held by Hon'ble Supreme Court as a guiding principles on the subject that : "It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence a dying declaration standi on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence a dying declaration which has been recorded by a competent magistrate in the proper manner, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control that the statement has been consistent throughout if he had several opportunities of making, a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested "parties." 30. Further the Hon'ble Supreme Court emphasised the need of proper scrutiny and caution in the following terms : "In order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by it self, and that if suffers from an infirmity, then, without corroboration it cannot form the basis of conviction. Thus the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence." Now it comes out that statement recorded under section 161 CrPC is not a dying declaration in true sense of the term. It is only a statement under section 161 CrPC and subsequently becomes admissible under section 32(1) of the Indian Evidence Act. Accordingly before accepting such a statement it needs corroboration and cannot be used as dying declaration as such. For accepting such statement it needs scrutiny caution and corroboration. 31. In the case of Balak Ram v. State of U.P., 1975 SCC 219 . it was held that in recording of dying declaration if the police officer does not follow the police regulations the came cannot be accepted and the same could not be made basis for conviction. In this case also it was held that statement recorded under section 161 CrPC is admissible under section 32(1) of the Indian Evidence Act. However, before accepting the same to base the conviction it needs corroboration and it could not be sole basis for conviction. Similar view was expressed in the case reported in AIR 1975 SC 2199. 32. It was held in the case of Tapinder Singh v. State of Punjab, AIR 1970 page 1566 that : "A dying declaration is admitted in evidence on the principle of necessity. Similar view was expressed in the case reported in AIR 1975 SC 2199. 32. It was held in the case of Tapinder Singh v. State of Punjab, AIR 1970 page 1566 that : "A dying declaration is admitted in evidence on the principle of necessity. The fact that it is not tested by cross examination on behalf of the accused merely serves to put the court on its guard by imposing on it an obligation to scrutinize all the relevant circumstances. If the dying declaration is acceptable as truthful then even in the absence of other corroborative evidence the court can act upon it and convict the accused. The learned counsel for the appellant also referred the case, i.e. The State of Bihar v. Kapil Singh, AIR 1969 page 53. In that case it was held that the statement of a child witness needs more caution and corroboration. It was a weak type of evidence as the defence had no opportunity to cross-examine the witness when the statement was recorded. 33. Reference was also made to the case of Nirmal Kumar, v. State of U.P., AIR 1992 SC page 1131. In that case also the admissibility and reliability of a child witness has been examined and the same principles of caution and corroboration were laid down. 34. In the case of Harbans Singh v. The State of Punjab, AIR 1962 page 439 it was held that statement of a dying man is admissible under section 32(1) of the Indian Evidence Act. This acceptance depends upon the circumstances of the case. It is for the Court to judge whether it needs corporation. Reference was also made to the case of Dalip Singh v. State of Punjab, AIR 1979 page 1173. It was held in that case that : "Although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Evidence Act in view of the exception provided in sub-Section (2) of Section 162, Criminal P.C. 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfied the court as to why it was not recorded by a Magistrate or by a Doctor. The practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. The practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. This is not to suggest that such dying declarations are always untrustworthy, but what has to be emphasized 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. From the catena of the decisions referred above we find that the statement of child witness Vijai Bahadur, recorded under section 161 CrPC is admissible under section 32(1) of the Indian Evidence Act as a statement' of a dead person. Vijai Bahadur died on the next day. we are fully conscious that to accept such a statement that is too of a child witness recorded under section 161 CrPC strict scrutiny and caution are required Such a statement is no doubt, admissible but the same has to be accepted only after strict scrutiny and caution. Further it needs corroboration and its reliability depends upon the fact and circumstances in which such statement was recorded. 35. In this case we have earlier found that there is positive evidence of eye witness, Ram Ashrey to prove the incident. The Statement of Ram Ashrey corroborate the statement of Vijai Bahadur recorded under Sec. 161 CrPC. 36. PW 8, Abdul Rasheed Siddiqui, the first Investigating Officer, has clearly mentioned in the case diary, as is evident from the statement of Vijai Bahadur proved on record, Ex. Ka 8-A, that Vijai Bahadur was lying in injured condition on the spot. He was at once taken the police station. The Investigating Officer recorded that since the condition of Vijai Bahadur had deteriorated he was in the hot haste to record the statement. In these circumstances, the statement of Vijai Bahadur was recorded under Sec. 161 CrPC at the first instance. The witness, Abdul Rasheed Siddiqui was cross examined and it was suggested to him that he did not follow paragraph no. 115 of the police Regulation in recording the statement of Vijai Bahadur in so far as the signature of Vijai Bahadur was not obtained. The witness, Abdul Rasheed Siddiqui was cross examined and it was suggested to him that he did not follow paragraph no. 115 of the police Regulation in recording the statement of Vijai Bahadur in so far as the signature of Vijai Bahadur was not obtained. This point was explained by the witness, Abdul Rasheed Siddiqui that at the time of recording of the statement he could not think that the boy, Vijai Bahadur, will die. He was fully conscious. He was sent for medical treatment where only simple injuries were found on his person as has been proved and stated by Dr. U.C. Gupta, PW 7 Dr. U.C. Gupta on the person of Smt. Rajrani and Vijai Bahadur also establish the fact that they were given sickle blows at the time of occurrence. As we have earlier pointed out that the witness, Vijai Bahadur, disclosed at the first instance that his mother, Smt. Rajrani was dragged by the appellant, Bachchu Yadav in the field with a purpose to have illicit intercourse, the boy embraced his mother and Smt. Rajrani was giving resistance to the appellant, caught hold of him raising alarms and in that sequence of events the appellant, Bachchu Yadav gave desperate blows and had gone away killing Smt. Rajrani and leaving Vijai Bahadur almost dead. On that point the defence had no opportunity to cross-examine Vijai Bahadur. We find that the statement given by child witness, Vijai Bahadur, in natural course of events was, fully corroborated by PW 2 Ram Ashrey and in these circumstances we can safely place reliance on that statement. 37. The Investigating Officer, PW 8 Abdul Rasheed Siddiqui, had denied the suggestion that he had himself recorded the statement, of Vijai Bahadur without questioning him. He also denied the suggestion that he had any 38. Learned counsel for the appellant argued that Vijai Bahadur had become unconscious and there is no evidence to show that he regained consciousness to give statement under Section 161 CrPC. This point is not at all tenable in view of the fact that Dr. U.C. Gupta had medically examined and recorded the injuries of Vijai Bahadur and the doctor had found Vijai Bahadur fully conscious. Simple injuries were found on his person. This point is not at all tenable in view of the fact that Dr. U.C. Gupta had medically examined and recorded the injuries of Vijai Bahadur and the doctor had found Vijai Bahadur fully conscious. Simple injuries were found on his person. Therefore, in these circumstances, it could not be said that Vijai Bahadur was not in a position to speak at the time when the statement was recorded by the Investigating Officer. Vijai Bahadur had himself narrated the incident to his father, Ramphal, PW 1 who come on the spot on the information given by Ram Ashrey, fan his narration the first information report was scribed. 39. Dr. U.C. Gupta, PW 7, has clearly stated that Vijai Bahadur was fought to the hospital in an injured condition. He was fully conscious. His injuries were noted. He was medically treated. Stitches were given to him. He was in the hospital from 8 PM. till 8 A.M. on the next date, 3-3-1989. Later on his condition deteriorated on account of bleeding and he was then sent to civil hospital, Hamirpur where he died at 11.55 A.M. Dr. U.C. Gupta has also emphatically stated that the injuries on the person of Vijai Bahadur could be caused by sickle. He also denied the suggestion that any haemotoma was caused by injuries on the person of Vijai Bahadur. 40. Learned counsel for the appellant argued that the plot of Ram Ashrey, PW 2, was after one field from the place of occurrence and he could not see the actual occurrence from his field. PW 2 Ram Ashrey stated that there was a chak-road on the eastern side of his field. On western side after one field there was a field of Ramphal. He stated that the field of Ramphal was clearly visible and after hearing alarms he saw the incident and rushed on the spot. In the site-plan, Ex. Ka 16 the field of Ramphal was shown from where the place of occurrence was visible Learned counsel for the appellant also laid emphasis on the nature of injuries on the person of Smt. Raj Rani and Vijai Bahadu. It was argued that all such injuries could not be caused by sickle. Dr. U.C. Gupta had explained this position and stated that all these injuries could be caused by sickle. Contusion can also be caused from the blunt portion of the sickle. 41. It was argued that all such injuries could not be caused by sickle. Dr. U.C. Gupta had explained this position and stated that all these injuries could be caused by sickle. Contusion can also be caused from the blunt portion of the sickle. 41. Learned counsel for the appellant suggested that Smt. Rajrani was damaging the crops of others and in the village a Panchayat had taken place on that score the witnesses have denied the suggestion. It was further argued that Smt. Rajrani had taken bullock cart only with a view to collect the crops of other persons. This suggestion was not accepted. The field was three kilometers away from the village abadi and for collecting fodder it was quite natural that Smt. Rajrani had taken her bullock-cart along with her son for that purpose. 42. Further it was argued that it has come in evidence that several ladies had assembled on the spot after the occurrence. None of those ladies who are said to have seen the actual incident has been produced by the prosecution. Non production of any such witness is not material. PW 1 Ramphal and PW 2 Ram Ashrey did not have any grudge or enmity against the appellant. They have deposed the natural course of events as had taken place. The appellant has simply stated that on account of village enmity he was implicated. No evidence has been adduced on this point that there was any enmity in between the appellant and the prosecution witnesses. On the other hand PW 1 Ramphal himself admitted that these was absolutely no enmity between them. According to him seeing Smt. Rajrani alone with a boy of six years in the field the appellant, Bachchu Yadav developed bad intentions and he used force to have illicit intercourse inside the field whereupon her son, Vijai Bahadur embraced her, Smt, Rajrani resisted caught hold of the appellant and raised alarms. This statement is quite natural and the motive suggested by the prosecution appear to be reasonable. There could be no other reason for killing Smt. Rajrani on the spot and leaving Vijai Bahadur seriously injured. 43. Thus, after examining the entire evidence on record and assessing the circumstances of the case we find that the trial court had rightly found that the statement of Vijai Bahadur was admissible in evidence. There could be no other reason for killing Smt. Rajrani on the spot and leaving Vijai Bahadur seriously injured. 43. Thus, after examining the entire evidence on record and assessing the circumstances of the case we find that the trial court had rightly found that the statement of Vijai Bahadur was admissible in evidence. The statement of Vijai Bahadur was corroborated by eye witness, PW 2 Ram Ashrey. Blood and broken bangles were recovered from the spot. The appellant had absconded atonce and surrendered next day in court at Hamirpur. We have cautiously examined the evidence adduced by the prosecution and found that the eye witness, Ram Ashrey had clearly given the details of the incident. The version of the fir it information report was fully supported by him. We have also examined the statement given by Vijai Bahadur with caution, being of a child witness and we are fully satisfied that the statement being admissible in evidence was a true version of the incident. This statement was corroborated and was accepted to find out the truth. From the evidence on record and attending circumstances we find that the guilt of the appellant is proved. We have given careful thought to the facts and circumstances of the case and hold that the prosecution has fully established the charge against the appellant beyond all reasonable doubt and the trial court had rightly convicted him under section 302 IPC. 44. However, on the point of sentence, it was pointed out that the appellant was of twenty five years of age. The manner in which the occurrence took place and the sequence of events leading to the murder of Smt. Rajrani and causing injuries to Vijai Bahadur ultimately resulting his death show that the appellant at the moment became desperate to manage his escape and had given fatal blows. In these circumstances, we find that instead of death sentence, imprisonment of life will meet the ends of justice. Accordingly, reference for confirmation of death sentence is rejected. 45. We sentence the appellant Bachchu Yadav to undergo imprisonment for life instead of death sentence. Except the modification in the sentence the appeal is dismissed. 46. The appellant is in jail. He shall remain there to serve out to the sentence awarded to him.