Judgment : Palok Basu, J. 1. THESE two appeals arise out of the judgment and order passed by learned II Addl. Sessions Judge. Mathura on 21-10-1982 in Sessions Trial No. 230 of 1980. By the aforesaid judgment Buddhi, Patram, Neto and Bhagvan Singh stand convicted under section 304, Part-II and 323/34 IPC and sentenced to four years and one year's R.I. respectively. All the appellants and fifth accused, namely, Purna have been acquitted of the charges under sections 302/147/148/149 IPC.' This acquittal was preceded by the clear acquittal of the fifth accused Purna of all the charges as his participation was held to be doubtful. According to the prosecution case the incident had happened on 5-6-1980 at about 8 P.M. in village-Akbarpur, police-station- Chrat, district-Mayute. Mawasi has his house in the said village and it is said that he along with his father and some other1 relatives was sitting at that place when all the accused (all five) had come and wanted to take a KADHAI which was, according to the prosecution, likely to cause damage to the wall. Mawasi, therefore, said that KADHAI should not be taken in that manner. This resulted in an altercation as a result of which the accused started beating. In the said beating by the accused Smt. Sukho, Narain, Mawasi, Ram Swarup and Kishan Singh sustained injuries. Mawasi and Ram Swarup have been examined as PW 4 and PW 7 respectively. The other two alleged victims have not been examined. However Narain is said to have died on way to the hospital, though he was medically examined at the P.H.C. at 12.30 A.M. on 6-6-1980. On his death the post-mortem examination was conducted by PW 3, Dr. D. R. Sen who found one stitch wound on the head and four contusions including a multiple contusion on the right knee. 2. IN view of the aforesaid facts all the accused were charged under section 302 IPC at the trial. Coming to the details of the incident it is said that as soon as the incident had happened, Mawasi took his injured father along with him and the other injured to the police-station and lodged a written report which has been proved as Ext. Ka 10. This was got written by one Radha Charan Pachauri. This FIR was registered vide entry Ext. Ka 12 made by constable-clerk Jagdish Puri. Ka 10. This was got written by one Radha Charan Pachauri. This FIR was registered vide entry Ext. Ka 12 made by constable-clerk Jagdish Puri. PW 9, Dinesh Chandra Misra, Sub-Inspector, was present at the police-station. He directed an entry to be made in the general diary, a true copy of which has been proved as Ext. Ka. 24. All the injured were then directed to go by a Tractor Bearing No. U.S.O. 5703. This case was registered under sections 147, 148, 149, 323 and 307 IPC because Narain was alive at that time. The prosecution states that the statement of the informant and other victims were recorded by the Investigating Officer at the police-station. The letter for medical examination was handed over to the informant and other victims who were medically examined by PW 2, Dr. R. C. Gupta from 12.30 A.M. onwards 3. THE defence case is that the prosecution version is wholly false and concocted. They have got proved Ext. Ka. 28 and Ka. 29 which go to indicate that appellant Buddhi had lodged a FIR at 11.05 P.M. at the same police- station Chhata in the same night. His version, as noted in the FIR, is that his brother Patiram, Netram and his nephew Bhagwan Singh were returning to his house on a Bughi with a KADHAI having Soha. When the Buddhi came near the house of Narain the edge of the said KADHAI scratched the wall of the house of Narain as a result of which Narain, Mawasi and Smt. Sukho along with Ram Swarup hurled abuses which was protested by the accused side whereupon Narain and others started beating the accused with lathis and axes casing injuries to Guddhi and several others. On hearing the hue and cry several witnesses had arrived there. An FIR was lodged as Ext. Ka. 28 and on its basis the formal registration of the case has been proved by document Ext. Ka. 29. This case was registered under sections 323 and 324 IP? and investigation of this cross-case as case crime no. 86-A was also taken up by the said Shri D. C. Misra. THE injuries of Bhagwan Singh, Netram, Patram and Buddhi have been examined between 2.15 A.M. to 3 A.M. on 6-6-1980 by PW 2 Dr. R. C. Gupta. 4. 29. This case was registered under sections 323 and 324 IP? and investigation of this cross-case as case crime no. 86-A was also taken up by the said Shri D. C. Misra. THE injuries of Bhagwan Singh, Netram, Patram and Buddhi have been examined between 2.15 A.M. to 3 A.M. on 6-6-1980 by PW 2 Dr. R. C. Gupta. 4. TO complete the chronology relating to the prosecution case it may be said here that five panchayatnama was prepared by the Investigating Officer on 6-6-1980 at 7 A.M. vide Ext. Ka. 13. Exts. Ka. 14 to 19 are the documents which were prepared by the. Investigating Officer at the place of occurrence being letter to the R.I. Challan nash, letter to the C.M.O. and sample seal, etc. PW 3 Dr. D. R. Sen performed autopsy on the dead-body of Narain on 6-6-1980 at 5 P.M. As noted above, the injuries even at the post mortem stage remained the same except one stitched wound which seems to have been caused during first aid. Sri G. S. Hajola, learned counsel for the appellants and Sri S. C. Goswami, learned counsel for the informant and Sri Jagdish Tewari, learned A.G A. for the State have been heard at length and the enter record has been perused. 5. IN order to prove the prosecution case four eye-witnesses examined are Mawasi, PW 4, Nanga, PW 5, Jyoti Prasad, PW 6 and Ram Swarup, PW 7 Rest of the witnesses are formal in nature, reference about whom has already been made above. 6. ALL the appellants in their statements have denied the prosecution case and insisted that they were attacked when the KADHAI had collided with the corner of wall of Narain's house. In his statement Purna has given details as to how the incident according to the defence had happened. He has further said that the FIR on behalf of the accused was lodged earlier in point of time but the Investigating Officer had put the timing wrongly showing the accused's FIR as having been lodged subsequent to the prosecution's FIR lodged by Mawasi. He has further said that while the entire prosecution case as stated by eye-witnesses is wrong and false, no pharsa was wielded by him and that the accused side was first beaten by the prosecution side. He has further said that while the entire prosecution case as stated by eye-witnesses is wrong and false, no pharsa was wielded by him and that the accused side was first beaten by the prosecution side. Some documents have been filed on behalf of the prosecution which suggest that some litigation concerning a plot was going on from before. The accused, however, denied any enmity with the prosecution side. The principal points arising for determination in this case are two. Firstly, whether the accused side injuries have been sufficiently explained by the prosecution or not and if the answer is in the negative what will be its effect. Secondly, whether the statement of the deceased Narain as recorded by the Investigating Officer would be admissible under section 32 of the Evidence Act or not and if the answer is in the affirmative, what will be its effect. 7. SRI S. V. Goswami, learned counsel rightly contended that the instant statement of the deceased should be held to be admissible under section 32 of the Indian Evidence Act for the reason that this should be taken to be the statement made by a person as to the cause of his death'. He placed reliance on sub-clause (I) of section 32 of the Indian Evidence Act. 8. THE learned trial Judge has not placed reliance on the dying declaration as recorded by the Investigating Officer on the supposed reasoning that it should be inadmissible. As stated above, when the statement of Narain was recorded of course the case was registered only under section 307 IPC but because Narain had died subsequently or soon thereafter the statement recorded under section 161 CrPC by the Investigating Officer becomes a statement relating to the cause of death of that man It is not disputed that the deceased Narain had died as a result of internal damage caused to the spleen out of the injuries, sustained on outer stomach. Such a statement of a person would be admissible and can be relied upon as per the law laid down in the case of State of Assam v. Muhim Barkataki, 1986 SCC 439 . Relying upon the admissibility of the said statement of Narayan Sri Goswami and Sri Jagdish Tewari vehemently argued that the prosecution case should be taken to be proved. Relying upon the admissibility of the said statement of Narayan Sri Goswami and Sri Jagdish Tewari vehemently argued that the prosecution case should be taken to be proved. This takes us to the question as to whether the cumulative effect of the entire prosecution evidence would be or can be that this case has been proved beyond reasonable doubt. As noted above, FIR was lodged by Mawasi who was the main victim. Admittedly not a word has to be found in the FIR as to the injuries sustained by four on the accused side. This is relevant place where the injuries sustained by the prosecution and the accused should be noted. Details of injuries received by Narain and others are as under :- A. Narain : 1. A.L.W. 4 cm. x 0.5 cm. x scalp deep with swelling on right side of forehead 6 cm above the middle of right eye brow (Advised X-ray scalp). 2. Abrasion on abdomen in epigastric region and left of chest 10 cm. x 2 cm. 3. A swelling of the right knee all sides, tender, painpur with an abrasion 1/2 cm. x 1/2 cm, over patella bone (Adv. X-ray)." Injuries nos. 1 and 3 were kept under observations x-ray was advised Injury No. 2 was simple. Injuries were found to have been caused by blunt object and friction and duration was fresh. B. Smt. Sokho w/o Narain :- 1. An abrasion 3 cm x 2 cm on the back of chest just below the tip of right shoulder blade, The injury was found simple caused by blunt object and friction. Duration was fresh. C. Mawasi son of Narain : 1. An abrasion 1 cm x 1/2 cm in the right illiac fossa of abdomen. 2. Abraded contusion 7 cm. x 4 cm on medial surface of left leg at left upper l/3rd lower 2/3rd of left leg. All the injuries wore simple, caused by some blunt object and friction. Duration was fresh. D. Ram Swarup, son of Nanga : 1. A.L.W. 1/2 cm. x 1/2 cm. x skin deep on the back head 4-5 cm. above the mastoid process. 2. An abrasion 1.5 cm x 1.0 cm. on the back of tip of left elbow. 3. Complaint of pain left shoulder. Nature of injuries were simple. Caused by friction and blunt object. Duration was fresh. E. Kisan Singh, son of Roopan Singh : 1. x skin deep on the back head 4-5 cm. above the mastoid process. 2. An abrasion 1.5 cm x 1.0 cm. on the back of tip of left elbow. 3. Complaint of pain left shoulder. Nature of injuries were simple. Caused by friction and blunt object. Duration was fresh. E. Kisan Singh, son of Roopan Singh : 1. A.L.W. 1.5 cm x 1/4 cm. on right side of face 1/4 cm below the lateral angle of right eye. Nature was simple. Duration Fresh. Caused by blunt object. Details of injuries received by Bhagwan Singh and others are as under :- A. Bhagwan Singh, son of Puma : 1. A.L.W. 3 cm x 3/4 cm x muscle deep on forehead left side 21/2 cm above the left eye brow. 2. Two parallel linear abrasions 1 cm apart to each other, 14 long on left side back just below the tip of left shoulder' blade. Injuries were found simple. Caused by blunt object and friction. Duration fesh. B. Net Ram, son of Tunda : 1. A.L.W. 1/2 cm x 1/8 cm x skin deep on the tip of thumb left hand just below the margin of nail. v Injury was simple. Caused by blunt object and friction. Duration was fresh. C. Patram, son of Tunda : 1. An abraded contusion 2 cm x 1.5 cm on left side of face 2.5 cm below the margin lower eye lid. 2. A.L.W. 1/2 cm x 1/6 cm x skin deep on the fore-head at the lateral end of left eye bow. 3. An abrasion 3 cm x 2 cm on lateral side of knee joint. 4. An abrasion 1 cm x 2 cm on the interior surface thumb of right foot. All the injuries were found simple, caused be blunt object and friction. Duration was fresh. D. Buddhi, son of Tunda : 1. An abraded contusion 4 cm x 2.5 cm on left face 1.5 cm in front of tragus of left exist ear. 2. A contusion 2 cm x 1. cm on back of chest just above the upper margin of left shoulder blade. Complained of pain in right shoulder. All the injuries were found simple, caused by blunt object and friction. Duration was fresh. In case mark of identification was noted and LTI of each injured was noted. 9. 2. A contusion 2 cm x 1. cm on back of chest just above the upper margin of left shoulder blade. Complained of pain in right shoulder. All the injuries were found simple, caused by blunt object and friction. Duration was fresh. In case mark of identification was noted and LTI of each injured was noted. 9. TWO very important factors have created more than sufficient doubt about the origin of the incident. In the FIR. Mawasi has not spoken a word about sustaining of any injury by any one on the accused side. The report is completely silent. However, when he was examined in court, he admitted that four persons on the accused side had sustained injuries. The explanation sought to be given was that mother and another prosecution witness had hurled brick-bats which caused injuries on four persons of the accused side. This explanation is not only an afterthought but also is not compolible at all with the injuries noted by the Medicial Officer, PW 2. It is very difficult to imagine that this explanation should come after about three years of the incident inasmuch as it has been admitted by the informant that he had not given any statement to the Investigation Officer [relating to the injury on the defence side, therefore, there being a complete absence of any reference of the injuries of the accused side in the FIR the origin of the incident or the Marpit becomes doubtful. 10. THE second reason why the prosecution case again appears shrouded in the mystery is that Purna was said to have been armed, with Pharsa and used the same against Narain deceased. However; the medical report as noted, does not indicate any Pharsa injury. THE explanation subsequently put through the eye-witnesses during the trial was that the sharp edged part of the Pharsa did not strike the deceased Narain. There is absolutely no error on the part of the learned Sessions Judge in having rejected the participation of Purna for absence of Pharsa injury because Pharsa was attributed only to him and none else. With the back-ground noted above it becomes highly doubtful as to whether the statement of the deceased Narain as recorded by the Investigation Officer which may be admissible under, section 32 of the Indian Evidence Act can and -should be taken to be truthful statement at all. With the back-ground noted above it becomes highly doubtful as to whether the statement of the deceased Narain as recorded by the Investigation Officer which may be admissible under, section 32 of the Indian Evidence Act can and -should be taken to be truthful statement at all. Firstly, that was a statement which has gone uncross-examined and secondly, four eye-witnesses who have tried to prove the prosecution case do not come out with any explanation of injuries of the accused inasmuch do not also explain the absence of Pharsa injury on the deceased. Therefore, the said statement of Narain deceased also does not help the prosecution case and the trial court had rightly refused to place reliance on the said testimony, may be on the ground that it was inadmissible in evidence because even its admissibility does not advance the prosecution case. Thus the entire prosecution story appears to be doubtful. The result is that it cannot be said that the prosecution has succeeded in proving the case against the appellants beyond reasonable doubt. 11. IN view of the aforesaid discussion (he Government Appeal No. 191 of 1983 Is dismissed and the Criminal Appeal No. 2701 of 1982 is allowed. All the appellants are on bail. They need not surrender. Their bail bonds are hereby discharged.