JUDGMENT Kuldip Chand Sood, J.—Appellant Raj Kumar alias Nitu, hereinafter referred to as "The Accused", has been convicted by the learned Sessions Judge, Shimla, by his judgment dated April 1, 1999 for an offence punishable under Section 304-11 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of rupees 20,000, in case of default in the payment of fine, to undergo rigorous imprisonment for two years. Aggrieved, he is in this appeal. 2. The case of the prosecution, as noticed by the learned trial Judge was Sham Kumar (PW 1) and his brother Surinder Kumar (PW 11) have two shops in Rohru, a sub-divisional headquarter in District Shimla. One of the shops which sells grocery items, was looked after by Sham Kumar whereas, the other shop was managed by Surinder Kumar. The shop looked after by Sham Kumar is a sweetmeat shop. Roshan Lal (deceased) was employed in that shop to prepare sweetmeat On August 4, 1996, a Sunday, both the shops were closed. However, Sham Kumar was present in the grocery shop with shutters half closed. At about 5.30 in the evening, Manoj Kumar son of Sham Kumar came to the shop and informed his father that their servant Roshan Lal was being beaten by the accused. Soon thereafter, accused holding Roshan Lal by his hair came to the shop and compLalned that Roshan Lal had mis-behaved with him. Roshan Lal, who was holding his stomach, on inquiry, informed that he had been beaten with kicks and fist blows on his abdomen by the accused. He was having severe pain in his abdomen. Sham Kumar took him to the hospital. Doctor was called from his residence. Roshan Lal was admitted in the hospital Sham Kumar then proceeded to lodge report with the Police. Outside the Hospital, accused and three other persons, namely, Bitu alias Kuldip Singh, Tek Singh and Prem Kumar met him and told him that if he lodged any report with the Police, then they would not let him stay in Rohru and he will have to face dire consequences. Sham Kumar returned back to the hospital and gave in writing to the Doctor that no quarrel had taken place and Roshan Lal was having pain in his abdomen due to some chronic ailment. On August 8,1996, Roshan Lal expired in the Hospital. Sham Kumar returned back to the hospital and gave in writing to the Doctor that no quarrel had taken place and Roshan Lal was having pain in his abdomen due to some chronic ailment. On August 8,1996, Roshan Lal expired in the Hospital. It is the further case of the prosecution that on the death of Roshan Lal, accused called Sham Kumar and told him to send the dead body to the native place of Roshan Lal. The dead body thereafter was sent in a jeep for its delivery in the house of deceased Roshan Lal in his native village. Sham Kumars conscious pricked him. So he went to the Police Station, lodged the First Information Report. The police informed its Post at Kharapathar where the jeep carrying the dead body was intercepted and sent back to Rohru. The dead body was sent by the Police for post mortem. Three doctors of the civil hospital at Rohru conducted the post mortem. The Doctor opined that Roshan Lal died because of ileum perforation, which caused fecal peritonitis resulting in the shock and ultimate death of Roshan Lal. 3. The conviction of the "Accused" is based on the sole evidence of so called "Dying Declaration” of deceased Roshan Lal to the effect that he was given beatings by the accused. Be it noticed that accused was tried for offence under Sections 302 and 506 of the Indian Penal Code alongwith three other accused, namely, Kuldip Singh, Tek Singh and Prem Singh. All three of them were acquitted by the learned Sessions Judge. 4. Learned trial Judge, after discussing the evidence of the witnesses, concluded that ileum perforation was not due to any ailment and therefore, statement made by Roshan Lal to PW1 Sham Kumar and his brother Surinder Kumar (PW11) that he was beaten by the accused on the evening of August 4,1996 would amount to a dying declaration and conviction of the accused could be based on such declaration. There is no other evidence to connect the accused with the death of deceased Roshan Lal. 5. Dying Declaration is a statement made by a deceased person before his death in connection with the cause of his death or the circumstances, which resulted into his death. Under Section 32 of the Evidence Act, any such statement made by a deceased, though hearsay, is admissible in evidence. 5. Dying Declaration is a statement made by a deceased person before his death in connection with the cause of his death or the circumstances, which resulted into his death. Under Section 32 of the Evidence Act, any such statement made by a deceased, though hearsay, is admissible in evidence. As pointed out by the Supreme Court in Kans Raj v. State of Punjab and others, (2000) 5 Supreme Court Cases 207, a dying declaration to be valid does not require that the statement of the deceased sought to be admitted in evidence, ought to have been made in imminent expectation of death but such a statement must have some proximate relation to the actual occurrence. In other words, the statement of a deceased relating to the cause of death or the circumstances, which resulted in his death, must be substantially or closely connected with the actual death. The prosecution relying upon a dying declaration is indeed under legal obligation to prove the making of such statement as a fact. It is well settled that a statement of a deceased which does not connect the cause of the death of the deceased would not be admissible under Section 32 read with Section 18 of the Evidence Act. (See : Ratan Gond v. The State of Bihar, 1959 Supreme Court 18). 6. The evidence relating to the dying declaration may now be examined to see if a dying declaration in fact has been made, if so, whether accused can be convicted on the basis of dying declaration. 7. Sham Kumar appearing as PW 1 deposed that on the evening of August 4, 1996, he was sitting in his shop with shutters half closed. At about 5.00 or 600 in the evening, his son Manoj Kumar came and told him that "Karigar" employed to prepare sweetmeat was being beaten by some persons. Thereafter Roshan Lal came in and sat in his shop. After about JO or 40 minutes, he compLalned that he had a pain in his stomach. He took him to the hospital. The Doctor was called from his residence and Roshan Lal was admitted in the hospital. It is his evidence that Roshan Lal informed the Doctor that he had been beaten by some persons. After about JO or 40 minutes, he compLalned that he had a pain in his stomach. He took him to the hospital. The Doctor was called from his residence and Roshan Lal was admitted in the hospital. It is his evidence that Roshan Lal informed the Doctor that he had been beaten by some persons. He further went on to state that he also informed the Doctor that his son had informed him that Roshan Lal was beaten by some one. On this the Doctor said that it was a Police case and the matter had to be reported to the Police. However, Roshan Lal stated that he was beaten by the accused. He thereafter left for a hospital to lodge the report/Accused met him outside the hospital and told him that the matter should not be reported to the Police and that he will meet the entire expenditure on the treatment of Roshan Lal. In these circumstances, the report was not lodged with the Police. After four days, Roshan Lal expired on the morning of August 8, 1996. It is noticed that neither the deceased told Sham Kumar nor Sham Kumar informed the Doctor in the hospital that deceased was beaten by the accused in "his stomach". 8. This witness was cross-examined by the learned Public Prosecutor for having deviated from his statement under Section 161 of the Code of Criminal Procedure. In cross-examination, he admitted that when Roshan Lal was in his shop, he asked him as to what had happened to which Roshan Lal responded that he was given beatings by the accused. He admitted that he took Roshan Lal to hospital because he was having severe pain and his condition was not stable. He also stated that Roshan Lal was addicted to drugs and used to take some tablets for stomach trouble. In cross-examination by the accused, he admitted that he did record on the admission ticket of Roshan Lal in the hospital that Roshan Lal worked with him and he had no quarrel with any person and that Roshan Lal had some problem in the stomach and he wanted him to be treated. This endorsement is also signed by Roshan Lal. Again not a word about deceased having been beaten on his stomach. 9. A close scrutiny of evidence on record does not prove any Dying Declaration of the deceased, which amy implicate the accused. This endorsement is also signed by Roshan Lal. Again not a word about deceased having been beaten on his stomach. 9. A close scrutiny of evidence on record does not prove any Dying Declaration of the deceased, which amy implicate the accused. What at best the evidence of Sham Kumar shows is that deceased when came to his shop told him that he had been beaten by Nitu but he does not say that he was beaten in his stomach. When taken to hospital, deceased did not disclose to Doctor that he was beaten by the accused. It is admitted position that deceased was fully conscious when admitted in the hospital. The bed head ticket (Ext. PB) merely records "Pains in the abdomen". The bed head ticket for the date of August 4, 1996 and August 5, 1996 recorded that patient was unco-operative. He refused to have treatment and did not allow the Doctors to carry the treatment. He expired on August 8, 1996. The Doctors recorded on August 6, 1996 that X-ray did not suggest abdominal pathology. Therefore, even on August 6, 1996, after two days of the incident, the X-ray report did not suggest any injury in the abdomen or intestines, which may have led to the perforation of the ileum. 10. Manoj Kumar (PW 2) who, according to the prosecution case, reported his father that Roshan Lal was beaten by the accused, has been examined as PW 2. He was about 12 years of the age at the time of his examination. It is his evidence that he was playing with a ball and when went to collect the same, he saw some commotion near the shop of one Saud. Number of persons had gathered. He could not see who were quarreling and making the noise. He came to know from some person that Roshan Lal, employed as Karigar in the shop of his father and uncle was beaten up. Thereafter, he came to his shop and saw Roshan Lal in the shop of his father. According to him, he was holding his stomach with his hands. This witness was cross-examined by the learned Public Prosecutor without any thing substantial. He denied the suggestion that accused gave fist and kick blows to Roshan Lal in the presence of his father and chacha. The suggestion was pre posterious. According to him, he was holding his stomach with his hands. This witness was cross-examined by the learned Public Prosecutor without any thing substantial. He denied the suggestion that accused gave fist and kick blows to Roshan Lal in the presence of his father and chacha. The suggestion was pre posterious. Surinder Kumar (PW 11), brother of Sham Lal, was not present in Rohru when incident took place. When he returned back to Rohru on August 6, 1996, he was told that Roshan Lal was admitted in the hospital. He visited Roshan Lal in the hospital. In cross-examination by the learned Public Prosecutor he admitted that he was told by his brother that Roshan Lal was beaten by the accused. He went on to state that Roshan Lal told him in the hospital that he was beaten by Nitu on Sunday. It is significant to note that this witness too does not say that deceased was given beatings in the abdomen with fists and kicks. Saud appearing as PW-10 denied the occurrence. There is no other evidence to connect the accused with the death of the deceased. 11. Learned Sessions Judge has based his findings on surmises and conjectures without there being any foundation for such surmises in the evidence. It is true that conviction can be based on dying declaration alone if proved and is found to be reliable. A dying declaration, it must be understood, is admissible in evidence on the principle of necessity and can form basis for conviction if it inspires confidence. It is admitted on the premise that such dying declaration will not falsely implicate an innocent person in a serious crime. The statement allegedly made by Roshan Lal to Sham Lal by no stretch can be said to be a dying declaration. Even otherwise this oral statement of the deceased does not appear to be reliable. It is significant to note that no corresponding injuries were found, as noticed earlier, by the Doctor who immediately examined the deceased in the hospital. Deceased did not even tell the Doctor, who medically examined him, that he was beaten in his stomach by the accused. If there was any they suspect the Doctor who admitted deceased in the hospital would have informed the Police at least when he expired. It is the evidence of Dr. PC. Deceased did not even tell the Doctor, who medically examined him, that he was beaten in his stomach by the accused. If there was any they suspect the Doctor who admitted deceased in the hospital would have informed the Police at least when he expired. It is the evidence of Dr. PC. Gupta (PW 5) that on August 5, 1996, at about 6.30 p.m. Roshan Lal was brought to the hospital by Sham Kumar with an acute abdomen pain from an unknown cause. Even at that stage, Roshan Lal did not make any compLalnt that he was given beatings by the accused. It may be pertinent to note that this witness has not been cross-examined by the Public Prosecutor and his evidence stand admitted by the prosecution. It is his evidence that at about 10.00 j .m. in the night, Roshan Lal compLalned of pain but patient refused for a rayles tube and started taking fluid of his own. In his own words, "Patient refused for rayles tube. He started taking fluid of his own against medical advice". At 3.30 a.m. on August 5, 1996, deceased was crying in pain and agony. He was unable to pass urine and stool but deceased did not allow the Doctors to treat him. In the words of Dr. Gupta, "He did not allow to carry out atny treatment". He categoricaJJy stated that when the abdomen was opened during post rriortem of the dead body, peritoneal covering was normal. Small intestine ileum had two perforations covered with fibrinous plaque. After cleaning facal matter, gas came out. It is his evidence that "The cause of perforation appeared to be some infective process". (Emphasis given) 12. Now evidence of Dr. Gupta clearly rules out death by any violence. He is categorical that patient was conscious when he was brought in the hospital. It is his evidence that he did not record the statement of Roshan Lal. Later in his examination-in-chief itself he stated. "It was not a case of perforation due to beatings because in that case there were supposed to be some bruises and there was supposed to be some other evidence of use of violence on the body or the internal organs." 13. Later in his examination-in-chief itself he stated. "It was not a case of perforation due to beatings because in that case there were supposed to be some bruises and there was supposed to be some other evidence of use of violence on the body or the internal organs." 13. In the absence of any accompanying injuries on the stomach, it is difficult to believe that any forceful violence was used on the stomach of the deceased, which led to the perforation of the ileum. 14. Learned Sessions Judge referring to letter to Dr. RC. Gupta to the Sub Divisional Police Officer, Rohru noticed that the evidence of Dr. P.C. Gupta was not reliable as he wrote to the Police to say that ileum perforation could have been due to multiple disease symptoms or due to fist and kick blows. Learned Sessions Judge observed, "However, while appearing in the witness box, he stated that the cause of ileal perforation was not the kicks and fist blows and stated that in that event there should have been some other evidence in the form of injuries on the abdomen wall etc. His deposition about the cause of ileum perforation is contrary not only to his own written opinion Ext. PH but is also shown to be not correct by the deposition of PW-6". Learned Sessions Judge is factually not correct. Perusal of Exhibit PH shows that Dr. Gupta clearly indicated in that letter itself that ileum perforation as noticed on post-mortem alongwith hyperemia could be caused due to multiple disease symptoms. In para 5 of his letter, he wrote: "5. Ileal perforation as noticed on post mortem alongwith hyperemia could be caused due to multiple disease symptoms". 15. It is only in paras 8 and 9 that he stated that ileal perforation and death could also be by fists and kicks. It was an opinion in abstract and not in reference to the deceased. His answer was to the question of the Investigating Agency whether ileum perforation could be due to fist and kicks to which the Doctor replied in affirmative. But in the present case, as noticed in para 5 of the letter, the Doctor was clear that perforation as noticed on the body of the deceased was due to multiple disease symptoms. This appears to be correct position as explained by the Doctor in his deposition on oath. But in the present case, as noticed in para 5 of the letter, the Doctor was clear that perforation as noticed on the body of the deceased was due to multiple disease symptoms. This appears to be correct position as explained by the Doctor in his deposition on oath. He clearly stated that if perforation was due to beatings, there should have been marks of violence on the abdomen. No make of injury was found on the person of the deceased when he was admitted to the hospital. 16. It is true that Dr. A Banerjee who examined the patient in the hospital and also was oiae of the members of the team which conducted the post mortem stated that perforation of ileum could be due to typhoid or use of force or violence or due to tuberculosis. In the case of the deceased, there was no evidence of tuberculosis. There was also no evidence of typhoid because spleen was normal. In cross-examination, he stated that in his experience, in this part of the country where the occurrence took place, intestinal perforations are caused due to tuberculosis or typhoid. He admitted that if the perforations were due to use of force or violence, then there should have been some evidence of use of force or violence like external injury on the abdomen wall, haemotoma on the partial peritoneum etc. In the present case, he admitted, those tell tale injuries were missing. 17. In view of the medical evidence which is unambiguous and categorical, it is not possible to hold or conclude, without reasonable doubt, that the perforations found on the ileum of the deceased were due to any violence on his stomach. In any event the possibility of the perforation by some old disease cannot entirely be ruled out. 18. This apart, oral dying declaration undoubtedly can form the basis of conviction. Nevertheless, the Courts do look for corroboration as a rule of prudence. Before an oral declaration is acted upon, the Court has to satisfy itself about the truthfulness of the same that the declaration infact was made by the deceased while he was in fit condition to make that statement. In the present case, as noticed earlier, accused was conscious during entire period of his hospitalization. Before an oral declaration is acted upon, the Court has to satisfy itself about the truthfulness of the same that the declaration infact was made by the deceased while he was in fit condition to make that statement. In the present case, as noticed earlier, accused was conscious during entire period of his hospitalization. He never made any statement either to the Doctor or to any other person in the hospital to the effect that he was given fist and kick blows in his abdomen by the accused, which has resulted in his hospitalization. The X-ray of the abdomen, as noticed earlier, did not suggest any abdomen pathology as noticed by Dr. Banerjee. In fact, Dr. Banerjee in his examination itself suggests that it was not a case of abdomen pathology. In these circumstances, it is not possible to conclude that the perforation of the ileum was because of the violence on the abdomen. Accusation against the accused is not proved beyond a reasonable doubt. 19. No other point was urged. 20. In result, appeal is allowed. The conviction of the accused is set-aside. He stands acquitted. The bail bonds are discharged. Appeal allowed. -