Honble SHARMA, J.–The appellants, four in number, were put to trial before the learned Additional Sessions Judge (Fast Track) No. 1 Bundi, who vide judgment dated December 6, 2003 convicted and sentenced them as under:- Pratap, Harlal, Issar and Mohan Lal: u/S. 302 IPC: Each to suffer imprisonment for life and fine Rs. 5000, in default to further suffer three months simple imprisonment. Pratap, Harlal and Issar: u/S. 364 IPC: Each to suffer imprisonment for life and fine Rs. 2000/- in default to further suffer one month simple imprisonment. u/S. 341 IPC: Each to suffer simple imprisonment for one month and fine Rs. 500/- in default to further suffer simple imprisonment for five days. Substantive sentences were ordered to run concurrently. (2). The prosecution case as unfolded during trial is as under:- Manbhar Bai (PW. 12) the informant, on October 28, 2000 at 8 PM handed over a written report (Ex. P. 1) at village Ganeshji ka Jhonpra to SHO Police Station Talera. The report was scribed by Dhanna Lal (PW. 1). It was inter alia stated in the report that in the evening on that day while she was coming from her field after reaping soyabean and reached near the houses of Latoor and Ganga Ram, she heard cries of some body who was asking for drinking water. When she reached near the person, she found that her brother in law (Devar) Ram Raj was lying there. On being enquired as to what had happened, Ram Raj told her that Pratapa, Issar and Har Lal brought him from small bridge of village Namana and beat him with stones and Mohan Lal cut him with sword. At that time her Nanad (sister in law) Nandu Bai also arrived. In the process of whispering and crying, Ram Raj succumbed to his injuries. On that report a case under Section 302/34 IPC was registered by the SHO and report was sent through Chauth Mal FC 278 to Police Station Talera where formal FIR No. 275/2000 was registered by Pukh Raj Saran S.I. A copy of FIR was taken by Chauth Mal for the purpose of investigation by SHO, who remained at village Ganeshji ka Jhonpra. The SHO drew necessary memos and removed the dead body of Ram Raj to Bundi Hospital. The SHO drew necessary memos and removed the dead body of Ram Raj to Bundi Hospital. Autopsy on the dead body was performed, statement of witnesses were recorded, the appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Bundi. Charges under Sections 302, 341 and 364 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 21 witnesses. In the explanation under Sec. 313 Cr.P.C., the appellants claimed innocence. Two witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. (3). We have heard the learned counsel for the parties and carefully scrutinised the material on record. (4). Indisputably the death of Ramraj is homicidal in nature. As per post mortem report (Ex. P. 11) he received following injuries:- 1. Incised wound with sharp margin clotted blood and the related muscles, vessels and tendon are cut down 11 x 5 x 4 cm at antero medal aspect of left elbow bones are (radius and ulna) cut down with sharp edges (oblique) 2. Incised wound with sharp margin clotted blood + 9 x 4 x 3 cm at anterior aspect of upper part of left left by which tibia and fibula cut down bony sper coming out. 3. Incised wound 4 x 1.5 x 1cm at medial with sharp margin aspect of middle region of ring finger of left hand phalanges cut down (transverse) 4. Incised wound with sharp margin 7 x 4 x 3 cm at medial aspect of left knee (transverse) by which tender vessels and muscles cut down lower end of medial condyle of femur is fractured (cut down) 5. Bruise (reddish) 17 x 12 cm at anter medial aspect of lower part of left thigh there with fracture of lower and of femur (left) 6. Bruise (reddish) 6 x 3 cm at left scapular region. In the opinion of Dr. O.P. Verma (PW. 6) the cause of death was haemorrhagic shock due to injuries No. 1, 2 & 4. (5). Taking conspectus of the prosecution evidence we notice that informant Manbhar Bai (PW. 12), Nandu Bai (PW. 19), Smt. Badam (PW. 9) and Ramdeva (PW. Bruise (reddish) 6 x 3 cm at left scapular region. In the opinion of Dr. O.P. Verma (PW. 6) the cause of death was haemorrhagic shock due to injuries No. 1, 2 & 4. (5). Taking conspectus of the prosecution evidence we notice that informant Manbhar Bai (PW. 12), Nandu Bai (PW. 19), Smt. Badam (PW. 9) and Ramdeva (PW. 3) are the star witnesses of the prosecution. Then comes the evidence of SHO Ganga Sahai (PW. 20) and Constable Chauth Mal (PW. 17). The appellants examined two defence witnesses viz. Bheru (DW.1) and Ganga Ram (DW 2) to establish that Manbhar Bai and Nandu Bai were not present at village Ganeshji ka Jhonpra on the date of incident. (6). Let us now proceed to consider the evidence adduced at the trial of aforequoted witnesses. Informant Manbhar Bai (PW. 12) in her deposition stated that while she along with her Nanad Nandu Bai were coming back from her field after reaping soyabean and reached near the house of Latoor and Ganga Ram, she heard cries of some body who was asking for drinking water. When she reached near the person, she found that her brother in law (Devar) Ram Raj was lying there. On being enquired as to what had happened, Ram Raj told her that Pratapa, Issar and Har Lal brought him from small bridge of village Namana and beat him with stones and Mohan Lal cut him with sword. After uttering these words Ram Raj died. After some time Badam Bai reached there and told her that Ram Raj was taken on Motor cycle by Pratap, Issar and Har Lal and Ram Raj was crying for help. In the cross examination Manbhar Bai stated that the land from where she was coming after reaping Soyabean belonged to Ganeshji but she did not know the name of the field. She also did not know as to who were the neighbours of th field. She admitted that her in laws house did situate at village Shrawan ka Jhopara. She admitted that in the FIR she did not state that Nandu Rai was coming with her. Nandu Bai was real sister of deceased Ram Raj. She did not know as to on which side of Ram Raj she was standing. Ram Raj did not give her the details of incident. She admitted that in the FIR she did not state that Nandu Rai was coming with her. Nandu Bai was real sister of deceased Ram Raj. She did not know as to on which side of Ram Raj she was standing. Ram Raj did not give her the details of incident. She also could not explain as to on which part of body Ram Raj had sustained injuries. She also did not know as to whether Ram Raj was speaking fluently or with some difficulty. Nandu Bai (PW. 19) corroborated the testimony of Manbhar Bai. In the cross examination Nandu Bai admitted that she was a resident of village Namana. According to her she came to her parental house at Ganesh ji ka Jhonpra a day prior to Diwali. (7). Badam (PW. 9) deposed that she saw a motor cycle driven by Harlal and Issar and Pratap along with Ram Raj were sitting on the rear seat. Ram Raj was crying loudly for help. For about one hour she remained in her house. After one hour when she was going to the village she heard cries of Manbhar and Nandu who were weeping and near them Ram Raj was lying. She then told Manbhar that Pratap, Issar and Har Lal took Ram Raj on Motor cycle. In turn Manbhar Informed her that Pratap, Issar and Har Lal killed Ram Raj. In the cross examination she admitted that Ram Raj was son of her Masi (maternal aunt) and her Sasural was at Prempura. She also stated that her statement was recorded by the police after three days of the incident. (8). Ramdeva (PW. 3) deposed that for the last five seven months prior to the incident he employed Ram Raj for grazing his cows. The cows used to return the home around 3 PM daily, on the fateful day when his cows did not return back, he proceeded to search them. In the process of searching the cows when he reached near the house of Latoor, he saw Mohan Lal causing injuries with sword on the person of Ram Raj, whereas Pratap, Issar and Harlal were inflicting blows with stones. Since he became frightened he did not go to the house of Ram Raj and came back to his own house. Learned trial Court however did not find Ramdeva a reliable witness and discard his evidence. (9). Ganga Sahai (PW. Since he became frightened he did not go to the house of Ram Raj and came back to his own house. Learned trial Court however did not find Ramdeva a reliable witness and discard his evidence. (9). Ganga Sahai (PW. 20) was the Investigating Officer of the case. In his deposition he stated that on October 28, 2000 he was posted as SHO at Police Station Talera. On that day around 7.20 PM he received a telephonic call about the quarrel between Gurjars at Ganeshji ka Jhonpra. After making entery in the Rojnamcha he proceeded to Ganeshji ka Jhonpra with Chauth Mal FC where informant Manbhar Bai handed over a written report. The written report was sent by him through Constable Chauth Mal to Police Station for registering the formal FIR. Thereafter he conducted the investigation, removed the dead body of Ram Raj to Bundi Hospital and drew necessary memos. In the cross examination Ganga Sahai stated that on reaching the place of incident he found many persons gathered there. He saw the dead body lying there. He enquired from the persons about the name of the deceased but nobody did care to reply his quarry. He then straightway went to the village and asked the villagers as to who was the deceased, but nobody gave satisfactory reply. Thereafter a lady went inside the house, got the report written and handed over to him. He made endorsement on the report and sent it to the police station through a Constable. (10). Constable Chauthmal (PW. 17) who accompanied Ganga Sahai SHO (PW. 20) however deposed in his cross examination that he and SHO Ganga Sahai had gone to the place of occurrence in a jeep whey they reached to the spot they found a dead body surrounded by three four ladies who were crying, out of which one was Bhabhi of the deceased who informed that deceased was Ram Raj. The SHO then got the proceedings drawn in the lights of the jeep. A report was prepared by the SHO on which Bhabhi of deceased put her thumb impression. (11). Factual situation emerges from the material on record may be deduced thus:- (i) There is no eye witnesses of the occurrence. The prosecution examined Badam (PW. 9) to establish that the deceased was taken on motor cycle by appellants Pratap, Harlal and Issar. Statement of Badam under Section 161 Cr.PC. (11). Factual situation emerges from the material on record may be deduced thus:- (i) There is no eye witnesses of the occurrence. The prosecution examined Badam (PW. 9) to establish that the deceased was taken on motor cycle by appellants Pratap, Harlal and Issar. Statement of Badam under Section 161 Cr.PC. was recorded by police after three days of the incident. Badam is maternal aunt of deceased and despite the fact that Ram Raj was crying for help she did not try to help him and remained in her house for about one hour without informing about the incident to anybody. According to her Manbhar Bai told her that Pratap, Issar and Har Lal killed Ram Raj. She did not name Mohan Lal. (ii) Informant Manbhar Bai (PW. 12) and Nandu Bai (PW. 19) were examined to prove that the deceased was speaking when they had met him soon after the incident. (iii) Nandu Bai is the real sister of the deceased and Manbhar Bai is Bhabhi. Nandu Bai and Manbhar Bai both are married and resided in different villages. According to them they came to the village Ganesh ji ka Jhonpara only a day prior to the incident. (iv) Bhanwar Lal (PW. 2) who was examined as independent eye witness, did not support the prosecution case and Ramdeva (PW. 3) another eye witness was not relied upon by the learned trial Court. (v) According to Constable Chauth Mal (PW. 17) the report was written by SHO Ganga Shai and Manbhar Bai put her thumb impression on the report. (vi) On behalf of the appellants two witnesses Bheru (DW.1) and Ganga Ram (DW 2) were examined in defence to establish that Manbhar Bai and Nandu Bai were marriage ladies and they did not reside in the village where the incident occurred. (12). It is contended by learned counsel for the appellants that Manbhar Bai and Nandu Bai are interested witnesses and on the basis of oral dying declaration said to have been made to them by Ram Raj (the deceased) the appellants cannot be convicted and that at any rate it is highly unsafe to convict them without strong corroboration which is not there. Learned counsel also urged that Ram Raj with multiple injuries could not have been in a position to make such dying declaration to Manbhar Bai and Nandu Bai. (13). Learned counsel also urged that Ram Raj with multiple injuries could not have been in a position to make such dying declaration to Manbhar Bai and Nandu Bai. (13). In Ramsai vs. State of M.P. (1994 Cr.L.J. 138) on which reliance is placed by learned counsel for the appellants, the Apex Court noticed serious infirmities in the testimony of witnesses and observed as under :- (Para 4) ``...There are all serious infirmities which we find in the evidence regarding the oral dying declaration. The medical evidence also shows that it is highly doubtful whether the deceased could not have made any such statement. The oral dying declaration is no doubt an important piece of evidence, but it should be free from all infirmities. There is no other corroboration worth mentioning. Further as mentioned above the conduct of PW. 18 and 20 is highly unnatural and they say that for three days they did not inform anybody about the oral dying declaration. We find that it is highly unsafe to base the conviction on the oral dying declaration because of the many infirmities pointed out. (14). In Mohar Singh vs. State of Rajasthan (1998 IV Apex Decision (SC) 333) the Supreme Court indicated as under:- (Para 4) ``As regards the dying declaration stated to have been made by the deceased to his wife, it appears that the deceased could not have made such a dying declaration in view of the number of injuries received by him. The evidence of Gomti (PW. 7) is that when she reached the place of incident, her husband- Dhuni Ram was in a position to speak and when she enquired, he gave the names of the assailants. However, she admitted that immediately after saying so, her husband had became unconscious. No other witness had spoken about this dying declaration. The High Court was therefore right in not placing reliance upon the dying declaration. (15). Learned counsel for the complainant on the other hand contended that the dying declaration made by the deceased, which find amply proved by the testimony of Manbhar Bai and Nandu Bai is itself enough to sustain the conviction of the appellants. Reliance is placed on P. Srinivasulu @ Mooga vs. State of A.P. (RLW 2002(4) SC 585) wherein their Lordships of the Supreme Court observed as under:- (Para 8) ``It was submitted by Ms. Reliance is placed on P. Srinivasulu @ Mooga vs. State of A.P. (RLW 2002(4) SC 585) wherein their Lordships of the Supreme Court observed as under:- (Para 8) ``It was submitted by Ms. Nanita Sharma, the learned counsel for the appellant that for several reasons the dying declaration cannot be believed. She submitted that looking to the nature of the injuries suffered by the deceased possibly she could not have spoken and must have become unconscious instantaneously. However, no such suggestion has been made to any of the witnesses including the two doctors who respectively conducted the medico-legal examination and post mortem examination of the victim. On the contrary the three eye witnesses have positively stated that the deceased was speaking when they had met her soon after the incident. The victim had died two days after the incident. We cannot in the face of this positive evidence just assume that the injured must have become unconscious and speechless because of the injuries and discard on such assumption the dying declaration deposed to by independent witnesses corroborated by the promptly lodged FIR. (16). In Kodabi Srinivasa Lingam vs. State of A.P., JT 2002 (6) SC 200, the Apex Court held that oral dying declaration can be relied upon, but to what extent, depends upon facts and circumstances of the case. (17). In Vishram vs. State of M.P. (1993 Cr.L.J. 304) the Supreme Court indicated that where inability of deceased to give dying declaration, was not categorically stated by doctor in his evidence, the oral dying declaration can be relied upon. (18). In Ananta Mahanto vs. State of Orissa ( AIR 1979 SC 1433 ) it was held that evidence of relatives cannot be discarded simply because they are relatives. (19). Before analysing the submissions advanced before us it will be apt to recapitulate the provisions contained in Section 6 of the Evidence Act which provide that ``facts which, though not in issue, are so connected with the fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. The principles of law embodied in Section 6 is usually known as the rule of RES GESTAE recognised in English Law. The principles of law embodied in Section 6 is usually known as the rule of RES GESTAE recognised in English Law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue as to form part of same transaction becomes relevant by itself. This rule is rightly speaking an exception to the general rule that hearsay evidence is not admissible. The rationable in making certain statement on fact admissible under Section 6 is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But, it is necessary that such fact or statement must be part of the same transaction. If there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In Sukhar vs. State of U.P. (1999) 9 SCC 507 where a person cried out on receiving gun-shot injuries and two persons, who immediately reached the spot, were told by the victim that his nephew had fired at him, the court allowed this evidence as part of res gestae being spontaneously connected with the transaction. (20). In order to examine whether the statements of Badam Bai, Manbhar Bai and Nandu Bai are the part of res gestae, when we look into the material on record we find that there are certain broad incongruities staring at the prosecution version against the appellant. They can be narrated thus:- (i) Conduct of Badam Bai, who is real Masi (Maternal aunt) of the deceased in sitting tight lipped even after seeing the deceased in the clutches of the appellants, is highly unnatural. (ii) In the FIR Manbhar Bai did not state that Nandu Bai was also coming with her after reaping Soyabean. (iii) It is difficult to believe that Manbhar Bai, who is the real Bhabhi, and Nandu Bai, who is real sister of the deceased, and only two would reach to the spot where the deceased was lying injured and the other villagers who resided near the place of incident would turn deaf ears towards cries of the deceased. (iv) It is hightly unlikely that two married ladies would leave their Sasural (in laws house) on the occasion of Diwali Festival and would come to their Peehar (parental house) for the purpose of reaping the crop of Soyabean. (iv) It is hightly unlikely that two married ladies would leave their Sasural (in laws house) on the occasion of Diwali Festival and would come to their Peehar (parental house) for the purpose of reaping the crop of Soyabean. (v) Origin of FIR is shrouded with mystry. As per constable Chauth Mal FIR was written by SHO Ganga Sahai and thereafter Manbhar Bai put her thumb impression. SHO Ganga Sahai also stated that when he reached to the spot the villagers had gathered near the dead body but no body was prepared to give satisfactory reply as to who was dead. He then went to the village where a lady gave him a written report. (vi) As per Badam Bai only the three assailants viz. Pratap, Issar and Har Lal were named by Manbhar when she met her. Name of Mohan Lal was not uttered by her but Manbhar Bai in her deposition also named Mohan Lal. (21). In view of these infirmities we find it hightly unsafe to convict the appellants only on the testimony of interested witnesses without strong corroboration, which is not there. This possibility can not be ruled out that finding dead body of Ram Raj near the house of the appellant, the I.O. got the FIR registered against the appellants on the basis of suspicion and created the evidence of Manbhar Bai, Nandu Bai and Badam Bai. It is well settled proposition that the graver the offence, the greater should be the care taken to see that neither an innocent person is convicted nor a guilty allowed to escape. In the facts and circumstances of the instant case we have no option but to give benefit of doubt to appellants. Learned trial Judge in our opinion did not properly peep into the holes noticed by us in the prosecution evidence and thus committed illegality in convicting and sentencing the appellants. (22). For these reasons, we allow the appeal and set aside the finding of conviction and sentence rendered by the learned trial judge. We acquit the appellants of the charges under Section 341, 364 and 302 IPC. Appellants Pratap, Har Lal and Issar are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mohan Lal who is in jail shall be set at liberty forthwith if not required to be detained in any other case.