JUDGMENT Kanwaljit Singh Ahluwalia, J. - Initial version set out against the accused-appellant by the prosecution is that on 21.06.2014 in the evening at about 8.00 PM appellant threw his two years old daughter Nayushi from Ratlam-Agra Passenger Train in Chambal river in presence of his wife Sonu Kanwar (PW.2) i.e. mother of the deceased. Thus, the case of the prosecution is that the appellant committed offence punishable under Section 302 I.P.C. 2. Version to initiate criminal proceedings was unfolded by the complainant Sonu Kanwar (PW.2), mother of the deceased child and wife of the appellant and same is discernible from the written report (Ex.P.3) presented by her (PW.2) before Sanjay Sharma (PW.15). On the basis of written report (Ex.P.3) formal FIR (Ex.P.12) bearing No.170/2014 was registered at Government Railway Police Station, Kota for the offence under Section 302 I.P.C. Written report (Ex.P.3) when translated into English, reads as under:- "To, SHO Sahab, G.R.P. Thana, Kota. Sub.: For lodging of report regarding murder. I, Sonu Kanwar w/o Gurjarmal, caste Gurjar, aged 20 years is resident of Village Khadraya, Tehsil Weir, District Bharatpur. I, alongwith my husband is doing labour wok in Village Murelia, District Chittorgarh. On 21.6.2014 we both husband and wife alongwith two daughters, eldest Nayusi aged two years and youngest Ayushi aged eight months, from Chittorgarh were going to Bayana where house of my in laws is situated by Ratlam-Agra Passenger Train. My husband is alcoholic. He often remain under the influence of liquor. On 21.6.2014 during the train journey my husband had taken the liquor. I was sitting on my railway berth. Youngest daughter was in my lap. Eldest daughter was sitting on railway berth. My husband was also sitting alongwith me. When Chambal river came, my husband threw my eldest daughter from the running train in Chambal river. I raised noise. Co-passengers had seen the occurrence. They pulled the chain, but train had not stopped as Kota Station was approaching. Upon pulling the chain, the train slowed down. My husband also jumped from the running train and ran away. I reached at Kota Railway Station and on reaching there, went to the police station to lodge the report. Upon my information, staff of the Police Station carried a search for my daughter in and around the Chambal river. My daughter Nayushi was found dead from Chambal river. My husband also jumped from the running train and ran away. I reached at Kota Railway Station and on reaching there, went to the police station to lodge the report. Upon my information, staff of the Police Station carried a search for my daughter in and around the Chambal river. My daughter Nayushi was found dead from Chambal river. My husband Shri Gurjarmal had thrown my daughter Nayushi in Chambal river from a running train and caused her murder. Legal action be taken. This occurrence had taken place on 21.6.2014 at about 8.00 PM. Sd/- Smt. Sonu Kanwar W/o. Gurjarmal, By caste Gurjar, R/o. Matrimonial Home Village: Khadraya, Tehsil Weir, P.S. Weir, District Bharatpur. Date: 22.6.2014." 3. The present appeal has been filed through Jail. 4. Shri Pankaj Gupta, appearing as counsel on behalf of the appellant, and Shri Javed Choudhary, learned Public Prosecutor, have very fairly admitted that in the present case no co-passenger of the train in which the couple was traveling alongwith deceased daughter, has been examined by the prosecution. 5. In the present case, prosecution to secure conviction of the appellant, has examined fifteen witnesses, namely Vishnudhar Shringi (PW.1), Sonu Kanwar (PW.2), Ummed Singh (PW.3), Changej Khan (PW.4), Bhawani Shankar (PW.5), Kirti Bala (PW.6), Ishwar Singh (PW.7), Harinarayan (PW.8), Yogesh Kumar (PW.9), Dr. Surendra Meena (PW.10), Kamlesh Kumar Pankaj (PW.11), Dharmendra (PW.12), Pooran Chand (pw.13), Khushiram (PW.14) and Sanjay Sharma (PW.15). Thereafter statement of the accused-petitioner was recorded under Section 313 Cr.P.C., 1973 He denied all incriminating circumstances put to him. 6. Learned counsel for the parties are in agreement that the solitary eye-witness Sonu Kanwar (PW.2), mother of the deceased and wife of the accused, has turned hostile to the prosecution and has not supported the prosecution story. The learned counsels have also very fairly submitted before this court that conviction of the appellant rest upon as to what was disclosed by Sonu Kanwar (PW.2) during the course of investigation orally to the police officials. 7. Before we deal with the reasoning propounded by the trial court to convict and sentence the appellant, we shall briefly recapitulate the case of the prosecution. 8. Dr. Surendra Meena (PW.10) on 23.6.2014 being Medical Jurist at MBS Hospital, Kota, conducted autopsy on the dead body of deceased Nayushi aged two years vide Exhibit-P.13. As per his opinion, the cause of death was ante mortem injury on head. 8. Dr. Surendra Meena (PW.10) on 23.6.2014 being Medical Jurist at MBS Hospital, Kota, conducted autopsy on the dead body of deceased Nayushi aged two years vide Exhibit-P.13. As per his opinion, the cause of death was ante mortem injury on head. Since it is not in dispute that Nayushi had died due to said injury, we need not deal with the medical evidence. 9. Vishnudhar Shringi (PW.1) deposed in court that he alongwith Changej Khan (PW.4) were called by the police being plunger and upon the information given by the police, they had recovered the dead body from the river beneath the railway bridge. 10. To similar extent is the testimony of Changej Khan (PW.4). 11. Ummed Singh (PW.3) was posted as Head Constable at GRP, Kota. This witness stated that on 21.6.2014 at 8.25 PM a woman with daughter in lap, came weeping at the police station and she orally narrated the occurrence to Sanjay Sharma (PW.15). 12. To similar effect is the testimony of Constable Bhawani Shankar (PW.5), Constable Kirti Bala (PW.6), Head Constable Ishwar Singh (PW.7), Constable Yogesh Kumar (PW.9) and Constable Dharmendra (PW.12). 13. Harinarayan (PW.8) is nephew of the accused. He stated that upon the information received, he reached Kota and on 22.6.2014 he received the dead body of the child from police station vide Supurdaginama (Ex.P.6). 14. Kamlesh Kumar Pankaj (PW.11) was posted as Senior Scientific Assistant in District Mobile Forensic Unit, Kota. He had inspected the spot. 15. Head Constable Pooran Chand (PW.13) stated that he had received the written report (Ex.P.3) handed over to him by Constable Yogesh Kumar (PW.9) and had sent the same for registration of the case. 16. Khushiram (PW.14) stated that the accused is his younger brother. Upon receipt of information they had come to the police station where the dead body of the deceased was handed over to him vide memo (Ex.P.6). 17. Sanjay Sharma (PW.15) being Investigating Officer has proved various facets of investigation. 18. In the present case, Sonu Kanwar, solitary eye-witness of the occurrence, mother of the deceased and wife of the accused, while examined in court as PW.2 has turned hostile to the prosecution. She has specifically stated in court that ten months ago, she alongwith her husband and children were going in the train and somebody threw their daughter Nayushi from the train. Her husband had pulled the chain. She has specifically stated in court that ten months ago, she alongwith her husband and children were going in the train and somebody threw their daughter Nayushi from the train. Her husband had pulled the chain. He jumped out of the train to save the daughter. We reproduce the testimony of the witness as under:- ^^10 eghus igys dh ckr gSA ml le; ge fpRRkkSM+ esa etnwjh djrs FksA fpRrkSM+x<+ ls Hkjriqj tkus ds fy, c;kuk okyh xkM+h esa cSBs FksA eSa] esjk ifr vkSj nks cPps esjs lkFk FksA NksVh cPph dk uke vk;q'kh tks vkB ekg dh vkSj cM+h dk uke uk;q'kh tks djhcu Ms<+ lky dh Fkh tks esjs ikl gh cSBh FkhA ge cSBs gq, Fks rks irk ugha fdlh us uk;q'kh cPph dks mBkdj uhps Qsad fn;k eSa fpYykbZ] esjs ifr us Vªsu dh pSu [khaph vkSj esjs dgus ij og cPph dks cpkus ds fy, Vªsu ls dwn x;k] fQj eSa Fkkus ij vkbZ vkSj eSaus fjiksVZ ntZ djokbZ] fjiksVZ Án'kZ ih&3 gS] ftl ij , ls ch esjs nks txg gLrk{kj gSaA** 19. Permission was granted by the learned trial court to the Additional Public Prosecutor to cross-examine the witness Sonu Kanwar (PW.2). In cross-examination, the witness denied that her husband was alcoholic. She also denied that her husband had thrown the child out of the train in the river. 20. The trial Judge even though noted that the solitary eyewitness Sonu Kanwar (PW.2) has turned hostile to the prosecution, recorded conviction of the appellant on the ground that the complainant made oral statement before the police officials. She also denied that her husband had thrown the child out of the train in the river. 20. The trial Judge even though noted that the solitary eyewitness Sonu Kanwar (PW.2) has turned hostile to the prosecution, recorded conviction of the appellant on the ground that the complainant made oral statement before the police officials. We reproduce Para-23 of the impugned judgment on the basis of which conviction has been recorded, as under:- ^^23- ihŒMCY;wŒ 2 lksuw daqoj Lo;a vius c;kuksa esa ;g dgrh gS fd mlus Fkkus ij fjiksVZ Án'kZ ih&3 ntZ djkbZ ftl ij , ls ch vius gLrk{kj crk, gSaA uk;q'kh dks mlus tfj, Án’kZ ih&4 f'kuk[r fd;k vkSj uk;q'kh dks MkDVjh eqvk;us ds ckn mlus tfj, Án'kZ ih&6 mls lqiqnZ fd;k x;kA ftjg esa Hkh og ;g Lohdkj djrh gS fd mlus Fkkus ij vkdj fjiksVZ Án'kZ ih&3 nh Fkh ysfdu ;g dgrh gS fd bldk lh ls Mh Hkkx mlus ugha fy[kk;k] ysfdu esjs fouez er esa lksuw daoj dk ;g dguk lgh ugha gS] D;ksafd lksuw daoj fjiksVZ Án'kZ ih&3 nsuk dgrh gS vkSj bl rgjhjh fjiksVZ esa vU; rF;ksa ds vykok bl rF; dk mYys[k gS fd Vªsu esa tc mldh NksVh cPph xksnh esa Fkh] cM+h cPph lhV ij cSBh Fkh rc pEcy unh ds vkus ij mlds ifr us cM+h cPph dks Vªsu dh lhV ls mBkdj pyrh Vªsu ls pEcy esa Qsad fn;kA lksuw daoj us fjiksVZ Án'kZ ih&3 ntZ djkus ls iwoZ Fkkuk thŒvkjŒihŒ ij tkdj Fkkukf/kdkjh lat; 'kekZ ihŒMCY;wŒ 15 dks Hkh bl rF; dh ekSf[kd :i ls lwpuk nh gS ftldks mUgksaus jkstukepk Øekad 1072 ij 8%25 ihŒ,eŒ ij ntZ fd;k gS ftldh Áfr Án'kZ ih&15 U;k;ky; ds le{k ÁLrqr gqbZ gS vkSj lksuw daoj dh ekSf[kd lwpuk dh iqf"V ihŒMCY;wŒ 15 lat; 'kekZ vkSj ml le; Fkkus ij mifLFkr lk{khx.k ihŒMCY;wŒ 3 mEesnflag] ihŒMCY;wŒ 5 Hkokuh 'kadj] ihŒMCY;wŒ 6 dhfrZckyk ihŒMCY;wŒ 7 bZ'oj flag] ihŒMCY;wŒ 9 ;ksxs'k dqekj vkSj ihŒMCY;wŒ 12 /kesZUæ us Hkh vius c;kuksa esa dh gSA pwafd vfHk;qDr xwtjey] lksuw daoj dk ifr gS] blls ,slk yxrk gS fd og vius ifr dks cpkus ds fy, U;k;ky; ds le{k lgh dFku ugha dg jgh gSA blds vfrfjDr tc lksuw daoj dh cPph uk;q'kh Vªsu esa ;k=k dj jgh Fkh] lksuw daoj ;g ugha dgrh gS fd mldk fdlh vU; ;k=h ls >xM+k gqvk] rc ;g Ákd`frd vuqØe esa ugha yxrk fd vU; dksbZ ;k=h lksuw daoj dh nks o"khZ; iq=h uk;q'kh dks Vªsu ls mBkdj pEcy unh esa QsadsA vr% lksuw daoj dk ;g dguk fd tc og Vªsu esa cSBs gq, Fks rks irk ugha fdlh us uk;q'kh dks mBkdj uhps pEcy unh esa Qsad fn;k] esjs fouez er esa ekuus ;ksX; ugha gSA okLro esa lksuw daoj dh iq=h uk;q'kh dks mlds ifr orZeku vfHk;qDr xwtjey us gh pyrh Vªsu ls pEcy unh esa uhps Qsadk] bl vk'k; dh vfHk;kstu dh vksj ls U;k;ky; ds le{k i;kZIr lk{; ÁLrqr dh xbZ gS ftl ij esjs fouez er esa vfo'okl fd, tkus dk Hkh dksbZ dkj.k ÁdV ugha gksrk gSA** 21. We are deeply anguished at the approach adopted by the trial Judge. Written report (Ex.P.3) lodged by Sonu Kanwar (PW.2) is not a substantive piece of evidence. The FIR (Ex.P.12) lodged on the basis of written report (Ex.P.3) at the best can be used to confront the witness or corroborate her testimony. The same cannot be read as substantive piece of evidence. Only the statement made by the witness in the court can be taken into consideration. The reasoning of the trial Judge that Sonu Kanwar (PW.2) author of the written report (Ex.P.3) had orally narrated the occurrence to the police officials, cannot be accepted as the same amount to hearsay evidence. 22. We are conscious that section 6 of the Indian Evidence Act make res gestae evidence admissible. Doctrine of res gestae evidence permit the court to make such hearsay evidence admissible if the same is qualified by unity of time, place and action. In the present case, occurrence had taken place in the train and the same was narrated at the police station. Therefore, the same is not qualified by the unity of action. Secondly, narration of the occurrence is not spontaneous and it is not immediately after the occurrence. Therefore, there is enough time gap. Thirdly, immediately after the child was thrown, the witness has not narrated the incident. Therefore, much after the action, at different place the witness has made an oral statement to the police officials. Therefore, what is stated by the witness to the police officials unless not reiterated in the court, is not admissible in evidence. Furthermore, in the present case, statement has not been made by the deceased, another exception in the form of dying declaration which fall under section 32 of Indian Evidence Act is also not available to the prosecution. Therefore, the trial Judge gravely erred to rely upon what was orally stated to the police officials by the witness on the date of occurrence. The trial Judge could only rely what was stated by the witness in the court and not upon the previous statement made by the witness to the police officials. section 145 of Indian Evidence Act and Proviso to Section 164 Cr.P.C., 1973 read together, make it apparent that previous statement made by the witness is not admissible in evidence. The trial Judge could only rely what was stated by the witness in the court and not upon the previous statement made by the witness to the police officials. section 145 of Indian Evidence Act and Proviso to Section 164 Cr.P.C., 1973 read together, make it apparent that previous statement made by the witness is not admissible in evidence. However, heart wrenching the crime may be, the court of law cannot make departure from the settled legal principles swayed by the emotions. In criminal administration of justice, conviction can only be recorded on well established legal principles and not upon the perception of the judge that the accused sent is the only person who is guilty of the offence. 23. Consequently, for lack of admissible evidence, we are constrained to accept the present appeal. As a result thereof, the judgment of conviction rendered and order of sentence pronounced by the trial Judge is set aside and the appellant is acquitted of the charge by extending benefit of doubt by way of abundant caution. 24. As per record, the appellant is in custody. Therefore, the appellant be released forthwith if not required in any other case. The trial court is directed to comply with the provisions of section 437A Cr.P.C. 1973.