JUDGMENT : Shree Chandrashekhar, J. The sole appellant has faced the charge under section 302 of the Indian Penal Code for committing murder of Nuresha Khatoon, his wife. In S.T. No.92 of 2009 he has been convicted and sentenced to RI for life under section 302 of the Indian Penal Code. 2. The case of the prosecution is primarily based on fardbeyan of Nuresha Khatoon. On the basis of her fardbeyan, Bermo (Gandhinagar) P.S. Case No. 95/08 has been registered under sections 341, 323, 307 and 326 of the Indian Penal Code against the appellant. During the trial, the prosecution has examined nine witnesses. 3. Dr. Manoj Kumar Korah PW-9 who has conducted the post-mortem examination on 08.09.2008 has observed: dermo epidermal burn involving lower part of face, neck, front of chest, lower part of abdomen, left upper limb, medial side right upper limb and both thighs of Nuresha Khatoon. 4. According to the doctor, the burn injuries were ante-mortem in nature and at the time of post-mortem examination the burn areas were found infected. The doctor has opined that the death has been caused due to burn and its complications. 5. In her fardbeyan, Nuresha Khatoon has stated that she was married to the appellant about 12-13 years before. Her husband was a labour and used to drink. She has stated that her husband after his return from work was quarreling with her in drunken condition. In the night of 31.08.2008/01.09.2008 also he was drunk and when he came back home started quarreling and assaulting her whereupon she had left house. But, her husband called her inside, poured kerosene oil on her and set her on fire. When she started crying her husband put off the fire, however, by that time she was completely burnt. 6. There is no eye-witness to the occurrence. The informant has died about seven days after the occurrence and her further statement was recorded by the Investigating Officer but no other prosecution witness has supported the prosecution’s case. PW-1, PW-2, PW-4 and PW-8 who are the neighbours have been declared hostile. PW-3 is a co-worker and PW-7 is sister-in-law of the deceased but they have also not supported the prosecution’s case and were declared hostile. PW-1, PW-2, PW-4 and PW-8 who are the neighbours have been declared hostile. PW-3 is a co-worker and PW-7 is sister-in-law of the deceased but they have also not supported the prosecution’s case and were declared hostile. The Investigating Officer who has recorded the fardbeyan of Nuresha Khatoon has not been produced during the trial and there is considerable doubt on identity of Sabir Ansari; whether he is PW-8 or another person. If PW-8 is the same person who has put his signature on the fardbeyan of Nuresha Khatoon it needs to be mentioned here that he has turned hostile but if he is not the same person, the person who has put his signature on the fardbeyan of Nuresha Khatoon has not been examined during the trial. 7. On such facts, the fardbeyan of Nuresha Khatoon which was not treated as her dying declaration is not admissible also under section 6 of the Indian Evidence Act, 1872 for the reason that it does not satisfy the proximity test. Moreover, it has not been proved by any witness. The principle of law embodied under section 6 of the Evidence Act, commonly known as rule of res gestae provides that statement of a victim given immediately after the occurrence is a relevant fact and admissible in evidence if such statement forms part of the same transaction referring to the cause of the incident. In “Rattan Singh Vs. State of H.P.” reported in (1997) 4 SCC 161 , the Supreme Court has discussed relevancy of statement of a victim, thus: “16. Even apart from section 32(1) of the Evidence Act, the aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration ‘A’ to Section 6 makes it clear. It reads thus: ‘(a) A is accused of the murder of B by beating him. Even apart from section 32(1) of the Evidence Act, the aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration ‘A’ to Section 6 makes it clear. It reads thus: ‘(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.’(emphasis supplied) Here the act of the assailant intruding into the courtyard during dead of the night, victim’s identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act.” 8. The learned Sessions Judge has, however, held that testimony of the prosecution witnesses cannot be rejected altogether. Since they have deposed in the court that they have seen Nuresha Khatoon in a burnt condition and the doctor has stated that Nuresha Khatoon has died due to the burn injuries, the learned Judge has held that the prosecution has proved the charge under section 302 of the Indian Penal Code against the appellant. 9. In “Narra Peddi Raju Vs. State of A.P. now State of Telangana” (Criminal Appeal No. 1553 of 2019), the Supreme Court has held that the conviction of an accused cannot be based on the statement of a witness recorded under section 161 Cr.P.C. Not only there is no substantive evidence laid by the prosecution during the trial in S.T. No.92 of 2009, the chain of circumstances sought to be proved by the prosecution is not complete and, accordingly, conviction of the appellant under section 302 of the Indian Penal Code is held unsustainable. 10. Therefore, judgment of conviction of the appellant, namely, Md. Sabbu Ansari @ Sabir Ansari under section 302 of the Indian Penal Code dated 21.01.2013 and order of sentence of RI for life and fine of Rs.10000/- under section 302 of the Indian Penal Code dated 23.01.2013, passed by the learned Additional Sessions Judge I, Bermo at Tenughat in S.T. No.92 of 2009 are set aside. Sabbu Ansari @ Sabir Ansari under section 302 of the Indian Penal Code dated 21.01.2013 and order of sentence of RI for life and fine of Rs.10000/- under section 302 of the Indian Penal Code dated 23.01.2013, passed by the learned Additional Sessions Judge I, Bermo at Tenughat in S.T. No.92 of 2009 are set aside. 11. The appellant, named above, is acquitted of the criminal charge framed against him in S.T. No.92 of 2009. 12. Mrs. Nehala Sharmin, the learned APP states that the appellant, namely, Md. Sabbu Ansari @ Sabir Ansari is in jail custody. 13. Accordingly, the appellant, namely, Md. Sabbu Ansari @ Sabir Ansari shall be set free forthwith, if not required in connection to any other case. 14. In the result, Criminal Appeal (D.B.) No.92 of 2013 is allowed. 15. We appreciate the able assistance rendered by Mr. Rahul Kumar, the learned counsel and Miss. Apoorva Singh, the learned Amicus, who have prepared meticulous notes on the prosecution’s evidence. 16. Let lower court records be transmitted to the court concerned, forthwith. 17. Let a copy of the judgment be communicated to the trial court through FAX.