JUDGEMENT : Shree Chandrashekhar, J. On the basis of the fardbeyan of the victim girl which was recorded on 17.10.2007 at 16:00 hours at MGM Hospital, Jamshedpur, Mango (Olidih) P.S. Case No. 360 of 2007 was registered against Lugu Boipai, Motu @ Subhas Singh and Giddu under section 376 (g) and sections 326 and 307 read with section 34 of the Indian Penal Code. The appellants have faced the trial on the charge under section 366, section 376(g) and section 302 read with section 34 of the Indian Penal Code and they have been convicted for the aforesaid offences. 2. During the trial the prosecution has examined seven witnesses and statement of the prosecutrix recorded on 18.10.2007 has been treated as her dying declaration. 3. The learned Sessions Judge has held that from fardbeyan of the prosecutrix and her statement recorded by the police during the investigation which are corroborated by the medical evidence it can be safely inferred that the accused persons have abducted the prosecutrix by inducing to marry her, committed gang rape and put her on fire. 4. According to the prosecution the incident has happened on 13.10.2007. In her fardbeyan the prosecutrix has stated that Motu and Giddu were accompanying Lugu Boipai. She has said that she has previous acquaintance with Lugu Boipai who asked her to come with him on the inducement that he wanted to marry her. The accused persons have taken her in the house of Lugu Boipai where she was sexually assaulted by them and when she protested they set her on fire. P.W.1 is the maternal grandmother of the prosecutrix. She is not an eye-witness to the occurrence. In her examination-in-chief, she has stated that two boys have called her granddaughter and took her with them but she does not know their name. During the search she found her in a house at Dimna. She has said that her granddaughter was sexually assaulted and put on fire by the accused persons. P.W.2 is the neighbour who has said that his mother had brought up the prosecutrix. He has been declared hostile. 5. The prosecutrix was first examined by Dr. Y. Sanga-P.W.3 on 17.10.2007 at MGM College and Hospital, Jamshedpur. He has found deep burn injuries around both her upper limb, deep superficial burn on front of her chest and upper abdomen. P.W.2 is the neighbour who has said that his mother had brought up the prosecutrix. He has been declared hostile. 5. The prosecutrix was first examined by Dr. Y. Sanga-P.W.3 on 17.10.2007 at MGM College and Hospital, Jamshedpur. He has found deep burn injuries around both her upper limb, deep superficial burn on front of her chest and upper abdomen. She had suffered 65% burn injuries and there was foul smell coming from her injuries. In the opinion of P.W.3, the nature of injuries found on the prosecutrix was grievous. Dr. Manju M. Bara-P.W.4 is the lady doctor who has clinically examined the prosecutrix on 17.10.2007. She has also found deep burn injury on both thigh, both lower limbs, chest, upper part of abdomen and upper limb of the victim girl and the extent of burn was about 65%. She has not found any external injury in perineum or velva or vagina and no internal injury in vagina was detected by the doctor. The forensic report on swab shows no spermatozoa and the doctor has stated that no definite opinion regarding rape can be given. 6. The prosecution has examined Dr. Amit Kumar Sinha-PW.7 to prove that on 18.10.2007 when statement of the prosecutrix was recorded by the police she was in a fit mental condition and Dr. Akhilesh Kumar Choudhary-P.W.6 has conducted the postmortem examination on 13.11.2007. He has found dermoepiderma infected burn injuries on the victim girl. In his opinion the burn injuries were ante-mortem in nature and the cause of death was septicemia and toxemia resulting from the burn injury. P.W.6 has also stated that the medical evidence suggests forceful penetration of hard and blunt substance inside the genital of the girl. 7. On the basis of the aforesaid evidence, conviction of the appellants can be recorded under sections 366 and 376(g) of the Indian Penal Code and other offences but before that it needs to be examined whether statement of the prosecutrix recorded by the police on 18.10.2007 can be treated as her dying declaration and whether conviction of the appellants can be recorded on the basis of the statement of the victim girl. 8. 8. Under sub-section (1) to section 32 of the Indian Evidence Act, statement of a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, is admissible in evidence. Besides section 32 of the Indian Evidence Act, statement of a victim which relates to the cause of his death and is so connected with a fact in issue forming part of the same transaction is relevant and admissible under section 6. 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. 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.” 9. The fardbeyan of the prosecutrix was recorded by Mr. R.C. Rajak, sub-Inspector of Police on 17.10.2007 at MGM Hospital, Jamshedpur. Hence it is admissible under Section 6 of the Evidence Act.” 9. The fardbeyan of the prosecutrix was recorded by Mr. R.C. Rajak, sub-Inspector of Police on 17.10.2007 at MGM Hospital, Jamshedpur. The fardbeyan of the prosecutrix bears her signature and right thumb impression but during the trial no one has identified her signature on her fardbeyan; the sub-Inspector of Police who has recorded her fardbeyan has not been examined during the trial. Since the prosecutrix has died before the trial has commenced and her fardbeyan has not been proved by any witness during the trial, it cannot be read in evidence under section 6 of the Indian Evidence Act. The investigating officer who has recorded her statement on 18.12.2007 has been examined as P.W.5 and Dr. Amit Kumar Sinha who has been examined as P.W.7 has given a certification on her statement regarding her mental fitness. Therefore, the statement of the prosecutrix recorded by the police on 18.12.2007 can form the basis for conviction of the appellants, but it would not in this case. There is substantial change in the manner of occurrence and the time of occurrence as described by the victim girl in her fardbeyan and in her statement recorded on 18.10.2007. During the cross-examination P.W.1 has stated that there are several houses around the house where the victim girl has been found by her in injured condition. She has stated that about the incident she has informed one Punjabi and she has further stated that Punjabi had taken her to the police station and thereafter she had gone with him to the place of occurrence. During her cross-examination she has admitted that the aforesaid facts were not disclosed by her to anyone except Punjabi. Not only Punjabi was not examined during the trial the aforesaid facts as stated by P.W.1 were not disclosed by her to the investigating officer, which the investigating officer has admitted during his cross-examination in the Court. In her fardbeyan the prosecutrix has stated that she knows the accused persons for the reason that sometimes she has accompanied them in connection to work but her grandmother has said that she was cleaning utensils and, that too, only in one house. In her fardbeyan the prosecutrix has stated that she knows the accused persons for the reason that sometimes she has accompanied them in connection to work but her grandmother has said that she was cleaning utensils and, that too, only in one house. In her fardbeyan the prosecutrix has stated that the accused persons came to her house and asked her to come along on the inducement of marriage with Lugu Boipai and brought her to the house of Lugu Boipai. According to her this has happened at around 10:00 p.m in the evening of 13.10.2007 but in her statement recorded on 18.10.2007 she has stated that at around 6:00-7:00 p.m in the evening of 13.10.2007 when she was passing through a hotel the accused persons came on a motorcycle and took her to the house of Lugu Boipai. According to the prosecutrix, she has remained in injured condition in the house of Lugu Boipai for more than four days and only after she was found by her grandmother she was taken to the hospital. This part of her statement is highly unlikely and unbelievable for the reason that the doctor who has given his certification on her statement recorded on 18.10.2007 has stated that on 18.10.2007 she was in a fit medical condition. However, the prosecutrix has not raised any hulla or asked for help or tried to inform the police after the occurrence. 10. In view of the aforesaid facts, we are of the opinion that on the basis of statement of the prosecutrix which does not inspire confidence and, particularly, delay in lodging the First Information Report which has remained unexplained by the prosecution the appellants cannot be convicted under sections 366, 376(g) and under section 302 read with section 34 of the Indian Penal Code. The prosecution has failed to prove the aforesaid charges against the appellants and, accordingly, the judgment of conviction under sections 366, 376(g) and 302 read with section 34 of the Indian Penal Code dated 23.03.2012 and the order of sentence dated 26.03.2012 of R.I for life and fine of Rs. 10,000/- under section 302 read with section 34 of the Indian Penal Code, R.I for 10 years and fine of Rs. 5,000/- under section 376(g) of the Indian Penal Code and R.l for 5 years and fine of Rs. 10,000/- under section 302 read with section 34 of the Indian Penal Code, R.I for 10 years and fine of Rs. 5,000/- under section 376(g) of the Indian Penal Code and R.l for 5 years and fine of Rs. 3,000/- under section 366 of the Indian Penal Code, passed by the learned Additional Sessions Judge-II, Jamshedpur in Sessions Trial Case No. 318 of 2008 against the appellants, namely, Lugu Boipai and Motu @ Subhas Singh are set-aside. 11. The appellants, namely, Lugu Boipai and Motu @ Subhas Singh are acquitted of the charges framed against them in Sessions Trial Case No. 318 of 2008. 12. Mr. Hardeo Prasad Singh, the learned APP states that the appellants are in custody and they have undergone more than 12 years of imprisonment. 13. Accordingly, the appellants, namely, Lugu Boipai and Motu @ Subhas Singh, who are in jail, shall be set free forthwith, if not wanted in connection to any other criminal case. 14. In the result, Criminal Appeal (DB) No. 450 of 2012 is allowed. 15. The Court appreciates the assistance rendered by Mrs. Pragati Prasad, the learned Amicus. 16. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017. 17. Let lower-court records be transmitted to the court concerned, forthwith.