JUDGMENT : Ashwani Kumar Mishra, J. 1. This appeal is by the accused Manjoor Alam @ Nirahu challenging his conviction in Sessions Trial No. 8 of 2009 arising out of Case Crime No. 796 of 2008, under Section 302 IPC, Police Station Kolhui, District Maharajganj; whereby he has been sentenced to rigorous life imprisonment alongwith fine of Rs.10000/- and on its failure to undergo further incarceration of two years. 2. The prosecution case proceeds on a written report dated 11.9.2008 (Exhibit Ka-1) by the informant (PW-1), who happens to be the father of the deceased, stating that he is a resident of District Maharajganj and his son Ramjan has returned about a month ago from Saudi and was sleeping with his wife Noorjahan (PW-2) on the roof. On 6.9.2008 at about 10.00 in the night the accused appellant who was residing at Bahduri on rent, on account of enmity came on the roof and threw acid on his son and daughter-in-law. The injured son was taken to Gorakhpur for treatment and the doctors have referred him for further treatment to Delhi where he is admitted and undergoing treatment. The son of the informant was not in a position to speak and the daughter-in-law (PW-2) who had sustained lesser injuries is being treated by doctor Maurya. Having returned from Delhi the report has been lodged with the request to take appropriate action. On the basis of the above report the first information report got registered as Case Crime No. 796 of 2008 at 8.35 pm on 11.9.2008. 3. The investigation proceeded and a plastic bottle used for throwing acid together with certain acid burnt clothes (Lungi and Odhani) were recovered vide Exhibit Ka-8 on 2.11.2008. After nearly three months of the incident the injured son of the informant died on 15.12.2008 at about 8.00 pm and an intimation of such fact was given to the Investigating Officer on 16.12.2008. 4. Initially the FIR was lodged under section 308 and 326 IPC but after the death of injured the offence was altered to one under Section 302 IPC. It may also be noticed that the offence under Section 308 IPC was also altered to Section 307 IPC during the course of investigation. The Investigating Officer proceeded in the matter and collected medico legal case sheet cover as also the summary prepared by the Medical College at Gorakhpur. It may also be noticed that the offence under Section 308 IPC was also altered to Section 307 IPC during the course of investigation. The Investigating Officer proceeded in the matter and collected medico legal case sheet cover as also the summary prepared by the Medical College at Gorakhpur. The case sheet shows that the injured was admitted at the Medical College at Gorakhpur on 7.9.2008 at 1.45 am and doctor has mentioned it to be a case of burn injury. The informant had informed the doctor that someone had thrown acid on the son of the informant while he was sleeping at about 11.00 pm. To similar effect is the document at Page 9 of the paper book wherein the doctor has recorded that it is a case of acid burn where acid was thrown by someone at around 11.00 pm on 6.9.2008 while the patient was sleeping. The Investigation ultimately concluded with submission of chargesheet (Ex.Ka-9) against the accused appellant. The implication of the accused appellant apparently surfaced on the basis of statement made by PW-2 and PW-1 who stated that the acid has been thrown on the deceased by the accused appellant. 5. The Magistrate took cognizance upon the charge-sheet and committed the case to the Court of Sessions wherein charges were framed against the accused appellant under Section 302 IPC. The accused appellant denied the accusations made against him and demanded trial. The trial accordingly commenced in which prosecution has produced three witnesses of fact namely Noor Ali (PW-1) (informant/father of the deceased); Noorjahan (PW-2) (wife of the deceased) and PW-3 Hamid, who happens to be the father of PW-2 and lives in an adjoining house but was sleeping next to PW-1 at the time of occurrence. 6. PW-1 in his statement has clearly stated that on the fateful night the deceased was sleeping with his wife (PW-2) on the roof of the house when the accused appellant on account of prior enmity came on the roof and threw acid on his son and daughter-in-law. The injured and his wife screamed on hearing of which PW-1 claims to have opened his torch and saw in the torch light the accused appellant fleeing. He also shouted to apprehend him but the accused appellant fled. He has further stated that PW-3 had also come to his house and was sleeping next to him. The injured and his wife screamed on hearing of which PW-1 claims to have opened his torch and saw in the torch light the accused appellant fleeing. He also shouted to apprehend him but the accused appellant fled. He has further stated that PW-3 had also come to his house and was sleeping next to him. Both these witnesses namely PW-1 and PW-3 however saw the accused appellant fleeing from the place by the staircase in the torch light. The condition of injured was critical who was taken to Gorakhpur from where he was referred to Delhi and was admitted in AIIMS and he was not in a position to speak. He has further specified that on account of acid attack the injured had sustained injuries on his chest, back, hands, face, nose and ears and it was on account of such injuries that he ultimately died. He has also verified recovery made by the Investigating Officer. The witness PW-1 was again recalled and he stated that he had not seen the accused appellant going on the roof through the staircase and there was no light on the staircase. He also claimed that his daughter-in-law (PW-2) had also sustained burn injuries at 3-4 places. She also informed him that it was the accused appellant who had thrown acid on the deceased. 7. In the cross examination PW-1 has stated that in his statement under Section 161 Cr.P.C. he has not disclosed about recognizing the accused appellant in the torch light. He has admitted that in the FIR there is no reference of recognizing the accused appellant in the torch light. He has further stated that the torch has neither been recovered nor any recovery memo has been prepared in respect of the torch and even the description of the torch cannot be given by him as the torch was from Saudi. The torch has also not been produced before the Court nor was it recovered by the Investigating Officer. He has disclosed that he is above 75 years of age and he uses specs and he can at best see upto a distance of 10 ft. He has stated that on hearing the screams of his son and daughter-in-law, he saw the accused appellant fleeing from the spot and was seen from behind in torch light by him. He has disclosed that he is above 75 years of age and he uses specs and he can at best see upto a distance of 10 ft. He has stated that on hearing the screams of his son and daughter-in-law, he saw the accused appellant fleeing from the spot and was seen from behind in torch light by him. In the statement under Section 161 Cr.P.C., however, the version of PW-1 seeing the accused appellant fleeing after committing the offence in torch light has not been disclosed to the Investigating Officer. He has also stated about enmity between the accused appellant and his family but such enmity has not been substantiated nor any incident or event which caused the enmity has been disclosed. In the cross examination PW-1 has also stated that there was no dispute relating to landed property between him and the accused appellant and there was no enmity between them either. He has however stated that he was not on talking terms with the accused appellant nor the accused appellant was on talking terms with the deceased. He has also denied the suggestion that on account of the deceased living out of country he was not treated well by his daughter-in-law or their relations were not cordial or that his daughter-in-law had illicit relations with someone else due to which the incident occurred. 8. PW-2 is the wife of the deceased who has supported the prosecution case and has clearly stated that she was sleeping alongwith her husband on the roof of the house when accused appellant came through the staircase at about 10.00 in the night and due to enmity threw acid upon the deceased. In the cross-examination she has explained the circumstances in detail. She has stated that she went to sleep on the fateful night at about 10.00 and at the time when she went on the roof it was dark and there was no light. The deceased and the PW-2 were sleeping close-by but were facing different directions. She claims that she identified the accused appellant as being the person who had thrown acid upon her husband. In the same breath she has stated that she had not seen the acid being thrown and she started screaming. The deceased and the PW-2 were sleeping close-by but were facing different directions. She claims that she identified the accused appellant as being the person who had thrown acid upon her husband. In the same breath she has stated that she had not seen the acid being thrown and she started screaming. The accused appellant allegedly left by the same staircase and it was about five minutes after her screaming that her father and father-in-law (PW-3 and PW-1) came on the roof with the torch. She has clearly stated that by the time her father-in-law (PW-1) came on the roof the accused had already fled. She has also stated that there was enmity between the accused appellant and her family. The witness, however, has stated that the relations between the accused appellant and her family were not cordial and that she had never talked to the accused appellant nor had even met him. She has even denied having seen the accused appellant earlier or recognizing him. Although PW-2 claims to have sustained burn injuries but no proof in the form of injury report or doctor's opinion has been placed on record. 9. PW-3 has also supported the prosecution story but has clearly stated in the cross-examination that he never met the accused appellant nor had ever talked to him. He has further denied the suggestion that the accused appellant had any relations with his family or that his daughter had any relations with the accused. He has, however, not claimed to have seen the accused appellant at the place of incident himself. 10. PW-4 Sahadul and PW-5 Sadavriksh have proved the inquest report. PW-6 is the Constable, who has proved the chick FIR. PW-7 is also an inquest witness. He has stated that the injured/deceased had informed him that someone had thrown acid upon him and has not alleged that such role was assigned to the accused appellant by the deceased. Dr. D.C. Pandey has appeared as PW-8, is autopsy surgeon and has proved the post-mortem report. He has stated that the burn injuries caused to the deceased were not sufficient to cause death and that his death ultimately occurred on account of septicemia, as there was lack of proper treatment for the deceased. 11. Dr. D.C. Pandey has appeared as PW-8, is autopsy surgeon and has proved the post-mortem report. He has stated that the burn injuries caused to the deceased were not sufficient to cause death and that his death ultimately occurred on account of septicemia, as there was lack of proper treatment for the deceased. 11. Before proceeding further it may be worth noticing that the incident occurred on 6.9.2008 and the Investigating Officer also recorded the statement of the deceased under Section 161 Cr.P.C. on 29.9.2008. In his statement under Section 161 Cr.P.C. the deceased has stated that he had gone to sleep at about 10.00 when accused appellant Manjoor Alam, who lives in a rented accommodation at Bahduri, due to enmity came on the roof where he was sleeping and threw acid on him and his wife. Though the deceased remained alive for nearly 2 and half months thereafter but his dying declaration was never recorded. Incriminating material collected during the course of trial against the accused appellant were specifically confronted to him which he denied but the incriminating material in the form of statement of deceased under Section 161 Cr.P.C. implicating the appellant was never put to him and he was not confronted with such incriminating material. 12. The trial court on the basis of oral and documentary evidence placed on record by the prosecution came to the conclusion that the accused appellant on account of enmity had thrown acid upon the deceased which caused serious burn injuries to him and that due to it the injured died. For the purposes of arriving at a finding of guilt against the accused appellant the court below has essentially relied upon the statement of PW-2, who is said to have seen the occurrence. Her presence next to her husband while they were about to go to sleep is not doubted. 13. Sri Araf Khan, learned counsel for the appellant submits that the appellant has been falsely implicated in the present case, inasmuch as, the prosecution witnesses although have asserted that there was enmity between the accused appellant and the family of the informant, yet no material or cause of such enmity has been substantiated and, therefore, the first submission raised on behalf of the appellant is that there is absolutely no motive for the accused appellant to commit the offence. Learned counsel further submits that though PW-1 claims to have seen the accused appellant fleeing through the staircase in the torch light, but such testimony is not believable, inasmuch as, neither any source of light has been substantiated during the course of trial nor at such old age was it otherwise plausible to come to the roof so quickly. It is also argued that PW-2 has clearly stated that PW-1 reached the roof nearly 5 minutes after she screamed and that the accused appellant had already fled by then. So far as the statement of PW-2 is concerned, it is stated that she has clearly admitted in her cross-examination that she had neither met the accused appellant nor recognized him and as she otherwise has admitted that there was no light at the place of occurrence her statement that she could identify the accused appellant as being the person who threw acid on the deceased is not believable. Learned counsel also submits that no test identification parade was otherwise conducted to ascertain the identity of the accused appellant. 14. Learned counsel for the appellant submits that the accused appellant has been implicated only on the basis of suspicion that there was affair between the wife of the deceased and the accused and that such suspicion, howsoever strong, cannot take the shape of evidence so as to convict the accused appellant. 15. Ms. Meena, learned AGA, on the other hand states that the statement of eye-witness PW-2 is absolutely credible and her presence near her husband could not be doubted and being a distant relative the identification by her of accused appellant cannot be doubted. She further submits that the medico legal examination report clearly shows that the deceased died due to burn injuries caused by the accused appellant and since there was a definite motive for him to commit such offence the conviction of the accused appellant as also his sentence is clearly based on the evidence available on record which warrants no interference. 16. At the very outset we may note that the accused appellant pursuant to his implication in the present case was arrested on 22.10.2008 and has remained in jail ever since then. The appellant, therefore, has undergone actual sentence of nearly 14 years. The accused appellant otherwise has no criminal history. 17. 16. At the very outset we may note that the accused appellant pursuant to his implication in the present case was arrested on 22.10.2008 and has remained in jail ever since then. The appellant, therefore, has undergone actual sentence of nearly 14 years. The accused appellant otherwise has no criminal history. 17. The implication of the accused appellant has surfaced on the basis of written report of PW-1 in which it is alleged that while the deceased had gone on the roof alongwith his wife to sleep the accused appellant threw acid upon him due to enmity and on account of such injuries sustained on 6.9.2008 he died on 15.12.2008. The prosecution case is that there was an enmity between the accused appellant and the family of the informant and the prosecution witnesses PW-1 and PW-2 have clearly supported the plea of enmity between accused appellant and the family of the informant. However, we find on a careful perusal of the evidence brought on record that except for allegation made by the prosecution witnesses with regard to enmity between them no specific instance or exact motive/reason of such enmity has been substantiated on record. PW-1 although has stated that there was an enmity between his family and the accused appellant, but in the cross-examination he has clearly admitted that there was no dispute between them with regard to landed property and has rather gone to the extent of saying that there was no prior enmity between them. Similarly PW-2 has also stated that there was enmity between the parties but no exact cause of enmity has been disclosed or substantiated by her either. No other material in the form of documentary evidence has otherwise been placed on record by the prosecution to substantiate the plea of enmity between the parties. In such circumstances, we find substance in the contention advanced on behalf of the appellant that the plea of enmity, set up as a ground for commissioning of offence, by the accused appellant has not been substantiated on record. In its absence the motive for the alleged commissioning of offence on part of the accused appellant has not been proved by the prosecution. 18. In its absence the motive for the alleged commissioning of offence on part of the accused appellant has not been proved by the prosecution. 18. From the suggestions given to PW-3, it appears that the prosecution has suggested that there was some relationship between the accused appellant and PW-2, since her husband was living abroad, but this suggestion has also been denied and no other material in the form of positive evidence has been placed by the prosecution to demonstrate that on account of his living abroad his wife (PW-2) had developed relations with the accused appellant. In such circumstances, the plea of there being relations between PW-2 and the accused appellant remains only in the nature of doubt or suspicion and such material cannot be a substitute for evidence, which alone could be relied upon to implicate the accused appellant. 19. The present case nonetheless is of direct evidence and in case the prosecution is able to prove it the lack of motive may not be of much substance. In such circumstances, the Court is required to examine the evidentiary value of the statements of PW-1, PW-2 and PW-3 who are the witnesses of fact and have supported the prosecution story. So far as PW-1 is concerned, he has clearly admitted that he had not seen the accused appellant alighting the staircase to the roof and that there was no light on the staircase either. The incident is admitted to have occurred in the darkness of night while the deceased had gone to sleep alongwith his wife. The implication of accused appellant in the testimony of PW-1 is based upon his statement that having heard screams of his son and daughter-in-law he rushed and saw the accused appellant fleeing from behind in the torch light. In order to prove such assertion the first evidence which is required to be proved by the prosecution is the existence of light in which the prosecution witnesses PW-1 allegedly saw the accused appellant from behind. In the statement before the Court such source of light is alleged to be a torch brought by the deceased from Saudi and in which the incident was seen by PW-1. Admittedly no such torch has been recovered by the police nor has been produced before the Court by PW-1. We further find that such assertion has otherwise not been made in the FIR. Admittedly no such torch has been recovered by the police nor has been produced before the Court by PW-1. We further find that such assertion has otherwise not been made in the FIR. PW-1 has stated that he did tell about the torch light but the scribe omitted to mention it. We further find that even in the statement made to the police under Section 161 Cr.P.C., PW-1 has not narrated about existence of torch light in which he claims to have seen the accused appellant fleeing from the place of occurrence. The plea with regard to torch light is, therefore, taken for the first time at the stage of trial. Existence of light was one of the crucial aspects which had to be proved by the prosecution before the statement of PW-1 of having seen the accused appellant fleeing from the place of occurrence could be relied upon. The fact that such source of light has not been substantiated by either recovering the torch; preparing a recovery memo and producing the torch clearly casts a dent on the prosecution case. We may at this stage refer to the statement of the Investigating Officer who appeared as PW-9 S.I. Umashankar Yadav who has stated that neither possession of torch was taken nor any of the witnesses had informed him about seeing the accused appellant or identifying him in torch light. The statement of PW-9, in that regard, is relevant and is reproduced hereinafter:- ^^eSus dksbZ VkpZ dCtk iqfyl xokgku ls ugha fy;k Fkk uk fdlh ls xokg us ?kVuk dks VkpZ ls ns[kus dh ckr o VkpZ dh jks'kuh esa eqyfte dks igpkuus dh ckrsa crkbZ gSaA izFke lwpuk fjiksVZ esa eqfYte dks VkpZ dh jks'kuh esa ?kVukLFky ;k ?kVuk dkfjr ns[kus ckr ugh crk;k u gh Hkkxrs gq, VkpZ dh jks'kuh esa igpkuus dh ckr vk;h gSA^^ 20. PW-2 is the star witness of the prosecution case who claims to have seen the accused appellant throwing acid on her husband. She has admitted that the incident is of about 10.00 pm and that neither on the staircase nor at the place of occurrence there was any light. She has further admitted that while lying nearby her husband she was facing in a different direction from the direction of her husband. She has admitted that the incident is of about 10.00 pm and that neither on the staircase nor at the place of occurrence there was any light. She has further admitted that while lying nearby her husband she was facing in a different direction from the direction of her husband. She has stated that there existed a staircase from outside the house by which the accused appellant came on the roof and she recognized the accused appellant while throwing the acid. In the very next sentence PW-2 has however stated that when the accused appellant threw acid she could not see it nor could see as to what was worn by the accused appellant and she started screaming. She has stated that accused appellant fled from the same staircase and her father-in-law and father (PW-1 and PW-3) came on the roof with the torch nearly five minutes after her screaming. She has also categorically stated that by the time her father-in-law came on the roof the accused appellant had already fled. It has otherwise been noticed that PW-2 in the cross-examination has clearly stated that relations between her family and that of the accused appellant were not good and she had never spoken to the accused appellant nor had met him. She has further admitted that neither she had seen the accused appellant nor recognized him. The statement of PW-2, made in the cross-examination is reproduced hereinafter:- ^^eqfYte ls eSa dHkh feyh tqyh ugha D;ksafd muds ?kj ls esjs ?kj ds lEcU/k vPNs ugha gSA eqfYte us dHkh eq>ls ckrphr ugha fd;k Fkk u feyk tqyk FkkA eqfYte vkt rd eq>ls dHkh u feyk u ckrphr fd;k u eSa gh mlls dHkh feyhA eqfYte ls esjh dksbZ fe=rk ugha gS dksbZ tku igpku ugha gSaA iqfyl us ;k fdlh Hkh O;fDr us eqfYte dh eq>ls tku igpku ugha djk;hA eqfYte dks eSaus dHkh u ns[kk u igpkukA^^ 21. In the backdrop of the fact that there was otherwise no source of light on the roof top, we find it difficult to accept the testimony of PW-2 that she saw the accused appellant committing the offence, particularly when she admits that she had neither seen the accused appellant earlier, nor recognized him. 22. In the backdrop of the fact that there was otherwise no source of light on the roof top, we find it difficult to accept the testimony of PW-2 that she saw the accused appellant committing the offence, particularly when she admits that she had neither seen the accused appellant earlier, nor recognized him. 22. Although, learned AGA has laid much emphasis on the fact that PW-2 in the examination-in-chief has supported the prosecution case of having seen the accused appellant committing the offence and his being a distant relative (pattidar) but we find that PW-2 has not been put to further examination by the prosecution on this aspect of the matter, particularly after she stated that she had not seen the accused appellant earlier or recognized him. The prosecution having failed to confront PW-2 on this aspect of the matter cannot be heard now to state that the statement of PW-2 made at the time of examination-in-chief be relied upon, by overlooking the statement made by her in the cross-examination, which goes contrary to the earlier statement. 23. Similarly PW-3 has reached the roof top alongwith PW-1 and has not seen the occurrence or the alleged fleeing of accused appellant in the torch light. PW-3 has merely stated that he reached the roof and saw his daughter and son-in-law screaming. He, therefore, admits that he has not seen the throwing of acid by the appellant on the deceased. When we notice the statements of witnesses of fact PW-1, PW-2 and PW-3 cumulatively, we find that the prosecution version that accused appellant had thrown acid upon the deceased is clearly not substantiated. PW-3 moreover has stated that he neither knew the accused appellant nor recognized him. 24. The last arguments advanced by learned AGA is with regard to the statement of the deceased, made to the police, under Section 161 Cr.P.C. being treated as dying declaration. Record reveals that the alleged statement to the police was made by the injured deceased on 29.9.2008 and it is after nearly two and half months that the injured died. The statement of the deceased under Section 161 Cr.P.C., therefore, cannot be treated to be a statement made just before his death. It is only when the statement is made just before his death that the statement is entitled to weight in view of Section 32 of the Indian Evidence Act, 1872. 25. The statement of the deceased under Section 161 Cr.P.C., therefore, cannot be treated to be a statement made just before his death. It is only when the statement is made just before his death that the statement is entitled to weight in view of Section 32 of the Indian Evidence Act, 1872. 25. As the person making the statement under Section 161 Cr.P.C. has not signed the statement and otherwise there is neither any certification by the doctor that the deceased was in a fit state of mind to make the statement nor is it made before the Magistrate, as is the case in a written dying declaration, the oral dying declaration made to police under Section 161 Cr.P.C., would have to be subjected to careful scrutiny and corroboration before such statement could be relied upon. Law on the subject of oral dying declaration has recently been examined by the Supreme Court in Kamal Khudal Vs. State of Assam, 2022 SCC OnLine SC 882, wherein the Court observed as under in Paragraphs 21 and 22:- "21. The law regarding the nature, scope and value as a piece of evidence of oral and written dying declarations is now fairly well settled by various judicial decisions of this Court. A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity to the accused even to put it through the fire of cross examination to test is genuinity or veracity. The court has, therefore, to subject it to close scrutiny. But once the court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon. However, if there are infirmities and the court does not find it safe to base any conclusion on it without some further evidence to support it, the question of corroboration arises. 22. We may refer to one of the decisions of this Court in the case of Heikrujam Chaoba Singh v. State of Manipur, (1999) 8 SCC 458 , wherein in para 3 this Court observed as under: "3. 22. We may refer to one of the decisions of this Court in the case of Heikrujam Chaoba Singh v. State of Manipur, (1999) 8 SCC 458 , wherein in para 3 this Court observed as under: "3. An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. ..."" 26. In the present case the injured died almost after two and half months due to septicemia. It cannot be said that the author of the statement was aware that he is likely to die soon which is the necessary condition for attaching credibility to the statement of the person itself on the premise that the person about to die would not go with falsehood in his mouth. There are otherwise no independent or credible witnesses who have seen the recording of statement by the Investigating Officer of the alleged disclosure made by the deceased. 27. Learned counsel for the appellant has placed reliance upon a Division Bench Judgment of this Court in Arvind Bajpai Vs. State of U.P., Jail Appeal No. 3231 of 2015, dated 1.10.2019, wherein Paragraph 115 of Police Regulations has been noticed, which provides that the officer investigating a case in which a person has been so seriously injured that he is likely to die before he can reach a dispensary, where his dying declaration can be recorded, should himself record the declaration at once in the presence of two respectable witnesses. The Court has opined that non observance of paragraph 115 would be a material circumstance. After noticing Section 32 of the Indian Evidence Act the Court has adverted to the evidentiary value of a statement made under Section 161 Cr.P.C. in following words:- "31. The Court has opined that non observance of paragraph 115 would be a material circumstance. After noticing Section 32 of the Indian Evidence Act the Court has adverted to the evidentiary value of a statement made under Section 161 Cr.P.C. in following words:- "31. As far as implication of 162 (2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of Act, 1872, then whatever credence would apply to a declaration governed by Section 32(1), should automatically deemed to apply with all force to such a statement though recorded under Section 161 Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 Cr.P.C. of a victim having regard to the subsequent event of death of the person making statement who was a victim would enable prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Act, 1872 and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such. 32. We now propose to deal the validity of the dying declaration. Court in Paniben vs. State of Gujarat, (1992) 2 SCC 474 , laid down certain principles regarding dying declaration, which are as under :- "Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. this Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja v. State of M.P.). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of M.P. vs. Ram Sugar Yadav, Ramawati Devi vs. State of Bihar). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Ram Chandra Reddy v. Public Prosecutor). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of Madhya Pradesh). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu). (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar). (ix) Normally the court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar). (ix) Normally the court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and Anr. v. State of M.P.). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan). 33. In the case in hand we thus found that statement under Section 161 Cr.P.C. which was relied upon as dying declaration, does not fulfill the requirement of every provisions of law and fact. 34. PW-6, Chandra Prakas Bhatt, deposed that on 26.05.2012, he undertook investigation, recorded statement of Smt. Aneeta Bajpai (injured). He further deposed in cross-examination that dying declaration was not got recorded because she had come to her house after getting cured from hospital. He did not take container and Match box in his possession from spot; she died after five days from the date of incident. Thus, it is very clear, when Investigator recorded statement of victim under Section 161 Cr.P.C., she was not under the expectation of death and she remained alive about two weeks. Evidently, dying declaration was not recorded by Investigating Officer before two reliable witnesses, therefore, statement under Section 161 Cr.P.C. does not fall under the category of 'dying declaration' under Section 32 of Act, 1872." 28. We have examined the evidence on record and find that the alleged statement of deceased is not corroborated as neither the alleged motive is proved nor the statement of eye-witnesses is found credible and reliable. We are also inclined to accept the argument of Sri Khan that as the alleged statement of deceased under Section 161 Cr.P.C. has not been confronted to the accused appellant, as being one of the incriminating material under Section 313 Cr.P.C., such circumstance otherwise cannot be relied upon against the accused appellant. Reliance is placed upon a judgment of the Supreme Court in Samsul Haque Vs. Reliance is placed upon a judgment of the Supreme Court in Samsul Haque Vs. The State of Assam, AIR 2019 SC 4163 , wherein the Supreme Court has examined the consequences of failure on part of the prosecution to confront the accused with material circumstance appearing against him under Section 313 Cr.P.C. In paragraphs 21 to 25, the Court has held as under:- "21. The most vital aspect, in our view, and what drives the nail in the coffin in the case of the prosecution is the manner in which the court put the case to accused No.9, and the statement recorded under Section 313 of the Cr.P.C. To say the least it is perfunctory. 22. It is trite to say that, in view of the judgments referred to by the learned Senior Counsel, aforesaid, the incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. Apart from the judgments referred to aforesaid by the learned Senior Counsel, we may usefully refer to the judgment of this Court in Asraf Ali v. State of Assam. The relevant observations are in the following paragraphs: "21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State ( AIR 1976 SC 2140 ), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise." 23. While making the aforesaid observations, this Court also referred to its earlier judgment of the three Judge Bench in Shivaji Sahabrao Bobade v. State of Maharashtra, which considered the fall out of the omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence, and the requirement that the accused's attention should be drawn to every inculpatory material so as to enable him to explain it. Ordinarily, in such a situation, such material as not put to the accused must be eschewed. No doubt, it is recognised, that where there is a perfunctory examination under Section 313 of the Cr.P.C., the matter is capable of being remitted to the trial court, with the direction to retry from the stage at which the prosecution was closed. 24. We are, however, not inclined to follow that course in the given circumstances of this case as the inconsistencies in the testimonies also create a doubt in the case of the prosecution qua any role of accused No.9. The aforesaid being the factual matrix, the appellate court could hardly have overturned the acquittal of the trial court into one of conviction. The trial court took note of the close relationship of PW-3, PW-4 & PW-6 to the deceased, as also the array of the accused and the murder of accused No.1, to come to the conclusion that the abetment of accused No.9, as alleged, had not been proved beyond reasonable doubt. In fact, it is opined that there is no evidence that the said accused was inside or outside Kalia Hotel at the time of the occurrence. In fact, it is opined that there is no evidence that the said accused was inside or outside Kalia Hotel at the time of the occurrence. Given the circumstances, while not disagreeing with the legal proposition stated in the impugned judgment, that there is no law that the evidence of relatives cannot be acted upon, but, with extra care and caution, the presence of disinterested witnesses as PW-1 and DW-1 relate another story. The finding in the impugned order, that in the FIR filed by PW-3 as the complainant, on the very date of the occurrence, setting out the involvement of all the accused as clearly stated, again cannot be sustained for the reason of the improvements and embellishments between what was stated in the FIR and what came from the mouth of PW-3 as his testimony in the court. 25. We are, thus, of the view that the prosecution has not been able to establish a case against accused No.9, much less beyond reasonable doubt." 29. In the facts of the case as the accused appellant has not been confronted with the incriminating material in the nature of alleged statement of the deceased given to police under Section 161 Cr.P.C., therefore, this circumstance otherwise cannot be read and relied upon against the accused appellant. 30. Upon a cumulative assessment of the evidence led by the prosecution and in view of the analysis made by us of the evidence adduced, we find that the court below has clearly erred in returning a finding of guilt against the accused appellant beyond reasonable doubt. The court below has neither taken note of the fact that the source of light has not been proved which renders the statement of PW-1 unreliable nor has it taken note of the fact that motive is not proved and the prosecution's star witness PW-2, in her cross-examination, has admitted that she had not seen the accused appellant earlier and does not recognize him and, therefore, the identification of accused appellant by PW-2 itself is unreliable. PW-1 and PW-3 have otherwise not seen the incident and their testimony also does not support the prosecution case. The court below has also not noticed that in the bed head ticket also it is mentioned that someone had thrown acid on informant's son without naming the accused appellant as being the author of the injury. 31. PW-1 and PW-3 have otherwise not seen the incident and their testimony also does not support the prosecution case. The court below has also not noticed that in the bed head ticket also it is mentioned that someone had thrown acid on informant's son without naming the accused appellant as being the author of the injury. 31. The recovery of clothes and plastic bottle by the prosecution at best shows that injury was caused to the deceased by throwing of acid. Burn injury caused to the injured is otherwise not disputed. In such circumstances, the mere recovery of burnt clothes or plastic bottle, etc., would be sufficient to prove the cause of injury but it cannot be relied upon to implicate the appellant when there is otherwise no evidence to connect him to the commissioning of the offence itself. The responsibility of the prosecution is not only to prove that the offence was committed but it has to prove that the commissioning of offence is by the accused appellant in the manner disclosed by the prosecution. The recovery made after two months of the alleged incident, therefore, would not be a material circumstance to implicate the appellant. 32. For the reasons and discussions held above, this appeal succeeds and is allowed. The judgment and order dated 15.3.2013, passed by the Additional Sessions Judge, Court No. 1, Maharajganj in Sessions Trial No. 8 of 2009 arising out of Case Crime No. 796 of 2008, under Section 302 IPC, Police Station Kolhui, District Maharajganj; whereby the appellant Manjoor Alam @ Nirahu has been sentenced to rigorous life imprisonment alongwith fine of Rs.10000/- and on its failure to undergo further incarceration of two years, is set aside. He shall be set to liberty, forthwith, unless he is wanted in any other case, subject to compliance of Section 437A Cr.P.C.