JUDGMENT 1. Accused Pyare Mian and his 10 associates have filed this appeal against the judgment of the Additional Sessions Judge No. 2, Jaipur City dated 29th January, 1973 whereby all the accused persons were convicted for various offences mentioned therein including section 120B read with section 302 Indian Penal Code and sentenced to various terms of imprisonment including life imprisonment. 2. The case of the prosecution as disclosed by the eye-witnesses is like this: 3. That a long standing dispute was going on between Abdulla on the one side and Amir Bux on the other on a bullock which was used by the two persons in their partnership. But on account of the fact that Abdulla was not making payments regularly and in accordance with the terms of contract, the bullock was taken back by Amir Bux. Since then it is alleged, that the dispute was going on between the complainant and the accused party. On 14th February, 1972 between 5-45 and 6 p.m.' Amir Bux came to the house of P.W. 1 Bashiruddin which was situate on a road side near Chora Nikas road and gave a call and invited the complainant party to proceed to the chowk situated nearby for bringing about a compromise relating to the dispute about the bullock. According to P.W. 1 Bashiruddin who was the first informant in this case. Imamuddin and his uncle Abdulla went to the chowk and there it is said that the party of the accused which was armed and had assembled with a common object to assaults and kill Imamuddin attacked Imamuddin. Tinchi who was standing there pushed Imamuddin on Wahid and it is at this stage that Wahid caused stab wound with a knife on the stomach of Imamuddin. Imamuddin fell down. On seeing this incident Abdulla started running from there but he was caught by Hamid and Kalia and Tinchi caused a stab wound in his stomach with a knife which he was holding. Abdulla also fell down. Lal Mohammad at this stage intervened and exhorted why this injustice was being done and entreated the accused party for God sake not to do so. On this Lal Mohammad was caught by Amir Bux and Rafik inflicted a knife blow to Lal Mohammad with a result that he also fell down. Abdulla also fell down. Lal Mohammad at this stage intervened and exhorted why this injustice was being done and entreated the accused party for God sake not to do so. On this Lal Mohammad was caught by Amir Bux and Rafik inflicted a knife blow to Lal Mohammad with a result that he also fell down. Nasiruddin who was witnessing all this incident, started running from there but he was also caught by two persons, namely. Munir and Pyare Mian and he was also given a knife blow on his stomach. He also fell down. Bashiruddin P.W. 1 then ran away from that place but he was also attacked with a knife and lathi and thereafter all the accused persons made good their escape from that place. The injured persons were then removed to the hospital where, it is said, Imamuddin breathed his last. 4. Some body gave a telephonic call to the police authorities informing that there had been a quarrel between the Palledars near Char Darwaja but the informant refused to disclose his name to the police authorities. This information was recorded in the daily diary (Rojnamcha) Ex P. 12. The Station House Officer immediately rushed along with the police force to the spot of occurrence but there he was told that the injured persons had been shifted to the hospital. He went to the hospital where P.W. 1 Bashiruddin submitted a written report Ex. P. 1 which has been treated by the police authorities as the first information report. Then investigation started. A site plan was also drawn by the Investigating Officer which is Ex. P. 13. The blood stained earth was collected by the Investigating Officer from place marked `B' where Abdulla was alleged to have been stabbed. This place `B' is at a distance of 14 meters from place `A' where Imamuddin was said to have been stabbed. It is alleged that blood had flown in abundance at `A' and therefore bloodstained earth was collected by the Investigating Officer from that spot also. A knife was recovered from the place of occurrence but that knife has neither been identified as belonging to any of the accused persons nor was it sent for chemical examination to find whether it was used in the incident or not. A knife was recovered from the place of occurrence but that knife has neither been identified as belonging to any of the accused persons nor was it sent for chemical examination to find whether it was used in the incident or not. After investigation a challan was put up against it persons in the court of the Additional Munsiff Magistrate No. 2, Jaipur City, who, after conducting committal proceedings, sent the accused persons for trial under sections 302, 307 read with Section 149, 304 read with Section 149, 120B, 148, 14 7, 324/147, 323/149 I P.C. 5. The prosecution examined as many as 18 witnesses. Accused Wahid and Kalia came out with a plea that they were attacked by the party of the complainant and it was in that incident that they also received injuries on their persons. The other accused persons however pleaded alibi. Wahid gave a different story of attack and stated that he went to drink water at Chhabil where Imamuddin was also drinking water. It is out of sheer carelessness that some water was sprinkled on Imamuddin which enraged him and he abused him. There was some exchange of hot words and it is said that Imamuddin gave a slap to Wahid. One Munir intervened and they were separated. In the evening in order to take revenge of that incident when Wahid was feeding his bullocks Abdulla, Imamuddin, Nasiruddin, Basru and Lal Mohammad came together armed with knife and lathies and started attacking the accused party. According to his version when Abdulla gave a Banlci (Knife) blow to him, he tried to ward off that blow and in his attempt to snatch the knife from the hands of Abdulla he sustained a knife injury 011 his hand but he was successful in snatching the Banki (Knife) from the hand of Abdulla and it is at this stage that Lal Mohammad and Bashiruddin gave lathi blows on his head and back respectively. It is evident from the document Ex. D. 4 and Ex. D, 5 that Kalia and Wahid sustained two injuries each. According to this defence version Abdulla sustained the knife blow when a knife from his hand was being snatched away and similarly Imamuddin, Bashiruddin and Lal Mohammad received injuries at the hands of each other. 6. The learned trial Judge divided the prosecution witnesses into three categories. P.W'. D, 5 that Kalia and Wahid sustained two injuries each. According to this defence version Abdulla sustained the knife blow when a knife from his hand was being snatched away and similarly Imamuddin, Bashiruddin and Lal Mohammad received injuries at the hands of each other. 6. The learned trial Judge divided the prosecution witnesses into three categories. P.W'. 1, P.W. 2 and P.W. 5 who were injured during this scuffle were categorised by the trial court as those witnesses who are trustworthy witnesses. P.W. 3 Imamuddin and P.W. 14 Ajijur Rahman were however disbelieved by the trial court. The rest of the witnesses, namely, P.W. 4, P.W. 6, P.W. 7, P.W. 8 and P.W. 15 who had witnessed the incident were categorised as partly reliable and partly unreliable. The defence theory was altogether rejected by the trial court and it was on the strength of these eye-witnesses that the learned trial Judge came to the conclusion that the prosecution has established beyond all reasonable doubts the case against the accused persons and convicted them as mentioned in the judgment. 7. It is argued by Mr. Than Chand Mehta appearing on behalf of the accused appellants that there is no evidence at all on the record to prove the case of conspiracy to sustain their conviction under section 120B read with section 302 LP.C. 8. Learned counsel on the opposite side however could not point out any material except the circumstances in which the incident had taken place to show that any conspiracy was hatched against the complainant party for committing the murder of Imamuddin and Nasiruddin. We will presently deal with the circumstances in which the present incident has taken place but we would like to mention here that except the circumstances which in our opinion do not conclusively lead to establish a conspiracy between the accused person there is nothing on the record to show that the accused persons proceeded to the place of occurrence after having hatched a conspiracy to kill the deceased persons. Moreover that was no enmity between the accused party and Imamuddin and Nasiruddin and, therefore, the possibility of hatching a conspiracy to kill them could never arise. Moreover that was no enmity between the accused party and Imamuddin and Nasiruddin and, therefore, the possibility of hatching a conspiracy to kill them could never arise. In this view of the matter we feel that the conviction of the accused persons under section 120B read with section 302 Indian Penal Code cannot be sustained as there is no legal evidence on the record to support the prosecution case on this point. 9. Mr. Than Chand assailed the judgment of the trial court mainly on one ground and it is that the case made out by P.W. 1 while lodging the first information report Ex. P. 1 was entirely different and on the basis of that case the defence version that the complainant party came as a team to launch all attack on the accused party in the chowk near their home is more probabilised. This argument of Mr. Mehta lends considerable importance to the first prosecution version as disclosed in the first information report which is a written document and calls for closer scrutiny of the facts mentioned in this document to find out the truth of the prosecution story. 10. Bashiruddin P.W. 1 has no doubt stated in Ex. P. 1 that there was bad blood between Imamuddin and his sons on the one side and the witness Bashiruddin on the other question of taking possession of a bullock forcibly. That bullock according to him was taken back by the complainant party two years before from Amir Bux and his sons and it is since then that the accused party was harbouring ill ^ will against the complainant party. He does not however mention in this document 11. Ex. P. 1 that there was any talk going on between the complainant and accused party for a compromise on that question. According to the first version given by Bashiruddin about the incident he mentioned in Ex. P. 1 that at about 6 O'clock when he was sitting in his house which was located near the Chora N kas road. Amir Palledar came to call Abdulla. On this call of Amir Bux, Abdulla and Imamuddin came out. As soon as they came out Amir Bux and his associates started calling bad names to the complainant party. On hearing this verbal quarrel. Bashiruddin, Nasiruddin and Lal Mohammad also came out of the house and he saw that Tinchi, Wahid. Amir Palledar came to call Abdulla. On this call of Amir Bux, Abdulla and Imamuddin came out. As soon as they came out Amir Bux and his associates started calling bad names to the complainant party. On hearing this verbal quarrel. Bashiruddin, Nasiruddin and Lal Mohammad also came out of the house and he saw that Tinchi, Wahid. Kalia, Amir, Rafik, Hamid and two or three other associates who were armed with lathies and Bankis (Knives) immediately assaulted the complainant party. Tinchi pushed Imamuddin and Wahid gave a stab wound to him. Tinchi then caused a stab wound to Abdulla and Rafik stabbed Lal Mohammad and Nasiruddin Rashid however injured Bashiruddin and thereafter all these persons ran away. He also mentioned that this incident was witnessed by lkramuddin, Jahoor, Niajuddin and the occupants of the nearby shops. 12. From this description of the incident as given by Bashiruddin in the first information report, it is clear that the scene of occurrence was the road in front of the house of Bashiruddin. In the site plan Ex. P. 13 house of the complainant party has been marked as `J' and the persons who were occupying the shops in front of this house `J' were Chhotey Khan, Gafoor Khan. Niranjan Lal and Sagarmal as shown in the site plan. It may be mentioned here that this document is conspicuously silent about the invitation alleged to have been extended by the accused party to Abdulla and Imamuddin for bringing about a compromise regarding the old dispute about the lending of the bullock, it is contended by Mr. Than Chand that the story revealed in the first information report falsifies the case of the prosecution and it lends strength to the version given by the defence that the complainant party went as a team to attack the accused party in a chowk situated near the house of the accused persons. This question now cannot be disputed that the actual incident' had taken place in the chowk in front of the house belonging to the accused party, because the blood-stained earth was taken by the Investigating Officer from place-B' which is just near the house of the accused persons. This question now cannot be disputed that the actual incident' had taken place in the chowk in front of the house belonging to the accused party, because the blood-stained earth was taken by the Investigating Officer from place-B' which is just near the house of the accused persons. At later stage the scene of occurrence was shifted by the prosecution witnesses to the chowk from where the blood-stained earth was recovered and, therefore, the only question to be examined by the court at this stage is whether the occurrence as described by the prosecution in the first version disclosed in the first information report Ex. P. 1 was correct or whether the case of the defence that the complainant party came as an aggressor to give a beating to the accused party is probubilised. 13. Mr. Bajrang Lal Sharma appearing on behalf of the complainant urged before us that Ex. P. 1 cannot be treated in this ease as the first information report to the police was informed on telephone by somebody and on that information the investigation had started as the S.H.O. actually left for the place of occurrence and, therefore, whatever had been mentioned in document Ex. P. 1 cannot be said to be as the first version of the complainant party concerning the incident and hence this argument is not available to the defence that the prosecution has shifted the scene of occurrence from the house of the complainant party to the chowk. 14. In order to examine this argument of Mr. Bajrang Lal it would be worthwhile to examine the exact nature of the information given to the Investigating Officer by somebody who refused to disclose his name on telephone. We would prefer to quote in extenso the contents of document Ex. P. 12 which according to Mr. Bajrang Lal was the F.I.R. Ex. P. 12 reads as follows : " bl le; tfj;s VsyhQksu ,d o"kZ ls budk nks ,d ckj ij;kus esa iYysnkjksa dk vkil esa cgqr cM+k >xM+k gks x;k gSA bRyk djus okys dk uke] irk iwNk x;k rks mlus Qksju VsyhQksu cUn dj fn;k D;ksafd bRyk ekSdk o tkap ryc gSA fygktk ,l0,p0vks0 &&&&&&&&[kkuk eksdk gqvkA " 15. The contents of document Ex. P. 12 do not disclose the nature of the quarrel between the Palledars nor do they suggest whether any cognizable offence had been committed by any one. Mr. The contents of document Ex. P. 12 do not disclose the nature of the quarrel between the Palledars nor do they suggest whether any cognizable offence had been committed by any one. Mr. Than Chand argued that neither the person conveying the information disclosed his identity nor did he furnish any particulars about the incident and, therefore, all what he conveyed was that a quarrel had taken place between the Palledars and, therefore, according to him this phone call cannot be taken to be the first information report. In support of this argument he placed reliance on Tapinder Singh v. State of Punjab and another, AIR 1970 B.C. 1566 . In that case there was an anonymous phone call disclosing that a firing had taken place. Except this information no other details were furnished by the person who had telephoned to the police authorities. A question was raised before the Supreme Court that such an information which did not even disclose the commission of an offence much less of the cognizable offence, cannot be treated as first information report. The learned Judge of the Supreme Court observed that, "but prima facie this cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report. The mere fact that this information was the first in point of time does not by itself clothe it with the character of first information report. The question whether or not a particular document constitutes a first information report has, broadly speaking, to be determined on the relevant facts and circumstances of each case." 16. We have already produced the entire contents of Ex. P. 12. These contents of the document do not disclose either the exact place of occurrence or the specific persons A who had quarrelled among themselves nor does it say whether the quarrel was verbal ∨ otherwise It cannot be said after perusing such a document that it gave information regarding a cognizable offence and. therefore such a cryptic information as was recorded in document Ex. P. 12 cannot clothe this document with a characteristic of the first information report as envisaged in the criminal law. therefore such a cryptic information as was recorded in document Ex. P. 12 cannot clothe this document with a characteristic of the first information report as envisaged in the criminal law. It is true that on the basis of this information the police authorities were moved and they went to the place of occurrence but there they did not find any thing to give a trace of the commission of a cognizable offence except that they were vaguely informed that some people sustained injuries and they were removed to the hospital From there the police authorities directly rushed to the hospital and it is at the hospital that a document Ex P. 1 was handed over by P. W. 1 Bashiruddin to the S. H. O, and it is thereafter that the S. H. O. in right earnest started investigation by going to the place of occurrence and prepared site plan and collected the blood-stained earth. In such circumstances we are not in a position to accept the contention of Mr. Bajrang Lal and we cannot treat document Ex. P. 1 as the first information report. 17. It is true that the first information report being a previous statement can strictly speaking be only used to corroborate or contradict the author of the report but it cannot be denied that in criminal law the first information report has assumed a significant status and being the first version of the incident some importance is attached to this document. If there are salient omissions of certain very important facts which constitute an important link of the prosecution story then such omissions which go to effect the probabilities of the case become relevant under section 11 of the Evidence Act in judging the veracity of the prosecution case. In the instant case the first information report Ex. P. I, which was a written document submitted by P. W. 1, gives a story which is different from the first version developed at the trial. According to the version the beating to the complainant party was given as soon as the complainant party came out of their house at the call of the accused party and after injurying the persons of the complainants party the assailants made good their escape. This version definitely indicates that the incident had actually taken place in front of the house of the complainant party. The criticism of Mr. This version definitely indicates that the incident had actually taken place in front of the house of the complainant party. The criticism of Mr. Mehta that later on the prosecution had to shift the place of occurrence from the house of the complainant to the chowk near Char Darwaja because the circumstances and specially the presence of the blood in the chowk could not be explained if the prosecution adhered to its original version and therefore, the prosecution witnesses had to introduce the theory of invitation extended by the accused to enter into a compromise and stated that the complainant party reached the chowk because they were invited by the accused to settle their dispute amicably through a compromise. The theory of the invitation extended by the accused party for a compromise is conspicuously missing In the first information report. This important omission is very significant and it casts a cloud on the correctness of the initial prosecution story. According to Mr. Than Chand Mehta this absence of the theory of invitation by the accused party for entering into a compromise at the chowk is a bedrock of the prosecution case and if this bedrock goes away the entire story falls like a pack of card. In this connection reliance has been place on the two Supreme Court cases, Devilal and another v. The State of Rajasthan, AIR 1971 SC 1444 and Bhagirath v. State of Madhya Prasdesh, AIR 1976 SC 975 . 18. In Devilal v. State of Rajasthan, AIR 1971 SC 1444 the two accused persons who were held by the trial court as well as by the High Court not to have been any where near the scene of occurrence were named by the prosecution witnesses that those two persons pointed out the enemies and ordered the accused to attack them and they opened the gun fire. When those two persons were found both by the sessions as well as by the High Court not to have been present near the scene of occurrence, the whole prosecution case, according to the Supreme Court, changed its colour and became unworthy of behalf. 19. When those two persons were found both by the sessions as well as by the High Court not to have been present near the scene of occurrence, the whole prosecution case, according to the Supreme Court, changed its colour and became unworthy of behalf. 19. In Bhagirath v. State of M.P., AIR 1976 SC 975 the learned Judges of the Supreme Court observed : "When in prosecution for offence of attempt to murder the substratum of the evidence given by the eye-witnesses examined by the prosecution was found to be false. The only prudent course, in the circumstances of the case, left to the court was to throw out the prosecution case in its entirety against all the accused." 20. The substratum or the core of the case depends on the circumstances of each case. In the instant case the reliability of the prosecution story depends on this question whether an invitation was thrown to the complainant party by the accused party to go to the chowk where the actual incident had taken place and it is after their arrival that the accused party, which was already armed with weapons, attacked them Nothing has been brought on the record by the prosecution to/ show as to what kind of compromise was proposed by the accused party and what was the stage of their negotiation. The only allegation made by the prosecution is that two years before a bullock was taken by the accused party from the prosecution party and certain differences were going on between the two parties on that question. It is in the evidence of the prosecution that the accused as well as the complainants were on speaking terms. It is true that some cases under section 107 Cr. P.C. were going on between the parties but it is not the case of the prosecution that the accused party got a pretext of calling the complainant party for compromising the cases of section 107 Cr P.C. In the absence of any material on the record, it is difficult for this Court to accept the prosecution case that the dispute regarding the bullock had reached such a stage where compromise between the parties could be possible. The question of calling the complainant party to the chowk on a pretext of proposed compromise, cannot be accepted specially when this fact which was the essence of the prosecution case, does not find any mention in the first information report. The phase of occurrence on the other hand, if the story of effecting a compromise is disbelieved than it probabilisms the defence version that the force was used by the accused party when they were attacked by the complainant party near their own house. 21. P. W. 2 Abdulla the author of Ex. P. 1 was cross-examined at length to explain certain vital discrepancies occurred in the F.I.R. Every time when he was put a question as to why the fact regarding invitation given by the accused party to negotiate the dispute which is the crucial fact was not mentioned in the document, he mentioned that he was over awed by the events and therefore he did not mention it. For other important discrepancies also same reply was given by him. It cannot be denied that Ex. P. 1 is a document written by Abdulla and it was presented by P. W. 2 when the S H.O. reached the hospital. It is nobody's case that the document was scribed by Abdulla in a hurry. In such circumstances we canngt accept the explanation advanced by P. W. 2 that the omissions which are undoubtedly very serious touching the core of the case were due to the fact that the author of the document was over awed when he wrote the report. In these circumstances we are in a fix to arrive at the conclusion whether the story later on developed by the prosecution for the complainant party to go to the place of occurrence has a ring of truth about it. 22. Two members of the accused party, namely, Kalia and Wahid had sustained injuries during this scuffle The prosecution is conspicuously silent about these injuries. No explanation of any nature is coming forth from the prosecution side to explain these injuries. The absence of explanation about the injuries of two accused persons brings a cloud of doubt about the veracity of the prosecution story. 23. No explanation of any nature is coming forth from the prosecution side to explain these injuries. The absence of explanation about the injuries of two accused persons brings a cloud of doubt about the veracity of the prosecution story. 23. It was argued by Mr Bajrang Lal that looking to the number of the injuries sustained by the accused party, it is difficult for this court to arrive at the conclusion that the complainant party could be an aggressor in this case. In order to refute this argument Mr. Mehta placed reliance on a Bench decision of this Court reported in The State v. Adra and others, ILR 9158 (8) Raj 15 where the complainant party had received 66 injuries as against two injuries sustained by the accused party. But in the circumstances of that case the learned Chief Justice was not prepared to accept the accused party as an aggressor. The number of injuries sustained by each party cannot give any definite clue to brand any one of the parties as aggressor. It is not impossible that the aggressors themselves might become the victim of the wrath of those who in their attempt to save themselves from the attack opened by the assailant adopted a ruthless attitude towards their aggressors. - 24. In view of the circumstances discussed above, a grave doubt has arisen in our minds about the correctness of the prosecution case and we need not therefore look into the case of individual accused persons convicted by the trial court. We are left with no alternative but to extend benefit of doubt to the accused persons. We are persuaded to do so because we find that in all 11 persons were ultimately roped in whereas in the F.I R. only 6 persons were named and it was mentioned that 2 or 3 other persons were also there. The parties are related to each other and they live in the same locality. They are known to each other very intimately. 25. The parties are related to each other and they live in the same locality. They are known to each other very intimately. 25. It is, therefore, difficult for the person who was the author of the first information report to say that he could not name all the accused persons in the first information report because he did not actually know them, especially when we find that definite part has been described by the eye-witnesses including P.W. 2 to each of the assailant even though their name did not find place in the F.I.R. In such circumstances it is difficult for the court to sift the truth from the falsehood mixed in the prosecution evidence and it makes the story of the prosecution doubtful All the above mentioned infirmities create doubt in our minds about the correctness of the prosecution story. 26. The result is that we extend the benefit of doubt to all the 11 accused-appellants, namely Amir Bux, Rafik, Hamecd, Rasheed, Abdul Wahid, Kalia, Tinchi alias Bashir, Budha alias Gulamnabi, Pyare Mian, Munir and Mohd. Hussain and acquit them of all the charges for which they have been convicted by the trial court. They are all in jail. They shall be released forthwith if not required in any other case. The appeal is accordingly allowed. *******