N. N. SHARMA, J. ( 1 ) THIS appeal is directed against the order of Sri V. S. Kulshrestha, learned II Addi. Sessions Judge, Bulandshahr dated 19. 9. 1978 in Sessions Trial No. 444 of 1976 by which all the appellants were convicted and sentenced as detailed in the impugned order. Only sentence of fine was imposed on each convict. ( 2 ) SITE plan Ext. Ka3 prepared by the Investigator shows topography. Scene of occurrence has been shown in this site plan by letter A at the platform in front of the two shops owned by Ratan Lal, PW. 4. father of informant Han Mohan, PW. 6. Both these shops at the time of occurrence and even now are in the tenancy of Suresh appellant, son of late Shiv Charan Dass who was admittedly tenant of both these shops which were the subject matter of civil and criminal litigation between Shiv Charan Dass and the landlord aforesaid who was occupying the upper floor in the same building. The occurrence admitted took place on 28. 7. 1977 at about 10 P. M. There is a dispute about venue of occurrence. According to his version Ext. Ka I submitted at the police station by Han Mohan all the appellants and Shiv Charan Dass along with others hurled abuses on the landlord as a sequel of the litigation in which parties were embroiled. Ratan Lal was at his house and protested about it; Shiv Charan and appellants attacked him at his house armed with knives, guptis and rods and inflicted injuries on them. The injuries sustained on the side of the appellants were not mentioned in the report; even the names of three injured who sustained injuries on prosecution side were not cited in that report. This report was made over at police-station at 0. 30 A M. in the same night. Distance of the police station from the scene of occurrence was seven miles. On the basis of this report Ext. Ka 1 First Information Report Ext. Ka 7 was prepared and the case was registered in the general diary vide Ext. Ka 2 scribed by the head constable Bhopal Singh whose writing was proved by the Investigator Sri Ram Sward-op, P. W. 2. The injured was examined by Dr. S. C. Gupta. PW. 5 on 20. 7. 1974 in the district hospital. ( 3 ) RATAN Lal was examined. . Ka 2 scribed by the head constable Bhopal Singh whose writing was proved by the Investigator Sri Ram Sward-op, P. W. 2. The injured was examined by Dr. S. C. Gupta. PW. 5 on 20. 7. 1974 in the district hospital. ( 3 ) RATAN Lal was examined. . t 12. 20 P. M. Three injuries were detected on his person as detailed in the injury report Ext. Ka 5. All the injuries were caused by blunt weapons and duration was about 12 hours as given by the doctor. Injury no. 3 was kept under observation. However, no X-Ray examination etc. was done about this injury nor any supplementary report is on record about it. ( 4 ) HAN Mohan was examined by the same doctor on the same day at the same place at 12. 38 P. M. vide ex. Ka 7. Two injuries were found on his person as detailed in ex. Ka7. Both the injuries were simple and caused by blunt weapon. ( 5 ) RATI Ram was examined by the same doctor on the same day who detected two injuries on his person vide report Ext. Ka-6. Injury no. 2 was an incised wound (clotted blood in and around) clean cut margins 1cm X 1/4 cm. Ex skin deep placed horizontally with front of ,right forearm 2 5 cm. above the inner aspect of wrist joint tailing out downwards (bleeding on clearing) both injuries were simple. Injury no. 1 was caused by blunt weapon and no. 2 by sharp edged weapon. Duration about 12 hours. ( 6 ) DURATION of all the injuries of the injured coincided with the alleged time of occurrence. ( 7 ) THE same doctor also examined the injuries of Shiv Charan Dass on the same day at 12. 10 P. M. and detected two injuries on his person. Both the injuries were simple and caused by some blunt weapon. Duration was about 12 hours vide Ext. Kha 2. ( 8 ) VISHNU Datta appellant who examined himself as D. W. 1 also gave the counter version. He was examined by the same doctor at the same place on the same day at 11. 55 A. M. Eight injuries were detected on his person as detailed in injury report Ext. Kha 2. All the injuries were simple in nature and caused by blunt weapon. He was examined by the same doctor at the same place on the same day at 11. 55 A. M. Eight injuries were detected on his person as detailed in injury report Ext. Kha 2. All the injuries were simple in nature and caused by blunt weapon. Duration of the injuries on the side of the appellants was also given as 12 hours. ( 9 ) AFTER usual investigation, Shiv Charan Dass appellants were sent up and Shiva Charan was dead by that time. ( 10 ) NARESH Kumar pleaded and alleged his implication to ill-will. ( 11 ) SIMILARLY other appellants denied any aggression on their part. ( 12 ) D. W. 1, Vishnu Datta who gave the counter version testified that at the time of occurrence he was sitting with Shiv Charan on a cot at the shop of Shiv Charan Dass when Han Mohan and Matroo alongwith Rati Ram, Subhas, Ratan Lal, Sagir, and Khichoo entered into the shop of Shiv Charan Dass and forcibly began to break open the lock of his cash books and removed some currency notes. On objection by Shiv Charan Dass the injured on the side of the appellants sustained injuries and report about the counter version was lodged at the same police station vide Ext. Kha 8 lodged at 0. 45 A. M. in the same night. ( 13 ) BESIDES the Investigator and doctor prosecution examined Rati Ram, PW 1, Han Kishan, PW 3, Ratan Lal PW 4 and Han Mohan, PW 6. Learned Judge found that venue of occurrence has not been proved by these PW5. who contradicted each other about it. However, he further found that occurrence did not take place even inside staircase or in the upper storey of the house of Shiv Charan Dass but on the platform and in verandah in front of the shop. However, he found that the appellants were the aggressors. Even though injuries sustained on their side could not be successfully explained by the aforesaid P. Ws who contradicted each other and assigned this role of inflicting these injuries to Rati Ram, PW 1. However, he, found the defence version as unreliable and so recorded the conviction and sentence as aforesaid. ( 14 ) I have heard the learned counsel for the parties at length and perused the record. However, he, found the defence version as unreliable and so recorded the conviction and sentence as aforesaid. ( 14 ) I have heard the learned counsel for the parties at length and perused the record. The appeal is allowed on account of following reasons: (a) Venue of occurrence was of cardinal importance to determine as to which party was the aggressor. When prosecution failed to prove the venue of occurrence, the case should have been thrown out. It was not open to the learned trial Judge to ignore this material infirmity. (b) I have carefully perused the testimony of PW5. who contradicted each other about the arms carried by the assailants. The prosecution version has been improved from stage to state. Rati Ram negatived the statement of Han Kishan, PW 3. Similarly his statement is full of contradictions as proved in the case. Han Kishan, PW 3, testified that Suresh Chandra had a knife, Babu Ram had a rod, Vishnu Datta had a gupti and the remaining assailants were unarmed. He thus contradicted remaining witnesses. (c) Learned trial Judge has also disbelieved the story given by the informant. Han Mohan, PW 6, in such circumstances when Han Kishan was held as unreliable and the prosecution story was being improved from stage to stage and the injure sustained on the side of appellants remained unexplained there was no occasion to record as conviction simply because the defence was false. (d) When the testimony of PW5. was tainted and irreconcilable with their earlier version and when the venue of occurrence was consistent with the suggestion put forward in defence that it was simply an abortive attempt made on the side of landlord to forcibly eject him from the shops in dispute when he could not succeed in the litigation vide Ext. Kha 4 to Kha 6 and the prosecution story was being improved from. stage to stage about the manner of occurrence the case could not have ended in conviction. It was for the prosecution to establish their case beyond shadow of all reasonable doubts. (e) Evidence of PW5, had to be tested on the anvil of probabilities. It is difficult to believe that a mob armed with weapons to teach a lesson to informant and his father came as aggressors but suffered so many injuries on their side which remained unexplained by the prosecution. (e) Evidence of PW5, had to be tested on the anvil of probabilities. It is difficult to believe that a mob armed with weapons to teach a lesson to informant and his father came as aggressors but suffered so many injuries on their side which remained unexplained by the prosecution. Most of the witnesses are accused in cross case and made inconsistent and improper statements. Thus the manner of occurre9ce has not been made out. (f) When the injuries sustained on the side of accused party remained unexplained in the F. I. R. and in their earlier statements by PW5. and the evidence was found as unreliable without corroboration about use of gupti no conviction was sustainable as was held in Doongar and others v. State which posited: Criminal Trial-FIR-Absence of a fairly complete account of fight in the earliest version relating to it-Not a matter to be ignored in a case relating to an occurrence in which both the parties received injuries. It is true that the maker of a report is really concerned with what he feels aggrieved by i. e. with what the persons reported against have done. It is also true that in giving an account of a fight a person ordinarily feels a reluctance or hesitation in disclosing at the stage of making a report that he or men of his party also caused injuries to the assailants, even though it might have been justified by reason of having been done in exercise of the right of private defence. Nevertheless, the absence of a fairly complete account of a fight in the earliest version relating to it is not a matter to be ignored in a case relating to an occurrence in which both the parties received injuries, because the criminality or the justification of an act in such a case would largely depend upon the circumstances in which it was done. ( 15 ) IN the result appeal is allowed. The impugned order is set aside. Conviction and sentence against the appellants shall not operate. Fine, if already deposited by any appellant shall he refunded to the depositor. Appeal allowed .