JUDGMENT 1. - Kailash appellant has preferred this criminal appeal against the judgment of the Additional Sessions Judge, Jhalawar, dated 30th September, 1975, convicting the accused - appellant of the offence under section 302, IPC and sentencing him to imprisonment for life. 2. The brief facts giving rise to this appeal are that a report was lodged at PS Sunel, by one Abdul Gafoor, on 26th April 1975, wherein it was alleged that in the night, at about 9.30 O'clock, one Saint, son of Kalu Halwai, and Shiv, son of Nandlal, were fighting with each other and exchanging shoes at Chhatri Chowk, and when Abdul Aziz, son of Abdul Kadar tried to separate them, accused Kailash inflicted a knife-blow to Abdul Aziz and then ran away. Abdul Aziz was then taken to hospital in a 'Thela' (Trolly). On this report, a case under section 307, IPC, was registered and investigation started. 3. The SHO came to hospital, where, in presence of the doctors he recorded the dying-declaration of Abdul Aziz at 9.45 P.M. The doctor advised to take Abdul Aziz to Jhalawar. He was brought to Jhalawar, and on the next day, Abdul Aziz expired. The case was then converted into that under section 302, IPC. The SHO inspected the site and prepared a site-memo and a map which is Ex. P 11. Accused Kailash was arrested vide arrest-memo Ex. P 12. The accused thereafter, gave information for the recovery of a knife. This information was reduced into writing which is Ex. P 13. On the basis of this information and at the instance of accused Kailash, the knife was recovered vide recovery-memo, Ex. P 8. A site-map of the house from where the said knife was recovered, was also prepared, which is Ex. P 9. After completing investigation, the police submitted a challan against accused Kailash, Shiv narain and Satya narain. 4. The learned Additional Sessions Judge framed charge against Kailash under section 302, TPC, and against Shiv Narain and Satya Narain under section 302/34, IPC. All the three accused denied the charges levelled against them and claimed to be tried. 5. The learned Additional Sessions Judge, after recording evidence and haring both the sides, found that no case was made out against Shiv Narain and Satya Narain, under section 302/34, IPC and consequently, he acquitted both these accused persons of the charges aforesaid. All the three accused denied the charges levelled against them and claimed to be tried. 5. The learned Additional Sessions Judge, after recording evidence and haring both the sides, found that no case was made out against Shiv Narain and Satya Narain, under section 302/34, IPC and consequently, he acquitted both these accused persons of the charges aforesaid. He, however, found accused Kailash guilty of the offence under section 302, IPC and convicted and sentenced him as mentioned above. 6. The accused-appellant has not led any evidence in his defence. 7. It is not disputed that the death of Abdul Aziz was homicidal in nature. 8. According to the prosecution, Abdul Aziz had received knife-injuries. The injuries of Abdul Aziz, were examined by Dr. Gopaldutt Sharma PW II, who also conducted the post-mortem examination on the dead body of Abdul Aziz. According to the said doctor, Abdul Aziz had one stab-wound and one incised wound on his person. The stab-wound was on the left side of the abdomen 9" below the nipple, oblique; and the incised wound with blood clot I" x 1/4" x 3/4" transverse was on the upper one-third of the left thigh outer side. On internal examination, the brain was found ischaemic both the lungs and the pericardium were ischaemic. In abdomen, the peritoneum was cut obliquely below the wound and there was one litre of haemorrahic fluid in abdominal cavity. There was a big haetmotoma in the inferior mesentaric artery with blood clot surrounding it. The artery was injured which led to this haemorrhage. The liver spleen and the kidneys were ischaemic. In the opinion of the doctor, the death was due to shock as a result of abdominal haemorrhage due to stab-injury in the abdomen. This external injury, in the opinion of the doctor, was sufficient in the course of nature to cause death. 9. So, from the statement of the doctor, it is clear that the death of Abdul Aziz was homicidal in nature on account of the stab-wound. The learned Additional Sessions Judge has correctly held so. 10. Mr. Biri Singh, the learned counsel for the accused-appellant has argued that the prosecution has completely changed the story which was in the report, Ex. P 1, and on the basis of which, the FIR was prepared. According to him, in the report, Ex. The learned Additional Sessions Judge has correctly held so. 10. Mr. Biri Singh, the learned counsel for the accused-appellant has argued that the prosecution has completely changed the story which was in the report, Ex. P 1, and on the basis of which, the FIR was prepared. According to him, in the report, Ex. P I, the allegation was that Sattu and Shiv were fighting with each other,and Abdul Aziz came to separate them. At that point of time, accused Kailash came forward towards him and inflicted a knife-blow; and then ran away. In the evidence, the prosecution has changed this version. Rafique Mohammad PW 1; Mohammad Arif PW 2; Shandat Beg PW 3; and Abdul Hameed PW 4 are the alleged eye-witnesses to the incident. They all in their examination-in-chief, have stated that on 26th April 1975, they all were coming from the 'Mela' (Fair). Abdul Aziz was also with them. When they reached near the Chhatri Chowk' in front of the house of Kanhaiyalal, accused persons Shiv Narain, Satya Narain and Kailash came there. Shiv Narain and Satya Narain caught hold of Abdul Aziz. and Kailash inflicted knife-blow in the stomach of Abdul Aziz. He (Kailash) further inflicted another blow on his left thigh. Then, all the accused persons ran away. Abdul Aziz was then taken to hospital. So, the consistent statement of all these eye-witnesses is just contrary to the report Ex. P 1. The original case, according to the report, Ex. P 1 was that while Shivnarain and Satya Narain were fighting with each other. Abdul Aziz (deceased) was trying, to separate them, and at that time, Kailash accused inflicted knife-blow 'o Abdul Aziz But, in the court, all these witnesses tried to entangle Shiv Narain and Satya Narain also in this case of murder of Abdul Aziz. In their cross-examination, all these witnesses were confronted with their statements recorded by the police under section 161, Cr. PC. All these witnesses have stated in court that they did not give any statement under section 161 Cr. PC. Thus, the eye-witnesses who were examined by the police during investigation, and who gave a different version, have denied their own statements in the court. According to Abdul Gafoor, who lodged the report, Ex. P 1 in the police, the story is contradictory with the story given by these eye-witnesses in the court. 11. PC. Thus, the eye-witnesses who were examined by the police during investigation, and who gave a different version, have denied their own statements in the court. According to Abdul Gafoor, who lodged the report, Ex. P 1 in the police, the story is contradictory with the story given by these eye-witnesses in the court. 11. PW 4 Hamid has gone to the extent while saying that co-accused Shiv Narain and Satya Narain caught hold of Abdul Aziz and Kailash accused took out a knife and inflicted a blow with it to Abdul Aziz. 12. Rafique Mohammad PW 1 has stated that at Chhatri Chowk in front of the shop of Kanhaiyalal, all the three accused persons came out of the shop. At that time, he saw a knife in the hand of Kailash accused. Shiv Narain and Satya Narain caught hold of Abdul Aziz and accused Kailash inflicted knife-blows to Abdul Aziz. 13. So, denial of their own statements by the eye-witnesses recorded under section 161, Cr. PC by the police; making improvement in their statements recorded in the court; and giving version contrary to the report, Ex. P 1, show that all these eye-witnesses are unreliable witnesses. The learned Additional Sessions Judge has failed to appreciate this aspect of the case, and committed error in relying the depositions of these se-called eye-witnesses. The report. Ex. P I was lodged by Abdul Gafoor, who was not an eyewitness to the alleged incident. Hameed PW 4, after the incident, went to the house of deceased Abdul Aziz and informed Abdul Gafoor, who is uncle of Abdul Aziz, of the occurrence. Abdul Gafoor has stated that Hamid came to him and informed that Abdul Aziz had been inflicted knife-blows by Kailash. He (Abdul Gafoor) then came to hospital and talked to Abdul Aziz, who informed him that Shivnarain and Satyanarain had caught hold of him and Kailash inflicted knife-blows to him. He has further stated that the Thanadar Saab (SHO) gave him some written matter and asked him to sign over that. Ex. P I bears his signature at place, A to B. He has further stated that the SHO did not write Ex. P 1 at his instance. In his cross-examination, he has said that one Sayeed Master scribed Ex. P 1 and he (Abdul Gafoor) put his signature on this report Ex. P 1. Ex. P I bears his signature at place, A to B. He has further stated that the SHO did not write Ex. P 1 at his instance. In his cross-examination, he has said that one Sayeed Master scribed Ex. P 1 and he (Abdul Gafoor) put his signature on this report Ex. P 1. He has also stated that ha did not tell anything to Sayeed Master Sayeed Master, what he had heard scribed in the report Ex. P 1, and he (Abdul Gafoor) signed that report. This statement shows that Ex. P. 1 was not given by this witness, Abdul Gafoor. Either the SHO got it scribed through Sayeed Master, or Sayeed Master himself has written this report on the facts which he had heard from others. So, it cannot be said that this is the report given by Abdul Gafoor. The statement of Sayeed Mohammad PW 10, is very important and relevant at this stage. This witness has stated that when he heard about infliction of knife-blows to Abdul Aziz, he went to hospital. There in the hospital, at the instance of 'Nayab Sahab', he scribed the report, Ex. P 1. He did not talk to Abdul Gafoor. Abdul Gafoor signed this report. In this cross-examination, he has more specifically said that he scribed the report as was stated by 'Nayab Saab'. 14. So, the statements of these two witnesses indicate that the report, Ex. P I was not given by Abdul Gafoor and it was prepared by the 'Nayab Thanedar'. Such a state of affair cannot be relied upon at all. Apart from this, the story which has been mentioned in the report Ex. P 1, has been totally changed, and a new case has been set up in the statements of the alleged eye-witnesses, as we have discussed above. All these show that the police has not investigated this matter fairly. The entire story is made out by the police itself, because, the report, Ex. P 1 was dictated by the Nayab Thanedar. When there were four eye-witnesses, Abdul Aziz was taken to hospital by one of the eye-witnesses, why the report was not lodged by one of the eye-witnesses ? Why the report was not lodged by Abdul Gafoor? If he was illiterate, he could have lodged an oral report at the Police Station. P 1 was dictated by the Nayab Thanedar. When there were four eye-witnesses, Abdul Aziz was taken to hospital by one of the eye-witnesses, why the report was not lodged by one of the eye-witnesses ? Why the report was not lodged by Abdul Gafoor? If he was illiterate, he could have lodged an oral report at the Police Station. Whatever information was given to him by Harnid PW 4, on the basis of that information, he could have lodged a report. Instead of lodging a report by an eye-witness or Abdul Gafoor, one report, Ex P I was prepared by the 'Nayab-Thanedar', and when the report did not suit the police, they changed the story and the eye-witnesses tried to develop a new case. All these show that the entire police story is a false story which has been concocted and manipulated by the police itself. If we look into the statement of the SHO, Ramdas, PW I a, we find that he has stated in his cross-examination that Abdul Aziz was brought to him and he sent him to hospital. Then, Abdul Gafoor came to police station along with the report, Ex. P 1. This report Ex. P I was got written by Abdul Gafoor. This statement is completely a false statement. Abdul Gafoor denies that he had got written the report, Ex P 1. 15. Sayeed Master PW 5 has stated that he scribed the report, Ex. P 1 at the instance of the 'Nayab-Saab'. They both are prosecution witnesses. So, the statement of the SHO Ramdas on this aspect, is a false statement. 16. Mr. Pareek, the learned Palk Prosecutor has placed relience on the dying-declaration of Abdul Aziz which is Ex. P 4, recorded by the SHO in presence of the doctor. In this dying-declaration, Abdul Aziz has stated that Satin and Shiv were fighting. with each other with shoes, and when he forwarded to separate them, Kailash accused came there inflicted knife-blows to him. So, according to this dying-declaration, the statements of the eye-witnesses and the prosecution story are falsified. The story which was developed by the prosecution is that all the three accused persons came and Shiv Narain and Satya Narain sought hold of Abdul Aziz while Kailash inflicted knife blows to him. So, according to this dying-declaration, the statements of the eye-witnesses and the prosecution story are falsified. The story which was developed by the prosecution is that all the three accused persons came and Shiv Narain and Satya Narain sought hold of Abdul Aziz while Kailash inflicted knife blows to him. So, the distinction in between the story and the matter of dying-declaration shows that the entire prosecution case is a false one, and it is not at all safe to place reliance on the dying-declaration, Ex. P 4, which was recorded by the SHO Ramdas. No doubt, the medical officer was present when the statement was recorded, bur, in view of the circumstances mentioned above, by which, the prosecution has developed a new story, show that this dying-declaration is not a honest dying-declaration, and hence, no reliance can be placed on it. 17. It is admitted by all the eye-witnesses that Kanhaiyalal in front of whose shop the incident took place, was in his shop. It is also in the evidence of prosecution witnesses that the other shops nearby were also open, and there were a number of persons present. The SHO during the course of investigation,did not investigate the matter from the those independent persons. Kanhaiyalai was cited as a witness in the calendar, but he was given up by the prosecution. Why did the SHO not record, statements of the other persons who were present neat by at the time of the alleged occurrence? Why did the prosecution not examine the independent person? The alleged witnesses are only those persons who were going along with Abdul Aziz, and they were friends of deceased Abdul Aziz. So, the prosecution has failed to examine the independent persons. It would not he improper to say here that independent witnesses were suppressed by the polite, in this case. A fair investigation demands that those shop-keepers who had witnessed the alleged incident should have been examined. This gives an adverse inference to the prosecution story. 18. We, therefore, find that the learned Additional Sessions Judge has not appreciated the evidence on the record in its right perspective ; and he has erred in holding that the case against accused-appellant Kailash, has been established by the police. The learned Additional Sessions Judge disbelieved the prosecution story so far as accused Shiv Narayan and Satya Narain were concerned. We, therefore, find that the learned Additional Sessions Judge has not appreciated the evidence on the record in its right perspective ; and he has erred in holding that the case against accused-appellant Kailash, has been established by the police. The learned Additional Sessions Judge disbelieved the prosecution story so far as accused Shiv Narayan and Satya Narain were concerned. He acquitted both these accused persons of the offence under section 302/34, IPC, but, on the same prosecution evidence, he found accused Kailash guilty of the offence under section 302 IPC. We, after considering the entire evidence and the arguments advanced by both the learned counsel, are of the opinion that the prosecution has fail.NJ to establish its case against accused-appellant Kailash. The learned Additional Sessions Judge has erred in holding that a case under section 302. IPC, has been made out against accused Kailash. The judgment of the learned Additional Sessions Judge, therefore, cannot be upheld. 19. In the result, the appeal of Kailash accused-appellant is accepted The judgment of the learned Additional Sessions Judge, convicting and sentencing the accused-appellant under section 302, IPC, is set aside. The appellant is acquitted form the offence u/section 302 IPC. The accused-appellant is on bail. He need not surrender to his bail bonds, which are hereby cancelled.Appeal accepted. *******