JUDGMENT 1. 1. This appeal is directed against the conviction and sentences passed by Additional Sessions Judge No. 1, Ajmer, dated November 8, 1983, convicting the accused appellants Haji Abdul Gaffur and Abdul Hakim Under Section 302 Indian Penal Code read with Section 341 IPC, and sentencing each of them to life imprisonment and a fine of L 2000/-, in default of payment of fine, to further undergo S.I. for a period of four months; and convicting accused appellants Abdul Gani and Usman Gani u/s 302 Indian Penal Code and sentencing each of them to life imprisonment and a fine of Rs. 2,000/-, in default of payment of fine, to further undergo S.I. for 4 months. Accused Feroz and Lukman were acquitted by the trial court. 2. The prosecution story, briefly stated, is as under. On 16th December, 1981 at about 7.30 am. when Subrati, and Nizamuddin were near the crossing known 'Sand-ka-Chorah,' they were surrounded by the accused appellants along with Feroz and Lukman. Accused appellants Abdul Gani and Usman Gani were armed with knives and the remaining four co-accused were armed with lathies. Accused Abdul Gani stabbed Nizamuddin with his knife on his chest and Usman Gani stabbed Subrati with knife on his chest and then on the back. Both Subrati and Nizamuddin succumbed to their injuries. They were taken to Nasirabad Government Hospital where they were declared dead by the doctor. Peer Mohd. (PW 1) lodged an FIR at Police Station Nasirabad Sadar. The police registered a case under Section 302, 147, 148 & 149 Indian Penal Code and started investigation. A challan was put up against all the six accused persons before the Magistrate who committed the case to the Sessions. 3. Learned Additional Sessions Judge No. 1, Ajmer recorded the prosecution evidence as also defence evidence and convicted the accused appellants, as aforesaid, and acquitted the co-accused Feroz and Lukman. Hence, this appeal. 4. We have heard learned counsel for the appellants as well as learned Public Prosecutor and have also perused the record of the case. 5. Learned counsel for the appellants has submitted that it is a fit case in which the accused appellants should be acquitted as they had a right of private defence. Hence, this appeal. 4. We have heard learned counsel for the appellants as well as learned Public Prosecutor and have also perused the record of the case. 5. Learned counsel for the appellants has submitted that it is a fit case in which the accused appellants should be acquitted as they had a right of private defence. The accused persons in their statements recorded under Section 313 Cr.PC have come out with an alternative story that accused appellant Abdul Gaffur had gone to give milk, while Usman Gani, Abdul Gani and Abdul Hakim were at their houses which is situated near the crossing known as 'Sand-ka-Chorah.' They heard the cry of Haji Abdul Gaffur from the side of the crossing and therefore, all three went towards the crossing. Nizamuddin wanted to inflict injury on Abdul Gani and Abdul Gani caught hold of the hand of Nizamuddin and they started trying their strength. The hand of Nizamuddin turned down and Nizamuddin received injury from his own knife. Thereafter, Nizamuddin fell down and the knife also fell down. Subrati is alleged to have inflicted an injury on head of Abdul Gaffur and also inflicted another blow on head of Usman Gani which hit at his hand. Subrati wanted to inflict another blow of knife on the head of Abdul Gaffur. Usman Gani lifted the knife of Nizamuddin from the ground and inflicted the blow of knife on the back of Subrati. Subrati turned and wanted to make another attempt on Usman Gani, therefore, Usman Gani inflicted another blow on the chest of Subrati Peer Mohammed, Shahabuddin, Akbar and Habeeb also gave them beating. Asa result thereof, Usman Gani received a fracture, and if Usman Gani would not have inflicted Subrati,Subrati would have killed Abdul Gaffur as well as Usman Gani; whereas accused Feroz and Lukman were not there. All the four appellants received injuries have been noted and find place in these arrest memos namely Ex. P 18 of Abdul Gani, Ex. P 20 for Usman Gani and Ex. P 21 for Haji Abdul Gaffur. The accused persons were examined by the doctor. The injury report (Ex. D 1) of Usman Gani shows that he had received three simple injuries one of which was caused by sharp object and two were caused by blunt object. The injury report of Haji Abdul Gaffur (Ex. P 21 for Haji Abdul Gaffur. The accused persons were examined by the doctor. The injury report (Ex. D 1) of Usman Gani shows that he had received three simple injuries one of which was caused by sharp object and two were caused by blunt object. The injury report of Haji Abdul Gaffur (Ex. D 2) shows that he received one incised wound by sharp edged weapon on the occipital region and two simple injuries by blunt object on both the arms. Ex. D 3 is the injury report of accused Hakim, having received one simple injury, haemotoma by blunt object on occipital region of scalp swelling on the back of the left hand by blunt object. Ex.D 4 is the injury report of Abdul Gani, having received one simple injury on the back of his left shoulder by blunt object. Learned counsel for the appellants has further submitted that the number of injuries received by the accused appellant is much more than the number, of injuries received by the members of the complainant party because the post mortem report of Subrati (Ex. P. 3) shows that he received two stab wounds, one in the back and one in the chest and Nizamuddin received only one stab wounds, as per the post mortem report (Ex. P. A). He has further submitted that the prosecution has examined five eye witnesses PW I Peer Mohammed PW 2 Habib, PW 3 Shahabuddin, PW 13 Akbar Ali and PW 14 Ayub and that they are all interested witnesses and related to the deceased persons. The prosecution has failed to examine any independent witness, though they were admittedly present on the spot, particularly, Ramdev, Pyarelal, and Satya Narain who were shown in the calendar of witnesses at Nos. 18, 19 and 21 respectively, and the prosecution has not given any reason as to why aforesaid three independent witnesses were not examined though they were admittedly present at the spot as per the prosecution witnesses. Learned counsel for the appellants has further submitted that the prosecution has miserably failed in explaining the injuries on the accused. The prosecution witnesses have totally denied that the accused persons received any injury in the incident. He has placed reliance on Ram Narain and others v. State of U.P., AIR 1972 SC 2544 , Mohar Raj v. State of Bihar, AIR 1968 SC 1281 and Lakshmi Singh and others etc. The prosecution witnesses have totally denied that the accused persons received any injury in the incident. He has placed reliance on Ram Narain and others v. State of U.P., AIR 1972 SC 2544 , Mohar Raj v. State of Bihar, AIR 1968 SC 1281 and Lakshmi Singh and others etc. v. State of Bihar, AIR 1976 SC 2263 . He has submitted that the prosecution has miserably failed in proving any charge against the accused persons and the prosecution witnesses are not reliable and they should not be believed in this connection. Since the accused persons had received injuries, therefore, they had aright of private defence and in this connection, he has placed reliance on Mohinder Pal Jally v. State of Punjab, AIR 1979 SC 577 , ILR 13 Raj. 789 and AIR 1964 SC 1563 : He has further submitted that since the prosecution has failed to examine the independent material witnesses who were admittedly present at the spot, and adverse inference should be drawn against the prosecution and in this connection has placed reliance on Shiv Dayal v. The State 1968 WLN 1 and Bin Singh and others v. The State of Uttar Pradesh, AIR 1978 SC 59 . Learned counsel for the appellant has further submitted that the trial court has rejected the evidence of the same set of prosecution witnesses with regard to co-accused Feroz and Lukman who have been acquitted by him and there is no guarantee that the prosecution witnesses have not falsely implicated the accused appellants. He has very emphatically submitted that the prosecution has not been fair to the accused appellants. The Investigating Officer was completely biased and had not discharged his duty properly and has given a false evidence before the court as also tried to suppress and help the complainant party which will be obvious by bare perusal of his statement recorded by the trial court. 6. On the other hand, learned Public Prosecutor has supported the judgment of the trial court and has submitted that this is a case in which two persons have died and the accused appellants are not entitled to be acquitted. 7. We have given our thoughtful consideration to the whole matter. PW 1 Peer Mohd. 6. On the other hand, learned Public Prosecutor has supported the judgment of the trial court and has submitted that this is a case in which two persons have died and the accused appellants are not entitled to be acquitted. 7. We have given our thoughtful consideration to the whole matter. PW 1 Peer Mohd. who was a partner of deceased Subrati in business has deposed that while he was going from his house to the shop at about 8 a.m. on 16-12-1981, Subrati and iNizamuddin were standing ontheirshop near Sand-ki-Choroh and that thev were surrounded by the accused persons and they were exhorting that Subrati and Nizamuddin should be murdered. Abdul Gani inflicted a knife blow on the chest of Nizamuddin and accused Usman Gani inflicted two knife blows to Subrati, one on the chest and another at the back, with the result they died. Akbar, Habib and Shahabuddin intervened as a result, Habib also received injury on his nose. Subrati and Nizamuddin were taken to the hospital where they were declared dead. Then PW 1 says that he got one report written by some one and presented the same at the Police Station Nasirabad Sadar. He was unable to remember the name of the scribe of the report and this written report (Ex. P. 1) was filed before the police, on which an FIR was registered at 9 a.m. on 16-12-1981; whereas Abdul Gani (PW 12) has appeared in the witness box and has deposed that he was in service of the police for last 5 years and gave resignation in 1953. He has deposed that he is also resident of Ramsar and knew Peer Mohd. (PW 1) for a number of years as Peer Mohd. also used to reside in Ramsar. He has further deposed that he had readied Nasirabad hospital at about 11.30 a.m. when he came to know that some person from Ramsar village has been taken to the hospital & therefore, he wrote Ex, P. 1 outside the Hospital at the instance of Peer Mohd. He has verified that Ex. P. 1 is in his hand writing. Now this report was written after 11.30 a.m. and Peer Mohammed himself reached the Police .Station only after 12 O'clock, whereas Ex. He has verified that Ex. P. 1 is in his hand writing. Now this report was written after 11.30 a.m. and Peer Mohammed himself reached the Police .Station only after 12 O'clock, whereas Ex. P. 2 the FIR shows that it was registered at Police Station at 9 a.m. More over, PW 16 Surendra Singh who is the Investigating Officer has admitted in cross examination that he did not try to find out as to who was the scribe of Ex. P. 1, the written report. He has the audacity to say in the court that the accused persons had no injuries when they were arrested or that he had sent them for medical report, but when he was confronted with the arrest memos, and the injury reports, he had to admit that the accused person had received injuries in the incident and that they were sent by him for medical report. He has further submitted that on 16th December, 1981, he has recorded the statement of all the eye witnesses, whereas statement of PW 14 Ayub was recorded by him on 18th December, 1981, though he was also an eyewitness. 8. Thus, we find that the prosecution case suffers from a very serious defect about the authenticity of the FIR itself which is the basis and the foundation of the prosecution case. Additional Sessions Judge who had recorded the statement of PW 16 Surendra Singh had noted the demeanour of Investigating Officer that he gets annoyed when some questions were put to him by the defence counsel and in fact, he had observed that action should be taken against the Investigating Officer for his behaviour and the statement in the court. However, the prosecution has miserably failed to explain as to why the prosecution has not explained the injuries admittedly received by the accused persons before their arrest during the scuffle and the prosecution witnesses have denied that any accused had received any injury what so ever. Therefore, no reliance can be placed on such prosecution witnesses, especially of those who are interested and related to the deceased persons; and more so, when the prosecution has failed to examine any other independent witnesses who were admittedly present at the time of incident. Ramdev, Pyarelal and Satya Narain were shown in the calendar of witnesses at Serial Nos. Therefore, no reliance can be placed on such prosecution witnesses, especially of those who are interested and related to the deceased persons; and more so, when the prosecution has failed to examine any other independent witnesses who were admittedly present at the time of incident. Ramdev, Pyarelal and Satya Narain were shown in the calendar of witnesses at Serial Nos. 18, 19 and 21 as eye witnesses but they were not examined by the prosecution, during the trial and no explanation has been furnished as to why they were not examined. More over, it has come in the prosecution evidence that there were several shops which were opened and other persons were present on those shops but the prosecution has failed to examine any of those witnesses which also shows that the prosecution has not been fair and the Investigation or the trial has not been conducted in a fair manner. 9. As regards the accused appellants Abdul Gaffur and Hakim, there is no evidence against them, except that they exhorted other accused persons to kill the deceased. PW 2 Habeeb is a chance witness who was going for grazing his cattle. He has admitted that persons present there had thrown stones. He has further admitted that the police had reached the hospital. He does not know whether any other shops were opened or not. He does not say that he had gone to Police Station with PVV 1 Peer Mohammed to lodge the FIR. The prosecution has not proved the injuries alleged to have been received by this witness at the time of incident. He has further admitted that Peer Mohammed was his real brother-in-law, and deceased Nizamuddin was his paternal cousin. He admitted that he had seen the incident from a distance of 10-15 feet. 10. Similarly, PW 3 Shahbuddin is also a chance witness. He had gone to the crossing for drinking a cup of tea and was sitting on the hotel of Jora with Akbar. There were five or seven other persons also present at the hotel of Jora. He has further admitted that a number of persons had collected at the spot and the accused had run away from there. He has also admitted that the hotel of Ramkaran was also open. He has of course denied the defence story. He also admitted that he is cousin of deceased Nizamuddin. 11. PW 4 is Dr. He has further admitted that a number of persons had collected at the spot and the accused had run away from there. He has also admitted that the hotel of Ramkaran was also open. He has of course denied the defence story. He also admitted that he is cousin of deceased Nizamuddin. 11. PW 4 is Dr. Mahesh Chandra Agrawal who had conducted the post mortem examination of both Subrati and Nizamuddin and has stated that the injuries sustained by both the persons were sufficient in the ordinary course of nature to cause death. He has further stated that the injuries seem to have been caused by a weapon like a knife. However, knives were not shown to him. Therefore, he could not say whether the injuries could be caused by the knives which were recovered at the instance of the accused persons. 12. PW 5 Kamruddin is father of Nizamuddin, but he is not an eye witness. PW 6 is Abdul Aziz who has deposed about some incident which had happened prior to this incident and he does not say anything about the main incident in which Nizamuddin and Subrati died 13. PW 7 Chotu Khan is a formal witness regarding Panchnama (Ex. P. 6 and Ex. P. 7) PW 8 Amin is also a formal witness for the recovery memo of sand (Ex. P. 8), Ex. P. 9 and Ex. P. 10 and Ex. P. 11. 14. PW 9 is another formal witness of Ex. P. 12 and Ex. P. 14 regarding the recovery of knives at the instance of accused Abdul Gani and Ex. P. 13 site plan. 15. PW 10 is also a formal witness regarding site plan (Ex. P. 8 to Ex. P. 11). 16. PW 11 Mohammed Rafiq has deposed about some incident prior to the one in dispute and his testimony is not at all relevant. The testimony of PW 12 Abdul Gani has already been discussed earlier. PW 13 is Akbar Ali who is also a chance witness. He is brother of Habeeb (PW 2) and brother of Nizamuddin in community. He is brother-in-law of Peer Mohammed and Shahbuddin is his uncle's son. He has further deposed that Kamruddin, Peer Mohammed and Subrati were partners in business. He has also denied the defence theory. PW 13 is Akbar Ali who is also a chance witness. He is brother of Habeeb (PW 2) and brother of Nizamuddin in community. He is brother-in-law of Peer Mohammed and Shahbuddin is his uncle's son. He has further deposed that Kamruddin, Peer Mohammed and Subrati were partners in business. He has also denied the defence theory. He has admitted that there were about 20 shops on the Chorah and the bus also used to stop there. PW 14 is Ayub who has been examined by the police under Section 161 on 18th December, 1981 after two days of the incident, though he was an eye witness. He had denied that any knife was recovered in his presence and has not been believed and relied even by the trial court. PW 15 Jagdish is a formal witness who had taken the articles to Forensic Science laboratory. PW 16 is Surendra Singh, the Investigating Officer who has been discussed earlier. 17. Having considered all the prosecution evidence and the defence taken by the accused persons, we are of the opinion that the prosecution has not been able to bring home the guilt of the accused persons. The investigation has not been done in fair manner. Even there is doubt in the FIR. The Investigating Officer's attitude and statement in the court makes the whole prosecution case very suspicious Even the Investigating Officer is not speaking the whole truth and has tried to conceal facts from the court. The prosecution has failed to explain the injuries on the person of accused appellants and the prosecution witnesses have denied that the accused persons received any injury at the time of incident, and this also makes their evidence unreliable and no reliance can be placed on such evidence. The defence theory seems to be more probable. The accused persons have received a number of injuries. Some of them have been caused by sharp edged weapon and are at the vital parts of the body. 18. Therefore, we are inclined to allow this appeal, set aside the judgment as also conviction and sentences passed against the accused appellants by the trial court and acquit the accused appellants of the charges made against them. The accused appellants Abdul Gaffur, Usman Gani, and Abdul Hakim who are on bail need not surrender and their bail bonds are discharged. Therefore, we are inclined to allow this appeal, set aside the judgment as also conviction and sentences passed against the accused appellants by the trial court and acquit the accused appellants of the charges made against them. The accused appellants Abdul Gaffur, Usman Gani, and Abdul Hakim who are on bail need not surrender and their bail bonds are discharged. The accused appellant Abdul Gani who is in jail, should be released forthwith, if not required in any other case.Appeal allowed. *******