GOPAL KRISHNA SHARMA, J.—Dhanpat has preferred the appeal No. 166/87 against his conviction u/s. 302 I.P.C. passed by the Addl. Sessions Judge, No. 1 Alwar, whereby he has been sentenced to life imprisonment and a fine of Rs. 2,000/- in default of payment of fine, to further undergo one years simple imprisonment. 2. S.B. Cr. Appeal No. 148/87 has been preferred by Malloo Ram, Phunni Ram and Kishan against the same judgment dt. 28/3/87 passed by the Addl. Sessions Judge, No. 1, Alwar, by which the appellant Malloo Ram has been found guilty u/s. 326 I.P.C. and sentenced to 4 years R.T. and a fine of Rs. 500/-, in default of payment of fine, to further undergo 3 months S.T. The appellants Phunni Ram and Kishan have been found guilty u/s. 325 I.P.C. and sentenced to one years R.I. and a fine of Rs. 500/-, in default of payment of fine, to further undergo 3 months R.I. 3. As both the appeals have been preferred against the same judgment in the Sessions Case Mo. 62/86 State Vs. Dhanpat & Others, they are disposed of by this common judgment. 4. On the basis of Parcha-bayan given by Fazru on 26/7/84 to S.H.O., Kotwali Alwar, the Police registered the F.I.R. No. 104/84. In the Parcha-bayan Shri Fazru has stated that his nephew Roshan was going on cycle from Jadoli to Puthka with milk-drums. In the jungle, near the fields of Lallu and Mauzkhan, Dhanpat, Kalla, Omraj, Malloo, Deepchand, Ramswaroop, Phunni, Krishna, Pallo and Sunderdas met him. Deepchand and Krishna demanded money from Roshan for purchasing she-buffalo. Roshan denied to give the money. At this Roshan was caught by these persons and they forcibly took away Rs. 25,00/-from his pocket and also bet him. Roshan ran away towards village. Subhankhan, Rehman, Dinmal, Hasankhan and Rehmati w/o Suleman who were working nearby in the fields ran to rescue Roshan. Dhanpat and others who were armed with lathi, farsi and gun, started inflicting blows to them. Sunderdas inflicted farsi blow on the right hand of Fazru. Dhanpat fired with gun which hit Fazru in the stomach and on the chest below the neck. Some pellets also hit Rehmati, Subhankhan, Dinmal and Rehman were given lathi and farsi blows. After beating them they went away and villagers on hearing cry arrived at the spot and they were taken in the tractor to hospital and were admitted. Dhanpat fired with gun which hit Fazru in the stomach and on the chest below the neck. Some pellets also hit Rehmati, Subhankhan, Dinmal and Rehman were given lathi and farsi blows. After beating them they went away and villagers on hearing cry arrived at the spot and they were taken in the tractor to hospital and were admitted. The cycle and milk-canes which were taken away by the assailants were again snatched away from them. 5. On this report a case u/s. 147, 148, 149, 323, 324, 307 & 392 I.P.C. was registered. Fazru died in the hospital, so case u/s. 302 I.P.C. was also registered against Dhanpat. 6. Shri Gauri Shankar PW 16, the S.H.O., started investigation and inspected the site. The site plan Ex. P. lwas prepared. The cmpty-cartriedge and blood-stained earth were found on the spot and seized, which have been noted in the site-plan. The accused persons were arrested and they gave information for the recoveries of lathies, farsi and they were recovered at their instance. The accused Ramswaroop gave information for the recovery of 4 milk-canes from his house and at his instance they were recovered. Similarly, on the information and at the instance of accused Deepchand one cycle "Eastern Star" was recovered vide memo Ex. P. 73. On the information of accused Omraj, the Police recovered one 12-bore- Katta and on the information by Dhanpat accused one 12 Bore-gun was recovered. All the recovered articles were sent to Forensic Science Laboratory for examination and the reports are Exs. P. 89 and P. 90. After completing usual investigation the Police submitted challan against 18 accused-persons u/ss. 148, 302, 302/149, 307, 325, 323 I.P.C. and u/s. 3/25 Arms Act. 7. The learned trial Court framed charges against the accused-persons and they pleaded not guilty and claimed trial. 8. The prosecution has examined 16 witnesses to establish its case. The accused - persons have denied the allegations made against them. The contentions of the accused-persons is that on 24/7/84 Shamsher was grazing cattle and Nabikhan and Shammi Khan were working in the field when she goats of Deepchand and Ramswaroop entered the field of Bajra. They were taken out by Shamsher and while taking them to cattle-ponds. Nanakdei and Ramdei snatched away those she - goats. Nabikhan and Shammikhan then gave each two slaps. It was also contended that they were beaten by those persons. They were taken out by Shamsher and while taking them to cattle-ponds. Nanakdei and Ramdei snatched away those she - goats. Nabikhan and Shammikhan then gave each two slaps. It was also contended that they were beaten by those persons. The trial Court while concluding trial did not find any of the accused guilty of the offence u/s. 392 I.P.C. and all were acquitted from this charge. The accused Omraj and Dhanpat were also acquitted from the charge u/s. 3/25 Arms Act. The accused Dhanpat has been found guilty u/s. 302 1 P.C. and accused Malloo has been found guilty of the offence u/s. 326 I.P.C., accused Phunni and Kishan were found guilty u/s. 325 I P.C. The accused-persons Phunni, Sunderdas, Bhim, Ramswaroop, Prem, Deep Chand and Charan Das were found guilty u/s. 323 I.P.C. The remaining 7 accused persons were not found guilty of any charge and they have been acquitted. For the offence u/s. 323 I.P.C. the accused-persons have been given benefit of probation. Thus seven accused-persons have been acquitted, seven accused persons have been granted benefit of probation and 4 accused-persons (the appellants) have been sentenced as mentioned above. 9. The learned counsel for the appellants argued that the Police registered the case u/s 392 I.P.C. against the accused-persons. A charge was also framed by the trial Court, but after recording evidence, the trial Court found that the story of snatching or forcibly taking money from Roshan is false, all the accused-persons have been acquitted from this charge. This shows that the Police has submitted a false story. The genesis of the story was that Roshan was going on cycle with four milk-canes when he was stopped and money was demanded. On refusal to give money by Roshan, a sum of Rs. 2,500/- were forcibly taken away from his pocket and also was beaten. There is no medical evidence to prove the injuries of Roshan. It means that the story of beating of Roshan is also a false one. It was also argued that it is not possible to believe that Roshan would go to sell milk taking a sum of Rs. 2,500/- in the pocket. If we see the statement of Roshan PW 1, the prosecution story is falsified. Roshan has stated that he was caught by Malloo when he was going on cycle with milk canes. Ramswaroop to red his pocket of the shirt. 2,500/- in the pocket. If we see the statement of Roshan PW 1, the prosecution story is falsified. Roshan has stated that he was caught by Malloo when he was going on cycle with milk canes. Ramswaroop to red his pocket of the shirt. He then ran away. He has not stated that he was beaten by those persons. His only statement is that a sum of Rs. 2,500/- have been snatched away from his pocket. He has specifically stated that he did not receive any injury. Thus from the statement of Roshan PW 1, the genesis of the prosecution story has been falsified. 10. Shri Mandhana, learned counsel for the appellant also argued that the entire story is a false one. The accused-persons were beaten by the complainant party for which a report No. 103/84 was lodged. The complainant party was challaned and by the judgment dt. 28/3/87, the com plainant party was convicted by the Court. Thus, the entire story of the prosecution is a false one. 11. It was also argued that the report was lodged by the complainant-party against 10 persons but the Police submitted challan against 18 persons. It is also very strange that the report was lodged against 10 persons only, but during investigation the Police found that 18 persons have committed this offence. How can it be possible? While giving Parcha-bayan only 10 persons were named. Putting challan against 18 persons reveals that the case has been manipulated against 8 persons. The result was obvious and the trial Court has acquitted 7 accused-persons. 12. It was also argued by Shri Mandhana that the cycle and four milk-canes were taken by the witnesses from the accused-persons but in order to create a false case, the Police showed that they recovered the cycle and milk canes at the information and at the instance of the accused-persons. The learned Public Prosecutor replied that this argument of Shri Mandhana is not correct. From the Parcha-bayan Ex. P. 30, it is clear that the accused-persons had forcibly taken away the cycle and milk-canes and these articles were recovered by the Police during investigation. We do not agree with the argument of the learned Public Prosecutor and the explanation given by him while reading the Parcha-bayan Ex. P 30. We have also read over the Parcha-bayan Ex. p. 30. 13. We do not agree with the argument of the learned Public Prosecutor and the explanation given by him while reading the Parcha-bayan Ex. P 30. We have also read over the Parcha-bayan Ex. p. 30. 13. According to Police Ramswaroop was arrested and during in custody he gave information u/S. 27 of Evidence Act which is Ex.P 72. He gave information for the recovery of four milk-canes. On his information and at his instance the Police recovered those four milk-canes vide memo Ex. P. 3. Similarly, Deep-chand accused was arrested who gave information u/s 27, Evidence Act for the recovery of the cycle vide Ex. P. 73 On his information the cycle was recovered vide memo Ex. P. 2. Thus, in the evidence we found that cycle and milk-canes were recovered on the information and at the instance of Deepchand and Ramswaroop. But this fact is falsified by reading the Parcha-bayan Ex. P. 30. In this Parcha-bayan Fazru has stated that Subhankhan, Dinmal and Rehman came there and also the villagers. The cycle and milk-canes which were taken away by the accused-persons were again snatched away from their possession. It is not the statement that the accused-persons went away with the cycle and milk-canes. The interpretation of this Parcha-bayan is very clear which reveals that the cycle and milk-canes were taken away back from the possession of the accused-persons. Thus, the entire recovery of cycle and milk-canes is a false recovery. This fact also indicates that the entire case has been manipulated. 14. Roshan PW 1, Subhankhan PW 2, Dinmal PW 3, Rehman PW 4 and Mst. Rehmati PW 9 are the eye-witnesses in this case. Roshan PW 1 is a very important witness. The entire dispute took place on account of this Roshan We have gone through the statement of Roshan PW 1 and also minutely studied the site-plan Ex. P. 1. In this site-plan Ex. P. 1, the place marked as "F" has been mentioned the place where Roshan was stopped by the accused-persons, where he was beaten and where the cycle was snatched away by them. Portion marked as D in the field No. 8 where Roshan came running from place F and at place A the incident took place. Thus, according to site-plan Ex. Portion marked as D in the field No. 8 where Roshan came running from place F and at place A the incident took place. Thus, according to site-plan Ex. P. 1, which was prepared at the instance of Roshan Khan PW 1, he was detained at place F by the accused-persons, from where he ran away through field Nos. 1, 2, 3 and so on came to field No. 8 where he was beaten. But in the Court-statement he has stated that this incident took place at the spot just entering the village Jadoli. His statement contradicts the Parcha bayan Ex. P. 30. Fazru gave this Parcha. bayan and according to this bayan Roshan was going on cycle from Jadoli to Puthka with four milk-canes. In the jungle he was caught by the accused-persons-Deepchand and Krishna demanded money and when Roshan refused to give money he was beaten and a sum of Rs. 2, 500/- were forcible taken away from his pocket. Roshan after rescuing himself ran away towards the village. Thus Fazru has given a different Story. According to him, the incident took place in the jungle. Similar is the Parcha-bayan of Subhan Khan-injured which is Ex. D2. He has also stated that when Roshan was going on cycle towards village Puthka he was detained by Deepchand and others and they demanded money for purchasing she-buffalo. On refusal by Roshan he was beaten by them and they forcibly took away money from his pocket. Hearing hue and cry he, Fazru and Rehmati arrived there and when they told them why they are beating Roshan, they started beating them. Thus both these Parcha-bayan of Fazru and Subhan Khan are contrary to the statement of Roshan PW 1 and the site-plan Ex. P. 1. The learned Public Prosecutor could not satisfy us about this contradiction. This contradiction is not an ordinary one but it goes to the root of the entire prosecution story. It needs no further explanation but it is sufficient to say that the entire case has been falsely made out by the accused-persons. The actual genesis of the case has not been put up before the Court. 15. We have gone through the statements of all these eye-witnesses. About Roshan PW ! and Subhankhan PW 2, we have discussed above. Then both these witnesses were confronted with their Police-statements Ex. D 1 and Ex. D 2. The actual genesis of the case has not been put up before the Court. 15. We have gone through the statements of all these eye-witnesses. About Roshan PW ! and Subhankhan PW 2, we have discussed above. Then both these witnesses were confronted with their Police-statements Ex. D 1 and Ex. D 2. Roshan PW I gave the statement Ex. D 1 and while he was confronted with the statement he stated that he has given the statement but he cannot say why Police did not write as stated by him. The Investigating Officer has proved this statement Ex. D 1 and has stated that it has been correctly written. In this statement Ex. D 1 at portion C to D he has stated that she-goats of Deepchand and Ram Swaroop entered the field of Bajra and Shamsher took them out and was taking them to cattle-pond. Nibikhan and Shami Khan came there and gave slaps to them. He has denied to have given this statement. Thus, the entire statement Ex. D 1 has been contradicted by Roshan PW i. Similarly, Subhankhan PW 2 in the cross-examination has contradicted his own Police-statement Ex.D2. Dinmal PW 9 has repeated the same type of story. In the cross-examination also was confronted with his Police-statement Ex. D3, and has contradicted the entire statement. He has also given the story of entering she-goats in the fields in the Police statement but in the Court he has denied to have given that statement. Rehman PW 4 has given new statement. In his examination-in-chief, he has stated that Roshan was crying "Bachao Bachaoo", at this they went there. Roshan ran away but Sunderdas inflicted farsi blow to Fazru on his right hand. At this Dhanpat told other companion that "Tu Hatja Tujse yeh Nahi Marega, Main Maroonga Aur Phir Dhanpat Ne Goli Mari". No other witness has stated like this. He has also stated that Sunderdas inflicted blow by iron rod. This is also new case. No other witness has stated that Sunderdas was having iron rod in his hand. Then in the cross-examination he was also confronted with the Police statement Ex. D4 and he has contradicted it. In the Police-statement there is no mention that Sunderdas was having iron rod. He has also denied the portions A to B in Ex. D 4. Similarly, it is not in this statement Ex. Then in the cross-examination he was also confronted with the Police statement Ex. D4 and he has contradicted it. In the Police-statement there is no mention that Sunderdas was having iron rod. He has also denied the portions A to B in Ex. D 4. Similarly, it is not in this statement Ex. D 4 that Bhim inflicted blow on his chest and Phunni inflicted lathi blow on his right hand. So this witness has also denied his Police statement. 16. Subhankhan alias Subban PW 5 has not supported the case of prosecution and has been declared hostile. Bhogla PW 6, Hasankhan PW 7 and Nibi Khan PW 8 have also stated that Dhanpat told that he will not be killed by their beating and he then fired with the gun at Fazru. As we have mentioned above that this is new case which has not been stated by Roshan PW 1, Subhan Khan PW 2 and even do not find place in Parcha-bayans Ex. P. 30 and Ex. D2. Hasankhan also contradicted his Police statement. Nibi Khan PW 8 has stated that Dhanpat fired with gun at Fazru who fell down on the ground. When Rehmati tried to lift him Omraj fired with katta. No other witness has given such statement. There is one aspect also that according to Rehmati PW 9 two shots were fired, one by Dhanpat with gun and other by Omraj with katta. But the other witnesses have stated that only one gun shot was fired which hit Fazru and Smt. Rehmati. Smt. Rehmati has also contradicted her Police statement Ex. D 8. 17. Thus, we find that all these witnesses are unreliable, and they have completely contradicted the Police-statement in the Court. No reliance can be placed on such witnesses. 18. It has been admitted by the witnesses that the accused-persons also lodged a F. I. R. against them and in that counter-case, the members of the complainant party have been found guilty and convicted. This shows that true facts have been concealed. It seems that the prosecution has not disclosed the whole truth as to how and where the occurrence took place. They did not put up before this Court the actual genesis of this story and the witnesses tried to conceal the true facts. This creates suspicion in the prosecution story. 19. This shows that true facts have been concealed. It seems that the prosecution has not disclosed the whole truth as to how and where the occurrence took place. They did not put up before this Court the actual genesis of this story and the witnesses tried to conceal the true facts. This creates suspicion in the prosecution story. 19. In Chanan Singh v. State of Punjab(l), their Lordships have observed as under:- "The High Court has clearly found that the prosecution has not presented the true version of the occurrence and it is not possible for the court to find how the occurrence originated and who was the aggressor. Admittedly two persons on the side of the prosecution, namely Gulzar Singh and Gurnam Singh had suffered one grievous injury each, similarly five persons on the side of the accused were also injured and two of them had grievous injuries. The High Court also found that it was not a case of free fight. The High Court having rejected the fundamental details of the prosecution version and having held that the true version of the occurrence was not presented by the prosecution, erred in upholding the conviction of the appellant for an individual assault by reconstructing a new case. In these circumstances, we are satisfied that the prosecution has not been able to prove this case against the appellant beyond reasonable doubt". 20. It was argued that there was delay in lodging the report. The case was registered on the basis of Parcha-bayan of Fazru, the deceased. PW 1 Roshan has stated in the cross-examination that he did not go to Ramgarh for lodging the report. He could not give any reason for not lodging this report. Subhan Khan PW 2, in the cross-examination, has stated that they did not lodge report at Ramgarh Police-Station because we were to go to hospital first in order to save their persons. The argument of the learned Public Prosecutor was that the members of complainant party were injured and the condition of Fazru was serious so they first went to hospital for treatment, and thus, the explanation given by the witnesses is reasonable one. We do not agree with this argument of learned Public Prosecutor. Subhankhan PW 2 has stated in his cross-examination that they took the injured persons in tractor. There were two tractors and about 30-35 persons were in those tractors. We do not agree with this argument of learned Public Prosecutor. Subhankhan PW 2 has stated in his cross-examination that they took the injured persons in tractor. There were two tractors and about 30-35 persons were in those tractors. Fazru was only seriously injured. The other injured persons were not serious. Apart from this there were two tractors. In one tractor they could go to hospital taking Fazru and other injured persons and in another tractor they could have gone to the Police-Station to lodge the report. There were nearly 35 persons and any one could have lodged the report. Therefore, the explanation given by the witnesses is not believable and acceptable. There is certainly delay in lodging the First Information Report and this delay which has not been explained creates doubt in the entire story put up by the prosecution. 21. It has not been admitted that the accused persons had also received injuries. This contention of the prosecution is false because on the report of the accused-persons the Police registered the case and challaned the complainant party. It is admitted that the members of the complainant party were found guilty and have been punished and sentenced. Therefore, there is non-explanation of the injuries of the accused - persons. The non-explanation of the injuries by the prosecution creates doubt in the story of the prosecution. We are supported by Lakshmi Singh V. State of Bihar(2). Their Lordships have observed as under:- "In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences : (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case". 22. All the prosecution witnesses are near relatives. No doubt, the statement of relative witnesses cannot be thrown away but their statements are to be scrutinized carefully. 22. All the prosecution witnesses are near relatives. No doubt, the statement of relative witnesses cannot be thrown away but their statements are to be scrutinized carefully. As we have discussed above that all the witnesses are unreliable and untruthful. All there witnesses have contradicted their own Police-statements. Such witnesses could not be relied at all and we are of this opinion that these witnesses are unreliable witnesses. The prosecution has not examined any independent witness. 23. In view of our above discussion, we are of this opinion that the prosecution has failed to establish the case beyond reasonable doubt. The learned Sessions Judge has failed to appreciate the evidence of the Prosecution witnesses and has erred in coming to the conclusion and finding the accused-appellants guilty. 24. As a result, the appeal No. 166/87 filed by Dhanpat is accepted. He is not found guilty of the offence u/s. 302 I.P.C. and he is acquitted. The appellant is in jai. He be set at liberty forthwith, if not required in any other case. 25. S.B. Cr. Appeal No. 148/87 is also accepted. The appellant Malloo is not found guilty of the offence u/S. 326 I.P.C. and is acquitted. His conviction and sentence are set aside. The appellants Phunni and Kishan are not found guilty of the offence u/s. 325 I.P.C. Their conviction and sentence under this offence are set aside, and they are acquitted. All these appellants are on bail. Their bail bonds are cancelled and they need not surrender.