JUDGMENT 1. - The appellants have preferred this appeal against the judgment and order of Additional District & Sessions Judge, Kotputli (District Jaipur) dated, July 14,1994 whereby they were convicted and sentenced under Section 302 read with Section 34 and Section 323 read with Section 34 of Indian Penal Code. Under Section 302, they were sentenced to imprisonment for life and to pay a fine of Rs. 200/- while under Section 323, they were sentenced to under go six months rigorous imprisonment. 2. The appellants and one Maman were put on trial for the murder of Ram Niwas and causing injuries to Smt. Bhoori-Bai (PW 7), Ram Singh (PW 9), Ran Singh (PW 5) and Matadeen (PW 4), in the Court of Additional District and Sessions Judge, Kotputli. Charges Under section 302 or 302 read with Sections 149,148,147, 323 or in alternative 323/149 were framed against all the accused. After completion of trial, co-accused Maman was acquitted of all the charges but the appellants were convicted and sentenced, as aforesaid. They were acquitted of the remaining charges framed against them. 3. The unfortunate incident has taken place over a very petty and trivial dispute at 10-11 a.m. on June 11,1989 near village Khedki Veer Bhan, which is 5 Kms. away from Police Station, Kotputli. In the incident, one person died and four persons sustained injuries from complaint's side and three accused appellants, namely, Ruda Ram, Harnam and Chailu Ram also sustained injuries. 4. Briefly, the necessary facts of the case may be narrated as follows : The incident took place on an open place near a public well known as "Cholai wala" situate 200 steps away towards west of the village. Towards north of the well is agricultural field of the complainant party while in the remaining three sides agricultural fields of accused are situated. As per prosecution, this well belonged to both the parties and one Ruda Ram. Admittedly; there was no previous enmity or any dispute between the parties prior to the incident and the incident is alleged to have taken place all of a sudden when deceased Ram Niwas and PW 5 Ram Singh were sowing seeds of "Arandi" trees on southern boundry of their field where there was a public 'Dol' of sand. Admittedly; there was no previous enmity or any dispute between the parties prior to the incident and the incident is alleged to have taken place all of a sudden when deceased Ram Niwas and PW 5 Ram Singh were sowing seeds of "Arandi" trees on southern boundry of their field where there was a public 'Dol' of sand. This was objected by the accused Ruda Ram, Harnam and Subey Singh as they apprehended that the trees would cause hindrance to the animals in drinking water from the nearby `Kheli' where water was being stored from the above well. This led to an exchange of hot words and oral altercation between members of the parties. The prosecution case, as revealed in trial Court, further is that the noise attracted the villagers and some persons from the village came to the site and pacified both, the parties. Thereafter, members of both the parties went to their respective `Kotaris' (small room). After some time, appellant Chhailu Ram was seen coming running towards the place of incident with a lathi. Seeing him, the appellants Harnam, Subey Singh and Ruda Ram are said to have brought out lathis from their `Kotari' and all the four accused assaulted Ram Niwas deceased. They gave lathi blows on his head. Smt. Bhoori sustained a blow with a spade caused by accused Maman when she tried to save Ram Niwas. Other persons, namely, Ram Singh (PW 9), Matadeen (PW 4) and Ran Singh (PW 5) also sustained injuries when they tried to save Ram Niwas. 5. Ram Niwas injured was taken to the Hospital at Kotputli, but he was referred to S.M.S. Hospital, Jaipur due to his serious condition where he died. The report of the incident was made by PW 9 Umrao Singh at Police Station, Kotputli on the same day at 2.15 p.m. Initially the case was registered Under Sections 147,307 and 323 Indian Penal Code but after death of Ram Niwas, Section 302 was also added. 6. After registration of the case, investigation commenced. The Investigating Officer inspected the site and prepared site-plan (Ex. P/5). The autopsy on the dead body was conducted by Dr. H.L. Bairwa (PW 10), vide post-mortem report (Ex. P/12). The injuries of Smt. Bhoori, Ran Singh, Matadeen and Ram Singh were examined by Dr. Ashok Sotwal (PW 11). 7. A cross report (Ex. The Investigating Officer inspected the site and prepared site-plan (Ex. P/5). The autopsy on the dead body was conducted by Dr. H.L. Bairwa (PW 10), vide post-mortem report (Ex. P/12). The injuries of Smt. Bhoori, Ran Singh, Matadeen and Ram Singh were examined by Dr. Ashok Sotwal (PW 11). 7. A cross report (Ex. D/14) of the incident was lodged at the Police Station by appellant Subey Singh on the same day and on this report Crime No. 182/89 was registered Under Sections 147, 379 & 323 Indidn Penal Code. 8. PW 10, Dr. H.L. Bairwa who conducted autopsy on the dead body of the deceased Ram Niwas, vide post-mortem report (Ex. P/12) found 11 injuries on his person, which included four injuries on the head. On opening of the skull, he found haematoma all over the skull and scalp. He also noticed a depressed fracture in an area of 61/2 x 4 cms. covering the posterior portion of left temporal done extending upto occipital bone. There.was a fracture-line extending from right parietal region middle portion, going upwards crossing while of occipital bones and reaching upto above mentioned depressed fracture. There were other multiple commuted fractures of the occipital bones etc. In the opinion of Doctor, the mode of death was coma brought about as a result of injuries to the skull and the brain. 9. PW 11, Dr. Ashok Sothwal examined injuries of PWs Smt. Bhoori Devi, Ran Singh, Mata Deen and Ram Singh. Smt. Bhoori Devi had sustained a lacerated wound on left frontal parietal region of the skull. Vide M.L.R. (Ex. P/13). Ran Singh sustained one lacerated wound on parietal region of the skull vide M.L.R. (Ex. P/14). Mata-Deen had sustained two injuries, out of which one was a lacerated wound on scalp vide (Ex. P/15) and Ram Singh had sustained two abraisons and two bruises vide (Ex. P/16). All the above injuries of the injured persons were simple in nature. 10. Injuries of the accused Ruda Ram, Harnam and Chhailu Ram were also examined by PW 11- Dr. Ashok Sonthwal, on the day of incident itself. The appellant Ruda Ram had sustained the following injuries : 1. Lacerated wound with bleeding 4 x 1/2 cm. into bone deep on occipital region of skull. Injury was on both sides of skull, on right as well as left occipital region; 2. Bruises redish 6x2 cm. Ashok Sonthwal, on the day of incident itself. The appellant Ruda Ram had sustained the following injuries : 1. Lacerated wound with bleeding 4 x 1/2 cm. into bone deep on occipital region of skull. Injury was on both sides of skull, on right as well as left occipital region; 2. Bruises redish 6x2 cm. in right supra scapular region; 3. Lacerated wound with bleeding 31/2 cm. x bone deep in lower 1/2 of the right fore arm posteriorly; 4. Abrasion 4 x 2.5 cm. redish on middle and right thigh. All the injuries were by blunt object and X-ray was advised for injuries Nos. 1 and 3. The injury report is Ex. D/10, D/10-A. According to the Doctor the injuries were sustained with in six hours. "Harnam had sustained the following injuries vide injury report Ex. D/11/11-A: 1. A reddish swelling 10 x 71/2 cm. on left lumber area of the back. 2. Abrasion with clotted blood 2x1 cm. on earlier of above swelling. 3. Lacerated wound with bleeding 6x1/4 cm. x ⅙ cm. on the left side of the back. 4. Complaining of pain on examination there is tenderness also in the back of the neck but no visible injury seen. 5. Swelling 3 x 21/2 cm. over the posterior aspect of left hand. In the opinion of Doctor, the injuries were caused by blunt object and were sustained within 6 to 12 hours of the examination. Chhailu Ram's injury has been proved by Dr. Pramod Kumar (KW 1). 11. PW 12 - Virendra Singh, S.H.O. has admitted in cross-examination that a cross case of the incident was registered at the Police Station and it was investigated by him. He also admitted that accused Ruda, Chhailu Ram and Harnam Singh were medically examined on police requisition. 12. Thus, from the materials on record, it transpires that members of both the parties sustained injuries in the incident. It is true that the deceased Ram Niwas had sustained extensive serious injuries on his head, but it is also true that three of the accused also sustained injuries, though, simple in nature. Two injuries were sustained by the accused on the skull and were bleeding at the time of their examination. All the prosecution witnesses have been cross-examined about the injuries sustained by the accused, but they have denied the fact of their receiving injuries in the incident. Two injuries were sustained by the accused on the skull and were bleeding at the time of their examination. All the prosecution witnesses have been cross-examined about the injuries sustained by the accused, but they have denied the fact of their receiving injuries in the incident. The accused have categorically taken the plea to have sustained injuries in the same incident and in this connection appellant Harnam Singh appeared as a defence witness. In these circumstances, we are of the opinion that it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused in the course of the occurrence. 13. Learned counsel appearing for the appellants vehemently contended that the prosecution has suppressed the genesis and the origin of the occurrence and has thus, not presented a true version. It was also urged that the prosecution has failed to explain the injuries sustained by the accused and non explanation of the injuries is a serious infirmity which renders the entire prosecution case unreliable. Counsel further contended that investigation in the case was not fair and this Court has commented seriously cm the investigation in the order dated April 23, 1990 in S.B. Cr. Misc. Bail Application No. 355/90. Mr. Bajwa contended that even it is assumed that there was free fight, in absence of fair investigation, conviction of any of the appellants cannot be sustained. Mr. M.L. Goyal, learned Public Prosecutor, on the other hand, supported the judgment of the trial Court. 14. We have given our careful consideration to the above submissions. We also minutely examined the entire materials on record and the judgment under challenge in the appeal. 15. The first and foremost question for our consideration is whether the prosecution has presented a true version of the incident ? In a criminal case, more so in a murder case, it is of vital importance that the origin and the manner in which the incident took place should be correctly brought before the Court without suppressing any material fact. In becomes more important when defence comes with an alternative version of the incident. In a criminal case, more so in a murder case, it is of vital importance that the origin and the manner in which the incident took place should be correctly brought before the Court without suppressing any material fact. In becomes more important when defence comes with an alternative version of the incident. For considering respective version of the prosecution and defence, law is well settled that burden on prosecution lies to prove the guilt of accused beyond all reasonable doubt and this burden never shifts on the accused, while burden on the accused is not so onerous and it can be discharged by showing preponderance of probability in favour of the plea taken by him. The accused may fail to prove his defence by learned cogent and reliable evidence, but, still he is entitled to get benefit of doubt if from the plea a reasonable doubt is created to the prosecution case. In this background, if we examine the prosecution case, we find that prosecution witnesses, who claim to be eye witness of the incident and prove participation of the appellants in the assault, are closely related to the deceased Ram Niwas. No independent witness has been examined by the prosecution to support the assault. The I.O., Virendra Singh (PW 12) has named independent witnesses namely, Hari Singh, Madan Singh, Bhambu, Ramji Lal and Ramrakh who were examined by him during investigation, yet none of them have been examined to corroborate the evidence of the interested or inimical witnesses examined by the prosecution. PW 1 Bhagwana is cousin of the deceased and this fact has been admitted by him in cross-examination. Similarly, PW 4 Matadeen is son of PW 6 Arjun, who is uncle of the deceased. PW 7 Smt. Bhoori is mother of the deceased, while PW 9 Ram Singh is real brother and PW 8 Umrao is his cousin. As per the prosecution case, at the initial stage of the incident, deceased Ram Niwas and his brother Ram Singh PW 9, were only persent at the site and remaining witnesses came from the village on hearing noise. One fails to understand that if noise of the incident attracted the villagers and they arrived at the scene of occurence, then why independent persons were not examined by the prosecution. 16. One fails to understand that if noise of the incident attracted the villagers and they arrived at the scene of occurence, then why independent persons were not examined by the prosecution. 16. Another important aspect of the case is that as per the report/FIR the entire incident took place in one sequence and not in two parts as subsequently changed. As per the report, all the five accused named in the report, made an assault on the deceased Ram Niwas and when he cried, Smt. Bhoori and Ram Singh came there, but they, too, were assaulted when they tried to save Ram Niwas. However, during investigation, the prosecution developed a new case and the incident was divided in two parts. In the first part, there was an oral altercation and exchange of hot words between members of both the parties when Ram Niwas deceased and Ram Singh were sowing seeds of `Arandi' trees and their noise attracted the villagers. There upon, other witnesses arrived at the site and pacified both the parties. Accused are said to be empty handed at that time. The second part of the prosecution case is that Chhailu Ram appellant was seen coming running towards the place of occurrence with a lathi and seeing him other three appellants also brought lathis from the `Kotri' and all of them assaulted Ram Niwas, Ram Singh and other persons. Thus, the initial version has been substantially changed and apparently, it was to accommodate other persons as eye-witness of the incident. This, in our opinion, is a serious infirmity and creates a doubt that a true version of the incident was presented by the prosecution. We have already pointed out one fundamental infirmity of non explanation of the injuries sustained by the accused. 17. The contention of the learned Public Prosecutor is not acceptable that injuries sustained by the accused were simple and insignificant in nature in comparison to the injuries sustained by the deceased Ram Niwas and others from the side of prosecution and it was not necessary for the prosecution to have explained the injuries. Whether non-explanation of injuries, sustained by the accused, is fatal or not, depends on the facts of each case. In a given case, non-explanation of injuries of simple nature may not be fatal to the prosecution. Whether non-explanation of injuries, sustained by the accused, is fatal or not, depends on the facts of each case. In a given case, non-explanation of injuries of simple nature may not be fatal to the prosecution. But, in a case like the present one, where the occurrence had taken place on a public place between agricultural fields of the parties and that too without pre-meditation on a petty or trivial matter, it assumes importance as to which of the parties opened the attack. The injuries sustained by the accused could not be self-inflicted and they were examined on the very day on police requisition and two of the injuries were lacerated wounds on head which were bleeding. The non explanation of injuries of the accused also assumes importance when no independent witness is examined by the prosecution or when prosecution story about the incident is substantially changed subsequently. Our view is fortified by the decision of the Supreme Court in Lakshmi Singh & Ors. v. State of Bihar, AIR 1979 SC 2263 and State of Gujarat v. Bai Fatima, AIR 1976 SC 1478 . 18. There is yet another serious infirmity which has material bearing on the decision of this appeal. It relates to the manner in which the I.O. conducted investigation of the case and that the investigation was not fair and trustworthy. In criminal cases, investigation is the foundation on which the entire pyramid of a case rests. If foundation is weak for investigation of the case being tainted, unfair or untrustworthy, the entire case would fall on the ground like a pack of cards. We have already pointed out earlier the change subsequently made in prosecution story about the manner the incident took place. On record, we also find two statements, recorded under section 161 Criminal Procedure Code. during investigation, of the witnesses, Arjun Ram, Umrao Singh and Ram Singh. The two statements of the same witness are so inconsistent and irreconcilable about the manner in which the incident took place and the accused who actually participated in the assault that it renders the prosecution case doubtful. The I.O., Virendra Singh has been cross-examined on this point at length and he has denied to have recorded Police Statements Ex. D/5, D 10 and D 11 of Pws. Arjun Ram, Umrao and Ram Singh. The I.O., Virendra Singh has been cross-examined on this point at length and he has denied to have recorded Police Statements Ex. D/5, D 10 and D 11 of Pws. Arjun Ram, Umrao and Ram Singh. If Virendra Singh did not record these statements, then, how these statements came to be recorded and by whom and under what circumstances? is a serious question which has not been explained by the prosecution. We may point out here that this matter was examined by a learned Single Judge of this Court while deciding bail application in the Order dated 23rd April, 1990 (Ex. D/12). The learned Judge had heavily commented on the conduct of the I.O., Virendra Singh and it was observed thus : "Prima facie it appears that it was out of oblique motive that Virendra Singh did this in order to favour either or both the parties. Prima facie this is a misconduct on his part and I direct the Director General of Police to initiate proceedings under rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 against Shri Virendra Singh. Before parting with this order, I may observe that it may be that there might be so many other mischiefs being done earlier also. But this is the first case, in my whole of the career as an Advocate and as a Judge, where there are two sets of statements of the same witnesses recorded on the same day giving out different names of the accused persons and different stories. It is necessary to initiate disciplinary proceeding as aforesaid against Shri Virendra Singh so that public faith may be restored in the law enforcing machinery. Both sets of statements, one which has been produced by Mr. Bajwa and the other available in the case diary, may be sent to Director General of police in sealed cover. But before that is done, the officer is directed to retain one photostat copy of each of these statements of the two sets." 19. It is also note worthy that PW 5 Ran Singh was a motbir witness of site plan (Ex. P/5) which was prepared on 12.6.89. He also claimed to be an eye-witness of the incident. Still his statement was not recorded by the Investigating Officer on 12.6.89 or 13.6.89. It is also note worthy that PW 5 Ran Singh was a motbir witness of site plan (Ex. P/5) which was prepared on 12.6.89. He also claimed to be an eye-witness of the incident. Still his statement was not recorded by the Investigating Officer on 12.6.89 or 13.6.89. The I.O. has made a lame excuse for not recording his statement that he was required to do other important works, as investigation of a murder case was not important for him. Similarly, the statement of Smt. Bhoori, another eye-witness, has been recorded on 25.6.89. 20. Thus, considering all aspects of the investigation it can be safely held that it was unfair and highly blame-worthy and no reliance can be placed on such investigation for convicting the appellants on the charge of murder. It is shocking that the Investigating Officer had changed the statements of eye-witnesses in order to falsely implicate appellants, Chhailu Ram and Subey Singh as assailants of deceased Ram Niwas. 21. From the prosecution evidence and the facts narrated above, it is impossible for us to hold that the prosecution has established its case beyond reasonable doubt against the appellants. We, therefore, allow this appeal, set aside the order of conviction and sentences awarded by the trial Court and acquit appellants of all the charges. The appellant-Chhailu Ram is in custody and we direct that he be set at liberty forthwith, if not wanted in other case. The other appellants are no bail and they need not surrender to their bail bonds.Appeal allowed. *******