JUDGMENT 1. - Would the whole prosecution case feel like a pack of cards if its bedrock is not proved as a fact? This is a question of prime importance in this criminal appeal preferred by the accused appellant against the judgment passed by the Additional Sessions Judge Dausa in Sessions Case No.45 of 1994 whereby the accused appellant was convicted under Section 302 IPC and sentenced to suffer life imprisonment and a fine of Rs. 500/- (in default to further undergo one month imprisonment) Since identical questions of law and fact arise in the revision petition filed by the complainant Ram Gilas, and the appellant Dhanphool filed jail appeal and representative appeal which are registered as D.B.Cr. Jail Appeal No.269 of 1995 and D.B.Cr. Appeal No. 200 of 1995, against the said judgment, we proceed to decide appeals as well as revision petition by a common order.2(i). In the written F.I.R. (Ex.P5) lodged by informant Ramgilas on 30.6.1993 at 3.00 a.m. with the police station Salempur, Dist. Dausa it was stated that he, Bhagwani, Srimant, Hansi Amar Singh and Mitthu were followed by 15-20 persons out of which Dhanphool was having farsa, Badam was armed with lathi, Girraj was also having farsa, Srikishan was armed with fire arm, Rameshwar as having sword, Nemi, Shiv, Dayal, Prahlad, Bharatlal, Raju, Amar Singh and Rajmal were also armed with weapons and guns. All of them started inflicting blows by the said weapons and opened fire. Informant Ramgilas had fallen down after sustaining a lathi blow. The witnesses intervened and took the injured persons to the hospital. Injured Amar Singh was referred to Jaipur, but was died on the way. (ii) Police Station, Salempur registered a case U/s. 302, 147, 148, 149 of the Indian Penal Code and investigation commenced. (iii) Autopsy of the dead body of deceased Amar Singh was conducted on 30.6.93 at 7 A.M. and in the post-mortem report (Ex.P17) following injuries were mentioned: (A) vertical incised wound 5 cm. x 1 cm. x 1 cm. on right fronto parietal region. (B) Fracture of scull on right fronto parietal region. (C) Torn & Cranial cavity contain blood. Cause of death of the deceased was comma, caused by head injury inflicted by sharp weapon. (iv) Injured Bhagwan Singh was medically examined and two simple injuries by blunt weapon were found on his right parietal region and left shoulder. (B) Fracture of scull on right fronto parietal region. (C) Torn & Cranial cavity contain blood. Cause of death of the deceased was comma, caused by head injury inflicted by sharp weapon. (iv) Injured Bhagwan Singh was medically examined and two simple injuries by blunt weapon were found on his right parietal region and left shoulder. (v) Injured Hansraj was medically examined and swelling over his right thigh was found. A lacerated wound on right thigh was found on the person of Mitthu whereas informant Ramgilas sustained as many as six simple injuries caused by blunt weapon on right upper arm, left fore arm, left upper arm, right leg, upper end of left leg and on upper part of left leg. (vi) After usual investigation the charge-sheet was filed against accused Nemi Chand, Bharatlal, Dhanphool, Raju @ Rajaram and Hansraj in the court of Munsif and Judicial Magistrate, Lalsot from where the case was committed to the trial court. (vii) On 5.1.94, the trial court framed charges U/s. 148, 302, 325/149, 323 and 323 read with Section 149 I.P.C. against accused appellant Dhanphool, and U/s. 147, 302/149, 325, 323 and 323/149 I.P.C. against all other co-accused. (viii) The prosecution examined as many as 17 witnesses in support of its case and produced 28 documents. Thereafter statements of the accused persons U/s. 313 Cr.P.C. were recorded. Three witnesses were produced in support of the defence version. The trial court acquitted all other co-accused but convicted and sentenced the accused appellant as mentioned herein above. 3. Mr. M.K. Kaushik the learned counsel has vehemently contended that in the FIR no specific part has been assigned to the accused appellant. Case introduced in the FIR, was completely changed and sharp edged injury was attributed to the accused appellant so as to find its corroboration from the autopsy report. This was deliberately done by the Investigating Officer after observing three injuries (one by sharp and two by blunt weapon) in the post mortem report of the deceased. The witnesses were tutored by the Investigating Officer to give specific statements against the accused appellant. The accused persons named in the FIR, were at the mercy of the Investigating Officer who obliged all others except Dhanphool, Raju, Bharatlal, Nemichand and Hans Raj. The prosecution case was concocted subsequently and the whole trial vitiates. The witnesses were tutored by the Investigating Officer to give specific statements against the accused appellant. The accused persons named in the FIR, were at the mercy of the Investigating Officer who obliged all others except Dhanphool, Raju, Bharatlal, Nemichand and Hans Raj. The prosecution case was concocted subsequently and the whole trial vitiates. The finding arrived by the trial court is perverse and deserves to be set aside.4. On the other hand Mr.R.S. Agrawal, the learned Public Prosecutor and Mr. S.C. Sharma, learned counsel for the complainant, though supported the conviction of accused appellant Dhanphool but contended that the acquittal of other co-accused Raju, Bharatlal, Nemi and Hansraj was illegal as the eye-witnesses have implicated them also. These co-accused persons are also guilty of the offences for which they were charged. Finding of the trial court to the extent of acquittal of co-accused Raju, Bharatlal, Nemi Chand and Hans Raj is liable to be quashed and they deserve to be convicted for their participation be set aside and they be convicted for their acts of taking part in the murder of the deceased as well as for their acts of causing injuries to the witnesses.5. We have given our anxious and thoughtful consideration to the arguments advanced before us and perused the record carefully and minutely. In the FIR it has been stated that accused appellant Dhanphool and accused Giriraj were armed with farsas, Rameshwar was having sword and other accused persons were armed with guns. There is a general allegation of `maar-peet' against all the accused persons named in the FIR. No part has been assigned to the accused appellant Dhanphool in the FIR. The postmortem of deceased Amar Singh was conducted at 7 a.m. on 30.6.93 and the injuries sustained by the deceased were known to the Investigating Officer. As many as three injuries were found on the person of the deceased out of which one was caused by sharp edged weapon. It appears that after seeing the autopsy report, Investigating Officer has engineered a new case in order to implicate accused appellant Dhanphool. The learned Public Prosecutor has failed to justify as to how and why Dhanphool was responsible for the incised wound found on the head of the deceased when other accused persons Giriraj and Rameshwar named in the FIR, were also armed with farsa and sword. The learned Public Prosecutor has failed to justify as to how and why Dhanphool was responsible for the incised wound found on the head of the deceased when other accused persons Giriraj and Rameshwar named in the FIR, were also armed with farsa and sword. Applying pick and chose method the Investigating Officer for the reasons best known to him left out the accused persons named in the FIR and implicated Dhanphool, Raju, Bharatlal, Nemi and Hansraj. Investigation of the case was conducted by two investigating officers Radhe Shyam Sharma (PW.15) and Surendra (PW.14) and the learned Public Prosecutor could not persuade us to believe that investigation of the case was not unfair. We have before us many unanswered questions. Why the charge sheet was not filed against Giriraj and Rameshwar who were armed with farsa and sword and were named in the FIR? Why the version of FIR was replaced by another story? Why the case was not investigated in the light of the FIR? Why the guns were not recovered? Why other accused persons Badam, Giriraj, Sri Kishan, Shiv Dayal, Prahlad and Rajmal named in the FIR were obliged by the Investigating Officer? The learned PP could not properly answer these questions.6. Informant Ramgilas (PW.11) star witness of the prosecution in his examination-in-chief while attributing incised wound on the head of the deceased to accused appellant Dhanphool stated that two lathi blows were also inflicted on the head of the deceased by accused Raju and one another co-accused. He had disowned major parts of the FIR and his earlier statement. The manner in which he adduced his statement only suggests us that his testimony is untrustworthy. When he is not in a position to say as to who caused injury on his person, how could he say about the author of the injuries sustained by the deceased. No doubt that he sustained injuries but it appears that he could not see the assailants.7. Another injured eye-witness Bhagwan Singh (PW-4), who sustained injury on his head, stated that Dhanphool inflicted on his head whereas in his statement U/s -161 Cr.PC. (Ex.D2) he attributed this injury to Nemi. No doubt that he sustained injuries but it appears that he could not see the assailants.7. Another injured eye-witness Bhagwan Singh (PW-4), who sustained injury on his head, stated that Dhanphool inflicted on his head whereas in his statement U/s -161 Cr.PC. (Ex.D2) he attributed this injury to Nemi. Mitthu (PW.8) and Hardayal (Pw.9) attributed injury on the head of Bhagwan Singh to Dhanphool whereas Ramgilas (PW.11) has stated that Prahalad inflicted injury on the head of Bhanwan Singh, on the other hand Thandi (PW.16) has stated that Badam inflicted injury on the head of Bhagwan Singh. According to Bhagwan Singh (PW.4), the head injury sustained by him was inflicted by Dhanphool by farsa but in the medical injury report of Bhagwan Singh (Ex.P9), the injury was sustained by blunt weapon. Hansraj (PW.12) stated that all the accused persons inflicted injury on his thigh. Whereas Mitthu (PW.8) attributed injury on the person of Hansraj to accused Prahalad on the other hand Hansraj (PW.12) has not stated that Prahalad caused injury on his person. Mitthu (PW.8) attributed injury on his thigh to Prahalad whereas in his statement U/s. 161 Cr.PC (Ex.D3) he has not said so. The statements of prosecution witnesses are self-contradictory and are not reliable. It appears that none of these witnesses had seen the occurrence. The improvements in the prosecution case were made so rapidly that the accused persons could not know as to what the exact prosecution case was. According to FIR, few accused persons were having farsas and sword and few opened fire but during investigation it was revealed that nobody opened fire and the charge-sheet of the case was filed only against few accused persons and others were exonerated as per the sweet will of almighty Investigating Officer. Therefore, when the accused persons who opened gun fire and were having farsas and sword according to FIR, were found by Investigating Officer not to have been anywhere near the scene of occurrence, the whole prosecution case changes colour and becomes unworthy of belief.8. In Devi Lal v. The State of Rajasthan (AIR 1971 Supreme Court 1444 , Para 13), the Apex Court observed as under:- "counsel for the appellants was correct in raising the principal contention in the fore-front that the accused did never know that this was the prosecution case. In Devi Lal v. The State of Rajasthan (AIR 1971 Supreme Court 1444 , Para 13), the Apex Court observed as under:- "counsel for the appellants was correct in raising the principal contention in the fore-front that the accused did never know that this was the prosecution case. It would rightly be said that if the bedrock of the prosecution case that Brijlal and Nathu came armed with guns to throw a challenge to Motaram and his sons, could not prove as a fact, the whole prosecution case would fall like a pack of cards. In criminal trials it is of prime importance for the accused to know as to what the exact prosecution case is, If the pivot of the prosecution case is not accepted a new prosecution case cannot be made to imperil defence. In the present case, two of the accused are held both by the trial Court and by the High Court not be have been anywhere near the scene of occurrence. The entire prosecution case was that those two persons pointed to the enemies, namely, Motaram and his son and nephew. The further prosecution case was that those two persons gave the order to the accused to attack them. Those two persons opened the gun fire. Therefore when those two persons are found both by the Sessions Court and the High Court not to have been present the whole prosecution case changes colour and becomes unworthy of belief. 9. We have scanned the evidence of the prosecution witnesses carefully and we are of the considered view that the Investigating Officer, in this case had engineered a new prosecution story on the basis of injuries of the deceased mentioned in the autopsy report. The testimony of the witnesses does not inspire confidence and we are unable to place reliance or their version which appears to be untruthful. The trial court too has found these witnesses untrustworthy and rightly acquitted Nemi Chand, Raju, Bharatlal and Hansraj but we are unable to understand as to why the trial court convicted accused appellant Dhanphool, relying upon the same unreliable and untrustworthy witnesses. The conviction of appellant Dhanphool under section 302 IPC, therefore, is not sustainable. We observe that the finding of the trial court in convicting accused appellant Dhanphool under section 302 IPC is illegal and deserves to be set aside.10. The conviction of appellant Dhanphool under section 302 IPC, therefore, is not sustainable. We observe that the finding of the trial court in convicting accused appellant Dhanphool under section 302 IPC is illegal and deserves to be set aside.10. Upshot of the above discussion is that we allow the appeal of accused appellant Dhanphool and acquit him of the charge under section 302 of the Indian Penal Code. While maintaining the acquittal of Nemi Chand, Raju, Bharatlal and Hansraj, we dismiss the criminal revision petition filed by the complainant. The accused appellant Dhanphool is in jail. He be released forthwith if not require in any other case. Jail appeal, No. 269/95 will also be treated as disposed. *******