JUDGMENT 1. - These appeals have been directed against the judgment and Order dated 23rd July, 2002 passed by the learned Additional Sessions Judge No. 1 (Fast Track), Kota in Sessions Trial No. 55/2001, whereby out of 29 accused, he convicted twenty three accused and released twenty one by extending the benefit of Section 4 of the Probation of Offenders Act, 1958 and two are sentenced to suffer life imprisonment. Four accused have been acquitted of the charges, whereas two have died during trial. The present appeal has been preferred by the accused convicted and sentenced for commission of offence under Sections 302 and 148 IPC. 2. The prosecution story is that on 19.8.2002, PW 28 Bhanwar Lal, Assistant Sub Inspector, Police Station Budhadeet received wireless message that occurrence has taken place in village Jhatoli and the injured have been shifted to Hospital at Sultanpur. On receiving this information, he proceeded to the Hospital, where Ram Kalyan, PW 6 submitted a written report, Ex.P-24 to him at 2.15 PM, stating therein that "in their village, the mother of Kishore passed away three days prior and on 19.8.1992 they went to attend the third day ceremony at the cremation ground, where, at about 8-9 AM all of a sudden accused Rain Ratan S/o Prabhu Lal, Ram Kishan S/o Bhairulal, Ramniwas S/o Prabhu Lal, Ram Kishan S/o Bhairulal, Prahlad S/o Prabhu, Ram Dev S/o Motilal, Babulal S/o Motilal, Latoor S/o Ram Kishan, Ram Charan S/o Hajarilal, Rajendra S/o Gobarilal, Babulal S/o Gobarilal, Dhanraj S/o Prabhulal, Satya Narayan S/o Prabhulal, Chandrabhan S/o Gendilal, Ramlal S/o Chandrabhan, Ram Gopal S/o Chandrabhan, Dev Chand S/o Chandrabhan, Ram Kanwar S/o Nandan, Badrilal S/o Ram Kanwar, Moharpal S/o Ram Kanwar, Dev Lal S/o Ghasilal, Ram Swaroop S/c Ghasilal. Devi Shanker S/o Madho, Khemraj S/o Devi Shanker, Ganga Ram S/o Devishankar, Shambhudayal S/o Kishanla, residents of Jhotali duly armed with weapons i.e. Batons, Gandasi (axe) and Dhariya appeared on the spot with intention to kill them and started assaulting them. Accused Ram Ratan inflicted blows by sword on the hands and legs of Ramhet. Accused Ramesh also inflicted Gandasi blows on the hands and legs of Ramhet. Accused Babu inflicted gandasi on the head of Mahaveer and accused Ram Charan struck on his head and legs. Accused Ram Ratan inflicted blows by sword on the hands and legs of Ramhet. Accused Ramesh also inflicted Gandasi blows on the hands and legs of Ramhet. Accused Babu inflicted gandasi on the head of Mahaveer and accused Ram Charan struck on his head and legs. Accused Rajendra struck blows by gandasi on the head of Ramesh and Prahlad assaulted Rajendra on his head and hands, as a result of which Dhannalal, Gopilal, Prabhulal, Ramesh and Mahaveer sustained numerous injuries. It is further stated that when complainant Ramkalyan tried to intervene, accused Ram Karan caused injuries by baton on his left palm and accused Shokaran caused injury on his left shoulder. Accused Mathura also caused injury on his head. This incident was witnessed by Chhitarlal, Bhaktari and Ram Prasad of village Gokulpura who were present on spot. On the basis of this report, FIR No. 153/92 came to be registered. The Investigating Officer started investigation. During investigation, the site plan of the place of occurrence was prepared, the accused were arrested and on their disclosure statements, sword was recovered from accused appellant Ramratan and gandasi from accused appellant Ramesh. Recoveries were also made from other accused. The blood stained clothes of the deceased were seized. The weapons of offence coated with blood were sent to the Forensic Science Laboratory. The report of the FSL was collected and after completing other formalities, the challan was presented before the Court. The Court framed charges against the accused. The accused pleaded not guilty and were put to trial. 3. During trial, the prosecution examined all 33 witnesses cited in the %challan. PW 1 Ramesh, PW 2 Gopilal, PW 6 Ram Kalyan, PW 7 Chhitar Lal, PW 8 Bheru Lal, PW 9 Ram Chandra, PW 10 Ram Prasad, PW 11 Kishan Lal, PW 12 Mahavir, PW 14 Dhanna Lal and PW 15 Prabhulal have been cited as eye witnesses to prove the occurrence. At the instance of Ramesh accused appellant, gandasi was recovery which has been exhibited as Ex.P-53. In the recovery memo the size of the gandasi has been shown as 6 fingers having 'babool' handle and the total length of the gandasi has been shown to be of half of the arm size. To prove this recovery, two witnesses i.e. PW 20 Chand Mal and PW 25 Chaturbhuj have been cited and examined. In the recovery memo the size of the gandasi has been shown as 6 fingers having 'babool' handle and the total length of the gandasi has been shown to be of half of the arm size. To prove this recovery, two witnesses i.e. PW 20 Chand Mal and PW 25 Chaturbhuj have been cited and examined. Similarly, recovery of sword has been made from accused Ramratan on the basis of his disclosure statement and to prove this recovery memo Ex.P-38-A, two witnesses i.e. PW 16 Ganga Ram and PW 19 Kishan Lal have been examined. On appreciation of evidence led by the prosecution and on hearing the learned counsel, the trial Court came to the conclusion that the prosecution has proved the guilty against the appellants and 21 other accused. Except two appellants, other 21 accused were enlarged by extending benefit of Section 4 of the Probation of Offenders Act and the appellants were accordingly convicted and sentenced for commission of offence under Sections 148 and 302 IPC. 4. Appeal has been preferred on the ground that the learned trial Court has not appreciated the evidence in its legal perspective. The trial Court has acquitted the co-accused, therefore, the same yardsticks in law should have been applied to the accused appellants. The recovery memos which have been relied upon by the trial Court has no legal value as these have not been supported by marginal witnesses, particularly PW 20 Chand Mal and PW 25 Chaturbhuj who have been examined to prove the recovery of gandasi from accused Ramesh. It is also one of the grounds taken by the appellants that the statements of witnesses are false with regard to the injury on the head of deceased Ramhet inflicted by Ramratan, whereas their statements are not corroborated by medical evidence. 5. Heard learned counsel for the parties and perused the record. 6. Learned counsel for the appellants has reiterated the submissions as projected in the memo of appeal and submitted that the trial Court has erroneously recorded findings of conviction and sentence as there were no legal evidence for convicting the accused. 5. Heard learned counsel for the parties and perused the record. 6. Learned counsel for the appellants has reiterated the submissions as projected in the memo of appeal and submitted that the trial Court has erroneously recorded findings of conviction and sentence as there were no legal evidence for convicting the accused. In contra, the learned Public Prosecutor has submitted that the prosecution has proved the guilt against the appellants beyond shadow of doubt and the case of the prosecution do not suffer from any lacuna and further submitted that the trial Court has not appreciated the evidence for acquittal of the four accused for which the State has preferred appeal challenging the impugned judgment to that extent. 7. On appreciation of the evidence, we find that all the witnesses have made a statement before the trial Court that Ramratan has inflicted sword blow on the head of deceased Het Ram and Ramesh accused inflicted injuries on the foot and arms with gandasi (sharp edged weapon) to the deceased. 8. To appreciate this evidence, we have examined the statement of Dr. A.R. Pathan, PW 4 and we find that there are nine injuries recorded by the Doctor in the postmortem report, but no injury is shown to have been caused by sharp edged weapon on the head of the deceased. The medical evidence does not corroborate with the ocular evidence. The sword duly blood stained has been recovered by the Investigating Officer on the basis of disclosure statement made by accused Ramratan. The prosecution has recovered 3 more gandasis from accused Morpal, Birdhi Chand and Chandrabhan. In the recovery memos, the prosecution has recorded that these gandasies are blood stained. The only gandasi which has been recovered from accused Ramesh is not shown to have blood stained as per recovery memo. The FSL report discloses that only one gandasi is blood stained which has been marked as E-6 in the report and this, as per the report, was recovered from accused Chandrabhan vide recovery memo Ex.P-39. On appreciation of the medical evidence, it is made out that the injury has been caused by gandasi which was recovered from accused Chandrabhan and not from accused Ramesh. Therefore, the prosecution could not connect accused Ramesh with 1 the weapon used for commission of offence. 9. On appreciation of the medical evidence, it is made out that the injury has been caused by gandasi which was recovered from accused Chandrabhan and not from accused Ramesh. Therefore, the prosecution could not connect accused Ramesh with 1 the weapon used for commission of offence. 9. So far as recovery of sword from accused Ramratan is concerned, it has been recovered on the basis of disclosure statement made by accused Ramratan. The sword has been exhibited as Ex.38-A. In the recovery memo it has been stated that the sword recovered is clay rusted and having light 1 blood spots. The sword was sent to the FSL. The FSL report discloses that blood has been found on the sword. As per this evidence, it can be safely made out that this weapon of offence was not used for commission of offence causing injuries on Ramhet. In the postmortem report, no injury has been shown to have been caused by the sword. The sword which has been recovered from appellant Ramratan has not been used for causing injury to Ramhet. Therefore, the prosecution has failed to connect the accused Ramratan with the weapon used for commission of offence. 10. The conviction can be recorded if the prosecution makes out a case beyond shadow of doubt. Here, in this case we find that the prosecution has not been able to connect the accused with the weapons used for commission of offence. Once this possibility is ruled out, it is unsafe to record conviction on this. feeble and unreliable evidence. 11. Learned counsel for the appellants has also urged that the site plan prepared by the Investigating Officer has not legal evidenciary value, for the reason that it has been recorded in the memo of site plan that Investigating Officer has prepared the site plan at the instance of the witness PW 6 Ram Kalyan, the complainant. It is settled law that the site plan has to be prepared by the Investigating Officer according to his own knowledge and he has to record there what is found in particular on spot, showing the details of the occurrence. If the site plan is prepared at the instance of the witness, in such a situation, the site plan could be at the most a statement under Section 161 Cr.PC. If the site plan is prepared at the instance of the witness, in such a situation, the site plan could be at the most a statement under Section 161 Cr.PC. In support of this plea, learned counsel for the appellants has placed reliance on the judgment of the Supreme Court delivered in the case title Tori Singh v. State of U.P., reported in AIR 1962 SC 399 , wherein while dealing with the sketch map prepared by the Investigating Officer at the instance of a witness, the Supreme Court observed as under : "...The marking of the spot on the sketch-map is really bringing on record the conclusion of the Sub-inspector on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub inspector that the eye-witnesses told him that the deceased was at such and such place the time when he was hit. The sketch-map would be admissible so far as it indicates all that the Sub-inspector saw himself at the spot, but any mark put on the sketch map based on the statements made by the witnesses to the Sub-inspector would be inadmissible. In view of the clear provisions of section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. We may in this connection refer to Bhagirathi Chowdhury v. King Emperor, AIR 1926 Cal. 550 , where it was observed that placing of maps before the jury containing statements of witnesses or of information received by the investigating officer preparing the map from other persons was improper, and that the investigating officer who made a map in a criminal case ought not to put anything more than what he had seen himself. The same Kiew was expressed by the Calcutta High Court again in, lbra Akanda v. Emperor, AIR 1944 Cal. The same Kiew was expressed by the Calcutta High Court again in, lbra Akanda v. Emperor, AIR 1944 Cal. 339 , where it was held that any information-derived from witnesses during police investigation, and recorded in the index to a map, must be proved by the witnesses concerned and not by the investigating officer, and that if such information is sought to be proved by the evidence of the investigating officer, it would manifestly offend against section 162 of the Code of Criminal Procedure. (8) This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commission of offence, the draftsman put down the places in the map, in Santa Singh v. The State of Punjab, AIR 1956 SC 526 . It was held that such a plan drawn to scale was admissible if the witness corroborated the statement of the draftsman that they showed him the places 'and would not be hit by section 162 of the Code of Criminal Procedure. In that row there was another sketch prepared by the Sub-inspector which was ruled out as inadmissible under section 162. The sketch-map in the present case has been prepared by the' Sub-inspector and the place where the deceased was hit and also the places where the witnesses were at the time of the incident were, obviously marked by him on the map on, the basis of the statements made to him by the witnesses. In the circumstances these marks on the map based on the statements made to the Sub-inspector are inadmissible under section 162 of the Code of Criminal Procedure and cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch-map.' 12. The site plan prepared by the prosecution, therefore, violates Section 161 Cr.PC. and looses its evidentiary value to be relied upon for recording conviction. 13. For the aforesaid reasons, we find that the judgment of the trial court cannot be maintained as the trial court has not looked into these aspects. The accused are acquitted of the charges. The site plan prepared by the prosecution, therefore, violates Section 161 Cr.PC. and looses its evidentiary value to be relied upon for recording conviction. 13. For the aforesaid reasons, we find that the judgment of the trial court cannot be maintained as the trial court has not looked into these aspects. The accused are acquitted of the charges. Accused appellants Ramratan and Ramesh serving sentence in the Jail shall be released forthwith.Appeal is accordingly allowed.Since the appeal preferred by the accused appellants is allowed, the appeal preferred by the State of Rajasthan against acquittal of the accused is dismissed.Appeal Allowed. *******