S.K. Sharma, J. - (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 and 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. 2. 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 finding arrived by the trial court is perverse and deserves to be set aside.
(3.) 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.;