S.K Homchaudhuri, J.:—Both the appeals are directed against the common judgment or conviction and sentences passed against the appellants of both the appeals, by the 3rd Additional Sessions Judge, Aurangabad, in sessions Trial No. and, as such, the appeals are heard together and disposed of by this common judgment.

2. The prosecution case, as disclosed from the Fardbeyan of Ambika Prasad (P.W 8), the informant of the case, is that on 5.5.85 around 10.30 A.M, accused Jagarnath Singh, Mahabir Singh, Baijnath Singh, Bishwanath Singh, Paras Singh had started filling up the foundation pit dug by the prosecution party in their own land, a day prior to 5.5.85 Arjun Singh, brother of the informant went there and asked accused persons not to fill up the foundation pit, thereupon a hot exchange of words between accused Mahabir Singh and Arjun Singh took place. The informant Ambika Singh and Ram Devi Singh went there to pacify but, in the meantime, at the instance of Mahabir Singh, accused Baijnath assaulted Arjun Singh on his head with ‘Sabal’ (an instrument made of iron for digging earth). Arjun Singh fell down and accused Jagarnath Singh thereafter assaulted Arjun (the deceased) on his head with the blunt part of the spade in his hand. When the informant went to save Arjun, he was assaulted by accused Baijnath Singh with iron rod and accused Bishwanath with Lathi. The informant also fell down and thereafter, accused Nagendra Singh and Yogendra Singh assaulted him with Lathi. The uncle of informant Ram Devi Singh (P.W 3) was also assaulted by accused persons According to the informant, the occurrence took place due to the fact that accused persons claimed the land as their own where the foundation pit was dug.

3. On the basis of Fardbeyan a formal F.I.R was drawn up and the case was registered against the accused persons Police after investigation submitted charge sheet. The case was committed to the court of Sessions and the learned 3rd Addl. Sessions Judge after perusal of materials on record, framed charges under Sections 148/302 IPC. against accused Baijnath Singh and Jagarnath Singh, under Section 147/307/302 I.P.C read with 149 IPC. against accused Pradip Singh, Bishwanath Singh, Nagendra Singh and Yogendra Singh and under sections 147/302 read with 149 I.P.C against accused Mahabir Singh and Paras Singh. Accused persons having not pleaded guilty, the case was tried.

4. To bring home the charges against the accused persons, the prosecution examined 11 (eleven) witnesses P.W 1. Sahdeo Prasad is a formal witness. P.W 2, Nawzadik Singh and P.W 3 Ram Devi Singh came to the place of occurrence after the occurrence P.Ws 4, 5 and 7 claim to be the eye witnesses to the occurrence. P.W 8 Ambika Prasad is the informant and claim to be the eye witness. P.W 6, Dasrath Singh is a formal witness. P.W 9, Nand Kishore Prasad is the Medical Officer who examined injured Ambika Prasad. P.W 10. Tarun Kumar is the Investigating Officer, who held the investigation. P.W 11. Dr. K.L Sah is also a Medical Officer who held autopsy on the dead body of deceased Arjun Singh.

5. The defence examined four witnesses. D.W 1, Mahabir Singh and D.W 3, Baijnath Singh are the accused and D.W 2, Ram Kishore Ram was Amin at the material time. D.W 4 is Dr. Subhash Sharma who examined the injured Mahabir Singh (D.W 1) and Baijnath Singh (D.W 3) on the date of occurrence. In the examination under Section 313, Cr. P.C, the accused persons denied their complicity with the crime. The learned 3rd Addl. Sessions Judge after perusal of the materials on record, held that the prosecution has established the charges against the accused persons beyond all reasonable doubt and, accordingly, convicted appellants-Baijnath and Jagarnath under Sections 148 and 302. I.P.C, convicted appellants Mahabir Singh, Nagendra Singh, Pradip Singh, Parasnath Singh, Bishwanath Singh and Yogendra Singh undet Sections 147, 302 read with section 149 I.P.C and in addition convicted appellants Pradip Singh, Nagendra Singh, Bishwanath Singh and Yogendra Singh under Section 307/149 I.P.C By the impugned judgment, the learned 3rd Addl. Sessions Judge sentenced appellants Baijnath Singh, Jagarnath Singh to undergo R.I for lite under section 302, I.P.C and sentenced appellants Mahabir Singh, Nagendra Singh, Pradip Singh, Parasnath Singh, Bishwanath Singh and Yogendra Singh to undergo R.I for life under Section 302 read with section 149. I.P.C The learned 3rd Addl. Sessions Judge further sentenced Pradip Singh, Nagendra Singh, Bishwanath Singh and Yogendra Singh to undergo R.I for three years for committing offence punishable under Section 307 I.P.C He, however did not award any separate sentence for offence punishable under Sections 147 and 148 I.P.C The learned 3rd Addl. Sessions Judge also ordered that the sentences as passed against the accused appellants would run concurrently.

6. During the pendency of the appeals, all the six appellants of Criminal Appeal No. 175 of 1991 have been enlarged on bail by this Court. But the prayer for bail of the two appellants of Criminal Appeal No. 237 of 1991 has been rejected.

7. We have heard the learned counsel for the appellants and the learned Public Prosecutor.

8. Learned Counsel for the appellants submitted that the impugned judgment of conviction and sentence is based on the evidence of PWs. 4, 5, 7 and 8, who claimed to be the eye witnesses to the occurrence. But in the Fardbeyan of P.W 8, names of P.Ws 4, 5 and 7 were not mentioned. P.W 8 has not explained why the names of those eye witnesses were not stated in the Fardbeyan. These eye witnesses also denied the presence of injuries on the person of the appellants - Bishwanath and Mahabir, although it has been established by evidence of defence witnesses and facts and circumstances of the case that those two appellants received grievous injuries in the same occurrance. Moreover, those eye witnesses are interested and inimical witnesses. As such no reliance ought to have been placed on the depositions of those witnesses, who lied on a most material point.

9. Learned counsel for the appellants submitted that it is established by the evidence on record that the land on which the foundation pit was dug by the complainant party was the land owned and possessed by the accused party and that in the morning on the date of incident, the accused party got the disputed land measured by Amin and Amin after measurement declared that the disputed land belonged to the accused party. Even subsequent measurement made at the instance of the police on 1st June, 1988 revealed that the said disputed land belonged to the accused party.

10. Learned counsel for the appellants submitted that the prosecution has not explained the reason for the serious injuries sustained by the accused appellants Mahabir and Bishwanath, in the same incident. The prosecution has, therefore, sup pressed the genesis and origin of occurrence and thus has not presented the true version. Non-explanation of the injuries on the accused appellants by the prosecution has rendered the defence case which explained the injuries on the accused appellants probable and in fact, a case was registered against the complainant parties for their prosecution. The learned counsel for the appellants submitted that the learned Addl. Sessions Judge has erred in convicting the appellants on the basis of the evidence of the so-called eye witnesses, who are interested and inimical and the impuged judgment of conviction, therefore, cannot be sustained.

11. Learned counsel for the appellants further submitted that deposition of prosecution witnesses that appellant Baijnath assaulted deceased Arjun Singh on the head with Sabal and thereafter accused Jagarnath assaulted the deceased Arjun on the held with the blunt part of the spade, is contrary to medical evidence, inasmuch as, had it been so, there could have been two lacerated injuries on the head of the deceased but medical evidence disclosed that there is only one lacerated injury on the head of the deceased.

12. The learned Public Prosecutor, on the other hand, submitted that it has not been established that appellants Mahabir and Bishwanath received injuries out of the same incident, inasmuch as they were not examined by the same doctor and the F.I.R in the cross-case has also not been brought on record and as such learned Addl. Sessions Judge rightly held that it was difficult to accept the defence story that appellants Mahabir and Bishwanath received injuries in the same occurrence.

13. The learned Public Prosecutor submitted that the evidence of the eye witnesses are consistent and trustworthy and cross-examination could not shake their evidence. The medical report also supports and testimony of those eye witnesses. That apart. P.W 8 was injured in the same occurrence and his evidence deserves consideration and cannot be brushed aside.

14. The learned Public Prosecutor further submitted that even if the appellants Mahabir or Bishwanath received injuries in the same occurrence, non-explanation of injuries on their person cannot throw the prosecution out of the Court, inasmuch as, there is no invariable rule that failure to explain the injuries on the person of accused would throw the prosecution case out of the Court, and that when the statement of the witnesses are clear, cogent, consistent and trust worthy, the conviction and sentence passed by the impugned judgment can be sustained.

15. I have considered the submissions made on behalf of the parties and have perused the materials on record.

16. D.W 1 is appellant Mahabir Singh and D.W 3 is the appellant Bishwanath Singh.

17. D.W 4 Dr. Subhash Sharma, who examined DWs. 1 and 3 on the date of occurrence found the following injuries on the person of accused Bishwanath Singh (D.W 3):

i. Sharp cutting injury in front of the skull which is 3½″ in length × 1/4″ in depth with severe bleeding;

ii. Sharp cutting injury on the right of the scalp 2″ × 1/2″ × 1/2″:

iii. Swelling on the back of the joint,

iv. Swelling on the front of the chest with fracture of the ribs;

v. Swelling on the left shoulder joint;

18. According to D.W 4, the nature of injury Nos i & ii were caused by sharp cutting weapon such as garasa and rest were caused by hard and blunt substance such as lathi and that injury no. iv was grievous in nature and others were simple in nature.

19. D.W 4 found the following injuries on the person of accused Mahabir (D.W 1.):

i. Swelling fracture of right forearm bones;

ii. Swelling on the right knee joint;

iii. Swelling on the right side of the chest.

iv. Swelling on the right side of the neck.

20. According to D.W 4, injury no. 1 was grievous in nature and others were simple in nature which were caused by hard and blunt substance such as lathi.

21. On perusal of evidence of D.Ws 1, 3 and 4, I am inclined to hold that appellants Mahabir and Bishwanath received grievous injuries in the same incident and the learned Addl. Sessions Judge is not justified in holding that since the F.I.R of the cross-case was not brough on record, the defence case that accused received injuries in the same incident, could not be accepted.

22. In the case of Lakshmi Singh v. State of Bihar, reported in (1976) 4 SCC 394 : A.I.R 1976 S.C 2263, the Supreme Court held that for non-explanation of injuries sustained by the accused in the same occurrence, court can draw following inferences:—

“i. that the prosecution has suppressed the genesis and the origin of occurrence and, thus, has not presented the true version.

ii. 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.

iii. that in case there is 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. The omission on the part of the prosecution to explain the injuries on the accused assumes much greater importance where the evidence consist of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. There may be cases were explanation of the injuries by the prosecution may not affect the prosecution case. The principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.”

23. No doubt, P.W 8 is an injured witness and his evidence deserves weightage. P.W 8 in the Fardbeyan stated that he along with P.W 3, Ramdeo Singh went to the place of occurrence and both were beaten by the appellants. P.W 3 Ramdeo Singh, however, deposed that he went to the place of occurrence after the incident and found Arjun lying dead. In the Fardbeyan names of P.Ws 5, 6 and 7 who according to the prosecution, are eye witnesses, were not mentioned and no explanation has been given by the prosecution why the names were not mentioned in the Fardbeyan. That apart, all the eye witnesses on the basis of whose evidence, the impugned judgment of conviction has been passed, are interested witnesses and are inimical to the accused-appellants. The evidence of the prosecution having been of interested and inimical witnesses, non-explanation of the grievous injuries on accused appellants Mahabir and Bishwanath has assumed greater importance and, as such, I am constrained to hold that the prosecutions has suppressed the genesis or origin of occurrence and thus has not presented true version. Not only that the eye witnesses examined on behalf of the prosecution have denied the presence of injuries on the persons of accused Mahabir and Bishwanath and thereby they lied on a most material point and as such, their evidence are not reliable.

24. The prosecution case as is disclosed in the Fardbeyan is that when accused party went to fill up the foundation pit dug by the complainant party on the previous day on the disputed land, the complainant party objected and as a result, serious altercation took place and thereafter the accused party assaulted the deceased Arjun and others. At the same time, accused appellants Mahabir and Bishwanath also received injuries. It can, therefore, be safely inferred that the incident was not one-sided affair rather there was a quarrel in the exercise of mutual right in the disputed land, and sudden fight took place in between the parties, as a result of which both sides received injuries. When the evidence of the prosecution is tainted and cannot be safely relied on, attempts should be made to find out the truth by separating the falsehood if possible.

25. On perusal of the evidence of prosecution, I find that prosecution has been able to establish that accused Baijnath assaulted the deceased in the fighting with an iron rod. The prosecution ocular evidence that accused appellant Jagarnath thereafter assaulted the accused with the blunt side of the spade is not supported by the medical evidence, inasmuch as, no mark of external injury was found on the left side of the head of the deceased where Jagarnath allegedly assaulted the deceased with the blunt side of the spade. In case of sudden mutual fight in between the parties, the question of invoking the aid of section 149 I.P.C for the purpose of imposing constructive liability on the other accused, does not arise. Moreover, there is no material on record to rope the other accused persons with common intention to assault and kill the deceased. On perusal of evidence and the materials on record. I find that it is not safe to convict the accused appellants under sections 147 and 307 I.P.C

26. Now the question arises whether the conviction of Baijnath under section 302, I.P.C is justified or not. From the evidence on record, it appears that accused parties were on their land and they went to assert their right over the land. It does not appear from the materials on record that appellant Baijnath had the intention to kill deceased Arjun and, as such, the conviction of Baijnath under Section 302 I.P.C cannot be sustained. However, evidence on record have established commission of offence under Section 304. Part-II I.P.C by the appellant Baijnath The medical evidence does not support the case of the prosecution that Jagarnath hit the deceased with the blunt side of the spade, as such he is entitled to benefit of doubt.

27. For the reasons stated above, the appellants of Criminal Appeal No. 175 of 1991 i.e Mahabir Singh Paras Singh, Bishwanath Singh, Pradip Singh, Yogendra Singh, Nagendra Singh and appellant Jagar Nath Singh of Criminal Appeal No. 237 of 1991 are entitled to be acquitted on benefit of doubt Their appeals are allowed and they are acquitted of the charges. The appeal of appellant Baijnath Singh is partly allowed and his conviction under section 148/302 IPC is set aside, but he is convicted under Section 304 Part II and is sentenced to imprisonment for the period already undergone.

28. Appellants Jagarnath Singh and Baijnath Singh shall be set at liberty forthwith, if they are not required to be detained in connection with other case. As regards the other appellants of Criminal Appeal No. 175/91 is concerned, they are discharged from the liability of bail bond.

S.J Mukhopadhaya, J.:—I agree.