Surendra Nath Bhargava, J.

1. This is a criminal appeal against the judgment of Additional Sessions Judge, Gangapur City, convicting and sentencing the accused appellants as under:

(1) Fatya alias Fatehlal:

Under Section 302, IPC - Imprisonment for life and a fine of Rs. 500/-, in

default of payment of fine. 6 months SI;

Under Section 302/34, IPC - Imprisonment for life and a fine of Rs. 500/-, in

default, 6 months SI

...Other villagers took Prasadi and Mangilal to the Hospital but both of them died in the hospital.

2. On the aforesaid report, a case under Section 302, IPC was registered by the police. After usual investigation, the case was challaned against eight accused persons in the court of Magistrate, who committed the accused to the court of Sessions. Learned Additional Sessions Judge, Gangapur City, after recording evidence led by the parties, while convicted and sentenced four accused appellants and acquitted the rest four accused persons namely, Heera Lal, Ramjilal. Basanti and Munni. Hence, this appeal.

3. Learned Counsel for the appellants has submitted that the accused appellants are entitled to right of private defence and the prosecution has failed to bring home guilt of the accused persons. He has further submitted that same set of evidence has been disbelieved by the learned trial court while acquitting the four co-accused persons. He has placed reliance on the evidence of those very witnesses while convicting the accused appellants. He has further submitted that the defence of the accused persons that it was the complainant party which came to the house of accused appellant Fateh Lal and inflicted injuries on Sukko, and Fateh Lal and Fateh Lal snatched the knife and inflicted injury on Prasadi and Mangilal in the scuffle, is more probable and therefore the accused appellants are entitled to acquittal. He has drawn our attention to Ex D 10 FIR which has been registered at 11.45 p.m. on the basis of Parcha Bayan of Smt. Sukh Bai in the Hospital. Ramesh Chand (PW 21), the Investigating Officer has admitted in his cross-examination that he had received information from the hospital about the injuries received by Fatehlal and Smt. Sukh Bai before the report Ex. P 8 was received from Smt. Dharmo on the basis of which FIR Ex. P 35 was registered at 9.45 p.m. and he had sent the Constable to the Hospital who had recorded the Parcha Bayan of Smt. Sukh Bai on the basis of which Ex. D 10 was recorded at 11.45 p.m. He has further submitted that Fateh Lal had received five incised wounds by sharp edged weapon, five bruises and one lacerated wound on the right parietal region which proved to be fracture of the skull bone, whereas Smt. Sukhbai wife of Fateh Lal had also received three incised wounds by sharp edged weapon and four bruises by blunt weapon and that they were examined at 9 p m. He has further submitted that blood smeared soil was collected from outside the house of the accused appellants, vide Ex. P 12 and in the site plan (Ex. P 9) also, blood has been shown on the Chabutara of the accused Fateh Lal He has further submitted that the accused appellants Fatehlal, Sukh Bai had to remain at the hospital for nearly 20 days upto 12-5-1983. He has further submitted that the Investigating Officer could not find out as to how the quarrel took place between the parties and who was the aggressor, though in re examination he has stated that the accused received injuries after the incident of killing Prasadi and Mangilal was over and the accused were given beating by the neighbourers and other relatives of the deceased. He has further submitted that the prosecution has failed to explain the injuries on the accused persons There is enough evidence that there was serious enmity between the accused party and he complainant party, and the complainant party had given beating to the accused persons on earlier occasion also and even on the date of incident, there was a case fixed in the court and while returning from the court, the complainant party had threatened the accused of serious consequences.

4. Out of the eight accused persons who were challaned in the court, only 2 have received injuries who were old whereas other six accused persons who were young including ladies have not received any injury. The prosecution case is only a defence to the complaint made by Smt. Sukho and the prosecution has not come with clean hands. Genesis of the quarrel has not been brought no record and the FIR Ex. P. 35 which is alleged to have been registered at 9.45 p m. was submitted only after 12 Oclock, as has been stated by scribe of the written report Ex. P.8 Sohan Lal PW 11.

5. Learned Counsel for the appellant has placed reliance on Laxmi Singh v. State of Bihar : 1976CriLJ1736 where in their Lordships of the Supreme Court have observed that the following inferences can be drawn when the prosecution does not explain the injuries sustained by the accused at the time of the occurrence:

(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus 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 a 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.

6. Similar view has been expressed in Kadar Khan and Ors. v. State of Rajasthan 1977 Cri. L.R 83.

7. He has further submitted that since the defence has claimed right of private defence, it is all the more necessary and important for the prosecution to explain injuries on the person of the accused, as has been observed in Mana and other v. State of Rajasthan 1978 WLN 101.

8. He has further placed reliance on : AIR 1971 Raj 68 where in it has been observed that where the prosecution witnesses are silent about receiving injuries by the accused persons evidence cannot be considered to be wholly true and no reliance can be placed on such evidence.

9. Lastly, he has placed reliance on Balaka Singh v. State of Punjab : 1975CriLJ1734 where in their Lordships of the Supreme Court have held that if the case of the convicted accused is not separable from that of acquitted accused, entire prosecution case must be discarded.

10. On the other hand, learned Counsel for the complainant, Mr. Gupta and learned Public Prosecutor have supported the judgment of the trial court and have submitted that even if the defence version as mentioned in Ex. D 10 is taken to be correct, there is no explanation as to bow Prasadi Lal and Mangilal died on the spot. PW 15 Smt. Dharmo and PW 18 Namo Narain, PW 21 Ramesh Chand and PW 20 Chiranjilal have explained as to how the accused persons had received injuries. More over, lot of blood was found at points ABC of site plan (Ex. P 9) on the way outside the house of the complainant party, where as it was only trace of blood which was found outside the Chabutara of the house of the accused and that there was no sign of dragging the deceased persons from the house of the accused to the house of the complainant party. They have further submitted that even if statement recorded under sec 313 Cr. PC given by accused Fatehlal (Fatya) is accepted, the accused appellant cannot have right of private defence against Mangilal because Mangilal had no arm in his hand and Fateh Lal had received injuries at the hand of Prasadi alone, and Prasadi also had knife with him. According to the defence, Fateh Lal had snatched the knife from the hand of Prasadi and thereafter, inflicted knife injury both to Prasadi and Mangilal and as such, he is at least guilty for committing murder of Mangilal against whom he had no right of private defence.

11. We have given our thoughtful consideration to the whole matter and have also perused the judgment of the trial court as well as record of the case and also various authorities cited at the bar.

12. In view of the defence and the statement of Fatehlal alias Fatya to the effect that Prasadilal and Mangilal and other persons had come earlier with knife and lathi and gave beating to him and his wife, he snatched the knife from Prasadilal and hurled knife which struck Prasadilal and Mangilal; and that of Smt. Sukko that several persons including Mangilal and Prasadi armed with lathi and knife came and gave beating to her husband and herself; her husband snatched the knife from Prasadi and hurled knife in defence by which Prasadi and Mangilal were injured, it is not necessary for us to discuss the prosecution evidence in detail with regard to the had pending of the incident. We have only to examine as to whether or not the accused appellants are entitled to right of private defence.

13. PW 2 Ratan has stated on oath that he was the only person who had witnessed the incident and there was no other person at that time. In cross-examination, he has stated that Fatehlal alias Fatya did not inflict knife blow to Mangilal but Fadali had inflicted knife blow to Mangilal. He has not given any explanation about the injuries received by the accused persons.

14. PW 15 Smt. Dharmo who had lodged the FIR, has only stated that she heard that the Mohallawals had given beating to Fatya and Sukko. That part of her evidence is not admissible being hear say.

15. PW 18 Namo Narain has of course Mated in court that after Mangilal and Prasadi had been taken away from the site, Mohallawalas went to the house of Fatya and Sukko and gave them severe beating, but when cross-examined he had to admit that he has not stated so in his statement before the police under Section 161 Cr. PC and it appears that this is only an after thought and improvement by the prosecution.

16. PW 21 the Investigating Officers statement was read by us in to and he has given evasive answers, either does no remember or does not know. He has of course stated that Fatehlal alias Fatya and Mst. Sukho received injuries after the earlier incident was over and they had not received the injuries at the time when Mangilal and Prasadi were given injuries as a result of which they died. Later on further cross-examination he admitted that after investigation of the case registered on the Parcha Bayan of Mst. Sukh Bai, he had challaned the case against the complainant party and he further explained that by saying Mohallawalas he also meant Gharwalas, and therefore, the relations of Mangilal and Prasadi have also been implicated as accused in that case. He also admitted in his cross-examination that the information about Fatehlal and Mst. Sukko having received injuries had come earlier before FIR (Ex. P 35) was lodged and he had sent a Constable to the hospital who had recorded the Parcha Bayan of Smt. Sukh Bai.

17. Moreover, in view of the statement of PW 11 Sohanlal who is the scribe of the written report (Ex P 8), on the basis of which Ex. P 35 was chalked out, it has come that the written report was written after 12 Oclock in the hospital, so it could not have been registered at 9.45 p.m. as per Ex. P 35. It appears that the prosecution has tried to help the complainant side in this regard. Blood was also found at the house of the accused persons. Mst. Sukh Bai and Fateh Lal had received injuries and the doctor PW 10 Dr. R.S. Parashar has stated that injury No. 1 received by Fatehlal on his head which had caused fracture of skull bone was sufficient to cause death in the ordinary course of nature, which shows that there was apprehension to Fateh Lal and Smt. Sukhbai that the complainant party might further inflict serious injuries to them. In fact, Fatehlal had received five incised wounds by sharp edged weapon, five bruises and one lacerated wound on the right parietal region which proved to be fracture of the skull bone, where as Smt. Sukh Bai wife of Fateh Lal had also received three incised wounds by sharp edged weapon and four bruises by blunt object.

18. In view of these discrepancies regarding time of registering the FIR and the fact that Ex. D 10 was recorded on Parcha Bayan of Mst. Sukh Bai and the fact that the prosecution has not explained the injuries of the accused persons, it appears that the prosecution has suppressed the genesis of the origin of the occurrence, and has thus not presented the true version before the court, and the witnesses who have denied the presence of injuries on the person of the accused are lying on a most material point and therefore, evidence is unreliable. The defence story seems to be more probable than the prosecution case. There was enmity between the accused party and the complainant party and then, on the date of incident, the parties were returning after attending some criminal case in the court, when according to the defence they were threatened by the complainant party for severe consequences. The prosecution case has to stand on its own legs and cannot seek strength from the weakness of the defence. In the present case, in our opinion, the prosecution has not been able to prove the case against the accused appellant beyond reasonable doubt and it appears that the defence story is more probable and the accused appellants bad a right of private defence. Moreover, the prosecution witnesses have been disbelieved by the trial court with regard to the four co-accused persons who have been acquitted. All the eight accused persons were of the same family, husband, wife, two sons, two daughters and one son-in-law. The whole family has been implicated. There is no reliable evidence to bring home the guilt of the accused persons and in our opinion, the accused persons (appellants) are entitled to benefit of doubt.

19. In the result, this appeal is allowed, the judgment of the trial court convicting the accused appellants is set aside and the accused appellants are acquitted of the charges levelled against them. Accused Fateh Lal alias Fatya, Dallu. Fadli are in jail. They shall be released forthwith, if not required in any other case. Smt. Sukhbai is already on bail She need not surrender her bail bonds are hereby cancelled The revision petition filed by the complainant Jagdish Prasad Meena is also dismissed.