D. P. DESAI, J. ( 1 ) * * * * ( 2 ) BEFORE coming to the evidence of Bai Santok who is the only eye-witness in this case we will like to make it clear that the learned Judge with due respect to him entirely misconceived the position of law with regard to the duty of the prosecution to explain the injuries on the person of one of the accused persons when the evidence shows that that accused person had in all probabilities suffered injuries in the course of the same incident. We say that the learned Judge has misconceived the position of law because of his observation in para 18 of the judgment which reads:- It is well settled that it is not the duty of the prosecution to cogently explain how the accused sustained injuries. Probably the learned Judge was reproducing the observations of the Division Bench of this High Court in the State v. Hira Bhaga and others. reported in I G. L. R. 157 Raju J. (as he then was) speaking for the Bench observed that it was not the duty of the prosecution to cogently explain how the accused sustained injuries and that no general rule can be laid down in such cases that merely because some of the prosecution witnesses have not satisfactorily explained the injuries on the accused in all cases their evidence must be rejected and the prosecution must totally fail. The learned Judge further observed that the existence of injuries on the person of the accused does not entitle them to get the benefit of the right of private defence and that in a mutual determined fight between two rival factions right of private defence is not available to either side. These observations were made in the context of the peculiar facts of that case. In that case the incident resulting in injuries to the accused and the deceased (a man named Bhagwan) took place first near Panchayat office and then near the Chora. The learned trial Judge in that case had found that in the first incident near the Panchayat office one of the four accused persons named Kana had opened the attack on the deceased and therefore the deceased had stabbed Kana with a dagger. The learned trial Judge in that case had found that in the first incident near the Panchayat office one of the four accused persons named Kana had opened the attack on the deceased and therefore the deceased had stabbed Kana with a dagger. The learned trial Judge further found that after this stabbing the deceased went ahead and was followed by accused No. 1 Hira who was armed with a spear and a dagger and accused No 3 Govind who was armed with a hatchet and that at the Chora there was a fight between the deceased and the four accused in the course of which the deceased could inflict sword injuries on the accused before he fell down as a result of a spear injury inflicted on him by accused No. 1 Hira. The learned Judge further found that the sword and dagger of the deceased were then picked up by accused No. 2 Kana. In the opinion of the learned trial Judge if any one had the right of private defence in that case it was the deceased and not the accused. In spite of these findings the learned trial Judge acquitted all the accused of the charge of murder and convicted them only under sec. 324 of I. P. C. Against this conviction the accused and against the acquittal under sec. 302 of Indian Penal Code the State came in appeal to this High Court. The learned trial Judge had acquitted the accused under sec. 302 of the I. P. C. by following certain observations of the Travancore-Cochin High Court in Sabastian David and another v. Sirkar Prosecutor A. I. R. 1950 Travancore Cochin page 9. In following those observations the learned trial Judge observed that the three eye-witnesses had suppressed the simple and obvious fact that it was the deceased Bhagwan who had caused injuries to the three accused the possibility that the accused were acting in the right of private defence cannot be denied. Then the learned trial Judge proceeded to observe that he felt reasonably certain that in fact the case before him was a case of mutual free determined fight between the rival factions. ( 3 ) RAJU J. speaking for the division Bench having referred to these observations of the learned trial Judge pointed out that the findings and the reasons given by the learned trial Judge were inconsistent and illogical. ( 3 ) RAJU J. speaking for the division Bench having referred to these observations of the learned trial Judge pointed out that the findings and the reasons given by the learned trial Judge were inconsistent and illogical. He also pointed out that no question of right of private defence would arise in view of the finding of the learned trial Judge that this was a case of a mutual free and determined fight between rival factions. In our opinion in such a case no order of acquittal could have been based on the observations of the Travancore-Cochin High Court. To do so would be to ignore the principle that in case of a free determined mutual fight no question of right of self-defence would arise. In these peculiar facts all that this High Court did was to disapprove of the sweeping nature of the observations of the Travancore-Cochin High Court which are reproduced at printed page 160 of the report. They read:-WHERE there are injuries on both sides (the accused and the complainant) the prosecution must cogently explain how the accused sustained injuries. Without such explanation the prosecution evidence will not be complete and no Court will be prepared to act on evidence which leaves a lacuna. The other observations of the learned Judges of Travancore-Cochin High Court were also referred to by the Division Bench in the aforesaid case. They are as under:-THIS is not a case where the accused admits having caused the injuries on the complainant and pleads self-defence. The plea of self-defence is raised only in the argument of the Counsel. A prosecution which cannot explain the injuries on the accused is not in the circumstances of the case entitled to succeed. The learned Judges of the Division Bench of this High Court found it difficult to agree with such a sweeping proposition which would mean that the prosecution will fail in every case where the injuries on the accused person could not be explained by it irrespective of the question whether the injuries were on visible parts of the body or not and irrespective of the question of the nature of the injuries Such a proposition of law would be untenable. And Raju J. said that no general rule can be laid down that merely because some of the prosecution witnesses have not satisfactorily explained the injuries on the accused in all cases their evidence must be rejected and the prosecution must totally fail. The learned Judge also observed in the course of the judgment on this point as under:-OF course the prosecution must be fair and if there are any circumstances tending to show that the accused may have acted in the exercise of private defence the prosecution must place such circumstances before the Court. If the accused had sustained injuries the prosecution must place the fact that the accused had injuries before the Court but it is not necessary for the prosecution to cogently explain how the accused sustained injuries. ( 4 ) IN our opinion the Division Bench of this Court only expressed disapproval of the sweeping nature of the observations of the Travancore-Cochin High Court. It was not laying down a principle of universal application that the omission of the prosecution to explain injuries on the persons of the accused should not be given any consideration at all. Cases are conceivable is which prosecution witnesses may not have been able to see the injuries on the person of the accused where such injuries are under the garment worn by the accused and they are therefore on parts which are not visible as for example wheel-marks by stick blows. Thereafter it is not correct to say that even in such a case the failure of the prosecution witness to explain the injuries on the person of the accused will ultimately lead to the failure of the prosecution. We feel that the disapproval expressed by the Division Bench of this Court to the general rule as expressed in the decision of Travancore-Cochin High Court has not been correctly understood by the Court below. In expressing this disapproval Raju J. made it clear that there is no general rule that in all cases where the prosecution witnesses have not satisfactorily explained the injuries on the person of the accused the prosecution must fail. We also find that the observations of the Supreme Court on this question were over-looked by the lower Court. The Supreme Court had an occasion to consider this question in Mohar Rai v. The State of Bihar A. I. R. 1968 S. C. page 1281. We also find that the observations of the Supreme Court on this question were over-looked by the lower Court. The Supreme Court had an occasion to consider this question in Mohar Rai v. The State of Bihar A. I. R. 1968 S. C. page 1281. In that case also the High Court was of the opinion that the prosecution had no duty to offer any explanation as regards the injury on the person of the appellant Mohar Rai. It will be sufficient for our purpose to set out the observations of the Supreme Court in para 6 of the judgment:- (6) The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharat Rai 14. We get it from the evidence of P. W. 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabililised. Under these circumstances the prosecution had a duty to explain the injuries. The evidence of Dr. Bishnu Prasad Sinha (P. W. 18) clearly shows that those injuries could not have been self-inflicted and further according to him it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellant. (emphasis supplied ). These observations should be borne in mind when a question as regards injuries on the person of the accused arises for consideration by the trial Courts. Further those injuries probabilise the plea taken by the appellant. (emphasis supplied ). These observations should be borne in mind when a question as regards injuries on the person of the accused arises for consideration by the trial Courts. If as observed above there are good grounds for thinking that the prosecution witnesses could not have seen these injuries on account of peculiar circumstances or that the injuries were of minor nature and on inaccessible part of the body or that the evidence did not suggest that the injuries were caused to the accused in the course of the same incident the Courts will be entitled to take into consideration those peculiar features also and in that case they will be justified in saying that the failure of the prosecution witnesses to explain the injuries on the accused does not throw over board the prosecution case in its entitety. Appeal allowed. .