JUDGMENT 1. - These two appeals have been preferred against the judgment passed by the learned Additional Sessions Judge, Sirohi dated 19th November, 1974. By that judgment the learned Additional Sessions Judge convicted appellant Bhura for the offences under sections 326 and 148 Indian Penal Code and sentenced him to rigorous imprisonment for three years and a fine of Rs. 250/- in default to undergo rigorous imprisonment for three months on the first count & six months rigorous imprisonment for the second count Appellant Rama has been convicted under sections 326/149, 147 and 452 Indian Penal Code and sentenced to rigorous imprisonment for one year, three months and six months under each count respectively. Appellant Soma has been convicted for the offences under sections 324, 148 and 452 Indian Penal Code and sentenced to rigorous imprisonment for two years and a fine of Rs. 200/-, in default to undergo three months rigorous imprisonment on the first count and six months rigorous imprisonment each on the second and third count. Appellants Shankerpuri, Balu, Bhoma, Mst. Bhiki and Mst. Jamna have been convicted for the offences under sections 326/149, 147, 323 and 452 Indian Penal Code and each of them has been sentenced to rigorous imprisonment for one year for the first count and three months each under the second and third count. Appellant Mala has been convicted for the offences under sections 326/149 and 147 Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and three months respectively on each count. All the substantive sentences of all the appellants were ordered to run concurrently. 2. As the two appeals arise out of the same judgment I propose to dispose them by one single judgment. 3. Briefly stated the facts of the case as disclosed from the prosecution version giving rise to these appeals are that there was long standing enmity between Thikana Sanderao with Thakur Jalamsingh as its head and Ugamsingh and his relatives. In the Panchayat-Elections of 1964 there were two parties in the village, one led by Jalamsingh and the other by Ugamsingh. In that election Jalamsingh came out victorious and was elected Sarpanch. 4. It is alleged that the accused party was siding Jalamsingh and some of them are said to be ward-members of the Panchayat. In the Panchayat-Elections of 1964 there were two parties in the village, one led by Jalamsingh and the other by Ugamsingh. In that election Jalamsingh came out victorious and was elected Sarpanch. 4. It is alleged that the accused party was siding Jalamsingh and some of them are said to be ward-members of the Panchayat. During those days there was rationing of sugar and it was to be distributed on Ration-Card issued by the Gram Panchayat. Magraj (PW 18) was the shop keeper for supplying sugar. 5. It is alleged that on 24.5.65 Madansingh (PW 10) and Jaisingh (PPW 11) went to that shop to purchase sugar and were informed that they can have the sugar only if they get issued new Ration-Card from the Gram Panchayat. The new Ration-Cards were issued by Jalamsingh Sarpanrh not at the panchayat house but in his own 'Kot' and therefore being inimical with him Madansingh and Jaising were reluctant to go there. They insisted on the sugar being given on the old Ration-Card. Appellant Soma, Balu, Bhura Mst. Bhiki and Shankerpuri who happened to be at the shop taunted and told Jaisingh & Madansingh that they will have to go to the 'Kot'. On this there was hot altercation between them. Jaisingh and Madansingh complained to the Tehsildar and the shop-keeper was directed to give them sugar on the old Ration-Card. On the next day i.e. on 25-5-65 Madansingh (PW 10) was sitting in the mohra taken on rent by him from Choga Kalal, Jaisingh (PW 1) Jagatsingh (PW 7), Ramsingh (PW 9), Gajendra Singh (PW 13) & Hanwantsingh (PW 14) were also sitting there. Mangia (PW 3) and Rama (PW 4) servants of Madansingh and one more servant Kasia were cleaning and oiling the tractors in the nohra. At that time the 9 appellants and 10 others (since acquitted) and one Nava (since died) reached out side the nohra. It is alleged that Soma and Bhura were armed with swords and remaining persons with lathis. All of them challenged the persons sitting inside to come out and burled abuses. When no body came out, appellant Soma, Balu, Shankerpuri and Rama entered the nohra and Soma struck sword blow on the head of Hanwantsingh, Shankerpuri, Balu and Rama are said to have struck lathi blows on him. Mst. All of them challenged the persons sitting inside to come out and burled abuses. When no body came out, appellant Soma, Balu, Shankerpuri and Rama entered the nohra and Soma struck sword blow on the head of Hanwantsingh, Shankerpuri, Balu and Rama are said to have struck lathi blows on him. Mst. Jamna, Mst, Bhiki and Bhoma also entered the nohra in the meanwhile and all the seven dragged Hanwantsingh out. Jaisingh and Madansingh rushed out to his rescue but Bhura appellant gave sword blow on his head and he fell down. Jaisingh, Jagatsingh, Gajendrasingh and Ratnsingh also came out and they were beaten by the accused party. The three servents raised the cry which attracted Arjunsingh and Rupsingh who were passing that way. They also reached there and in their attempt to rescue Madansingh and others they also sustained some injuries. Sonaram (PW 2) who happened to pass that way want to Ugamsingh (PW 5) father of Hanwantsingh, Gajendrasingh & Jagat Singh & informed him about the incident. Ugamsingh reached the site, by that time beating had stopped and some persons from the accused party were standing on the chabutra of Jawahra Kalal (DW1) ; Ugamsingh sent Nura to Police Outpost Sanderao to inform the police. Nathusingh (PW 6) Head Constable went to the hospital where the injured persons had already been taken Ex P.1. First Information Report was given to him by Jaisingh (PW 1). The First Information Report was sent to the Station House Officer Punjrajsingh(PW 15) which was at Bali at that time. Punjrajsingh went to Sanderao and sent Ex. P. 1 to the Police Station, Takhat Garh where the First Information Report, was recorded. The injured persons were examined by Dr. Mangalsingh (PW 11). The Station House Officer went to the site i e the nohra and inspected the site. He prepared the site inspection memo Ex P 3 and the site plan Ex P 18. The blood stained clothes of the victims and the Jalam' on which they are said to be sitting at the time of the incident were taken in possession. The investigation of the case was then handed over to the CID and Jalamsingh (PW 16) investigated the care. 6. The blood stained clothes of the victims and the Jalam' on which they are said to be sitting at the time of the incident were taken in possession. The investigation of the case was then handed over to the CID and Jalamsingh (PW 16) investigated the care. 6. Sword (Ex P 14) was recovered from Soma vide memo Ex.P. 19 two lathis Ex.P.15 and Ex P 16 are said to be recovered from the appellants Balu and Bhura vide Ex P.20 and Ex P.21 respectively. After completion of investigation challan against the appellants and other co accused was filed in the court of Munsif Magistrate Bali, Learned Magistrate conducted committal proceedings and committed them all to the court of the Additional Sessions Judge, Sirohi to stand their trial. The learned Additional Sessions Judge charge sheet the appellants and the others for the various offences and recorded their pleas. All of them pleaded not guilty and claimed to be tried Prosecution examined 18 witnesses in all In their statements all the accused denied all allegations and stated that when some of them were at Jawahra Kalal's house they were beaten by complainant party. Jawahra Kalal was examined to substantiate this contention. One Dr. Sohanmal (D.W 2) was examined to prove the injuries of Mst. Janina, Punjrajsingh, Mst Bhiki, Bhoma, Mala and Hiralal. 7. The learned Additional Sessions Judge while discussing the evidence on record opined that the injured persons of the complainant side and their witnesses are relatives inter-se or interested in each other. He, therefore, did not believe their version as a whole. There being no independent witness to prove the prosecution case that learned Additional Sessions Judge acquitted 10 accused persons. He, convicted the 9 appellants on the ground that 6 of them had sustained injuries and therefore their presence can well be said to be admitted at the time of the incident. 8. One of the injured in the accused party Hiralal a boy of 12 years was not at trial before the learned Additional Sessions Judge. The six appellants viz., Bhura, Soma. Bhoma, Mala Mst. Bhiki & Mst. Jamna were held guilty by the learned Additional Sessions Judge on the rerouted coat they had sustained injuries and have admitted the incident though in a different way. The six appellants viz., Bhura, Soma. Bhoma, Mala Mst. Bhiki & Mst. Jamna were held guilty by the learned Additional Sessions Judge on the rerouted coat they had sustained injuries and have admitted the incident though in a different way. Appellants Soma, Shankerpuri and Balu have been held guilty by the learned Additional Sessions Judge en the ground t at the injured prosecution witnesses and alleged eye witnesses have deposed against them and have stated that they had participated in the beating. In view of that finding the learned Additional Sessions Judge passed the judgment and convicted the 9 appellants and acquitted 10 other accused. 9. Being aggrieved by that judgment of conviction and the sentence passed, the appellants have preferred these appeals. 10. Learned counsel for the appellants strenuously contended that the learned Additional Sessions judge has legally erred in believing the the testimony of the prosecution witnesses for the appellants while discarding the same with regard to the accused he had acquitted. According to the learned counsel the criteria of the learned Additional Sessions judge in fixing the liability on the appellants in view of their injuries cannot be said to be justified because whereas the statements of the injured appellants should have been taken into consideration as a whole, what the learned Additional Sessions Judge has done is that he has considered the statements of the appellants regarding their injuries but rejected their version regarding the place and the origin of the occurrence. It has been urged by the learned counsel that the injury of Madansingh (PW10) has not been properly proved to be grievous because the Doctor has not given any data for his opinion nor the X ray was taken for that injury. In these circumstances it is stressed that all the injuries sustained by various persons on the complainant side were simple in nature while from amongst the appellants Bhura had sustained ore grievous injury i e. fracture on the lower left arm. Therefore, it is urged that the defence version about the complainant party being aggressors coupled with the fact that the prosecution has failed to explain the injuries of the six appellants is a strong factor in favour of the defence and the judgment of conviction cannot be said to be justified. 11. Therefore, it is urged that the defence version about the complainant party being aggressors coupled with the fact that the prosecution has failed to explain the injuries of the six appellants is a strong factor in favour of the defence and the judgment of conviction cannot be said to be justified. 11. Controverting there contentions the learned Public Prosecutor submitted that though the doctor had not written the word fracture or given any date about the grievous injury he had mentioned the word grievous in the report and therefore one injury of Madansingh has been rightly designated as grievous one. 12. Learned Public Prosecutor fairly agreed that the prosecution witnesses who are injured or have claimed to have seen the incident are either relatives inter-se or interested in the injured but at the same time he stressed that only on that count their specific evidence could not be discarded. 13. I heard the rival contentions and gave my anxious consideration to the material on record. 14. The prosecution case charges on the testimony of the 8 injured persons and Rama and Mangia who were the servants of the injured Madan Singh. The learned Additional Sessions Judge while discussing the evidence of these witnesses has opined and in my opinion rightly so, that they all being interested witnesses a careful scrutiny of their evidence is required. In view of that opinion he has disbelieved their version so far as 10 of the alleged assailants were concerned. For the six injured appellants the finding of the conviction has been based on their admission that they received injuries in the incident. Relevant it is to note that those appellants have no where admitted that the incident had taken place in the way the prosecution have described it. The case of the appellants Rama, Shankerpuri and Balu has been distinguished from those who have been acquitted on the ground that all the prosecution witnesses have stated about their participation in the beating of the complainant party. The reasoning so given does not appear to be sound because some prosecution witnesses have, implicated the acquitted accused also and it is not on the number of the witnesses that the conviction can be based especially so When specific finding of the court below is that the prosecution witnesses were not reliable. The reasoning so given does not appear to be sound because some prosecution witnesses have, implicated the acquitted accused also and it is not on the number of the witnesses that the conviction can be based especially so When specific finding of the court below is that the prosecution witnesses were not reliable. This is not in dispute that for the same incident there was the FIR lodged from the accused side against the complainant party. Learned Public Prosecutor does not dispute that seven persons of the injured side including one Hiralal (a boy of 12 years who was not at trial before the learned Additional Sessions Judge) have received injuries 7. in the incident. This fact has been taken into consideration by the learned Additional Sessions Judge also, the reason given by him for considering the prosecution version true and the accused party aggressors is that the total number of injuries on the prosecution sine was 42 and the number of injured persons 8 while the total number of injuries on the side of the accused was only 26 and the number of injured. This reasoning is also not sound because in the case of this type where there are number of assailants and number of victims and both the sides sustain injuries, the blows struck cannot be measured or counted. Merely because a particular patty received lesser number of injuries it cannot be branded as the aggressor. All the injuries sustained by the complainant party are simple in nature except the one sustained by Madansingh. About the cut wound of the skuil in mid parietal region, the finding of Dr Mangal Singh Sankhla (PW 11) is that it was grievous in nature. The doctor has not given any data for his finding. He has admitted that he has not mentioned the word fracture in the injury report. It is also relevant to note that the injury was not X-rayed. Learned Public Prosecutor in this connection rehired to the case of Holilal and another v. State of UP, 1970(1) SCC 8 wherein it was observed that is is not necessary that a bone should be out through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cuting or splintering of the bone or there is a rupture or fissure in it, it would amount to a facture within the meaning of Clause 7 of section 320 Indian Penal Code. In that case the Doctor had used the word 'Bone Cutting' while describing the various injuries in the injury report One of the injuries was bone deep and the injuries were described as cutting the underlying bone. It was in those circumstances that the mentioning of injuries as grievous by the Doctor in the injury report was held to be sufficient to consider the injuries as grievous. 15. In the present case it is no where stated by the Doctor that the bone was affected. This being the position, without X-ray or specific finding to that effect no injury of Madansirgh can be said to be grievous. The injuries sustained by the accused part were all temple in nature except the one sustained by Bhura which was fracture of the lower left arm. The prosecution witnesses have not specifically explained the injuries of the appellants but it has come in the statement of Jaisingh that he had a piece of wood by which injuries to Bhura and Mala were caused. Witnesses Jaisingh and Gajendrasingh have stand that at the time of the incident they were hurling's stones Learned Public Prosecutor submitted that this is an explanation for injuries of the appellant. The arguumen is devoid of force because the injury reports of the accused party clearly shows that it else injuries could not have been sustained by only one person having piece of wood or some of them hurling stones. Appellant Mala had one incised wound which also leads to the conclusion that some one from amongst the complainant side was armed with sharp edged weapon. 16. In this view of the matter merely because of the fact that there were 12 injuries on the one side and number of injured was 3 on the complainant side while on the accused side only 7 persons were injured and number of injuries 26, it cannot be said that the prosecution story about the incident taking place in the way prosecution witnesses described it is correct. Here it may be observed that there were cross cases and the case against the complaint party was decided much prior to the decision of the present case. The persons from the complainant side were acquitted. This point being raised in the trial court by the Public Prosecutor the learned Additional Sessions Judge has observed as under:- "So for as this Court is concerned, the matter is settled by the Hon'ble High Court in D.B. Cr Misc. (application for leave to appeal) No. 848/72 dated 4-10-72. It has been observed that the findings given in the impugned order of acquittal can have no binding effect in the counter case". 17. Learned Public Prosecutor fairly concedes that judgment of acquittal in the case instituted at the instance of the accused party cannot be considered here and this case has to be decided on its own merits. 18. With this position in view I again turn up to the question of it juries of the accused party and the failure of the prosecution to explain the same and its effect on the case. 19. In the case of Lakshmi Singh and others etc. v. State of Bihar, AIR 1976 SC 2263 the question of non explanation of injuries sustained by accused came for consideration before their Lordships and it was observed that it is an important circumstance from which the Court can draw the following inferences; that the prosecution has suppressed the genezis & the origin of the occurrence & has thus not presented the true version; that the witnesses who have denied the presence of the injuries on the person of the accused are being on a most material point & therefore there evidence is unreliable; and, 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. 20. In the present case the injuries on the person of the accused party have been duly substantiated by the injury reports prepared by reports prepared by Dr. Sohanmal (D.W.2). 21. The learned Additional Sessions Judge discussed the point about the Investigating Officer Jalam Singh (P.W. 16) being interested in the complainant party. Jaisingh (P.W. 1) has admitted that there was litigation between them and Sarpanch Jalamsingh about the agricultural land and the Circle Inspector Jalamsingh was also a party in that case. Sohanmal (D.W.2). 21. The learned Additional Sessions Judge discussed the point about the Investigating Officer Jalam Singh (P.W. 16) being interested in the complainant party. Jaisingh (P.W. 1) has admitted that there was litigation between them and Sarpanch Jalamsingh about the agricultural land and the Circle Inspector Jalamsingh was also a party in that case. The learned counsel for the appellants has therefore challenged the bonafdes of the Investigating Officer. Attention of Arjunsingh (P.W 12), Jagatsingh (P.W.7) was drawn to their Police statements where they have admitted the presence of number of men and women at the time of the incident and the learned Additional Sessions judge has correctly observed that independent witnesses though available were not examined by the prosecution side. The fact of Circle Inspector being interested in the complainant party explains the reason for this omission to examine independent witness. Despite that there is evidence on record to probabilise the defence version. The site inspection memo of the house of Jawahra Kalal is Ex D.16 & site plan Ex.D.17 and the site inspection memo of Madan singh's nohra is Ex P.3 and the site plan is Ex.P.18 Blood was found in the 'pol' of Jawahra Kalal as well as out side of his house. The defence version is that when the injured accused were there at Jawahra Kalal's house the complainant party went there armed and caused injuries to those persons. Learned Public Prosecutor contended that the blood might be there because of accused retiring there after the incident. The argument may equally be applicable to the prosecution case and the learned counsel for the appellants has submitted that the blood in the Nohra might be because of the injured persons of the complainant party going there after beating the accused party at Jawahara Kalal's house. 22. It may also be observed here that the statements of Magraj (P. W. 18) shop-keeper about the hot altercations on the day previous to the incident was found inconsistent with his police statement and the learned Additional Sessions judge his passed it over by observing that due to lapse of time his memory might have failed him. 22. It may also be observed here that the statements of Magraj (P. W. 18) shop-keeper about the hot altercations on the day previous to the incident was found inconsistent with his police statement and the learned Additional Sessions judge his passed it over by observing that due to lapse of time his memory might have failed him. It may be mentioned here that even if the quarrel of the previous day may be taken to be true it might have aggrieved Madansingh who was taunted by the other side and this also probabilised the defence version that the complainant side was the aggressor. It may also be observed that the prosecution did not care to prove the injuries of the other side and Dr. Sohanmal (D.W 2) had to be examined. This amount to suppression of the real story & therefore genesis and origin of the quarrel is not known. 23. In this view of the matter I am inclined to hold that the prosecution has failed to establish its case beyond all reasonable doubt and the circumstances taken as a whole probabilise the defence story. The judgment of conviction, therefore, cannot be said to be justified. 24. The appeals are, therefore, accepted and the judgment of the learned Additional Sessions judge convicting and sentencing the appellants is set aside. All the appellants are an bail. Their bail bonds arc discharged. Miss Kanta Bhatnagar, J. (Raisinghnagar) Richhpal Parmanend Mobsnani & Laxman Singh for the petitioner.Appeal Accepted. *******