A. N. SURTI, J. ( 1 ) THESE two appeals filed by original accused No. 4 (appellant of appeal No. 362 of 1977) and original accused Nos. 2 and 5 (appellants of appeal No. 409 of 1977) are directed against the order of conviction and sentence passed against the said three accused in sessions case No. 7 of 1977 which was decided by the learned Sessions Judge Bulsar at Navsari. ( 2 ) THE learned Sessions Judge by his order dated 19th May 1977 convicted accused Nos. 2 4 and 5 who are the appellants in these two appeals for the offences under secs. 302 and 326 read with sec. 34 of the I. P. Code and sentenced each one of them to undergo R. I. for life in respect of the offence under sec. 302 read with sec. 34 of the Code and to undergo R I. for three years for the offence under sec. 326 read with sec. 34 of the Code. . . . . . . . . . . . . . . . . . . . . . ( 3 ) MR. G. H. Amin the learned Advocate (appointed) appearing for the appellants submits that in the instant case the learned Sessions Judge has erred in convicting the accused inspite of the fact that there is no cogent reliable and unimpeachable evidence on record establishing the guilt of the accused. The complaint was recorded 15 hours water the incident and it therefore cannot supply corroborative piece of evidence to the evidence of the witnesses. The evidence of the prosecution witnesses and particularly the five eye witnesses that is complainant Bhanuben daughter of the deceased Mangu Makan P. W. 2 Ex 11; Bai Mangi widow of the deceased P. W. 3 Ex. 13; injured Vaghji P. W. 5 Ex. 15; Parvati wife of the injured Vaghji P. W. 6 Ex. 16 and Shanti the mother-in-law of the injured Vaghji P. W. 7 Ex. 17 is full of contradictions does not inspire any confidence and suffers from many infirmities and lastly it is urged by Mr. Amin that in the instant case inspite of the fact that there were injuries on two of the accused persons viz. 16 and Shanti the mother-in-law of the injured Vaghji P. W. 7 Ex. 17 is full of contradictions does not inspire any confidence and suffers from many infirmities and lastly it is urged by Mr. Amin that in the instant case inspite of the fact that there were injuries on two of the accused persons viz. accused No. 5 Babar Mani and accused No. 4 Chhana Ganda and inspite of the fact that so far as accused No. 5 is concerned his injuries were of a serious nature one of them showing that his index finger was cut off the prosecution witnesses have not only failed to explain these injuries but have gone to the length of denying the same. ( 4 ) THE last submission of Mr. Amin in our opinion is a sound one and goes to the root of the matter. There is evidence on record establishing that accused No. 5 had received injuries by means of a sharp cutting instrument like a Dharia during the course of the very incident. It may be noticed that the incident happened at about 2 Oclock and on the very day accused No. 5 Babar went to prosecution witness Dr. Navinchandra Sukhadwala Ex. 1 showed him the injured finger and asked him to treat it. As per the evidence of this doctor the injured was standing at a distance of 15 from him but when he showed the injured finger he saw some blood thereon. But as the doctor was in hurry to go for a visit he asked him to come later. The accused there fore went to the Civil Hospital at Navsari where he was examined by Prosecution witness Dr. Narendra Mehta Ex. 22 at about 4-30 p. m. on the very day that is the day of the incident and found the following three injuries on the said accused:"1 Terminal phalanyx of left index finger cut off at the level of distal interphalangeal joint. 2 Incised would 1/2 x 1/8 x skin deep over left middle finger on proximal inter phalongcal joint on back side. 3 Incised wound 1 1/2 x 1/8 x skin deep over right front to parietal a little away from the mid line oblique. He was admitted as an indoor patient and the doctor issued a certificate with regard to the injuries which is at Ex. 23. 3 Incised wound 1 1/2 x 1/8 x skin deep over right front to parietal a little away from the mid line oblique. He was admitted as an indoor patient and the doctor issued a certificate with regard to the injuries which is at Ex. 23. In the opinion of the doctor the injuries which were on the said accused were such as were possible by a sharp edged weapon. The finger which was cut also was possible to have been cut by such a weapon. This doctors evidence also shows that on the very day accused No. 4 Chhana Ganda had also accompanied accused No. 5 and on examination the doctor found the following injuries: contusion 1x 1 over left frontal region on forehead with superficial lacerated wound 1/3 x 1/8 over it. and in the opinion of the doctor this injury was possible by a hard and blunt substance. The doctor also stated that the injuries of accused No. 5 were bleeding and therefore the injuries must be quite fresh. It is also in evidence that the first complaint which was lodged on the day of the incident was the complaint given by accused No. 4 Chhana Ganda as per Ex. 56 and as is evident from the evidence of the head constable Ex. 55 the compliant was lodged by Chhana Ganda at 6-30 p m. on the day of the incident. The complaint was lodged against Vaghji and deceased Mangu Makan and as the complaint states when accused No. 4 was going home the deceased and Vaghji got excited because of the previous enmity arising out of the quarrel which had taken place at the time of the marriage in that year and a blow by means of a stick was given on his head and he started bleeding and thereafter there was fight between him and the said two persons. He then approached Police Patel Maganbhai Ravjibhai and as per his advice he went to the Police station at Jalalpore. In the complaint it is stated that he does not want to go to the hospital because he had been taken to the Civil Hospital. ( 5 ) IT is true in his statement recorded under sec. 313 of the Code accused No. 4 has tried to avoid admitting that he received injuries which were on his head at the time of the incident. ( 5 ) IT is true in his statement recorded under sec. 313 of the Code accused No. 4 has tried to avoid admitting that he received injuries which were on his head at the time of the incident. This was obviously done to support his case that he was not present at the time of the incident as his defence was one of denial. But in view of the complaint which has been recorded and the medical certificate issued that is no doubt that he received the injuries during the course of the incident or thereabout. The injury on his head also is not such a minor injury which would go unnoticed by the prosecution witnesses not requiring any explanation from them. ( 6 ) SO far as the injuries on accused No. 5 are concerned they probablise his defence and his statement recorded under sec. 313 to the effect that at the time of the incident when he was going home and when he was passing by the side of the house of deceased Mangu Makan the deceased and Vaghji attacked him by means of Dharia and caused him the said injuries which are as per the opinion of the doctor possible by a sharp edged weapon like a dharia. These are not minor or insignificant injuries. Actually his index finger has been cut off from the distal interphalangeal joint. There is also an incised wound on another finger of his and there is also a third injury in the nature of incised wound which would be clearly noticeable the same being of the size of 1 1/2 x 1/8 x skin deep over the right front to parietal region. The non-explanation of these injuries on the person of the accused Nos. 5 and 4 as also denial of those injuries by all the eye witnesses examined by the prosecution would prove fatal to the prosecution case and it would be difficult to record a finding of conviction against any of the accused on the basis of the evidence led by the prosection witnesses. ( 7 ) AS look may be had in this connection at the observations of the Supreme Court with regard to the inference which a court can draw in such a case as reported in Lakshmi Singh and others v. State of Bihar A. I. R. 1976 S. C. 2263. ( 7 ) AS look may be had in this connection at the observations of the Supreme Court with regard to the inference which a court can draw in such a case as reported in Lakshmi Singh and others v. State of Bihar A. I. R. 1976 S. C. 2263. The Supreme Court at page 2269 has made the following important observations: it seems to us that in a murder case the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) 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; (3) 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 person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a Version which competes in probability with that of the prosecution one in our opinion applying this principle it can be safely said that the prosection has suppressed the genesis and the origin of the occurrence and has thus not presented a true version by failure on its part to explain the injuries on the two accused particularly accused No. 5. Again in view of the fact that the prosecution witnesses have denied presence of the injuries on these accused it has to be inferred that they are lying on a most material point which renders their evidence unreliable and thirdly in a case like the one with which we are dealing in which 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 the benefit of which doubt must as a matter of course go to the accused. so as to throw doubt on the prosecution case the benefit of which doubt must as a matter of course go to the accused. If as accused No. 5 says when he was passing he received the said injuries by means of an attack which was mounted on him by the deceased and Vaghji by using weapons like dharias the non-explanation of the injuries on. accused No. 5 and their denial from the side of the prosecution witnesses would render his version probable throwing doubt on the prosecution case. The result therefore would be that in the case of this natural when there is a history of enmity between the side of the accusedand the side of the deceased and Vaghji and when the eye whiteness are near relations of the deceased and the injured. and are inimical witnesses omission on the part of the witnesses will assume importance and when they deny the injuries on the accused and lie on a most material point their evidence is rendered unreliable; and in view of the conduct of accused Nos. 4 and 5 in filing the first complaint and in going for medical treatment for the injuries received by them in view of the version of the defence as is given by accused No. 5 and as is disclosed in the complaint filed by accused No. 4 which competes in probability with that of the prosecution evidence the prosecution must fail on the around that it has not brought home the guilt of the accused beyond reasonable doubt. The conduct of accused Nos. 4 and 5 in approaching the police immediately and in getting medical treatment as compared to the conduct of the complainant in not doing anything and filing the complaint after a lapse of about 15 hours in this context saddles their case with a serious infirmity going to the root particularly when the delay is not satisfactorily explained. ( 8 ) IN our opinion the learned Sessions Judge committed a grave error in not considering this aspect of the case at all in his judgment and in being guided by other factors regardless of this important feature in recording an order of conviction against the accused. The order of conviction therefore is not sustainable against appellants of both the appeals and deserves to be set aside. The result will be the following order : Both the appeals allowed. The order of conviction therefore is not sustainable against appellants of both the appeals and deserves to be set aside. The result will be the following order : Both the appeals allowed. .