JUDGMENT 1. - This criminal appeal is preferred against the judgment, dated January 29, 1976 of learned Additional Sessions Judge, No. 2, Jodhpur, whereby the appellants were convicted and sentenced as under:- S.No. Name of appellant U/S in I.P.C. Sentences 1. Rameshwar 325/34 2 years R.I. and a fine of Rs. 500/-. in default of payment of fine further 3 months rigorous imprisonment. 324/34 1 years R.I. and a fine of Rs.500/-, in default of payment of fine further 3 months R.I. 2. Bansi 325 2 years R.I. and a fine of Rs. 500/-, in default of payment of fine further 3 months R.I. 324 1 year R.I. and a fine of Rs. 500/-, in default of payment of fine, further 3 months R.I. The sentences were to run concurrently. 3. Mst. Panchi 325/34 324/34 Convicted but released on probation. 2. Briefly stated the facts as alleged by the prosecution were these. In village Kukarda, Badri s/o Poonaram has his filed adjacent to the filed of the appellants and there is common math. On 19-3-74 at about 11 a.m. appellant Mst. Panchi was cluing grass on her side of the math. Sadasukh, Madharam and his wife Mst.Sayari were working in their fields. Sadasukh, who is brother of Badri asked Mst. Panchi not to cut the grass on their math. Mst. Panchi got annoyed and went to her village. After half an hour, she returned with the two other appellants. Appellant Bansi was armed with a gupti and appellant Rameshwar had a pistol. They called Sadasukh and as he came near them, appellant Bansi gave a blow with his gupti on his forehead. Sadasukh bent-down and then Bansi gave him a second blow with gupti on the back. Sadasukh fell down and became unconscious. Rameshwar fired the pistol and Malooram was hit by pellets and fell down. The incident was also witnessed by Mst. Sayari and Mst. Rukri wife of Badri. The injured were taken to Asop Hospital and were advised to be taken to Jodhpur Hospital. The doctor also informed the in-charge, Police out-post about the incident. Badri brought the injured to Jodhpur and got them admitted in the Hospital. He than, left for Piparcity and lodged report of the incident at 11.20 a.m. on 20-3-74. The police registered a case under sections 307 and 326 I.P.C. The injured were medically examined. The doctor also informed the in-charge, Police out-post about the incident. Badri brought the injured to Jodhpur and got them admitted in the Hospital. He than, left for Piparcity and lodged report of the incident at 11.20 a.m. on 20-3-74. The police registered a case under sections 307 and 326 I.P.C. The injured were medically examined. After completing the investigation the police submitted a challan against the appellants who were duly committed. After the trial, the appellants were convicted and sentenced in the manner stated above. 3. I have heard the learned counsel for the appellants and Public Prosecutor for the State and perused the record of the case carefully. 4. It is argued by learned counsel for the appellants that eye-witness account of the incident is at complete variance with the medical report of the injured. That apart, the interested prosecution witness failed to explain the injuries received by appellants Mst. Panchi and Rameshwar. On the other hand, learned Public Prosecutor supported the judgment of the trial court. I have considered the rival contentions. 5. It was found by the trial court that Rameshwar and Mst. Panchi had received some injuries at or about the time of the incident. However, the trial court was of the view that mere fact that appellants Mst. Panchi and Rameshwar had these injuries did not by itself entitle them to the benefit of Section 99, I.P.C. and it could not be said that the complainant party was the aggressor. Learned counsel for the appellants did plead right of private defence in this court but urged that this was a vital lecuna in the prosecution case. The interested testimony of the prosecution has to be scrutinised carefully in view of this infirmity in the prosecution case I have considered the argument carefully. The effect of failure on the part of the prosecution to explain the injuries received by the accused varies in the facts and circumstances of each case and the prosecution evidence need not necessarily be disbelieved only on this score. However, this lacuna has an important bearing in this case because eye-witness account of the incident is contradicted by the medical evidence regarding the injuries of Sadasukh and Malooram. 6. The eye-witness account is given by Malooram, Sadasukh, Mst.Sayari and Mst. Rurki. These witnesses stated that they were working in their field. Mst. Panchi came there and started cutting grass from math. 6. The eye-witness account is given by Malooram, Sadasukh, Mst.Sayari and Mst. Rurki. These witnesses stated that they were working in their field. Mst. Panchi came there and started cutting grass from math. Sadasukh objected and Mst. Panchi went away. After a short while, she returned with appellants Bansi and Rameshwar, who were armed with a gupti and a pistol respectively. When Sadasukh came near, Bansi truck him with gupti and when he was bending down, another gupti blow was given on his back. Rameshwar fired pistol and the shot hit Malooram. It is further stated by the witnesses that a bullet from the pistol hit Malooram, The bullet caused injury on the left thigh and penis of Malooram. On medical examination two injuries were found on the person of Sadasukh one on the head and the other on the back. One injury was by blunt weapon and other by a sharp weapon. Evidently, the injuries of Sadasukh alleged to be caused by Gupti were in contradiction with the medical evidence. The trial court sought to explain it away by stating that a injury to the forehead of Sadasukh could have been caused by blunt edge of gupti. There was no evidence on record of the case that one edged of gupti used by appellant Bansi was blunt. In my opinion, the trial court could not have arrived at this conjectural finding that the injury on the fore-head of Bansi was caused by blunt edge of the gupti in the absence of any evidence to that effect. 7. The trial court, with regard to the injuries to Malooram, observed that though the prosecution evidence had stated that they were caused by Rameshwar by pistol, all other evidence goes against this version. Maluram stated that he was hit with a bullet, which injured his left thigh and penis. The bullet had passed through and through the thigh and the penis.On medical examination, no wound of entrance or exit was found. Only two lacerated wounds on the left thigh of Maluram were found by the Doctor. The injury report, to Ex.P.15. Dr. Dayal clearly stated that he could not give an opinion that the said injuries were caused by fire-arm. Dr. Dayal stated that these injuries could be caused by pellets but Rameshwar had definitely stated that he was hit by a bullet. The injury report, to Ex.P.15. Dr. Dayal clearly stated that he could not give an opinion that the said injuries were caused by fire-arm. Dr. Dayal stated that these injuries could be caused by pellets but Rameshwar had definitely stated that he was hit by a bullet. It is also an admitted position that no pellets were found in side the thigh. No bullets or pellets were recovered from the spot. The trial court was constrained to observe:- "All this evidence taken together casts a great doubt on the version on the prosecution witnesses in so far as the injuries of Malooram are concerned and it is highly doubtful if these injuries were caused by a fire-arm. So far as this part of the testimony of the evidence is concerned. I have no doubt that it can not be believed." 8. In my opinion, the trial court rightly arrived at a finding that it was not proved that Malooram was hit by any pistol shot fired by Rameshwar. The point for determination is whether in view of these infirmities, the trial court was justified in coming to a conclusion that Bansi caused a grievous injury by blunt weapon and a simple injury by sharp weapon to Sadasukh. The trial court had acquitted the appellants with regard to the injuries caused to Malooram. In my opinion, it is entirely unsafe to believe the prosecution evidence in view of these infirmities. When the medical evidence is in complete contradiction with the eve-witness account of the incident, the effect is that the core of the prosecution case stands destroyed. A finding has to be arrived at that the prosecution evidence is not describing the incident in the manner, it occurred. This infirmity in itself in my opinion, was enough to throw out the prosecution case. Moreover, the prosecution case suffers further from the infirmity that the prosecution evidence did not explain the injuries caused to Mst. Panchi and Rameshwar. In view of these two infirmities, in my opinion, it is not safe to convict the appellants for any of the offences. 9. In the result, the appeal is accepted and the appellants are acquitted of all the offences for which they stand convicted and sentenced. The appellants are on bail and they need not surrender to their bail-bonds, which are hereby discharged.Appeal accepted. *******