JUDGMENT 1. - This is an appeal by six accused appellants against their convictions and sentences passed by the learned Sessions Judge, Alwar dated 9th August, 1975. The learned Sessions Judge convicted and sentenced the accused appellants in the following manner : (i) under sections 147, 325 read with 149 to six months rigorous imprisonment. (ii) under section 324 read with 149 IPC to one years rigorous imprisonment (iii) under section 323 read with 149 IPC to four months rigorous imprisonment. All, the sentences were ordered to run concurrently. 2. The prosecution case in brief is that the field of the complainant Chiranji and field of accused Sarwan, Parma and Munshi are situated by the side of a path. A portion of the public path was encroached by accused Sarwan, Munshi, and Parma. The fields were got measured on 26th April, 1973 by the patwari and the Naib Tehsildar at the request of the accused persons and it was found that path was encroached by the accused persons. At the time of measurement of the fields 13 persons from the side of the accused were present and from the side of the complainant Chiranji PW 1, Daya Lal PW 6 and Kishori PW 5 were present. In the evening when the aforesaid persons Chiranji, Daya Lal and Kishori were returning and reached the vicinity of Chamars, all the 13 accused persons attacked on them and inflicted injuries with lathis and axes. On raising hue and cry by Chiranji, Kishan Lal, Harphool, Ramji Lal and Ramswaroop came to their rescue but they were also injured by the accused party. Laxmi Narain, Girraj and Ramniwas witnessed the occurrence. Kishori and Daya Lal got injuries with axe and lathis and Kishan Lal, Chiranji, Ramji Lal, Ram Swaroop and Harphool received injuries with lathis. The injured persons were taken to hospital at Rajgarh where the injuries were examined and thereafter Kishori Lal and Daya Lal were referred for x-ray examination of their injuries. A written report of the incident Ex PI was lodged on 26th April. 1973 at 8:45 p.m at police station, Rajgarh by Chiranji PW 1. On the basis of the aforesaid written report an F.I.R. Ex.P 15 was registered and after completing the investigation the 13 accused persons were challaned before the learned Munsif and Judicial Magistrate First Class, Rajgarh. A written report of the incident Ex PI was lodged on 26th April. 1973 at 8:45 p.m at police station, Rajgarh by Chiranji PW 1. On the basis of the aforesaid written report an F.I.R. Ex.P 15 was registered and after completing the investigation the 13 accused persons were challaned before the learned Munsif and Judicial Magistrate First Class, Rajgarh. The learned Judicial Magistrate First Class, Rajgarh, committed all the accused persons for trial to the court of Sessions Judge, Alwar for offences under sections 307, 326, 325, and 147 IPC. The learned Sessions Judge framed charges under sections 148, 307 in the alternative 307 read with 149 and 325 read with 149 IPC, The accused persons pleaded not guilty to the charges and claimed to be tried. The prosecution in support of its case examined PW 1 Chiranji, PW 2 Kishan Lal, PW 3 Harphool, PW 4 Ramjilal PW.5 Kishori, PW. 6 Daya Lal, PW 7 Girraj PW 8 Dr.D.R. Sharma, PW 9 Dr. G.P Sharma and PW 10 Karan Singh Investigating Officer. The accused were examined under section 313 Cr.P.C. and they examined Tara DW 1 Badri Prased DW 2 in their defence. The learned Sessions Judge on the basis of arguments advanced in the case framed the following main points for decision: 1. Whether injured Chiranji, Daya Lal. Kishan Lal, Kishori, Ramswaroop, Ramji Lal and Harphool suffered injuries in the occurrence that took place on the evening of 26-4-73 in the Mohalla of chamars in village Pinan.? 2. Whether the accused persons were members of an unlawful assembly with the common object of voluntary causing injuries to Chiranji and the members of the unlawful assembly committed rioting and at the time they were armed with lethal weapons i.s. axe and lathis.? 3. Whether the accused persons or any of them are responsible for causing injuries to above said seven injured, if so what offence is made out against them.? 4. Whether any or sum of offences are proved against all or some or any of the accused persons, if so what should be the quantum of punishment.? 3. On point No. 1 the learned Sessions Judge held that it was proved 7 injured persons suffered injuries given in injury reports Ex. P. 9 to P14 and P16. in the occurrence that took place on the evening of 26th April, 1973, in the Mohalla of Chamars at Pinan. 3. On point No. 1 the learned Sessions Judge held that it was proved 7 injured persons suffered injuries given in injury reports Ex. P. 9 to P14 and P16. in the occurrence that took place on the evening of 26th April, 1973, in the Mohalla of Chamars at Pinan. Under point No.2 the learned Sessions Judge held that participation of accused Mangai Chhotey Khan, Mamna, Sardarn Parma, Safeda and Lila was not proved. He further held that the remaining six accused persons cannot be held liable under section 148 IPC but they were liable under section 148 IPC Under point No. 3, the learned Sessions Judge held that the accused Sarwan, Musaddi, Ramjilal, Munshi, Tajju and Rehmat were found guilty under section 325 read with 149, 324 read with 149 and 323 read with 149 IPC. Under point No. 4 the learned Sessions Judge gave sentences to the accused appellants as indicated above. 4. Mr. Gupta, learned counsel for the appellants has contended that the learned Sessions Judge committed an error in observing that the complainant Chiranji had came with case, that the land of path was found to be encroached in the fields of Sarwan, Parma and Munshi. The learned Sessions Judge further observed that this contention has been proved by the statements of injured Chiranji and Kishori and others and it has not been controverted by any other evidence. The learned Session Judge also observed that a copy of the result of measurements ought to have been produced in order to believe the contention of the prosecution in this respect, and that the Sarwan and other could be taken to have been aggrieved as the land of path was found to be encroached by them He further observed that the measurement of this encroachment was also got done earlier and on the earlier occasions also encroachment was found to have been made by Sarwan and others. The repeated measurements of the land of path and its result against Sarwan and others was a circumstance which must have forced his party to start the beatings so that complainant Chiranji may not proceed to get the encroachment removed or may get a lesson in this respect.According to the learned counsel for the appellants this manner of approach taken by the learned Sessions Judge was totally wrong It was the duty of the prosecution to have examined the Patwari and the Naib Tehsildar,who had given for measurement of the land to prove the fact that the encroachment was made by Sarwan and others over the public path way. No record of measurement was also produced to support the above contention of the prosecution. It was not the duty of the defence to produce the above documents and in the absence of the evidence of Patwari and Tehsildar and any other documentary evidence, it was wrong on the part of the learned Sessions Judge to have placed reliance on the oral testimony of the prosecution witnesses alone who were highly interested. It is further contended by Mr. Gupta that admittedly 13 injuries have been found on Sarwan, Ramji Lal and Munshi out of the accused appellants and 39 injuries have been found on 7 persons in the complainant party. Out of 39 injuries only 3 injuries, two on Kishore and on Dayala Ram have been found to be grievous and these also by blunt weapons and rest of the entire 36 injuries are simple in nature by blunt weapons. Under these circumstances it is contended that the learned Sessions Judge committed an error in taking the view that the complainant party suffered 39 injuries white the accused party received 13 injuries and as such the accused party will be taken as aggressor. 5. It is next contended that there was delay in lodging the FIR as the occurrence is of the evening of 26-4-73 while the FIR has been lodged on 28th April, 1973 after a delay of 50 hours. 5. It is next contended that there was delay in lodging the FIR as the occurrence is of the evening of 26-4-73 while the FIR has been lodged on 28th April, 1973 after a delay of 50 hours. It is further contended that no explanation has been given by the prosecution side to explain the injuries received by the accused persons even though questions were directly pet to the prosecution witnesses in this regard If the accused persons had received injuries at the time of the occurrence, it was the duty of the prosecution to explain it and in the absence of explanation this Court should hold that the prosecution was not coming forward with a true story and was hiding the truth. Reliance in this regard is placed on Lakshmi Singh and others v. State of Bihar AIR 1976 SC 2263 and Kadar Khan and Ors. v. The State of Rajasthan : 1977 Cr. LR (Raj) 83. It is further submitted that though PW 1 Chiranji and PW 5 Kishori have admitted the presence of the Patwari and the Tehsildar at the time of occurrence but the prosecution has failed to examine these independent eye witnesses and the prosecution case based merely on the testimony of the interested witnesses, cannot be relied upon. It is further argued that the appellants have brought out their cases of right of private defence from the evidence of the prosecution itself and as such cannot be held as aggressors and are entitled to be acquitted. 6. On the other hand, the learned Public Prosecution or has supported the judgment of the learned Sessions Judge. He has submitted that the origin of the tight in this case was not relevant as there was no dispute about any field nor the same took place in the field of the accused persons. The facts of the prosecution case, which are fully established on record is that the fight took place in public path way and even if it may be considered as a case of free fight, the accused appellants were not entitled to the exercise of right of private defence. It is further argued that it was not necessary for the prosecution to have explained the injuries on the accused persons as the injuries were not of serious nature and were superficial. It is further argued that it was not necessary for the prosecution to have explained the injuries on the accused persons as the injuries were not of serious nature and were superficial. Reliance in this regards is placed on Jagdish v. State of Rajasthan, AIR 1979 SC 1010 . 7. I have gone through the statement of the prosecution witnesses and the FIR and other documents placed on record. From a perusal of the entire evidence on record it is clear that the incident had taken place in the evening of 26th April, 1973. 13 injuries, though simple, are found on three persons of the accused side and 39 injuries on 7 persons from the complainant party. Looking to the nature of the injuries alone in the present case it cannot be said that the accused party was an aggressor. Admittedly out of 39 injuries found on 7 persons on the complainant side, 36 are simple in nature. Only three injuries are of grievous nature caused by blunt weapon and as such it cannot be said that the accused party was more in number and that is why they caused more injuries on the complainant party. It may be pertinent to observe that though a challan was filed against 13 persons but the learned Sessions Judge himself did not find the participation of 7 accused persons and acquitted them. The prosecution case as regards 7 accused persons has been found to be false and as such in my opinion it cannot be held by the number of the injuries alone that the accused party was an aggressor. In order to determine as to how the fight started and who began the attack, there is the evidence of PW 1 to PW 6, who are alleged to be the eye witnesses. It is no doubt true that all these witnesses have stated that the accused party started an attack on them but in my view their evidence in this regard cannot be taken as wholly true. Admittedly all these persons are interested witnesses According to PW 1 Chiranji, Patwari and the Tehsildar were at a distance of 20 steps from them but he is not. sure whether they were witnessing the occurrence or not. However, PW 5 Kishori, one of the injured has clearly admitted in his cross examination that the Patwari and Tehsildar had seen the occurrence. sure whether they were witnessing the occurrence or not. However, PW 5 Kishori, one of the injured has clearly admitted in his cross examination that the Patwari and Tehsildar had seen the occurrence. If that be so the prosecution ought to have examined the two independent witnesses Patwari and the Tehsildar and their non-production creates a serious doubt in the prosecution case as to how the fight started originally It may be further observed that all the prosecution witnesses have denied inflicting any Injury on the accused party. Though a complaint was filed by the accused party of this very incident against the complainant party on 27th April, 1973, in the court of Munsif and Judicial Magistrate, Rajgarh, yet no explanation is coming forth from the side of the prosecution for the injuries sustained by the accused persons There are 13 injuries found on three persons from the accused side and when there is total denied from the prosecution side, it cannot be expected that the injuries were self-inflicted. It has been observed in Lakshmi Singhs case (supra) 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 alternation is a very important circumstances from which the court can draw the following inferences : "(1) that the prosecution has suppressed the genesis and the origins of the occurrence and his thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the persons of the accused are lying on a most material point and therefore their evidence is unreliable; (3) 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." Their Lordships further observed that 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. I have no manner of doubt that in the pi e sent case, three accused persons had also sustained 13 injuries at the time of the occurrence itself and the failure of the prosecution to explain the same clearly leads to the conclusion that true genes of the incident has not been brought forward before the Court. Under these circumstances it is difficult to arrive at the conclusion that the accused persons started the fight and attached the complainant party. My conclusion in this regard is further supported from the fact that material independent witnesses namely Patwari and Tehsildar have not been examined from the prosecution side. The version of the defence that they inflicted injuries on the complainant, side in the exercise of their right of private defence cannot be said to be wholly improbable. When the learned Sessions Judge has acquitted 7 persons and has not relied on the prosecution version with regard to their participation in the crime and presence at the scene of occurrence, it is clear that the prosecution has not come forward with a true story. In these circumstances it cannot be overruled that if the complainant party, who were at least 7 in number attacked, the accused party who were six in number, in that case if the accused party, who had received 13 injuries, if inflicted 39 injuries on the complainant party, out of which 36 were simple and only 3 were grievous in nature, the accused persons were not doing so in the exercise of their right of private defence The prosecution has failed to produce any documentary evidence to show that the accused persons had encroached on the public path way and in the measurements done by the Patwari and the Tehsildar it was found that they were in possession of some portion of the path way. In my opinion it was not the duty of the accused to have produced these documents, lout it was the duty of the prosecution to have produced these documents if they wanted to prove that the accused persons had encroached over the path way and on that account they were the aggressors. 8. In the result, this appeal is allowed, the judgment of the learned Sessions Judge, Alwar, dated 9th August, 1975, is set aside and the accused appellants are acquitted of all the charges levelled against them. 8. In the result, this appeal is allowed, the judgment of the learned Sessions Judge, Alwar, dated 9th August, 1975, is set aside and the accused appellants are acquitted of all the charges levelled against them. The appellants are on bail, as such they need not surrender. The bail bonds and the surety bonds are discharged.Appeal allowed. *******