JUDGMENT N.N. Sharma, J. 1. There are four appellants in this appeal; all the appellants are own brothers, resident of village Bishanpur, P.S. Gyanpur district Varanasi. 2. Babban appellant have been convicted under Sec. 307 simplicitor and 326/34, 323/34 and again under Sec.323/34 of Indian Penal Code. Babban has been sentenced to five years rigorous imprisonment under Sec. 307, three years R.I. under Sec. 326 read with Sec. 34 and six months R.I. under both counts viz. 323 read with Sec. 34 of Indian Penal Code. Kallu, Sattan and Mattan have been convicted under Secs.307/34, 326/34, 323/34 and 323/34 of Indian Penal Code, all of them have been sentenced to undergo rigorous imprisonment for three years, three years, six months and six months respectively under the said counts. All the sentences were ordered to run concurrently by Sri M.M.H. Siddiqi, learned Addl. Sessions Judge, Gyanpur, Varanasi on 16-6-1977. 3. The prosecution story briefly stated is that appellants on 5th May, 1973 at about 8 A.M. in furtherance of their common intention, injured Jokhan and his mother Smt. Reshmi in front of their house. The parties are inter-related. However, relations amongst the parties were embittered on account of some affair about Ghost, as first wife of Dular had expired and it was believed by the appellants that she harassed them. 4. A written report Ext. Ka. 1 about the occurrence was lodged by Jokhan at police station in the same forenoon at 11.15 A.M. The distance of police station from the scene of occurrence was four miles. It was laid in the report that on that morning at 8 A.M. while Jokhan was sitting at his door appellants attacked him with Gandasa and lathis on account of enmity of ghost affair and this inflicted injuries on his hand and index finger, When he raised alarm Smt. Reshmi also came there. She was also attacked by the appellants and sustained injuries. On the basis of this report Sri Surendra Nath Rai, Head Constable Police Station Gyanpur prepared First information Report Ext. Ka. 9 and registered a case in General Diary viae Ext. Ka. 10. Injured were examined in Gyanpur Hospital by Dr. N.D. Burman (PW 5), the then Medical Officer. The following injuries were defected on the person of Jokhan at 11.25 A.M. On the same day. 1. One incised wound obliquely 6 cm. x 1-1/2 cm. Ka. 9 and registered a case in General Diary viae Ext. Ka. 10. Injured were examined in Gyanpur Hospital by Dr. N.D. Burman (PW 5), the then Medical Officer. The following injuries were defected on the person of Jokhan at 11.25 A.M. On the same day. 1. One incised wound obliquely 6 cm. x 1-1/2 cm. x bone deep on the right side of skull 4 cm. above the right eye brow. The margins of the wound were clean cut. 2. One incised wound obliquely 2-1/2 cm. x 2 cm. x bone deep on the outer part of right index finger. The margin of the wound clean cut. 3. A lacerated wound 2 cm. x 1 cm.x 1 cm. on the inner part left little finger. 5. Doctor found injuries 1 and 2 to be caused by sharp edged weapon. Injuries were kept under observation and X-ray was advised. 6. Smt. Reshmi was examined by the same doctor at the same place on the same day at 0.15 P.M. The following injury was detected on her person vide report Ext. Ka. 6. 1. One bruise Mark 6 cm x 3 cm. on the back parts of right fore-arm middle. There was also complaint of pain in head and buttock. The duration of injury was fresh and injury was simple in nature. 7. The case remained univestigated but it was under the direction of Circle Officer that investigation followed and the appellants were sent up. 8. In support of their case, prosecution examined Jokhan (PW 1), his brother Chandar (PW 2) and his mother Smt. Reshmi (PW 3) to testify prosecution version, as given above. As regards formal witnesses they are, Head Constable Sri Surendra Nath Rai (PW 7) and Amar Nath Dubey (PW 4). 9. Prosecution also examined two doctors: Dr. N. D. Burman and Dr.K. M.Srivastava. 10. In their statements, appellants denied the aforesaid allegations. Sattan stated that Ram Dular stabbed Ram Das with knife. Kallu made similar statement. He also alleged that Dular had beaten his first wife, who jumped into the well and turned into a ghost and used to harass the members of his family. IN that connection the parties were on strained relations. A panchayat was convened one day earlier; they were required to pay expenses by Dular and his family members. He also alleged that Dular had beaten his first wife, who jumped into the well and turned into a ghost and used to harass the members of his family. IN that connection the parties were on strained relations. A panchayat was convened one day earlier; they were required to pay expenses by Dular and his family members. On the next day while Ram Das was going on Rikshaw, he saw Dular having altercation with Ram Autar. Ram Dular also stabbed Ram Das with knife; Smt.Laxmi informed them about the matter and they were attacked by Jokhan and Chander. There are also injury reports Exs. Kha 1 to kha 3 Nathan and Kallu respectively which were proved in defence to substantiate counter version, which reached the police station at 10.30 A. M. in the same forenoon. 11. On a consideration of the evidence on record, learned trial Judge found that there was no motive on the part of appellants to have launched the assault. Both the parties sustained injuries. He further observed "according to my findings it is difficult to say as to which of the parties had started marpit first and as to who were the real aggressors". 12. He further observed: "It is again not important as to who had inflicted Gandasa injury. In fact, both the sides have tried to suppress true facts. In my opinion both the sides had Gandasas with them and they had induldged in free-fighting". Thus, on the aforesaid observations he recorded conviction and sentence aforesaid. 13. I have heard learned counsel for the parties and perused the record. 14. The appeal is allowed on account of following infirmities in prosecution version. It is significant to note that First Information Report does not specify the role of the appellant; it was not mentioned in the report as to who was the author of the Gandasa blow ; no explanation was offered about the injuries sustained by the party of appellants which were no less serious than injuries sustained by prosecution party. In Laxmi Singh v. State of Bihar, 1975 SCC page 671 it was observed "Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue ; and (2) that the injuries (sic) the plea taken by the appellants" 15. In Laxmi Singh v. State of Bihar, 1975 SCC page 671 it was observed "Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue ; and (2) that the injuries (sic) the plea taken by the appellants" 15. It has been proved that Mattan and Kallu sustained so many injuries during this occurrence. No explanation was offered for their injuries nor any explanation was offered about the stab wounds sustained by Ram Das. Even the venue of occurrence was not fixed with certainty, as blood stained earth was not sent to Chemical Examiner or Sexologist in this case. Garib and Adit, cited as independent witnesses in the report, were not examined. No reason was given for non production of this essential evidence, so a presumption arises under Section 114 Ills (g) of Indian Evidence Act that such evidence, if adduced, would have been unfavourable to prosecution. In Babu Singh v. State, 1979 Cr LJ (NOC) page 16 it was observed "in the case of a free fight between two rival groups equipped with arms Such as spears lathis and sharp edged weapons when there is no reliable evidence on the record to hold as to what exactly transpired at the time of the incident and who acted as the aggressor and who dealt the first blow and the truth is so inextricably mixed up with falsehood that it is impossible to separate them and in the process of separation the court will have to reconstruct absolutely a new case for the prosecution by diverting the essential details presented by the prosecution completely from the context, the evidence must be rejected in its entirety. In criminal trial it is of prime importance for the accused to know as to what the exact case of the prosecution is. If the pivot of the prosecution case is not accepted a new prosecution case cannot be made by the court to imperil the defence and convict the accused on that basis." 16. No other point was argued before me. Thus, the appeal is allowed. Conviction and sentences of Babban, Kallu, Sattan and Mattan are set aside and they are acquitted of all charges for which they had been convicted in the trial. All the appellants are on bail. They need not surrender to their bail bonds, which are discharged. No other point was argued before me. Thus, the appeal is allowed. Conviction and sentences of Babban, Kallu, Sattan and Mattan are set aside and they are acquitted of all charges for which they had been convicted in the trial. All the appellants are on bail. They need not surrender to their bail bonds, which are discharged. Appeal allowed.