JUDGMENT : S.L. Talati, J. The two appellants of this appeal challenge the conviction and sentence imposed by the Additional Sessions Judge, Junagadh in Sessions Case No. 63 of 1982 on 29-9-1982. By that judgment accused No. 1 was held guilty for the offence punishable under Section 323 of the Indian Penal Code and was sentenced to suffer simple imprisonment for 15 days and to pay a fine of Rs. 100/- in default to suffer simple imprisonment for one month. He was also held guilty for an offence punishable under Section 447 I.P.C. but no separate sentence was passed. Accused No. 2 was held guilty for an offence punishable under Section 304 I.P.C. and was sentenced to suffer R.I. for seven years and to pay a fine of Rs. 1,500/- in default to suffer R.I. for six months. Pie was also held guilty for an offence punishable under Section 447 and 323 I.P.C. and no separate sentence was inflicted. 2. The prosecution case was that the incident occurred on 23-2-1982 in the outskirts of village Kerala in the field of one Dhirajlal Bhikhabhai at about 1-00 P.M. At that time according to the prosecution case Dhirajlal was on his well and his father Bhikhabhai Somabhai was working in the field. Kadviben, mother of Dhirajlal was grazing the cattle on the river bed. At that time according to the prosecution case bullocks belonging to the accused entered the field of the deceased and they were driven out. Accused No. 2 came on the scene and there was exchange of words between accused No. 2 and Bhikhabhai. Thereafter accused No. 1 went back and he returned with a weapon known as Khappali. Accused No. 1 came with him and he had a stick. Thereafter accused No. 2 mounted an attack and he assaulted Bhikhabhai who raised cries. Because of the cries raised P.W. 4, Dhirajlal and P.W. 5, Kadviben came there. Accused No. 1 tried to prevent P.W. 4, Dhirajlal and caused him injuries with stick and also by throwing stones. At that time accused No. 2 also gave one blow to P.W. 4, Dhirajlal. Thereafter both the accused ran away. Bhikhabhai was brought to the panchayat office and ultimately was taken to Vadal for treatment. There his condition was found to be critical and he was removed to Junagadh. At that time accused No. 2 also gave one blow to P.W. 4, Dhirajlal. Thereafter both the accused ran away. Bhikhabhai was brought to the panchayat office and ultimately was taken to Vadal for treatment. There his condition was found to be critical and he was removed to Junagadh. In Junagadh hospital he died at 9-35 P.M. The Medical Officer sent information to Police Station and as a result entry was made which is Exhibit 46. The entry was to the effect that because of a fight (Mara-mari) Bhikhabhai Somabhai was admitted in the hospital for treatment. Now that entry was made at about 6-45 p.m. After entry Exhibit 46 which was made at 6-45 p.m. Kasam Ibrahim, Head Constable went to Junagadh hospital and he found Bhikhabhai Somabhai unconscious and, therefore, he recorded the complaint of Dhirajlal which is at Exhibit 17. He learnt that Bachu Bhura, accused No. 1 was also in the hospital and he was being treated and, therefore, he went to him and recorded his complaint as well which is Exhibit 44. Thereafter at 9-35 p.m. Bhikha died and inquest panchnama Exhibit 20 was prepared. Head Constable Mansukhlal (P.W. 13) Exhibit 45 on the basis of the information received made an entry in Police station diary and ultimately it appears that P.S.I. Chavda took up the investigation and he prepared the panchnama of the place of the scene of offence and attached earth from that place. On 25-2-1982 when accused No. 1 was discharged from the hospital he arrested him and prepared the arrest panchnama, and attached his bloodstained clothes. On 26-2-1982 accused No. 2 was arrested and arrest panchnama was prepared. Thereafter he showed his willingness to produce Khappali which was attached under a panchnama. Thereafter he submitted a charge-sheet in the court. In due course the case came to be committed to the Court of Sessions and before the learned Additional Sessions Judge the prosecution examined 14 witnesses. The accused denied the guilt and accused No. 1 filed written statement Exhibit 49 and accused No. 2 filed written statement Exhibit 50. They did not lead any evidence in defence. Their case in the written statement was that they had kept the field of Ranchhod Bhura and the deceased and his son did not like and they cooked up a false case on the ground that the cattle had grazed in their field. They did not lead any evidence in defence. Their case in the written statement was that they had kept the field of Ranchhod Bhura and the deceased and his son did not like and they cooked up a false case on the ground that the cattle had grazed in their field. Their further say was that the quarrel was started by Bhikha Soma and he had started an attack with a stick. First stick blow was given to accused No. 1 and accused No. 1 received injury on the finger and there was fracture and his clothes also became blood-stained. In those circumstances accused No. 1 sat at some distance. Thereafter Bhikha Soma deceased started giving blow to Amritlal, accused No. 2 and the blow was given on his leg and there was a fracture. Another blow was given to accused No. 2 on his head as a result there was bleeding. At that time accused No. 2 felt that he would be killed and, therefore, he whirled stick which he had and by whirling the stick if deceased received the injuries, the accused did not know. 3. Now to establish the case so far as the prosecution is concerned, the prosecution mainly relied on the evidence of two witnesses, P.W. 4, Dhirajlal and P.W. 5 Kadviben. Now P.W. 4, Dhirajlal is the son of the deceased and he is the complainant who filed the complaint, Exhibit 17. In his evidence his version was that at about 12-30 noon he was working on the machine which was fixed on the well and his father was working in the field. At that time bullocks of accused No. 1 entered their field and his father drove away the bullocks. Thereafter according to him, accused No. 2 came and there was exchange of words between accused No. 2 and his father. Thereafter according to Dhirajlal, accused No. 2 went to his field and he came back with accused No. 1. At that time accused No. 2 had brought Khappali and accused No. 1 had a stick and they both gave blows to his father and his father fell down. According to him he ran to that place and accused No. 1 threw the stones at him and he was injured. At that time accused No. 2 had brought Khappali and accused No. 1 had a stick and they both gave blows to his father and his father fell down. According to him he ran to that place and accused No. 1 threw the stones at him and he was injured. He was caught and accused No. 2 gave a blow on his head with Khappali and accused No. 1 gave blows by stones on his back and on his leg. Thereafter according to him one Bharwad (shepherd) passed from that place and he advised them to take Bhikha to some hospital, as a result he took his father on a bicycle to the village and informed about the incident to the Sarpanch and ultimately after consulting Sarpanch, on a motor-cycle his father was taken to Vadal where his condition was critical and thereafter his father was taken to Junagadh. This version is repeated by P.W. 5, Kadvi Exhibit 18 who is widow of Bhikhabhai. Now admittedly she was grazing cattle at a distance of more than 1000 ft. Though she tried to pose as an eyewitness it was more than clear that she did not see the incident but she came up immediately after the incident. 4. The prosecution also examined P.W. 7, Ratna, the shepherd who had passed from that way and he deposed that he advised Dhirajlal that Bhikhabbai should be removed to hospital. The prosecution also examined Vaghji, Sarpanch of the village at Exhibit 34. 5. Another witness Bachu Exhibit 35 who is the panch deposed in regard to the panchnama which was prepared at the place of scene of offence. 6. The map is produced at Exhibit 8 and it appears that to the south of the field of Bachu there is field of Ranchhod Bhura and it is in evidence that it was that field which was kept by the accused. Just to the cast of the field of Ranchhod Bhura there is field of deceased Bhikhabhai. To the south of this field there is a road and thereafter there is Survey No. 55 which belonged to Ranchhod Dungar. Now Dhirajlal Exhibit 16 in his cross-examination admitted that the field of Ranchhod Dungar was also, kept by the accused for grazing the cattle. Now from that place as one crosses the road on the north, according to the map, at distance of about 18 ft. Now Dhirajlal Exhibit 16 in his cross-examination admitted that the field of Ranchhod Dungar was also, kept by the accused for grazing the cattle. Now from that place as one crosses the road on the north, according to the map, at distance of about 18 ft. the incident had occurred. Now it is interesting to note that the prosecution by examining the doctors proved the injuries to accused Nos., 1 and 2 and Dhirajlal admitted that he had seen accused No. 1 in the hospital. 7. Now before we say as to how the learned Additional Sessions Judge fell into an error, we would like to discuss the evidence which the prosecution led in regard to the injuries which were caused to the deceased, to witness Dhirajlal and to accused Nos. 1 and 2. 8. to 13. xxx xxx xxx 14. Now, therefore, it was more than clear that the deceased received only one blow, that blow ultimately proved to be fatal. So far P.W. 4 Dhirajlal is concerned he received one blow which resulted in simple injury and there were two blows which also resulted in simple injuries and they were mostly by stones. Accused Nos. 1 and 2 had visible bleeding injury and each one of them had the fracture. Therefore, their injuries were grievous in nature. One of them had also received an injury which was on the head, the vital part of the body. 15. Now the learned Additional Sessions Judge thought that the witness admitted that accused No. 1 was found in the hospital for treatment and prosecution proved injuries on accused nos. 1 and 2 and, therefore, he thought that the prosecution explained injuries on the accused. The learned trial Judge clearly fell into an error when he thought that if the prosecution produced evidence to prove the injuries on the accused persons and one of the prosecution witnesses admitted that he had seen one of the accused persons in the hospital he thought that that amounts to an explanation of the injuries on the accused persons. The word "explanation" would mean explaining the circumstances under which the accused persons got injuries. The evidence was clear that in the transaction that took place both the sides received injuries. Now that therefore the two prosecution witnesses who claim to be eye-witnesses, viz. The word "explanation" would mean explaining the circumstances under which the accused persons got injuries. The evidence was clear that in the transaction that took place both the sides received injuries. Now that therefore the two prosecution witnesses who claim to be eye-witnesses, viz. P.W. 4, Dhirajlal Bhikhabhai and P.W. 5 Kadviben Bhikhabhai, were expected to see clearly as to under what circumstances and in what particular manner accused No. 1 and accused No. 2 received injuries. If that was stated that would amount to explanation. They did not say anything in regard to the injuries to accused Nos. 1 and 2. The medical officer stated that when he examined accused Nos. 1 and 2 there were injuries on their persons; that would mean that the prosecution proved injuries on the accused Nos. 1 and 2 and the prosecution witnesses did not explain as to under what circumstances those injuries were inflicted on accused Nos. -1 and 2. Another circumstance which the learned trial Judge took into consideration was that though one of the witnesses stated that the whole transaction was a single transaction, he divided the transaction into two or three parts. Thereafter he came to the conclusion that P.W. 4 Dhirajlal and P.W. 5 Kadviben were perhaps not the witnesses to the first part of the incident and, therefore, they were not expected to explain the injuries on the accused persons. If that was the situation, it only means that P.W. 4 Dhirajlal and P.W. 5 Kadviben did not witness the main incident meaning thereby the original incident. New that therefore when the incident began and if the deceased and the injured inflicted injuries and thus they became aggressors and if that part of the incident was not witnessed by eye-witnesses it would only mean that accused Nos. 1 and 2 had acquired the right of private defence. Now here the situation was two-fold. If the prosecution witnesses Nos. 4 and 5 were the eye-witnesses all throughout the incident, they are bound to explain the injuries on accused Nos. 1 and 2, and the case would be governed by the case of Lakshmi Singh and Others v. State of Bihar, AIR 1976 SC 2263 . Now here the situation was two-fold. If the prosecution witnesses Nos. 4 and 5 were the eye-witnesses all throughout the incident, they are bound to explain the injuries on accused Nos. 1 and 2, and the case would be governed by the case of Lakshmi Singh and Others v. State of Bihar, AIR 1976 SC 2263 . The Supreme Court has observed as under: "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 the 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 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 ( AIR 1968 SC 1281 and AIR 1975 SC 1674 ). 16. 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. 17. There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. ( AIR 1975 SC 1478 relied upon)." Now in this particular case the injuries sustained by the accused were not minor and were not superficial. They were visible injuries, there were fractures. ( AIR 1975 SC 1478 relied upon)." Now in this particular case the injuries sustained by the accused were not minor and were not superficial. They were visible injuries, there were fractures. Now that therefore, if the two prosecution witnesses, who claim to be eye-witnesses to the occurrence were present throughout they must have seen the injuries on the accused persons and they were bound to explain the injuries and if they did not explain the injuries, the whole case was bound to fail. If on the contrary they were not eye-witnesses and they came subsequently then the prosecution did not prove the case at all. In fact then there remains no evidence on record by which the accused could be convicted. Therefore, in any view of the case, if one were to hold that the witnesses had seen the occurrence, then it was clear that they were not giving the true and correct and the whole picture of the incident and if they have not seen the incident, they are telling lies when they stated that they had witnessed the incident. Now that therefore, in no case it could be held that the prosecution proved the case beyond all reasonable doubt. If one were to come to the conclusion that the two eye-witnesses partly witnessed the incident and come to the conclusion that they came there subsequently in the sense that after the accused were injured, they came on the scene and they say as to how the accused inflicted injuries on the deceased and the injured person, the case would stand entirely on different footing. Then it was required to be examined as to who were the persons who witnessed the first part of the incident. Naturally the first part of the incident in that situation was witnessed by the deceased and the accused persons only. The deceased could never now come and give evidence and say as to what happened in the previous part of the incident. The accused have already given the version and under these circumstances, the version of the accused was required to be accepted, because, it was not only probable but they were the only persons present and the other person present was the deceased who is now no more and the prosecution witnesses were not present. The accused have already given the version and under these circumstances, the version of the accused was required to be accepted, because, it was not only probable but they were the only persons present and the other person present was the deceased who is now no more and the prosecution witnesses were not present. Examining therefore the case in any manner one could reach to one and the only conclusion that the prosecution did not prove the case beyond reasonable doubt. Under these circumstances, the prosecution is bound to fail and therefore this appeal is allowed. The conviction and sentence passed on accused Nos. 1 and 2 are hereby quashed and set aside and they are directed to be set at liberty forthwith unless they are required in connection with some other offence. Appeal allowed.