JUDGMENT I.P. Singh, J. - Mohd. Saddiq, Baddal, Yusuf and Mustafa convict Appellants have preferred this appeal against the judgment and order of Sri Barhma Nand, Ist Temporary Additional District and Sessions Judge, Banda dated 30-9-77 convicting all the Appellants and sentencing Mohd. Siddiq, Baddal Appellants u/s 302/34 IPC to imprisonment for life each and sentencing Yusuf and Mustafa Appellants u/s 323/34 IPC to five months RI each. 2. The prosecution case is that on 4-11-74 at about 4 p.m. Hakim deceased and his nephew Altaf complainant PW 1 returned from their fields with fodder to their house situate in village Mahabara. Just then, all the four Appellants armed with lathis arrived there They started uprooting the pegs fixed on land in front of their houses and released the bullocks of the complainant tied with those pegs. Both Hakim deceased and Altaf complainant protested, but the Appellants abused them. Hearing the shouts of the abuses and the protests of the deceased and Altaf, some persons of the village namely, Najju, Mehdi Hasan and others arrived there. Smt. Saliman PW 2, the mother of Altaf was present at the door of their house. It was then that Mohd. Saddiq and Baddal Appellants gave lathi blows to the deceased. He fell down. Altaf advanced to save him. Yusuf and Mustafa Appellants beat him with lathis. After beating both Hakim and Altaf, the Appellants receeded. 3. Altaf arranged a bullock cart, which belonged to Jabbad. Hakim was taken on the said bullock cart to police station Pailani, 12 miles away. Altaf, his brother Ali Husain, Ali Mohd. Habib and Raspal Chowkidar had accompanied the bullock cart. On the way near Marjha at about 4 a.m. Hakim breathed his last. Altaf PW 1 wrote the written report of the incident and handed it over at the police station on 5-11-74 at 7.30 a.m. 4. Altaf Husain, complainant PW 1 was medically examined the same day i.e. 5-11-74 at 5 p.m. by Dr. R.D. Gupta, Medical Officer, District Hospital, Banda. The following injuries were found on his person: 1. Lacerated wound 2 cm x 1/2 cm x scalp deep on the left side head 7 cm above the left ear. 2. Contusion 5 cm x 9 cm outer and upper part of the left forearm. 3. Abraded contusion 1 cm x 1/2 cm middle of the left index finger dorsal aspect. 4. Lacerated wound 2 cm x 1/2 cm x scalp deep on the left side head 7 cm above the left ear. 2. Contusion 5 cm x 9 cm outer and upper part of the left forearm. 3. Abraded contusion 1 cm x 1/2 cm middle of the left index finger dorsal aspect. 4. Abrasion 1/2 cm x 1/4 cm outer aspect of the left little finger in the middle. 5. Contusion 6 cm x 1.5 cmpon the upper right side chest. 6. Contusion 9 cm x 1.5 cm in the back of right side just in the middle and lower part. 5. All these injuries were simple and were caused by blunt object. Duration fresh. 6. Post mortem examination of Hakim deceased (Abdul Hakim) was conducted by Dr. S.C. Pandaya the then Deputy CMO Banda on 6-11-74 at 12.10 p.m. The probable time since death was about 1 1/2 day. (The Doctor has also mentioned this duration of death in his statement as PW 5). Blood was present on right nostril and mouth. Blood bad dried up and gases were present. Following ante-mortem injuries were found on his person: (1) Contused wound 5.50 cm x 1 cm x bone deep in sagittal line of interior half of the head. (2) Abrasion 1 cm x 1 cm left temple region 3 cm in front of left ear. (3) Contusion 11 cm x 10 cm outer aspect of right elbow. (4) Swelling 10 cm x 8 cm right side of the bead. 7. The internal examination revealed the following injuries; (1) Multiple fissured fracture of skull in an area of 15 cm x 14 cm in the middle right side of head. Fractured bones were depressed in the sagittal area under contused wounds. (2) Extra dural haemotoma in 6 cm x 6 cm area in the light side of the brain. Sub dural Haemotoma covering both whole of right hemisphere covered with blood under surface of frontal and temporal lobe of the right side covered with exuded blood fracture of right middle crainal fossa in continuation of fracture limb above. In the opinion of the Doctor, death was due to coma as a result of above injuries sustained by him prior to his death. The Doctor opined that the above injuries could be caused by lathi blows. 8. In the opinion of the Doctor, death was due to coma as a result of above injuries sustained by him prior to his death. The Doctor opined that the above injuries could be caused by lathi blows. 8. The defence is that the occurrence did not take place as alleged by the prosecution, but infact, Hakim Ali (deceased) Raza, Mumtaz, Alihusain and Altaf, PW 1 had beaten Baddal, Saddiq and Mustafa Appellants with lathies on the alleged date and time in front of the house of Baddal in the same village. Of course, Baddal Appellant in his statement added that one Imdad was also beaten along with them by Hakim Ali etc. Yusuf Appellant denied his presence on the spot at the time of the alleged occurrence and pleaded that at that time he was away to village Pipgather. 9. Baddal Appellant had lodged report of the incident at the same thana on 3-11-74 at 7.50 a.m. In pursuance thereof, GD entry, Kha 5 was prepared in which injuries of Baddal, Saddiq and Mustafa Appellants were noted. 10. Mohd, Saddiq, Mustafa and Baddal had been arrested in connection with the FIR lodged by Altaf. They were sent to jail. Dr. R.B. Sharma, Medical Officer, Jail Banda, DW 1 had examined under trial Mohd. Saddiq on 6-H-74 at 5.10 p.m. The following injuries were found on his person: (1) Scabbed abrasions 3 cm x 5 cm on the top of scalp in middle, clotted blood present all around the abrasion. (2) Abrasion 2 cm x 0.5 cm on the outer aspect of right little finger, clotted blood present all around the abrasion. 11. Undertrial Mustafa was examined by the same Doctor on 6-11-74 at 5.25 p.m. The following injuries were found on his person: 1. Lacerated wound 1 cm x 0.5 cm x 4 mm on the dorsal aspect of left forearm, 4 cm below the left elbow joint. Contused swelling present all around the injury upto the upper 1/3rd of the forearm on the dorsal aspect. Undertrial Baddal was examined by the same Doctor on 7-11-74 at 10.05 a.m. The following injuries were found on his person: (1) Scabbed abrasion 2 cm x 1 cm on the front of middle of scalp, clotted blood present. (2) Scabbed abrasion 3 cm x 1 cm on the left side scalp 10 cm above the left pinna, clotted blood present. (2) Scabbed abrasion 3 cm x 1 cm on the left side scalp 10 cm above the left pinna, clotted blood present. (3) Scabbed abrasion 2 cm x 1 cm on the left side scalp 4 cm front from the injury No. 2 clotted blood present. (4) Scabbed abrasion 4 cm x 0.5 cm on the top of right shoulder joint. (5) Lacerated wound 2 cm x 0.5 cm x skin deep on the dorsum of right hand at the base of right index finger, contused swelling present all over the dorsum of hand, Clotted blood present. 12. The duration of the injuries of all the above injured persons go back to the alleged date and time of occurrence. 13. The Appellants did not choose to lead any evidence concerning the occurrence. They felt content by examining two formal witnesses Dr. B.B. Sharma, DW 1 of Jail Banda to get their injuries proved and Uma Nath Misra. head constable DW 2 to get their FIR exhibit kha 5 and the corresponding GD Entry Ex. kha 1 proved. 14. On the other hand, the prosecution examined six witnesses including two eye witnesses Altaf complainant, PW 1 and his mother Smt. Saliman PW 2. 15. The learned Sessions Judge after appreciating the evidence of the parties, convicted and sentenced the Appellants as already mentioned above. 16. We have, before us, two versions of the incident. One as put forward by the prosecution and the other as suggested by the defence. As already pointed out above, the Appellants did not choose to lead any evidence about the occurrence. Of course, they suggested their case to both the eye witnesses, which was denied by both of them. In this situation, it cannot be said that the Appellants have proved their version of the occurrence. As a matter of fact, the court would not insist and does not expect the defence to prove their version in the sense as is required from the prosecution. At any rate, lack of evidence in support of the defence version would not automatically mean that the prosecution version is true. The prosecution has to establish their own case on the strength of their own evidence. 17. There are two witnesses for the prosecution. One is Altaf, complainant, who is also an injured person. The other is his mother Smt. Saliman, PW 2. The prosecution has to establish their own case on the strength of their own evidence. 17. There are two witnesses for the prosecution. One is Altaf, complainant, who is also an injured person. The other is his mother Smt. Saliman, PW 2. Both of them in their examinations-in-chief, have deposed in line with the prosecution case. The learned Counsel for the Appellants has pointed out that so far as Smt. Saliman PW 2 is concerned, she is not worthy of credence inasmuch as she was not named as an eye witness in the FIR. It is argued by the learned DGA and the same view has been expressed by the learned Sessions Judge, that she being a lady was expected to be present at her house at about 4 in the evening of 4-11-1974 (cold month of November) and that this makes her the must probable witness. It is argued that this probability supports her being present on the spot and the fact that she was not named in the FIR would not discredit her. It was argued by the learned Counsel for the Appellants that even if the said probability could be there, but that would not be conclusive enough to hold that she was necessarily present there at the alleged time. It is pointed out that she is the mother of Altaf, injured-complainant PW 1, and he could not have missed noticing the presence of his own mother at the door of her house next to the place of occurrence, if she had really been present there. It is argued that in these circumstances, he would not have failed to mention her as the eye witnesses in the FIR. The argument is that this omission, in the circumstances of the case, is very material and negatives the above contended probability. According to the learned Counsel for the Appellants she might have gone out to any other place in the village or she might have been away to the house of some other person. It is further argued that it is not for the Appellants to account for the various reasons for which she had not witnessed the occurrence. The fact that she was not named in the FIR assumes significance in the circumstances of the present case and the said omission is sufficient atleast to introduce a room for doubt about her presence on the spot. The fact that she was not named in the FIR assumes significance in the circumstances of the present case and the said omission is sufficient atleast to introduce a room for doubt about her presence on the spot. We feel inclined to agree with the above line of argument advanced by the learned Counsel for the Appellants and for this reason exclude the testimony of Smt. Saliman, PW 2. 18. Learned Counsel for the Appellants has challenged the veracity of Altaf, injured complainant PW 1 too. His attack is that this witness is not coming with the whole truth and seems to withhold material part of the occurrence It is further argued that the evidence on record itself shows that perhaps the occurrence did not take place in the manner as alleged by the prosecution and deposed by Aliaf, PW 1. It is pointed out that the FIR is silent about the injuries sustained by Mohd Saddiq, Mustafa and Baddal. Even Altaf, PW 1 said in the end of paragraph 7 of his cross examination that no injury was caused or sustained by any of the Appellants in the alleged occurrence The point stressed is that, Mohd. Saddiq, Mustafa and Baddal Appellants had sustained number of injuries on their persons, as corroborated by the medical evidence on record. There is also no doubt that they have suffered those injuries on the date and time of the alleged occurrence. The site plan shows that the houses of the complainant as well as the Appellants open towards a piece of land which is called by both sides as Sehan land. Each party claims that the marpit had taken place in front of the door of its house and that the other party was the aggressor. At any rate, the occurrence is said to be one which took place at the alleged time in the said open piece of land called the Sehan. It is argued by the learned Counsel for the Appellants that since the above named three Appellants had suffered injuries in the same occurrence, so it was necessary for the prosecution to account for them. The argument is that prosecution has meticulously denied the injuries on the side of the Appellants. Since the prosecution did not explain these injuries, the consequence is fatal to their case. The argument is that prosecution has meticulously denied the injuries on the side of the Appellants. Since the prosecution did not explain these injuries, the consequence is fatal to their case. Reference with advantage may be made to the case of Lakshmi Singh and Others Vs. State of Bihar, AIR 1976 SC 2263 in which it was observed as follows: 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 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. Mohar Rai and Bharath Rai Vs. The State of Bihar, AIR 1968 SC 1281 and Puran Singh and Others Vs. The State of Punjab, AIR 1975 SC 1674 . 19. 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 compels in probability with that of the prosecution one. 20. 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. 21. Since the prosecution has not explained the injuries sustained by the three Appellants, no credence could be placed on the testimony of Altaf, complainant PW 1, even though he is an injured witness and his presence on the spot cannot be denied. 21. Since the prosecution has not explained the injuries sustained by the three Appellants, no credence could be placed on the testimony of Altaf, complainant PW 1, even though he is an injured witness and his presence on the spot cannot be denied. There remains no doubt that he is not deposing the correct facts regarding the manner in which the incident took place. We cannot place him in that category of witness who inspire full confidence of the Court. 22. To our mind, the prosecution has also failed to prove cogently that the incident of marpit took place in front of the house of the complainant. No blood was recovered by the Investigating Officer from there. Both the witnesses namely Altaf, PW 1 and Smt. Saliman, PW 2 have maintained that blood had fallen at the place of marpit. Smt. Saliman has even stated that the blood of Hakim, deceased, which hid fallen there had drenched the earth (Zamin tar ba tar ho gayee thi). If it was so, the traces of blood stained earth could not altogether be wiped out even if the place was trampled over by the villagers and the cattle passing that way subsequently as stated by Smt. Saliman, PW 2. We do not feel convinced with the above explanation. No recovery of blood from that part of Sehan land falling directly in front of the house of the complainant goes a long way to ensure that perhaps the marpit did not take place there. At any rate strong doubt remains about the genesis of the incident and the manner in which it took place was put forward by the prosecution. The benefit of this doubt must go to the Appellants. 23. The appeal, therefore succeeds and is allowed. The conviction and sentence awarded by the learned Sessions Judge to each one of the Appellants are set aside. The Appellants are acquitted of the charges levelled against them. They are on bail. They need not surrender to their bail bonds which are cancelled. Their sureties are discharged. Appeal allowed.