JUDGMENT P. S. Mishra, J. Criminal appeals by the convicted persons and the two Government Appeals, one against acquittal and the other for enhancement of sentence, arise out of a common judgment and raise contentions both of facts and law which overlap each other. They have been heard together and are being disposed of by a common judgment, 2. In an occurrence taking place on 25.12.1978 in village Usrahi. P.S. Jainagar, District Madhubani, 4 persons were killed and many other persons sustained injuries by lethal weapons. The occurrence took place at about 7 a.m. over a ridge between revisional survey plot nos. 10425 and 10426, area 4 kathas 2 Dhurs belonged to P.W. 22, Rajgir Gohiwar. He had grown sugarcane in the said field and the crop had been cut and removed by him before the occurrence. Survey plot no. 10425 having an area of 10 kathas belonged to Mahadeo Yadav (accused appellant) and he was in possession there of. He had grown wheat in the eastern half of the said land and there were small plant of wheat present when the occurrence took place. He had also grown Tisi and khesari plants in the other half Another plot in the vicinity (plot no 10424) belonged to Sonfi Yadav in which he had grown sugarcane and yet another plot in the vicinity, plot no. 10456 belonged to Deolal Gohiwar who had grown Tisi and khesari crops in his land. Plot Nos. 10425 and 10426 were divided by a ridge between them. A few days before the occurrence, according to the prosecution some laboures of Mahadeo Yadav (appellant) had cut a small portion of the said ridge from the south. Ajablal Gohiwar who was the Mukhiya of the local Gram Panchayat, was informed by Rajgir Gohiwar (P.W.22) about the cutting of the ridge at the instance of Mahadeo Yadav. The Mukhiya intervened and at his intervention the ridge was restored on 25.12.1978 at about 7 a.m. P.W. 2, Shubh Narayan Yadav learnt that Mahadeo had gone with a mob of 40-45 persons to demolish that ridge. He informed the Mukhiya and others about it. The mukhiya, P.W.2 and many other persons with them proceeded to the fields. While they were in the way, a mob of 40-45 persons with lethal weapons emerged from a sugarcane field (plot no. He informed the Mukhiya and others about it. The mukhiya, P.W.2 and many other persons with them proceeded to the fields. While they were in the way, a mob of 40-45 persons with lethal weapons emerged from a sugarcane field (plot no. 10424) Ajablal and others, when they saw the mob, ran towards west to save themselves. but the mob chased them. When, however, Ajablal and others were in plot no 10456 they were surrounded by the members of the mob and assaulted. According to the prosecution appellant Ramkhelawan assaulted Rajdeo Gohiwar with a Farsa, appellant Mahendra Banrait assaulted Laxmi Thakur with a Farsa, appellant Rajendra Banrait assaulted Asarfi Gohiwar with a Farsa and Ajablal, who had fled further was assaulted in plot no. 10425 by appellant Uttim Banrait, Mahadeo Yadav and Matwar Yadav and others. Some other persons who were with Ajablal and other victims, were also assaulted by the member of the mob. 3 After assaulting the Mukhiya and others the members of the mob fled away. According to the prosecution, besides Rajdeo Gohiwar, Laxmi Thakur and Asarfi Gohiwar and Mukhiya Ajablal P.W.S. 1, 2, 3, 4, 5 and 7 were also assaulted in the occurrence. 4. On a telephonic message that two parties at village usrahi were ready to clash with each other and so there was an apprehension of the breach of the peace, the officer in charge of Jainagar Police Station (P.W.17) made an entry in the station diary and proceeded with some other Police officials to prevent breach of the peace. The police party reached at the village at 11.45 a.m. Rameshwar Thakur (P.W. 8) made statements about the Occurrence and on his Fardbeyan (Ext. 14) P.W. 17 took up the investigation of the case and a formal F.I.R. was drawn up at the Jainagar Police Station. An assistant Sub Inspector of police held inquest over the dead bodies of Laxmi Thakur, Rajedo Gohiwar and Asarfi Gohiwar who were found kept on cots in the fields of Deolal Gohiwar bearing R.S. No. 10456 and prepared inquest reports (Exts. 15 to 16/2) P.W. 17 inspected the place of occurrence, seized various articles. Dead bodies of Asarfi, Laxmi and Rajdeo were sent to Sadar Hospital, Madhubani for postmortem examination. Autopsy was held by Dr. P.N. Jha(P.W. 20) and his reports have been duly proved by him in the court. 15 to 16/2) P.W. 17 inspected the place of occurrence, seized various articles. Dead bodies of Asarfi, Laxmi and Rajdeo were sent to Sadar Hospital, Madhubani for postmortem examination. Autopsy was held by Dr. P.N. Jha(P.W. 20) and his reports have been duly proved by him in the court. Ajablal Gohiwar was found in an injured condition and he was removed to Darbhanga medical College Hospital. He, however, succumbed to his injuries. In his case autopsy was held by P.W. 21, Dr. Bikash Chandra Sahay and his report is proved (Ext. 18/3). 5. According to the defence, a mob headed by Ajablal had gone to the wheat field bearing plot no. 10425, seeing the mob Mahadeo Yadav and others also rushed to the field. P.W. 8, the informant allegedly stated that he and his companions would break the ridge lying between plot no. 10425 and plot no. 10426 which was objected to by Ram Lakhan Yadav (P.W.5), Mahabal Yadav (P. W. 4) and Ramgir Yadav started assaulting them. Mahbar Yadav and Lalji Yadav received injuries at their hands. A report to the said effect was lodged with the police (Ext. A). 6. There cannot be any doubt as to the occurrence taking place in the fields as alleged by the prosecution and murder of Laxmi Thakur, Rajdeo Gohiwar, Asarfi Yadav and Ajablal Gohiwar. Dead bodies of Asarfi Yadav, Laxmi Thakur and Rajdeo Gohiwal were found in R.S. plot no. 10456 by P.W. 17. No doubt dead bodies were kept on costs by some one On behalf of the prosecution before the arrival of the police, but objective finding of the. investigating officer fully prove that there was an occurrence in the fields in which they (Laxmi, Rajdeo and Asarfi) had been assaulted and killed. Ajablal was found in an injured condition and he was removed to the Darbhanga Medical College Hospital from the fields. He died due to the injuries found upon him in the hospital. Dr. P.N. Jha (P.W. 20) who had held post mortem examination on the dead bodies of Asarfi, Laxmi and Rajdeo has deposed to the effect that he had found ante mortem injuries on the vital parts of their bodies and they had, in his opinion, died due to the ante mortem injuries. Dr. Dr. P.N. Jha (P.W. 20) who had held post mortem examination on the dead bodies of Asarfi, Laxmi and Rajdeo has deposed to the effect that he had found ante mortem injuries on the vital parts of their bodies and they had, in his opinion, died due to the ante mortem injuries. Dr. Bikash Chandra Sahay (P.W.21) has deposed that in the autopsy he had found ante mortem injuries upon Ajablal Gohiwar and in his opinion the death had occurred due to the said injury. Ocular evidence about the occurrence has come from P.Ws. 1, 2, 3, 5, 6, and 8 besides some other evidence, and their evidence, there being no serious challenge by the defence, proves that there was a dispute on account of cutting of the ridge between R.S. plot nos. 10425 and 10426, the former belonged to P.W. 22, Rajgir Gohiwar and the latter belonged to appellant Mahadeo Yadav. Their evidence also proves that there was a mob of 40-45 persons who were variously armed and Asarfi Gohiwar, Laxmi Thakur, Rajdeo and Ajablal and P.Ws.1, 2, 3, 4, 6 and 7 were assaulted by the members of the mob and due to the assault at the hand of the accused person Rajdeo, Laxmi, Asarfi and Ajablal met their deaths. The prosecution evidence in general is consistent and there is no material contradiction to reject testimony about the assault upon the victims by the appellants including the allegations of the individual assaults. Before, however, going to the questions involved in the appeal against acquittal and the appeal for the enhancement of the sentence of the accused persons, as I have already stated above, contentions are common to the appeals by the convicted person and appeals by the state. Common contentions are required to be considered. These' contentions if accepted, would result in the rejection of the prosecution case as a whole and no further consideration of some of the accused persons would be necessary. Arguing on behalf of the convicted appellants learned counsel has submitted that there are serious infirmities in the prosecution case which create doubt as to the veracity of the genesis and the manner of the occurrence disclosed by the prosecution witnesses and the appellants for that reason are entitled at least to the benefit of doubt. Arguing on behalf of the convicted appellants learned counsel has submitted that there are serious infirmities in the prosecution case which create doubt as to the veracity of the genesis and the manner of the occurrence disclosed by the prosecution witnesses and the appellants for that reason are entitled at least to the benefit of doubt. He has contended that almost every prosecution witness is a partisan and interested witness, they have deposed parrot like about the Occurrence which in the circumstances of this case is most unnatural and although P.Ws. 1, 2, 3, 4 and 5 were available to the investigation officer at his arrival in the village and recording Fardbeyan of P.W. 8, as also in the hospital where they had gone for their treatment, their statement were not recorded under section 161 of the Code of Criminal Procedure until two days later This, according to the learned counsel, was done with a view to provide to the prosecution time for consultation and to decide who should be named as the principal assailant of one or the other victim. He has also contended that even ignoring the defence suggestion and the case that there was a mob headed by Ajablal Yadav (one of the victims), P.W. 8 and others who had come to the fields to demolish the ridge dividing plot nos. 10425 and 10426 and the said mob assaulted the members of defence party, it has been proved beyond any reasonable doubt that some of the accused persons had sustained injuries in the occurrence and in the same transaction and the prosecution has miserably failed in explaining the injuries upon the accused persons, Learned counsel has submitted that in the instant case even on the evidence of the prosecution it can be suggested that the defence version as to the genesis of the occurrence is more probable and in any event the prosecution has not disclosed either the genesis of the Occurrence or the manner of the occurrence correctly and truely. 7. It is a case, however, in which there, can be no manner of doubt as, to the recording of the Fardbeyan without any undue delay in the fields on the arrival of the police party in which the allegations as to the dispute over the ridge, arrival of the mob consisting of the accused persons and the names of the appellants were disclosed. P.Ws 1, 2, 3, 4, and 5 were found injured and were admitted in Jainagar Hospital. P.W. 13 has deposed that when they were admitted in the hospital they were not unconscious and injuries which were caused to them were not so serious, still P.W. 17 found them not in a position to give any statement when he met them in the hospital on 25.12.78. He has stated that he could not record their statements because they were not in a position to make any statement. Even P.W. 16, who took over the investigation of the case from P.W. 17 had visited the hospital for recording their statements but they were in sleep and so he could not recording their statements. It is not Possible only on the evidence of P.W. 13 to reject the testimony of P.Ws. 16 and 17 that they had gone to record the statements of P.Ws. 1, 2, 3, 5, 4 at the hospital at different-times and they could not find them in a position to make statements. The prosecution would gain nothing by delaying recording of the statements of these witnesses because individual cases of the appellants were in no way going to improve the prosecution case of the appellants and other accused persons constituting an unlawful assembly and assault in and committing murders of Rajdeo, Laxmi, Asarfi and Ajablal and causing injuries to P.Ws. 1, 2, 3, 4 and 5. In their evidence in the court P.Ws. 1, 2, 3, 4 and 5 have neither made any departure from the case of the prosecution in the Ferdbeyan nor made any statement inconsistent with the Ferdbeyan. Particulars which they have mentioned in their evidence in the court are either such changes which were known to them individually or informations which the court or the defence elicited from them It is not possible to say that their deposition in the court is like that of a parrot for learned counsel for the convicted appellants has himself brought to our notice facts which are separately and distinctly deposed to by one or the other of them. It is not possible to make exception to the case of the prosecution merely on the ground that there has been some delay in recording the statements of P.Ws. l, 2, 3, 4 and 5 under section 161 of the Code of Criminal Procedure. It is not possible to make exception to the case of the prosecution merely on the ground that there has been some delay in recording the statements of P.Ws. l, 2, 3, 4 and 5 under section 161 of the Code of Criminal Procedure. What, however, has detained my attention is the prosecution evidence starting from the first witness Sipendra Gohiwal in the court who has deposed that he had seen injuries upon appellants Matbar Yadav and blood oozing out from their injuries at the time of the occurrence He has also deposed that appellant Lalji had injury on the head which was bleeding and appellant Matbar had injuries in his leg and head which were bleeding P.W.2, Subh Narayan Yadav has deposed that he had seen bleeding injuries upon appellants Lalji Yadav and Matbar Yadav at the time of the occurrence. He had also said that both appellants Matbar and Lalji had been admitted in Jainagar Hospital P.W.3 has deposed that he had seen appellants Lalji and Matbar having injuries. He had also said that appellants Matbar and Lalji were assaulted by Deolal Gohiwal and Suresh Gohiwal (not members of the prosecution party) at the time he and others were being assaulted. In his cross examination he has said that appellants Lalji and Matbar were assaulted by Deolal and Suresh. He has said that Laxmi Thakur and others who were killed had already been assaulted but he himself and P.Ws. 1, 2 and 5 were being assaulted. P. W.5 has deposed that he had not seen any injury or blood on the person of either Lalji or Matbar as the time of the occurrence but after the occurrence Lalji and Matbar were assaulted by Deolal and Suresh and two other persons whom he could not identify when on the alarm of Khun-Khun the villagers had arrived. He has changed his instance thereafter and has said that appellants Lalji and Matbar were assaulted when he and others were being assaulted and has said that Deolal assaulted Lalji with Garasa and Suresh assaulted Matbar with Lathi and Bhala. 8. He has changed his instance thereafter and has said that appellants Lalji and Matbar were assaulted when he and others were being assaulted and has said that Deolal assaulted Lalji with Garasa and Suresh assaulted Matbar with Lathi and Bhala. 8. In Mohar Rai versus The State of Bihar the Supreme Court has considered a case in which immediately after the occurrence when Mohar Rai (the accused) was produced before P.W 15 he had noticed injuries upon him and P.W 18 the doctor had deposed that injuries could not have been self inflicted or would have been caused at the instance of the accused themselves On the basis of the said evidence the Supreme Court has observed:- "In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants." The view taken in Mohar Rai's case (Supra) has been reiterated by the Supreme Court and stated in Lakshmi Singh and others versus State of Bihar in the following words:- "It seems to us 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 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 to the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The mission 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." The Supreme Court has rationalised the said principle in more than one case and it has said that before adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries, on the person of an accused it must be reasonably shown that it all probability the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured. The prosecution is not 'obliged to explain the injuries on the person of an accused in all cases and in all circumstances but it all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused or not. This view finds a candid mention in Baba Nanda Sarma and other versus The State of Assam and in Jagdish Versus State of Rajasthan. It is indeed important therefore, to take notice of the injuries upon the accused keeping in view the facts of the case and also not to accept any and every plea of the injuries upon the accused but to satisfy before the prosecution is asked to explain the injuries whether the injuries upon the accused were serious or not and whether the 'injuries were caused in the occurrence or in the same transaction in which the assault upon the victim of the case of the prosecution was committed or not. The first namely whether the injuries were serious or not has to be seen to know whether injuries could be self inflicted or not or such injuries could be caused at the instance of the accused or not and the second to see whether presence of the injuries on the accused at the time of the occurrence could create any reasonable doubt as to the genesis of the occurrence, manner of the occurrence or not or could probabilise the defence plea explaining the injuries upon the victim of the prosecution case or not. Cases which have been decided on facts and no burden upon the prosecution has been put to explain the injuries up-on the accused are those in which either a specific plea has been raised on behalf of the defence about the assault upon the victim of the prosecution case such as the plea of the right of private defence or in which the defence has not been able to make its case probable that the accused sustained injuries in the same occurrence or in the same transaction. The statement of law in Babunand Sarma (Supra) is almost the same as the statement of law in Bankey Lal and others versus State of U.P. Ramlagan Singh and others Versus State of Bihar and Onkar Nath Singh and others versus The State of U.P. Amongst them in Onkar Nath Singh (Supra) the Supreme Court has said: "The question what is the effect of this non-explanation of the injuries of Parasnath. This is a question of fact and not one of law. Answer to such a question depends upon the circumstances of each case. This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused...............Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinise own features. In some cases failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and burden would shift on the prosecution to prove that those injuries were caused to the accused in self defence by the complainant party." 9. The statement of law on the question, whether the prosecution in a given case will be required to explain the injuries or not, therefore, has to be answered not only on the plea of the defence but keeping in mind the evidence of the prosecution and the circumstances in which injuries could be caused to the accused. 10. In the instant case the fact that two of the accused persons had sustained injuries at the time of the occurrence is proved beyond any doubt. By acknowledging that they had seen injuries and blood coming out, P.W.s. 1 and 2 have probablised the defence version that the accused sustained injuries in the same occurrence. P.W.3 has also accepted this position and has further stated that the stage at which the accused were assaulted was when the victims who were murdered, had already been assaulted and P.W.s. 1, 2, 3 and 5 were being assaulted. He has introduced the names of two assailants who, according to him, were not members of prosecution party. His evidence has left unexplained how those could be present and assault the accused when they were neither members of the prosecution party nor members of the defence party. P.W.5 has come however, to state a different story. He has stated that there was no assault upon any of the accused in the occurrence or at the time of occurrence. According to him, the two accused persons were assaulted by the two assailants named by P.W.s 3 and 2 and two other persons not known after the alarm of Khun-Khun the villagers arrived. This story disclosed by P.W.5's in conflict with the evidence of P.W.s 1, 2 and 3 and goes beyond to say that there was no injury caused to the accused in the same transaction. 11. It is a case in which the defence has not advanced any plea to explain the injuries upon the victims for which they were charged. Their case in the Fardbeyan (Ext A) is as bold as the case of the prosecution about the injuries upon the other party. They have not raised any plea of self defence. They have suggested and the prosecution witnesses have accepted that the accused persons sustained injuries at one or the other stage of transaction. It is in the evidence that the accused persons were assaulted with Garasa and Bhala. They have not raised any plea of self defence. They have suggested and the prosecution witnesses have accepted that the accused persons sustained injuries at one or the other stage of transaction. It is in the evidence that the accused persons were assaulted with Garasa and Bhala. They had sustained injuries in their head Why then the prosecution did not care to explain the injuries upon the accused and in the evidence shifted from position to position at one stage acknowledging that injuries were noticed while the occurrence was still going on and at the other stage saying that after the assault by the accused persons the villagers arrived, and the accused persons were assaulted at the hands of the new arrivals. 12. I am conscious of the fact that the prosecution in the instant case has I suffered four deaths, on the evidence on behalf of the prosecution, at the hands of the accused persons but the prosecution is required to establish also the genesis and the manner of the occurrence beyond reasonable doubt, It is a case, however, in which it is difficult to rule out alleged by the prosecution or even the manner of occurrence in which beside the members of the prosecution party some of the accused persons also sustained injuries. A Court of law has to begin and continue with the presumption of the innocence of the accused and until the said presumption is completely destroyed the presumption has to fall. It is with that end that the principle of benefit of doubt is applied to the accused. In the setting of the facts aforesaid, I hold that the convicted appellants are entitled to benefit of doubt. Since this runs through the vitals of the prosecution case, the accused who have been acquitted cannot but derive benefit and those who have been convicted but given lesser sentence, according to the State, on account of their acquittal, cannot be given any higher sentence. 13. In the resulted, the appeals being Criminal Appeal Nos. 1, 2, 9, 10, 24 and 29 of 1983 are allowed. The appellants are acquitted of the charges levelled against then and Government Appeal Nos. 9 of 1983 are dismissed. The appellants are discharged from the liability of their bail bonds. I agree. Govt. Appeal dismissed. Criminal Appeals allowed.