JUDGMENT 1. - This appeal is directed against the judgment dated 17.12.82 passed by the Addl. Sessions Judge. Gangapur City in Sessions Case No. 44/82. whereby the appellants have been convicted under sections 147, 323/149 and 323 IPC. Dharam Singh has also been convicted under section 326 IPC and Dheer Singh is also convicted under section 324 IPC. 2. The brief facts giving rise to this appeal are that on 17.8.80 at about 10 p.m. a written report Ex.P.l was lodged by P.W.1 Mohar Singh at Police Station Salempur against 9 persons including the appellants. In that report it was alleged that on 17.8.80 at about 4 p.m. Sheo Ram was coming back from the river after giving water to his buffalo and when he reached near Khatwar (carpenters courtyard) 8 persons named in the report including the appellants were sitting there and they were armed with weapons like sword dhariya gandasi and lathis. Ah the accused persons opened the attack upon Sheo Ram and gave beating by lathis and other sharp weapons. After hearing the cries of Sheo Ran , Hari Ram and Ganga Sahai came there in order to save Sheoram but they were also beaten by the accused persons. Vijty Singh and Ramchaian also came thereafter hearing the cries of Sheo Ram to save him from the hands of the accused-persons but they were also beaten by the accused-persons. According to the prosecution case Kalyan Singh, Rabriya, Ramdhan and Heli were the eye witnesses of the incident. 3. A cross report in support of the accused-persons was also lodged by Amar Singh on the same day i.e. 17.8.80. In that report it was alleged that all the members of the complainant party came to the house of the accused-persons armed with lathis and pharsi and all the members of the complainant party including the injured in this case and the witnesses who have been examined by the prosecution in this case opened an attack on the accused-persons. As per the defence version the incident took place just in front of the house of the accused persons. Six of the accused-persons namely Amar Singh, Bheem Singh, Omprakash, Dheer Singh, Prahlad and Dharam Singh sustained as many as 25 injuries by blunt weapon as well as by the sharp weapon. As per the defence version the incident took place just in front of the house of the accused persons. Six of the accused-persons namely Amar Singh, Bheem Singh, Omprakash, Dheer Singh, Prahlad and Dharam Singh sustained as many as 25 injuries by blunt weapon as well as by the sharp weapon. The learned Sessions Judge after framing charge which was denied by the accused persons and claimed to be tried, recorded the evidence of the prosecution witnesses and after hearing the arguments of the parties found the appellants guilty for the offence as stated above and passed the sentence against them. 4. Heard learned counsel for the parties and gone through the entire record. It was contended by the learned counsel for the appellant that in this case the prosecution did not come with true version about the genesis of the offence and the manner in which the incident took place. According to the prosecution case Sheo Ram was coming back from the river on 17.8.80 and while he was coming back all the accused-persons including the appellants who were sitting near the Khatwar started beating him but the learned counsel for the appellants added that the incident did not take place as alleged by the prosecution. In this case both the parties were in close-relations but litigation's were pending between the parties prior to this incident and a report was lodged by the accused party against the complainant party regarding the theft and on that report a case No. 22/79 was registered at the Police Station. In 1980 another case was also lodged against the complainant party and proceedings under section 145 Cr.P.C. were initiated which was decided in favour of the accused party by the Addl. Sessions Judge, Gangapur City. Father of the accused persons i.e. Dheer Singh, Omprakash, Amar Singh and Dharam Singh was found to be in possessions of the disputed property and his possession was declared by the Sessions Judge. After the death of Sheo Narain father of the accused-persons, the members of the complainant party were trying to disposses the accused-persons from the disputed land. Father of the accused persons i.e. Dheer Singh, Omprakash, Amar Singh and Dharam Singh was found to be in possessions of the disputed property and his possession was declared by the Sessions Judge. After the death of Sheo Narain father of the accused-persons, the members of the complainant party were trying to disposses the accused-persons from the disputed land. The learned counsel further contended that the circumstances given above, the members of the complainant party were aggrieved and they were trying to take revenge and because of this intention dated on 17.8.80 at about 4 p.m when Dheer Singh, Dharam Singh, Omprakash and Prahlad were sitting in their houses all of a sudden all the members of the complainant party 12 in number including the injured persons in the present case and the witnesses examined by the prosecution came there and started beating Dheer Singh and others. Six accused-persons received multiple injuries by blunt and sharp weapons The learned counsel for the appellants, therefore, contended that in these circumstances the members of the complainant party were aggressor and they opened an attack on the accused persons after forming an unlawful assembly and coming to the house of the appellant Dheer Singh. Learned counsel further added that a cross report of this incident was also lodged at Police Station Salempur and after investigation a challan was filed against the complainant-party of which the proceedings are pending in the Court of Addl. Munsif and Judicial Magistrate, Gangapur City. The learned counsel further added that the prosecution has not proved the cause of incident. According to P.W. 10 Dwarika Prasad. I.O., he did not find any cause of action for which the incident took place. The learned trial Court admitted and found that enmity was there between the parties in para 6 of the judgment. Such a finding is there The learned counsel for the appellants further found that there was no reason for the appellants to plan an attack the complainant-party whereas the complainant party certainly was in search of an opportunity to take revenge from the accused-party. Such a finding is there The learned counsel for the appellants further found that there was no reason for the appellants to plan an attack the complainant-party whereas the complainant party certainly was in search of an opportunity to take revenge from the accused-party. The learned counsel further contended that in the instant case it has not been made clear that which was the actual place of incident because as per the prosecution case the incident took place in the Khatwar whereas according to the defence version the occurrence took place just in front of the house of the accused appellants as is clear from the site-plan. Ex. P7 and Ex. 13 prepared by PW 10 Dwarika Prasad. (PW10) Dwarika Prasad (I.C.) admitted before the trial Court that the incident took place at both the places. It is thus created during investigation that the I. O. was not clear as to where the incident took place and in such a situation the defence theory cannot be ruled out and when the place of incident according to the parties is different in that situation the learned trial Court was not justified in holding that this was a case of free-fight because this was not a case of either party and non of the party claimed that they were adament to fight and they came at the scene of the occurrence armed with weapons. During investigation the I.O. (PW10) did not find any mark of violence at the alleged place of incident which has been marked as X in the site-plan Ex. P7. The I. O. also investigated the cross-case registered on the cross-report lodged by the accused-party and in this case he also prepared site-plan Ex.D13 In Ex.D13, the place of incident has been shown in front of the house of Amar Singh accused and the place of incident has been marked as 'X but at this place also the 1. O. did not find any mark of violence. The learned counsel, therefore, contended that the learned Session Judge who after placing reliance on the statement of (PW1O) found that the incident took place near Khatwar. This finding is, therefore, baseless and contradicting to the facts of the case. O. did not find any mark of violence. The learned counsel, therefore, contended that the learned Session Judge who after placing reliance on the statement of (PW1O) found that the incident took place near Khatwar. This finding is, therefore, baseless and contradicting to the facts of the case. I am of the opinion that the contention of the learned counsel for the petitioner is having force because when the Investigating Officer after investigation came to this conclusion that both the reports lodged by the complainant-party and the accused-party are true and. therefore, challan has been filed against both the parties. In such a situation it was obligatory on the part of the prosecution to have a definite version about the place of incident. So in the present case the correct place of incident has not been shown by the prosecution and it makes the prosecution case highly doubtful. For these observations reliance can be placed on the following cases i.e. 1981 Cr. Law Reporter (Raj.) 32, 1981 RCC. 5. As stated earlier that after the perusal of the record it cannot be denied that a cross-report of this very incident was lodged by the accused-party at Police Station, Salempur and after investigation challan has been filed against the complainant-party for which a case is pending against the complainant parry. A perusal of the record also shows that six of the accused persons namely Amar Singh, Bheem Singh Omprakash, Dheer Singh, Prahlad and Dharam Singh sustained as many as 2' injuries which have been caused by blunt object as well as by sharp object. The injuries of the accused we e medically examined by (PW7) Dr. Shyam Bihari Bhardwaj who examined the injuries or the person of the accused-persons on the same date i. e. on 17-8-80 and he found following injuries on the person of the accused persons:- Amar Singh:- His injury report is Ex. D6. Total injuries six including one lacerated, four contusions and one abrasion. Bhim Singh:- Injury report Ex. D7. Total injuries three all being contusions. Omprakash:- His injury report is Ex. D 8. Two injuries : one lacerated and one abrasion. Dhir Singh:- His injury report is Ex. D9. 5 injuries in all including two incised wounds. Prahlad:- His injury report is Ex DIO. Total number of injuries four including one incised wound on rt. side of the scalp and rt. parital eminence. Omprakash:- His injury report is Ex. D 8. Two injuries : one lacerated and one abrasion. Dhir Singh:- His injury report is Ex. D9. 5 injuries in all including two incised wounds. Prahlad:- His injury report is Ex DIO. Total number of injuries four including one incised wound on rt. side of the scalp and rt. parital eminence. Dharam Singh:- Injury report is Ex. Dll. Number of injuries 5 including 3 lacerated wounds and two contusions. All the injuries sustained by the accused-persons have been proved by doctor PW 7 in the cross-examination. 6. The learned counsel, therefore, contended that in view of the aforesaid circumstances the members of the complainant party were aggressor and they opened an attack on the accused-persons after forming an unlawful assembly and that a look at the record shows that the accused-persons were well within their right to protect themselves from the attack opened by the complainant party and in exercise of their right of private defence they were well within their right to use force against the complainant party and in exercise of that right of private defence if any injury is caused to the complainant party at the hands of the accused-party, in that situation none of the accused can be convicted for their individual act because all the appellants sustained injuries at the hands of the complainant party. I am of the opinion that contentions of the learned counsel for the appellant has some force. For these observations reliance can be placed on the following cases, i.e. 1976 Supreme Court 966, 1986 Cr. Law Reporter (Raj.) 453, 1978 Cr. L. Reporter (Raj.) 380 and 1981 Cr. L.R. 32. 7. It has further been contended by the learned counsel for the appellant that it cannot be denied that in this very incident the accused-appellants sustained injuries caused by blunt and sharp weapons. It is thus clear that the complainant party also used force against the accused-party and none of the witnesses from the prosecution side admitted or explained the injuries sustained by the accused-party. Therefore, non-explanation of the injuries on the person of the accused-persons is fatal for the prosecution and an inference can be drawn that the genesis of the offence has not been brought on record by the prosecution. Therefore, non-explanation of the injuries on the person of the accused-persons is fatal for the prosecution and an inference can be drawn that the genesis of the offence has not been brought on record by the prosecution. The witnesses for the prosecution have unanimously denied the presence of the injuries on the person of the accused so it should be inferred that the witnesses of the prosecution are telling lie on most material point and, therefore, their evidence is unreliable. Moreover, this inference can also be drawn that in a case where defence version has explained the injuries on the person of the complainant party then in that situation defence version becomes probable and it makes the prosecution case highly doubtful. In the instant case looking to the entire facts and circumstances of the case which are available on record all the above inferences can be drawn. The accused-persons have also given an alternative defence version and according to their case the members of the complainant-party opened an attack on them. As such the defence version is probablised by the explanation of the injuries on the person of the accused-appellants. For these observations reliance can be placed on the following cases i.e. 1976 Supreme Court 2263, 1987 Supreme Court 1289, 1987 Cr. L.R.(Raj.) 676 and 1988 RLR (2) 74 and 1980 Supreme Court 1097. 8. The report of the incident was lodged on the same day by Mohar Singh (PW 1) who has been disbelieved by the trial Court and in such a situation it can be said that when Mohar Singh was disbelieved then his version mentioned in the F.I.R. cannot be said to have been proved by the prosecution and the case of the prosecution therefore, becomes doubtful. 9. As per the facts mentioned in the F.I.R. Ex. P 11 and the site-plan Ex. P7 Kalyan Singh, Ratnya, Ramdhan Hari, Nanya and Kedar were the eyewitnesses of the incident. Moreover, according to the prosecution case the incident took place at the public highway at about 9 p. m. in the evening and the above named persons were identified as eye-witnesses but unfortunately none of the above named persons have been examined by the prosecution. No explanation is forthcoming from the side of the prosecution as to why the aforesaid witnesses have not been produced by the prosecution. No explanation is forthcoming from the side of the prosecution as to why the aforesaid witnesses have not been produced by the prosecution. It is thus clear that in this case important and independent witnesses have not been examined by the prosecution. All the witnesses produced by the prosecution were relative to each other and they were inimical to the accused-party because litigation's were pending in between the parties prior to this incident. In such a situation the prosecution version cannot be believed. For these observation reliance can be placed on the case reported in 1985 WLN (UC) 583. 10. The learned Sessions Judge found that this was a case of free-fight but according to the prosecution case the incident took place near the Khatwar and the accused-persons cause beating to the complainant-party. Contrary to this the accused-party also lodged a report of the incident and after thorough investigation the Police submitted charge-sheet against both the parties. It was nobodys case that both the parties started fighting. In view of the aforesaid circumstances the finding of the learned trial Court about free fight is without any basis. It was nobodys case that there was a free-fight and the trial Court had not given this circumstance. The trial Court had no jurisdiction to make out a new case. This is also a circumstance to create doubt in the prosecution version. For these observations reliance can be placed on the cases reported in 1970 RLW 604, 1976 Supreme Court 966 and S. B. Cr. Appeal No. 220/82 Rampal v. State decided by me while sitting in S. B. on 10th July, 1990. 11. In this case three of the accused-persons namely; Jai Narain, Ram Kishan and Ram Charan have been acquitted by the trial Court and similar allegations were there against these appellants but the learned trial Court disbelieved the witnesses of the prosecution as against three persons but the same version have been accepted by the learned Trial Court against the present appellants. After having disbelieved the prosecution witnesses as against the aforesaid persons, the conviction of the appellants on the same evidence without any independent corroboration cannot, therefore, be maintained. In the instant case X-ray plates and X-ray reports wherein the injury of Ganga Sahai has been shown as grievous have not been proved by the person who took X-ray and who gave a finding that grievous injury was detected. In the instant case X-ray plates and X-ray reports wherein the injury of Ganga Sahai has been shown as grievous have not been proved by the person who took X-ray and who gave a finding that grievous injury was detected. It can, therefore, be said that the prosecution has failed to prove the grievous injury and Dr. Say am Behari who gave the report of grievous injury has not been examined by the prosecution. So the learned trial Court was not justified in such a situation to convict the accused-appellants under section 326/149 IPC. The prosecution has not produced X-ray plates on record and thus there is no basis that Ganga Sahai sustained grievous injury. 12. For the reasons given above the prosecution failed to prove guilt against the accused-appellants so their appeal is allowed and the judgment of passed by Addl. Sessions Judge, Gangapur City is, therefore, set aside. All the accused-appellants are on bail. Their bail bonds are cancelled and they need not surrender. All the appellants are acquitted from all the charges levelled against them. *******