H. C. MITAL, J. ( 1 ) THESE two appeal arise from the judgment dated 15-9-1978 of Sri. R. S. Mathur, the then 1st Additional District and Sessions Judge, Mainpuri, convicting the appellants Mohamed Ayub Khan, Kausar Khan, Mushtaq Ali Khan, Mohammed Sayeed and Shan Mohammed under Sections 148 and 307 read with Sec. 149 I. P. C. to one years Rigorous Imprisonment and 5 years Rigorous Imprisonment, respectively. The Government has preferred Criminal Appeal No. 3499 of 1978 against the acquittal of accused Shamshad Ali Khan and Qayum Ali Khan by the same judgment. ( 2 ) THE facts of the case, in brief, are that the incident giving rise to the prosecution of the appellants took place on 6-2-1976 at 11 A. M. in village Kosma Musalmeen, Police Station Ghiror, District Mainpuri. Tehsildar Mainpuri was camping in the village and his camp was beside the house of the complainant Ishtiaq Ali Khan P. W. 1, who along with his brother Ishraq Ali Khan was present there and on hearing some wrangle both of thcm came out of the camp and saw the appellants Mohammed Ayub Khan armed with a gun, Kausar Khan, Shamshad Ali, Mushtaq Ali, Qayum Ali Khan, Mohammed Sayeed Khan and Shan Mohammed armed with country made pistols, who were quarreling with Masroor Ali Khan P. W. 4. The informant alongwith his brother Israq Ali Khan also reached there. On seeing Ishraq Ali Khan, Mohammed Ayub Khan shouted that he was also in the case and fired at Ishraq Ali Khan as a result of which he received pellet injuries. The other accused also fired with their weapons as a result of which Abdul Khalil Khan, Abdul Selim Khan, Masroor Ali Khan, Parsuram and his wife Smt. Ganga Devi and one Hayat Waris received injuries. The injured were taken to the Hospital at Mainpuri and thereafter a written report was submitted at police Station Kotwali Mainpuri on the same day at 4. The injured were taken to the Hospital at Mainpuri and thereafter a written report was submitted at police Station Kotwali Mainpuri on the same day at 4. 55 P. M. on the basis of which a case was registered under Sections 148, 149 and 307 I. P. C. After investigation the accused were committed and at the trial they were charged under Sections 148 and 307/149 I. P. C. ( 3 ) TO prove its case the prosecution in all examined 8 witnesses of whom P. W. 1 Ishtiaq Ali Khan, p. W. 2 Ishraq Ali Khan, P. W. 3 Parsuram and P. WA Masroor Ali arc the eye witnesses of the occurrence. P. W. 5 Dr. Masood Hasan Khan had examined Ishraq Ali, Masroor Ali and Abdul Khalil at Jawahar Lal Medical College of Aligarh Muslim University where he was then posted as Reader and he deposed about their indoor bed head tickets as well as their X-ray plates etc. P. W. 6 S. I. Gautam had investigated the case and deposed about the steps taken by him during the course of investigation P. W. 8 Constable Jawahar Khan was posted at police Station Kotwali where the FJ. R. was received. He prepared the chik report and as the case related to police station Ghiror, he sent the papers there which were received by the clerk Constable Niwas Khan, who registerd the case at the police Station. ( 4 ) THE appellant Kausar Khan and Mushtaq Ali Khan put forth a counter version about the incident that Mushtaq Ali Khan was attacked at his toddy shop by the complainant party wherein he had received three lacerated wounds and then Musarrat who was armed with a gun tried to fire upon the accused Mushtaq Ali Khan and Kausar Khan. These appellants tried to snatch the gun from Musarrat and then accidentally it got fired injuring six or seven persons and that the complainant party had also indulged in brick-batting, as a result of which Mushtaq Ali received 3 lacerated Injuries. The rcmaining accused-appellants had denied their presence and participation in the occurrence and alleged their false implication. On the complaint of the accused-appellants to the Superintendent of police and the Sub Divisional Magistrate, Sadar, Mainpuri against 8persons including Ishraq Ali Khan, his son Musarrat and six others, the investigation did take place and the charge sheet was submitted. The rcmaining accused-appellants had denied their presence and participation in the occurrence and alleged their false implication. On the complaint of the accused-appellants to the Superintendent of police and the Sub Divisional Magistrate, Sadar, Mainpuri against 8persons including Ishraq Ali Khan, his son Musarrat and six others, the investigation did take place and the charge sheet was submitted. In defence accused filed various documents including telegrams sent by Shamshad Ali Khan that his counter report was not recorded as the complainants were influential persons and papers relating to the proceedings under Sec. 145 Cr. P. C. which had taken place between the parties. ( 5 ) THE injuries of the injured on the side of the prosecution as well as Mushtaq Ali Khan appellant were examined by Dr. V. S. Singh. The genuineness of all the injury reports was admitted and, therefore, Dr. V. P. Singh was not examined to prove thcm. The injured had received the following injuries: Injuries of Hyat Vans Khan vide injury report Ext. Ka 2 dated 6-2-1976 at 3. 15 P. M. 1. Two gun shot wounds 1 cm apart on the back of left ring finger each 0. 1 cm x 1 cm x tissue deep a cm distal to its base with no blackening. Scorching tattooing: injuries of Persu Ram vide injury report Ext. Ka 3 cn 6-2-1976 at 3. 25 P. M. 1. Gun shot wound 0. 2 cm x 0. 1 cm. x tissue deep on the back of Rt. leg lower part with no blackening, scorching and tallooing. 2. Gun shot wound 0. 1 cm x 0. 1 cm x tissue deep on the front of left thigh lower part with no blackening, scorching and tallooing. 3. Gun Shot 0. 2 cm x 0. 1 cm x tissue deep on the left buttock part with no blackening and scorching and tattooing. Injuries of Masroor Ali Khan vide injury report Ext. Ka 4 on 6-2-1976 at 2. 35 P. M. 1. Gun shot wound 0. 2 cm x 0. 1 cm x brain cavity deep on the left eye brow with no blackening, scorching and tattooing. 2. Gun shot wound 0. 2 cm x 0. 1 cm x tissue deep on the front of neck, 6 cm above the suprasternal inside with no blackening, scorching and tattooing. 3. Gun shot wound 0. 2 cm x 0. 1 cm x brain cavity deep on the left eye brow with no blackening, scorching and tattooing. 2. Gun shot wound 0. 2 cm x 0. 1 cm x tissue deep on the front of neck, 6 cm above the suprasternal inside with no blackening, scorching and tattooing. 3. Gun shot wound 0. 2 cm x 0. 2 cm x tissue deep on the front of neck 2 cm. above the injury No-2 with no blackening and scorching and tattooing. 4. Gun shot wound 0. 1 cm x 0. 1 cm x tissue deep on the inner side of Rt. fore-arm, 2 cm below the R. t. elbow joint with no blackening, scorching and tattooing. 5. Two gun shot wounds 2 cm apart on the back of left fore-arm 8 cm below the RI. elbow joint with no blackening, scorching and tattooing each 0. 2 cm x 0. 2 cm x tissue deep. 6. Two gun shot wounds 2 cm apart on the back left elbow joint each 0. 1 cm x 0. 2 cm x tissue deep with no backening, scorching and tattooing. 7. Multiple gun shot wounds (5) in the area of 15 cm x 5 cm on the leftside of chest 2 cm. below the left axilla with no blackening, scorching and tattooing varying from 0. 2 cm x 0. 2 cm x chest cavity deep to 0. 1 cm x 0. 1 cm x chest cavity deep. 8. Gun shot wound 0. 2 cm x 0. 2 cm x tissue deep on the back of left wrist joint. Injuries of Abdul Salim Khan vide injury report Ext. Ka 5 dated 6-2-1976 at 2. 50 P. M. 1. Gun shot wound 0. 2 cm x 0. 1 cm x tissue deep on the front of Rt. Shoulder middle with no blackneing, scorching and tattooing. Injuries of Smt. Ganga Devi vide injury report Ext. Ka 6 dated 6-2-1976 at 3. 40 P. M. Gunshot wound 0. 1 cm x 0. 1 cm x tissue deep on the dorsum of the Rt. Middle finger near the tip with no blackening, scorching and tattooing. Injury report of Abdul Khalil Khan vide injury report Ext. Ka 7 dated 6-2-1976 at 3. 50 P. M. 1. Gun shot wound 0. 2 cm x 0. 1 cm x tissue deep on the Rt. temper at margin with no blackening, scorching and tattooing. 2. Middle finger near the tip with no blackening, scorching and tattooing. Injury report of Abdul Khalil Khan vide injury report Ext. Ka 7 dated 6-2-1976 at 3. 50 P. M. 1. Gun shot wound 0. 2 cm x 0. 1 cm x tissue deep on the Rt. temper at margin with no blackening, scorching and tattooing. 2. Gun shot wound 0. 1 cm x 0. 1 cm x tissue deep on the fore arm frong right with no blackening, scorching and tattooing 10 cm above the R. wrist joint. 3. Gun shot wound 0. 2 cm x 0. 1 cm x chest cavity deep on the front of I chest with no blackening, scorching, tattooing 3 cm below the suprastenal north. 4. Gun shot wound 0. 2 cm x 0. 1 cm x 0. 1 cm x tissue deep on the back of Rt. thigh upper part with no blackening, scorching and tattooing. Injuries of Ishrawual Ali Khan vide injury report Ext. Ka 8 dated 6-2-76 at 2. 10 P. M. 1. Gun shot wound 0. 1 cmx 0. 1 cmx tissue deep on the front of fore-arm left 14cm bone deep left wrist joint and no blackening, scorching and tattooing present 2. Gun shot wound 0. 2 cm x 0. 1 cm x tissue deep on the front of left forearm 7 cm above the injury No. 1 with no blackaning, scorching and tattooing. 3. Gun shot wound 0. 2 cm 0. 1 cm x chest cavity deep on the front of chest Rt. 7 cm below the Rt. Sterno claviclur joint with no blackening, scorching and tattooing. 4. Gun shot wound 0. 1 cm x 0. 1 cm x tissue deep on the suprastenal notch with no blackening, scorching and tattooing. 5. Multiple gun shot wound 4 in the area 6 cm x 5 cm on the front of chest left just below the nipple no blackening, schorcing and tattooing varying from 0. 2 cm x 0. 1 cm x chest cavity deep to 0. 1 cm x 0. 1 cm x chest cavity deep. 6. Gun shot wound 0. 2 cm x 0. 1 cm x abdomenal cavity deep on the opegastium with no blackening, scorching and tattooing. 7. Gun shot wound 0. 1 cm x 0. 1 cm x tissue deep on the inner side of left thigh upper part with no blackening, scorching and tattooing. 1 cm x chest cavity deep. 6. Gun shot wound 0. 2 cm x 0. 1 cm x abdomenal cavity deep on the opegastium with no blackening, scorching and tattooing. 7. Gun shot wound 0. 1 cm x 0. 1 cm x tissue deep on the inner side of left thigh upper part with no blackening, scorching and tattooing. 8. Two gun shot wounds 3 cm apart on the front of left thigh 24 cm above the left knee joint with no blackening, scorching and tattooing, each 0. 2 cm x 0. 2 cm and tissue deep. 9. Two gun shot wounds 2 cm apart on the front of left thigh 15 cm above the left knee joint with no blackening, scorching and tattooing 0. 1 cm x 0. 1 cm x tissue deep. 10. Gun shot wound 0. 2 cm x 0. 1 cm x tissue deep on the front of Rt thumb distal phalanx. Injuries of Mushtaq Ali vide injury report Ext. Ka 1 dated 6-2-1976 at 4 P. M. 1. Lacerated wound 3 cm x 0. 5 cm x bone deep on the fore-head Rt. oblique 4. 5 cm above inner part of Rt. eye brow. 2. Lacerated wound 1. 5 cm x 0. 5 cm x bone deep on the fore head left oblique 2. 5 cm above the left eye brow. 3. Lacerated wound 2 cm x 0. 4 cm x bone deep on the fore-head left, just above the left eye brow inner part ( 6 ) ON behalf of the appellants it was urged that the above three lacerated wounds of Mushtaq Ali Khan on the fore-head, i. e. on the vital part of the body were not negligible nor were such which could be self inflicted or got inflicted with a friendly hand. That apart, if the prosectuion case had been that the injuries were flimsy, self inflicted or got inflicted with a friendly hand. Dr. V. P. Singh who had examined those injuries not only of this appellant but also of other injured on the same day at the same time would have been examined. That apart, if the prosectuion case had been that the injuries were flimsy, self inflicted or got inflicted with a friendly hand. Dr. V. P. Singh who had examined those injuries not only of this appellant but also of other injured on the same day at the same time would have been examined. The fact that the genuineness of the injuries of Mushtaq Ali had been accepted by the prosecution also belies the prosecution allegation that they were not inflicted at the time of the occurrence or they could have been self inflicted and, therefore, the prosecution was not bound to accept them as held by the learned Court below. Though the learned Court below referred to the decision In the case of Laxmi Singh and others v. State of Bihar, wherein it has been held that the burden is on the prosecution to explain the injuries received on behalf of the accused and if it fails to explain them, the evidence of the prosecution witnesses would become unreliable. The learned Court below has observed that in the present case as the accused had not pleaded self defence and their case was of accidental causing of gun shot injuries that defence version has to be tested in the light of their version and the defence could not take advantage of the failure of the prosecution to explain the minor injuries suffered by one of the accused. Prima facie, the view of the learned Sessions Judge has been errouneous. In the present case the prosecution did not dispute the genuineness of the three lacerated wounds on the forehead of the accused Mushtaq of which two wounds were 3 cm x 0. 5 x bone deep and 1. 5 cm x 0. 5 cm x bone deep on the forehead above the left and right eye brows. The prosecution was bound to explain how the same were caused at the time of occurrence. The fact that immediately after the occurrence the injuries of Mushat Ali were also examined alongwith other injured persons on behalf of the prosecution further supports the defence version that Mushtaq Ali had also received injuries in the same occurrence. The prosecution was bound to explain how the same were caused at the time of occurrence. The fact that immediately after the occurrence the injuries of Mushat Ali were also examined alongwith other injured persons on behalf of the prosecution further supports the defence version that Mushtaq Ali had also received injuries in the same occurrence. Inspite of that each and every eye witness, namely P. W. 1 Mohammed Ayub Khan, P. W. 2 Ishraq Ali Khan, P. W. 3 Parsumram as well as P. W. 4 Masroor Ali Khan did not say how those injuries were caused to Mushtaq Ali Khan but specifically denied the defence suggestion that the same were received as a result of brick-batting. ( 7 ) THAT apart no doubt the prosecution has examined besides Mohammed Ayub P. W. 1, the first informant, P. W. 2 Ishraq Ali Khan, P. W. 3 Parsuram and P. W. 4 Masroor Ali Khan, who were all injured in the incident, their presence at that time cannot be doubted. However, their testimony has also got to be closely scrutinised with a view to find out the inception of the occurrence, i. e. , as to how the occurrence had started. The manner in which, according to the prosecution, the occurrence had taken place undoubtedly there was no reason for Mushtaq Ali to receive any injury as it is also not contended that some persons, when firing was resorted to by the accused, had also thrown brick-bats towards the assailants and those brick bats might have hit the fore head of Mushtaq Ali and caused those injuries. On the other hand, the defence version is that the complainant and others had gone to the toddy shop of Mushtaq Ali Khan and there they had attacked him with brick-bats. In the F. I. R. it is further stated that when the accused armed with gun and Kattas were fighting with Masroor Ali Khan then the complainant and others had gone there and then on seeing Ishraq Ali Khan the accused Mohammad Ayub Khan had fired the shot as a result of which Ishraqul Ali Khan received the gun shot injuries and other assailants fired shots with their country made pistols which caused injuries to other persons. In his cross-examination (paragraph no. In his cross-examination (paragraph no. 9) P. W. 1 Ishtiaq Ali Khan had specifically stated that all the seven accused had surrounded Masroor Ali Khan and were hitting him with kicks and firts. P. W. 4 Masroor Ali Khan also in paragraph No. 4 of his examination-in-chief stated that near the house of Sita Ram on the way all the seven accused had hit him with kicks and fists and butts of the country made pistols. However, his injury report Ext Ka 4 does not contain any contusion caused to him as a result of his being hit by kicks and fists and the butt ends of the Katta. He had received in all seven injuries and all were gun shot wounds. Thus the medical evidence also belies the prosecution version regarding the inception of the fight in between the parties. ( 8 ) THAT apart any blood pellets or empty cartridges were not recovered from the scene of occurrence to substantiate the prosecution version that the occurrence had taken place at that place. ( 9 ) IN view of the above, the origin of the fight is shrouded in mystery and it cannot be said that appellant Mohammed Ayub Khan and others were the aggressors. The fact that on the side of the appellants also three lacerated wounds were received on the fore head of Mashtaq Ali Khan, the defence version that the fight was initiated from the side of the complainant also cannot be said to be without any semblance of truth. The conclusion, therefore, is that the prosecution has failed to bring home guilt to the accused-appellants beyond reasonable doubt. Therefore, criminal appeal No. 2632 of 1978 of Mohammed Ayub Khan, Kausar Khan, Mushtaq Ali Khan, Mohammed Sayeed and Shan Mohammed is allowed. Their conviction and sentence under sections 148 and 307 read with Sec. 149 I. P. C. to one year and five years Rigorous Imprisonment are set aside. They are on bail. They need not surrender and their bail bonds are cancelled. Government Criminal Appeal No. 3499 of 1978 against acquittal of Shamshad Ali Khan and Qayum Ali Khan by the learned Sessions Judge also fails and is hereby dismissed. Appeal allowed. .