A. S. TRIPATHI, J. ( 1 ) THIS appeal is filed against the judgment and order dated 17/4/1979 passed by Sri G. L. Tandon, the then 4th Addi. Sessions Judge, Moradabad, whereby the appellants were convicted under section 325/34, I. P. C. and sentenced to undergo rigorous imprisonment for five years each. ( 2 ) THE prosecution story as disclosed in the First Information Report, Ex. Ka 7, was that on 20/5/1978 at about 2 p. m. deceased, Kaley Singh alongwith his cousion, Amar Singh, P. W. 2 was going to Hasanpur from his village to purchase certain articles for the marriage of his sister. When they reached on the road between Gajraula railway station and Phoandapur all the four accused persons named in the F. I. R. Chanchal Singh, Ram Autar Singh, Mahendra Singh and Mahipal Singh, attacked them. Accused, Ram Autar Singh, was said to have been armed with a bicycle chain and other accused were armed with lathis. It is alleged that one lathi blow was given to Amar Singh, P. W. 2, who moved at a distance of about 10 paces and then accused, Ram Autar Singh started beating Kaley Singh with cycle chain and other three accused with lathis. Witnesses Bhagwan Singh alias Bhagwana, Ghasi and Umrao Singh also happened to come at the same time from the side of Gajraula railway station and saw the incident. After beating Kaley Singh the accused persons ran away. A written F. I. R. was lodged at police station Gajraula at 3. 15 p. m. the same day and accordingly a case was registered. The case was investigated by P. W. 3, Sri B. D. Joshi, Sub-Inspector. Kaley Singh, injured, was taken to primary Health Centre Gajraula and was medically examined at 3. 25 P. M. the same day. Injury report, Ex. Ka 12, was prepared by Dr. R. K. Katiyar, which shows that 23 injures were found on his body out of which 7 were lacerated wounds, six abrasions, a traumatic swelling and rest were contusions. X-Ray was advised. Supplementary report, Ex. Ka. 13, shows that a fracture was disclosed on the tibia and fibula. ( 3 ) DURING investigation Kaley Singh, wild was hospitalised at district hospital Moradabad died on 24/5/1978 and his statement recorded by the Investigating Officer under section 161 Cr. X-Ray was advised. Supplementary report, Ex. Ka. 13, shows that a fracture was disclosed on the tibia and fibula. ( 3 ) DURING investigation Kaley Singh, wild was hospitalised at district hospital Moradabad died on 24/5/1978 and his statement recorded by the Investigating Officer under section 161 Cr. P. C. was proved under section 32 of the Indian Evidence Act as dying declaration. After the death of Kaley Singh postmortem examination was conducted on 24/5/1978 in the evening by Dr. D. Misra, P. W. ( 4 ) IN the postmortem examination report, Ex. Ka. 6, similar antemortem injures were found which are mentioned in the report itself. After investigation chargesheet was submitted under section 304 read with section 34, I. P. C. , Ex. Ka. 5, on 20/6/1978. 4. The learned Sessions Judge, However, framed charges under section 302 read with section 34, I. P. C. against all the four accused persons and tried them. ( 5 ) THE prosecution had examined in support of its case P. W. 1 Bhagwan Singh alias Bhagwana, P. W. 2 Amar Singh, as witnesses of fact, P. W. 3 B. D. Joshi, Sub-Inspector, P. W. 3 Dr. D. Misra, P. W. 5 Veer Singh, the scribe of the F. I. R. , P. W. 6 constable Mohan Lal, who proved Panchayatnama, and P. W. 7 Ashok Kumar, Pharmacist, and Dr. R. K. Katiyar, as formal witnesses. ( 6 ) THE accused have denied the prosecution story and stated that they were innocent in the matter. The accused, Chanchal Singh and Mahendra Singh have stated that they were not even present at the time of occurrence and they were falsely implicated on account of their relationship with Ram Autar Singh. Accused Chanchal Singh is the real brother of Ram Autar Singh and Mahendra Singh has stated that he is their relation. Accused Ram Autar Singh and Mahipal Singh have stated that on the date of incident they were going to Gajraula market from their village to pay a sum of Rs. 200/- to Rampal. At a distance of three furlongs from Gajraula they met Kaley Singh, deceased, armed with knife and Haram Singh and Param Singh having lathis and they started beating Ram Autar Singh when Ram Autar Singh and Mahipal Singh wielded lathis in self defence and in this process Ram Autar Singh and Mahipal Singh were injured. 200/- to Rampal. At a distance of three furlongs from Gajraula they met Kaley Singh, deceased, armed with knife and Haram Singh and Param Singh having lathis and they started beating Ram Autar Singh when Ram Autar Singh and Mahipal Singh wielded lathis in self defence and in this process Ram Autar Singh and Mahipal Singh were injured. ( 7 ) THE accused did not examine any witness in defence. However, they got proved from P. W. 3 Sri B. D. Joshi, Investigating Officer, Ex. Kha 1, carbon copy of the chik F. I. R dated 20/5/1978 lodged at 3. 02 P. M. the cross F. I. R lodged by Ram Autar Singh, accused, and a case was registered under sections 323 and 324 I. P. C. against Kaley Singh, Param Singh and Haram Singh. The C. D. entry in that respect, Ex. Kha 2, was also proved. The extracts of statement of P. W. 1 Bhagwan Singh alias Bhagwana, Exs. Kha 1 and 4 have also been proved in defence. The injuries caused on the body of Ram Autar Singh, accused, were of examined by Dr. RK. Katiyar the same day and he proved the injury report, Ex. Kha 5, which discloses that Ram Autar Singh was also examined on 20/5/1978 at 3. 10 p. m. and he had an incised wound, two abrasions and a contusion on his body and also complains of pain on the person. Incised wound was caused on the right clevicle and contusion was caused on the chest. ( 8 ) AFTER examining the evidence on record the learned Sessions Judge found that accused Chanchal Singh and Mahendra Singh were innocent in this incident and there was no evidence against them. Accordingly the learned Sessions Judge acquitted accused Chanchal Singh and Mahendra Singh of the charge. However, the lower court found accused Ram Autar Singh and Mahipal Singh guilty under section 325 read with section 34, I. P. C. only and they were acquitted of the charge under section 302, read with section 34, I. P. C. Under section 325, read with section 34, I. P. C. two accused 1) am Autar Singh and Mahipal Singh, were convicted and sentenced to rigorous imprisonment for five years each. Aggrieved by this Judgment and Order, the present appeal has been preferred. Aggrieved by this Judgment and Order, the present appeal has been preferred. ( 9 ) I have heard the learned counsel for the appellants and the learned A. G. A. for the State and perused the record. The learned Sessions Judge held in his judgment that the incident was not even denied by accused and he found that accused were aggressors. However, accused Chanchal Singh and Mahendra Singh were implicated on account of exaggeration by the prosecution but rest of the accused persons, i. e. Ram, Autar Singh and Mahipal Singh were certainly aggressors. He also held that the accused persons have not been able to establish their case of self defence by leading any evidence and, therefore, they are guilty at least under section 323, read with section 34, I. P. C. ( 10 ) I have carefully examined the evidence on record and found that the learned Sessions Judge erred on both the points in holding that two accused are aggressors and that the case of self defence was not established as no evidence was led by the accused persons. ( 11 ) THE incident is not denied. The accused had also lodged a prompt cross F. I. R. earlier point in time at 3. 02 P. M. at the same police station alleging that accused Kaley Singh, Param Singh and Haram Singh had attacked Ram Autar Singh and Mahipal Singh. Kaley Singh was armed with knife and others were armed with lathis. The injury report of accused Ram Autar Singh has been proved on record. No other evidence was needed to prove the injuries of accused Ram Autar Singh. Incised wound on the person of Ram Autar Singh clearly indicates that he was attacked with knife the injuries of the accused have not been explained by the prosecution by any evidence or circumstances. The injuries were caused at the same time and accused Ram Autar was medically examined by the same doctor the same day and injury report was prepared and proved and as such it was the duty of the prosecution in the case to explain the injuries on the person of the accused. When no explanation- came forward from the side of the prosecution then defence version needs no further proof. This clearly shows that prosecution had not come with clean hands and the entire defence case was suppressed. When no explanation- came forward from the side of the prosecution then defence version needs no further proof. This clearly shows that prosecution had not come with clean hands and the entire defence case was suppressed. ( 12 ) IT is established law that when the injuries are caused on the person of the accused in same incident and prosecution is unable to explain the same, the prosecution case has to be thrown out in its entirety. ( 13 ) IN the statement of P. W. 1 Bhagwan Singh alias Bhagwana has stated that all the four accused had surrounded Kaley Singh and Amar Singh at the time of incident and the accused were beating him. He belongs to different village. He happens to be present on the spot alongwith Umarao Singh and Ghasi. At that time the witness did not properly recognise accused Ram Autar Singh. When he was asked by the court to recognise him he put his hand on Ram Autar Singh and stated that it was Mahendra Singh. By this statement the veracity of the witness about the identity of the accused by name was highly doubtful. The witness contradicted the statements given under section 161 Cr. P. C. that accused were beating both Kaley Singh and Amar Singh. Now he had stated that the accused were not beating Amar Singh. The witness also stated that none of the accused received any injury and the deceased had not used any weapon. This statement is against the established fact that accused, Ram Autar Singh had received knife injury in the incident. The witness was confronted about the fact regarding identity of Ram Autar Singh and the weapon used by Rim. The witness in cross-examination went to this extent to say that accused Ram Autar Singh was not present that day in court whereas he was present. The witness stated that Ram Autar Singh had used cycle chain while beating Kaley Singh, deceased. Therefore, this statement that Ram Autar was recognised by this witness while beating with chain deceased Kaley Singh is not at all reliable. In this way the testimony of P. W. 1 Bhagwan Singh alias Bhagwana was not reliable and should have been discarded. ( 14 ) THE other witness, P. W. 2 Amar Singh is the first cousin of the deceased, Kaley Singh. According to him, he was present at the time of occurrence. In this way the testimony of P. W. 1 Bhagwan Singh alias Bhagwana was not reliable and should have been discarded. ( 14 ) THE other witness, P. W. 2 Amar Singh is the first cousin of the deceased, Kaley Singh. According to him, he was present at the time of occurrence. He also gives lathi blow but no injury was found on his person and he was not medically examined. In examination-in-chief he stated that during marpit he had run away. He stated that none of the accused received any injury in the incident neither with knife nor with lathi. This by itself makes him unreliable as the injuries on the person of accused, Ram Autar are proved on record. There is no other evidence to prove the prosecution version. ( 15 ) IN this case I find that the defence has come out with a clear case of marpit at the time of occurrence. According to defence version accused Ram Autar Singh was attacked with knife when he wielded sticks in self defence. This story appears to be more probable than the prosecuting case as put forward in the F. I. R. and in the statements of the prosecution witness. ( 16 ) I find in this case that the prosecution has not put forward true version of the incident and the witnesses produced are not reliable. ( 17 ) THE defence has come out with a clear case of self defence which appears more probable. When Ram Autar Singh was attacked with knife, injuries were caused to Kaley Singh in defence thereafter. No doubt Kaley Singh died on account of those injures after four days, but the prosecution has not been able to establish that the accused were aggressors in this incident ( 18 ) THE accused persons had lodged prompt report earlier in time at the same police station and got himself medically examined the same day at the Primary Health Center by the same doctor and came out with a clear case. The cross report of the accused was not properly investigated and no cross case was registered, which smacks of failure on the part of investigating agency for their partisan attitude. The cross report of the accused was not properly investigated and no cross case was registered, which smacks of failure on the part of investigating agency for their partisan attitude. ( 19 ) THE learned Sessions Judge himself had acquitted two accused named in the F. I. R. holding that true story has not been put forward by the prosecution in the F. I. R. ( 20 ) CONSIDERING the facts and circumstances of the case and after assessing the evidence on record. I find that the prosecution has clearly failed to prove the charge against any of the accused persons and the appeal has to be allowed. ( 21 ) THE appeal is accordingly allowed and conviction and sentences of the appellants are set aside. The appellants are on bail. Their bail bonds are discharged. Appeal allowed. .