JUDGMENT 1. This appeal is directed against the judgment of learned Sessions Judge, Udaipur dated 26-2-92 whereby he convicted the accused appellant for offence under Section 304 Part II Indian Penal Code and 324 Indian Penal Code and sentenced him to undergo 7 years R.I. on the first count and 6 months R.I. on the second count. He, however, directed both the sentences to run concurrently. 2. Briefly stated, the facts of the case are that on May 7, 1990 when deceased Shiv Singh alongwith his son Bhanwar Singh were busy in blasting stones in their own field, the stones travelled up-to the field of Mohabbat Singh accused. Mohabbat Singh protested on the manner of blasting on which some incident took place in which according to the prosecution story Motabbat Singh, his wife Birju and Badni inflicted injuries on the person of Shiv Singh and his son Bhanwar Singh, Shiv Singh and Bhanwar Singh sustained knife injuries. Shiv Singh succumbed to the injuries and an information to that effect was lodged at the police station Sahara, District Udaipur, on 7th of May, 1990 i.e on the date of occurrence itself. Police during investigation apprehended accused appellant Mohabbat Singh as well as Smt Badni and Smt. Barju. Since.there were injuries on the person of the apprehended persons, they too were sent for medical examination and injuries were also found on their persons. After completion of investigation charge-sheet was submitted against Mohabbat Singh and two other ladies. On trial, prosecution examined 15 witnesses in support of its case The trial Court disbelieved the prosecution story qua accused Badni and Barju and acquitted them of all the charges while convicted and sentenced accused appellant as indicated above. 3. It may be observed here that the trial Court has framed charge for offence under Sections 302 and 307 Indian Penal Code against the accused appellant but he had been acquitted of both the charges and instead charged for offence under Sections 304 Part II and 324 Indian Penal Code as mentioned above. The short point involved in this case is, that in the admitted circumstances of the case, whether the conviction of the accused appellant, in absence of explanation of the injuries on the person of the accused, can be sustained ? It will be essential. therefore, to find out as to what is the nexus of the prosecution story. The short point involved in this case is, that in the admitted circumstances of the case, whether the conviction of the accused appellant, in absence of explanation of the injuries on the person of the accused, can be sustained ? It will be essential. therefore, to find out as to what is the nexus of the prosecution story. All the prosecution witnesses including Bhanwar Singh son of deceased and injured himself came out with the case that the incident took place because of the stone blasting operation in the field of Shiv Singh, stones travelled to the field of Mohabbat Singh and while Shiv Singh and Bhanwar Singh were returning home, the deceased and Bhanwar Singh were called by accused Mohabbat Singh in his field where he protested as to why care had not been taken and stones had been permitted to sprea up-to his field, which could have caused injuries to him and his family. The prosecution case Is that on this accused Mohabbat Singh brought out a knife and suddenly inflicted injury on the person of Bhanwar Singh and when Shiv Singh rushed to his rescue, he too was given 9 blow Dr. Surendra Singh Zhala (PW 13) who conducted the post mortem found the following injuries on the person of deceased. 1. Stab wound Size 1.3/4" x 1" x 2.1/4". The wound is situated on the lower part of neck left side. The wound is 1" away from the medical end of left clevical bone and 1.1/2" above the clavical downward. The edges are clean cut, The clotted blood is present on the edges of wound and inside the wound. On Dissection : It was found that the muss]es of neck, left side is cut in the course of wound. The left external jugalar vein is cut in the course of wound, leading to profuse bleeding, clotted blood is present inside the wound. The wound is anti-mortem in nature and caused by sharp weapon. 2. Incised wound : 1" x 1/2" x ⅛" situated 1" above the Rt superior elec crest clotted blood is present. The wound is simple and anti-mortem in nature and caused by sharp weapon. 3. Incised wound : 3/4" x 1/2" x ⅛" on the back of Rt wrist joint below the lower end of Rt. Ulna bone. The wound is simple and anti-mortem in nature and caused by sharp weapon. 4. The wound is simple and anti-mortem in nature and caused by sharp weapon. 3. Incised wound : 3/4" x 1/2" x ⅛" on the back of Rt wrist joint below the lower end of Rt. Ulna bone. The wound is simple and anti-mortem in nature and caused by sharp weapon. 4. He also found one incised wound on the person of Bhanwar Singh According to Dr. Zhala, the cause of death of Shiv Singh was excessive external haemorrahage from the wound of the neck i.e. Injury No. 1. The learned trial Court after discussion of evidence came to the conclusion that this injury was not intended to cause death and, therefore, acquitted the accused of the offence under Section 302 Indian Penal Code No state appeal has been filed and prosecution rest contended. It may be observed that accused Mohabbat Singh had sustained following four injuries. 1. Lacerated wound clotted blood present 3/4" x1/4" deep bone on the upper part and middle of forehead simple blunt. 2. Abrasion clotted blood present 1"x1/4" on the left temporal bone simple blunt. 3. Lacerated wound with nail puncture 3/4"x⅙"x⅙" on the top of left hand ring finger-simple blunt. 4, Abrasion clotted blood present 1/2"x1/4" on the back and upper part of left hand middle finger simple-blunt Smt. Barji sustained following two injuries. 1. Bruise - Radish dark blue in colour 2.1/2" xl" on the upper part and outer side of left upper arm simple blunt. 2. Bruise with swelling 2" xl" on the back of left wrist joint simple-blunt. Smt. Badni sustained following two injuries. 1. Bruise redish dark blue in colour 2. 1/2"x2" on the occipital region left side simple-blunt. 2. Bruise redish dark blue in colour vertical c/o body ache 4" x 2" on the upper part and other side of left upper arm-simple-blunt. Prosecution witnesses have admitted to have seen the accused Mohabbat Singh bleeding from his head at the time of occurrence but non of them have explained the injuries as to how these three persons sustained the injuries. Prosecution witnesses have admitted to have seen the accused Mohabbat Singh bleeding from his head at the time of occurrence but non of them have explained the injuries as to how these three persons sustained the injuries. Obviously something transpired before the knife was brought out by Mohabbat Singh to inflict injuries on the person of Shiv Singh as well as Bhanwar Singh The learned Public Prosecutor has submitted that the accused exceeded the right of private defence if he had any, by inflicting knife injury on the neck of the deceased and for supporting his contention, he has relied on the decision reported in AIR 1992 SCW 3194 . wherein a case of free fight, both the parties sustained injuries. The non-explanation of the injury by the prosecution was also considered and the accused was convicted for offence under Section .304 Part II Indian Penal Code holding it to be a case of exceeding the right of private defence. The argument of the learned counsel could nave weight in case the accused could not have been acquitted for offence under Section 302 Indian Penal Code or there would have been a State appeal against acquittal. Once the finding has been arrived at that the offence does not travel under Section 302 Indian Penal Code and offence is only under Section 304 Part II Indian Penal Code, the Court has to consider the case on the premise as to that extent whether accused should have exercised his right of private defence. 5. In my opinion, in this case there is no necessity to go even to that extent as the prosecution has miserably failed to show the nexus of the prosecution story. In absence of the explanation of the injuries on the person of the accused appellant, no matter the injuries are simple but they are on the head and it has also been admitted by the prosecution witnesses that tie injury on the head was bleeding at the time of incident. Obviously, something transpired before the accused used knife to assault the deceased. Times w 'Incur number the Supreme Court and this Court has held that there is a long distance to travel between may be true' and 'must be true' and the Whole of this distance has to be covered by unimpeachable and reliable evidence which is lacking in this case. Times w 'Incur number the Supreme Court and this Court has held that there is a long distance to travel between may be true' and 'must be true' and the Whole of this distance has to be covered by unimpeachable and reliable evidence which is lacking in this case. The prosecution witnesses have neither come cut with the genesis nor an explanation of the injuries on the person of the accused. as a result of which the accused is entitled to I benefit of doubt. 6. The result is that the appeal is allowed. The conviction and sentence of the appellant are set aside. He is in jail. He shall be released forthwith if not required in any other case. *******