JUDGMENT 1. - This appeal is directed against the judgment dated 25th March, 1981 passed by the learned Addl. Sessions Judge, Nagour convicting the first and second appellant Khian Ram, Mishrilal under Section 325 I.P.C. and sentenced each of them to 2 years R.I. and to pay a fine of Rs. 100/- each, in default of 5 payment to further undergo 3 months R.I. Both of them have also been convicted of offence under Section 323 I.P.C. and sentenced to 3 months R.I. and to pay a fine of Rs. 50/- each, in default of payment to further undergo 15 days R.I. Both of them have also been convicted of offence under section 147 I.PC. and sentenced to 3 months R.I. and to pay a fine of Rs. 50/- each, in 3 default of payment to further undergo 15 days R.I. All the sentences have been ordered to run concurrently. The 3rd, 4th, 5th & 6th appellants have been convicted of offence under Section 325/149, 323 and 147 I.P.C. They have been given benefit of provisions of Section 360 Cr.PC. sixth appellant Poosaram had died during the pendency of this appeal as such appeal qua him stands abated. 2. The brief facts of the case are that on 21st April, 1979 PW/1 Chotu Ram lodged an F.I.R. at police station, Nagour by producing a written report Ex.P/1 under signatures of PW/4 injured Umedram. It is that on 21.4.79 he was going towards his house from the railway station and when he reached near the house of Hemaram, the accused Tilokaram, Mishrilal, Kirtara, Ghuraram, Khinyaram Poosaram attacked on him. The accused Mishrilal gave a blow on his head by lathi. He raised 2nd blow but the same was warded of by raising left hand which caused fracture of the hand of which, he got fracture. It is further alleged that Khinyaram exhorted to give blows to injured Umedram and he himself gave a lathi blow on the leg of Umedaram, on account of which, he fell down. The other accused person namely Kirparam, gave a lathi blow causing injuries on right hand. Tilokaram inflicted injury on the leg. So as other accused persons also assaulted. Umedaram made a cry which attracted PW/1 Choturam, PW/2 Bhanwarlal & PW/5 Gayarram. The other accused person namely Kirparam, gave a lathi blow causing injuries on right hand. Tilokaram inflicted injury on the leg. So as other accused persons also assaulted. Umedaram made a cry which attracted PW/1 Choturam, PW/2 Bhanwarlal & PW/5 Gayarram. On this information, police registered a case of offence under Section 147, 148, 323 & 307 I.P.C. and proceeded with the investigation, after usual investigation, Police laid chargesheet against the accused persons for the aforesaid offences. 3. The accused persons were charged for offence under section 147, 148, 323 & 307 I.P.C. They denied the charge and claimed trial. The prosecution in support of the case examined 10 witnesses and produced number of documents. In statement under Section 313 Cr.PC. appellant Nos. 1 to 6 pleaded not guilty. The first and second appellants Khinya Ram & Mishrilal stated that the prosecution case is false and fabricated. The trial court found the prosecution case proved and thus, convicted and sentenced the accused appellants as stated above. 4. Assailing the judgment it is contended by Mr. M.L, Garg, learned counsel appearing for the appellants that the learned Judge has failed to appreciate the prosecution case in right perspective. It is submitted that reading of the F.I.R. itself shows that a coloured version has been given to the incident. It is also submitted that the prosecution has not explained injuries on the person of Tilaram which suggestes that the prosecution has not come with true version of the incident. On the other hand learned Addl. P.P. assisted by Mr. Dhillon, learned counsel appearing for the complainant submits that the statements of injured witness Umedram and the other eye witnesses are natural and trustworthy. The statements are corroborated by the medical evidence, as such no interference is called for by this court. 5. PW/4 Umedram has stated that he made a complaint against the Khinyaram to the State Govt, with respect to his functioning as Sarpanch, on account of which, an inquiry was instituted against him. As Khinyaram was not happy with him, about 4 to 5 days prior to the date of incident, the accused Khinyaram belaboured his daughter. He went to his house to reprimand him, on which, the accused Khinyaram reminded him that he is Sarpanch. As Khinyaram was not happy with him, about 4 to 5 days prior to the date of incident, the accused Khinyaram belaboured his daughter. He went to his house to reprimand him, on which, the accused Khinyaram reminded him that he is Sarpanch. On 21st April, 1979 while he has proceeding towards his house from the railway station, infront of the house of Khinyaram the accused persons Khiyraram, Dhooraram, Mishrilal, Tilaram, Poosaram and Rooparam attacked on him with lathis. Mishrilal gave a first lathi blow on his head. He wanted to give second lathi blow, which was ward off by him raising his left hand, on account of which, he sustained fracture in his hand. Khinyaram exhorted the other accused persons. He also gave a lathi blow on his leg, on account of which, he sustained fracture on his leg and fell down. The accused Kriparam gave a lathi blow on his hand so as Tilaram on his back. The other accused persons also gave lathi blows. The witnesses Choturam, Gayarram and Bhanwarlal intervened. Thereafter, the accused persons went inside their houses. He was taken to his house by Bhanwarlal, Choturam, Ramniwas, Jetharam and Gayarram. He was taken to the hospital in Nagour in a tractor. PW/1 Choturam stated that he is a real brother of injured PW/4 Umedram. He stated that on 21st April, 1979 at about 1 p.m. when he heard cry of his brother Udaram, he came out and saw that the accused Mishrilal, Khinyaram, Kriparam, Tilaram, Dhoolaram and Poosaram were beating Umedram. He also stated that Mishrilal gave a lathi blow on the head of Umedram, he also gave a another blow causing injury on his left hand. Khinyaram exhorted and himself gave a lathi blow on the leg of Umedram. He further stated that all the other accused persons also inflicted lathi blows on Umedram. He further stated that some days prior to the date of incident, an altercation took place between Umedram and Khinyaram. He proved the F.I.R. Ex.P/1. PW/2 Bhanwarlal has stated the fact almost in the same manner. PW/5 Gayarram has stated that he was sitting in the house of Choturam on the date of the incident. Hearing the cries of Umedram, he rushed to the place of incident and saw that the accused persons are beating Umedram with lathis. 6. He proved the F.I.R. Ex.P/1. PW/2 Bhanwarlal has stated the fact almost in the same manner. PW/5 Gayarram has stated that he was sitting in the house of Choturam on the date of the incident. Hearing the cries of Umedram, he rushed to the place of incident and saw that the accused persons are beating Umedram with lathis. 6. I have also carefully read the cross examination of all the aforesaid witnesses. Nothing substantial has been elicited which may affect the truthfulness of the said witnesses. PW/6 Dr. PR Gandhi stated that he examined Umedram on 21st April, 1979 and prepared injury report Ex.P/6. He found following injuries on the person of Umedram : 1. An abrasion 2"x1/4"x1/4" Vertically placed on the medical border of the middle third of left forearm. 2. Fracture mid-shaft both bones of left forearm. 3. Bruise 6"x1" vertically placed on the posterior medical aspect of the upper half of right forearm. 4. Abrasion 3"x1/2" upper half of the posterior aspect of left forearm. 5. Two abrasions each 6"x1/2" placed vertically and parallel to each other on the medical border of the middle of right forearm. 6. Dislocation of the proximal interpholongeal joint of right ring finger. 7. A lacerted wound 2"x1/2" bone deep. Placed anteroposteriously on the left upper parietal region. 8. A subunqual haemotoma on the right middle finger of hand, the nail is quite loose & partially separated. 9. A haematoma 1/4" x 1 /8" middle side of left toe. 10. A bruise 3"x1" obliquely placed from above downwards & medially on the right lumbar region on the back. 11. A lacerated wound 1"x1/2"x⅓" deep vertically placed on the posterior aspect of the finger ⅓ of right arm. 12. A bruise 4"x1/2" posterior lateral aspect of right thigh at its upper and middle third. 13. Two abrasions each 1/4"x1/4" on the lateral side of the lower part of right knee. 14. Bruise 2"x1" transversely placed on the lateral aspect of left thigh on its upper third. 15. Bruise 6"x1" vertically placed on the lateral aspect of the middle ⅓ of left thigh. 16. Bruise 3"x1" transversely placed on the anterolateral aspect of the lower finger of left thigh. 17. Abrasion 3/4"x 1/22" an inch below the head of left fibula. 18. Bruise 2"x1" transversely placed on the lateral aspect of left thigh on its upper third. 15. Bruise 6"x1" vertically placed on the lateral aspect of the middle ⅓ of left thigh. 16. Bruise 3"x1" transversely placed on the anterolateral aspect of the lower finger of left thigh. 17. Abrasion 3/4"x 1/22" an inch below the head of left fibula. 18. There is a diffuse mid swelling of the middle of right leg, there is simple fracture of the mid shaft of the underlying tibia. He also stated that injury No. 2, 6 and 18 were grievous in nature caused by blunt object. Rest of the injures were simple, caused by blunt object, he advised for radiologigal examination. The X-ray was done by PW/8 Dr. Shiv Dayal Pareek. PW/6 Dr. Gandhi also prove Ex.P/7. He stated that X-ray report bears signatures of Dr. Pareek. On the same day, he also examined accused Tilaram and proved injury report Ex.P/3. He found following injuries on the person of Tilaram - " 1- ,d QVk gqvk ?kko 3/4x"1x4" [kksiM+h ij pksVh ds nkfguh rjQA 2- ,d uhy 12" x 1" dej ds nkfguh cktq esa [kM+h yxh gqbZA 3- ,d uhy 18" x 1" dej ds nkfgus cktq esa [kM+h yxh gqbZA 4- 2 uhy 3" x 1" izR;sd nkfgus Lds;qyj jhtu ij tks fd ,d nwljs ds 2" ds Qklys ij lekukUrj gSA 5- ,d uhy 5" x 1" nkfguh cxy ds uhps ds fgLls ijA 6- ,d jxM+ 2" x 2" cka;h lqijk Lds;qyj jhtu ijA 7- ,d jxM+ 21/2" x1/2" ckbZ dksyj dh gM~Mh ds mijA 8- ,d jxM+ 2 1/2" x1/2" ckbZ tka?k ds mij Hkkx ijA 9- ,d jxM+ 3/7" x1/2" nkfguh dksfu ijA 10- ,d uhy 2" x 1" ck;sa ?kqVus ds mijh Hkkx ijA 11- ,d jxM+ 1/4" x1/4" ck;sa ?kqVus dh Bduh ds ckgjh fdukjs ijA 12- ,d jxM+ 1"x1/2" nkfguh Vkax ds uhps ds fgLls ijA " He found the said injuries simple caused by blunt object. In his opinion, the duration of the injury was 24 hours. He also stated that injuries mentioned in Ex.P/3 cannot be self sustained or self suffered. PW/8 Dr. Shiv Dayal Pareek has stated that on 17.5.79 he was the incharge of the hospital and he prepared certificate Ex.P/7. As per the certificate Umedram remained in hospital during the period 21.4.79 to 17.5.79. PW/9 Bhanwardan is the Investigation Officer. He also stated that injuries mentioned in Ex.P/3 cannot be self sustained or self suffered. PW/8 Dr. Shiv Dayal Pareek has stated that on 17.5.79 he was the incharge of the hospital and he prepared certificate Ex.P/7. As per the certificate Umedram remained in hospital during the period 21.4.79 to 17.5.79. PW/9 Bhanwardan is the Investigation Officer. It is of course true that no explanation of the injuries on the person of the accused Tilaram has been given by the prosecution. It is held by the Apex Court in Lakshmi Singh & Ors. v. State of Bihar reported in AIR 1976 SC 2263 that in case of non explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation following inferences can be drawn : 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 on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. Mr. M.L. Garg, learned counsel appearing for the appellants submitted that in the facts of the case third inference i.e. "the defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case" is attracted. The defence version is that the complainant Umedram had gone to the house of Khinyaram to assault him. It is pointed out that Tilaram has sustained as many as 12 injuries, out of which, injury No. 1 is on the head. The learned counsel has pointed out that doctor in re-examination has admitted that none of the injury could be self inflicted. The learned Counsel has placed reliance on the decision of the Apex Court in Shiv Karan & Anr. v. State of Rajasthan reported in 1997 Cr.L.R. (SC) 230 wherein the court held that "considering the nature of injuries sustained by the accused persons in the incident it cannot be said that they were superficial and no explanation was necessary. The learned Counsel has placed reliance on the decision of the Apex Court in Shiv Karan & Anr. v. State of Rajasthan reported in 1997 Cr.L.R. (SC) 230 wherein the court held that "considering the nature of injuries sustained by the accused persons in the incident it cannot be said that they were superficial and no explanation was necessary. It is submitted that in the instant case, absence of any explanation offered for the injuries sustained by the accused person, makes the prosecution case suspect and entitles the appellants to the benefit of reasonable doubt. 7. Mr. Dhillon, learned counsel appearing for the complainant submitted that in Lakshmi Singhs case apex court itself laid down that where evidence is so clear, cogent and creditworthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. He has also relied upon the decision of the Apex Court in Bhaba Nanda Sharma and Ors. v. State of Assam reported in 1977 SCC (Cri.) 602 wherein the court held that the prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances. It depends upon the facts and circumstances of each case whether the prosecution case becomes reasonable doubtful for its failure to explain the injuries on the accused. He has also relied upon one another decision of the Apex Court reported in 1988 SCC (Cri) 280 wherein the court held "that mere sustaining of injuries by the accused person in the same occurrence in which the deceased died not by itself conclusive proof of the deceased being the aggressor. Learned counsel has also relied upon the decision of the apex court in Ram Sunder Yadav & Ors. v. State of Bihar reported in 1998 SCC (Cri.) 1630 wherein the court held that the questions which have been referred to this Bench by a two-Judges Bench of this Court are whether the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain would mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence. These questions were referred to the larger bench of 3 Judges and the same has been answered in Bhaba Nanda Sarma v. State of Assam report in 1977 SC (Cri) 602 . On the reading of the aforesaid decisions, it clearly emerges that there is no general rule that in ail cases where the prosecution has not explained the injuries on the person of the accused, the prosecution case becomes doubtful. The ratio laid down in the cases is that "non explanation of the injuries may assume importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes probability with that of the prosecution. However, where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whose case." In the instant case apart from the statement of PW/4 Umedram and his brother PW/1 Choturam there are other eye witnesses PW/2 Bhanwarlal and PW/5 Gayar Ram. On reading of their evidence, I found their statement natural and trustworthy. In spite of long cross-examination, nothing could be elicited on basis of which it can be said that their statements are not correct. It is interesting to notice that the accused Tilaram in his statement under Section 313 Cr.P.C. has not simply denied the prosecution case but he has taken a plea that he was not on the spot. Having seen the injuries on the person of Tilaram and also having read the statements of defence witnesses, the defence cases cannot be said to be probable. In view of this, I found prosecution case proved against the appellants. 8. Considering the question of sentence of first and second appellant Khian Ram and Mishrilal that they have been convicted of substantive offence under Section 325 I.P.C. for which the maximum sentence is not beyond 7 years, the provisions of Section 360 Cr.PC. are attracted. In absence of special reason, the benefit is required to be given to the accused persons. Be that as it may the incident is of year 1979. Considering the facts and circumstances of the case, I consider that the first and second appellant namely Khianyram and Mishrilal be also given benefit of provision of Section 360 Cr.PC. are attracted. In absence of special reason, the benefit is required to be given to the accused persons. Be that as it may the incident is of year 1979. Considering the facts and circumstances of the case, I consider that the first and second appellant namely Khianyram and Mishrilal be also given benefit of provision of Section 360 Cr.PC. as has been given to the other accused appellants. 9. In view of the aforesaid, this appeal is partly allowed, while confirming the conviction of all the respective offences I set-aside the sentence awarded to the first and second appellant and direct that they should be released on bail furnishing the personal bound in the sum of Rs. 10,000/- each and two sureties in the sum of Rs. 5000/- each to the satisfaction of the trial court undertaking to receive the sentence as and when call upon to do so and to keep peace and good behaviour during the period of one year. The appellants are granted one months time for furnishing the bail bonds.Appeal Partly allowed with directions *******