KHENI KARAN, J. Appellants Patan alias Patan Din, Duber alias Dubare alias Shyam Bahadur, have been convicted and sentenced for three years R. I. under Sec tion 326/34, I. P. C. , one years R. I. under Section 324/34, I. P. C. , three months R. I. under Section 323/34, I. P. C. by the learned VI Additional Sessions Judge, Gonda in Sessiontrial No. 46of 1981. 2. It was alleged by the prosecution. That on 24-1-1978 at about 11. 00 in the day, Ram Piyare (deceased) was digging a pit so as to plant a mango tree, in his Khalihan and his father Santey was sitting under a near by tree. The appellants accompanied by Smt. Kalla and Sim. Raghuraji reached there, armed with Ballam, Lathis and ob jected to the digging of pit saying that the land belonged to them. A verbal alterca tion took place between the accused San-tey and his son Ram Piyare. It is said that Patan started giving Ballam blows to Santey and when his son Ram Piyare came to his rescue to him as well and the rest of the accused also started beating Santey and Ram Piyare. On the alarm raised by the victims Jagdish and Ram Sahai rushed to save them but the accused also assaulted them with Lathis. In this Marpeet, Sanley his son Ram Piyare, Jagdish and Ram Sahai received injuries at the hands of the four accused. First Information Report was lodged by Ram Piyare, with Police Station Mankapur at 4. 30 p. m. All the victims were sent for medical examination and treatment. Dr. K. P. Dubey, the then Medical Officer of District Hospital, Gonda, found one incised wound and one lacerated wound on the person of Ram Piyare. four injuries on the person of San tey, nine injuries on the person of Jagdish and five injuries on the person of Ram Sahai. Injury No. 3 of Santey was reported to be an incised wound and the rest were either lacerated wounds or contusions or abrasions. Injuries of Jagdish were con tusions and abrasions and so the injuries of Ram Sahai. Ram Piyare became serious and ultimately he succumbed to the injuries, on 30-1-1978 in the Hospital itself. After the necessary investigation, police submitted the charge-sheet and the learned Magistrate committed the case of all the four accused to the Court of Sessions. 3. Injuries of Jagdish were con tusions and abrasions and so the injuries of Ram Sahai. Ram Piyare became serious and ultimately he succumbed to the injuries, on 30-1-1978 in the Hospital itself. After the necessary investigation, police submitted the charge-sheet and the learned Magistrate committed the case of all the four accused to the Court of Sessions. 3. The learned Additional Sessions Judge charged accused Patan under Sec tion 304, I. P. C. and under Section 324 read with Section 34 of I. P. C. The rest of the accused were charged under Section 304 read with Section 34, I. P. C. and under Sec tion 324 read with Section 34, I. P. C. The accused denied the charges and contended that they acted in self defence. 4. The prosecution rested its case mainly on the directed evidence of Santey (P. W. 1), Ram Sahai (P. W. 3) and Ram Abhilakh (P. W. 5) what remarkable is that the prosecution also relied on the F. I. R. lodged by Patan Deen on the same day at 1. 10 p. m. against Santey, Jagdish, Ram Saiah and Ram Piyare, copy of which was pioved as Ext Ka-8 and entries of G. D. were proved as Ext. Ka-9. The defence also relied on those papers and filed the same as Ext. Kha-1 and Kha-2. In this F. I. R. by Patan against Santey and others, lodged earlier to the F. I. R of Ram Piyare, a dif ferent story had been put and it was stated in so may words that his mother Kallaand father Shyam Bahadur were assaulted by Lathis and Dandas by the accused Santey and others on the day at about X. (K) in the morning. 5. Learned Sessions Judge believed the prosecution evidence insofar as the appellants were concerned so he con victed them as aforesaid. He however, gave benefit of doubt to Smt. Kalla and Smt. Raghuraji and acquitted them of the charge frame against them. 6. Learned counsel for the appellants has argued that the evidence of three eye witnesses is inconsistent with the medical evidence; that the prosecution has con cealed the injuries of the accused and has not satisfactorily explained the same. He submits that approach of the trial Judge was faulty and he could not appreciate the conflict between medical and oral evidence. Learned counsel for the appellants has argued that the evidence of three eye witnesses is inconsistent with the medical evidence; that the prosecution has con cealed the injuries of the accused and has not satisfactorily explained the same. He submits that approach of the trial Judge was faulty and he could not appreciate the conflict between medical and oral evidence. Learned counsel goes on to argue that the defence plea is more prob able as compared to the prosecution case and so the appellants should also have been acquitted. He says that the acquittal of the two accused has become final, in absence of any appeal against the same and this fact is sufficient enough to say that the prosecution has not come with clean hands and with true version of the incident. 7. The learned counsel for the State has, however, contended that the occur rence has taken place in broad day light and there were as many as four injured; one of whom has died and there is no reason to discard the evidence of the injured wit nesses. He has also submitted that the prosecution was not under a legal obliga tion to explain the injuries of the accused, because the same were of a simple nature. He has also said that the prosecution has explained those injuries during the course of the trial and, therefore, evidence of three eye-witnesses cannot be said to be unreliable or unacceptable. As regards the alleged conflict, between the medical and oral evidence the learned counsel for the State says that trail Judge has already treated as no conflict at all. 8. Ram Ahhilakh P. W. 5 has admitted on page 4 that Duharc and Patan had also received injuries, during the course of same Marpeet. The fact that the accused Duhare alias Shyam Bahadur, Patan alia Patan Din and his mother Smt. Kalla received injuries during the course of same transaction, is well proved from the evidence of Santey and Ram Ahhilakh and also from Ext. Ka-8 and Ka-9. It is noted in the Ext-8 that there were three injuries on the person of Patan Din, three on the person of Smt, Kalla and three on the person of Shyam Bahadur. These injuries were noted by the police at 1. 10 p. m. on the same day, much before the F. I. R. was lodged by Ram Piyare. 9. It is noted in the Ext-8 that there were three injuries on the person of Patan Din, three on the person of Smt, Kalla and three on the person of Shyam Bahadur. These injuries were noted by the police at 1. 10 p. m. on the same day, much before the F. I. R. was lodged by Ram Piyare. 9. Honble Supreme Court has held in Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263 and also in Abdul Vaheed v. State of Maharashtra, MR 1979 SC 1828. Ram Sunder V. State of Bihar, 1998 (37) ACC 519, that non-explanation of the in juries sustained by the accused in the course of same incident is an important circumstances, from which the Court can draw the following inferences: (i) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. (ii) That the witnesses, who denied the presence of the injuries on the person of the accused are lying on a most material point the therefore, their evidence is unreliable. (iii) 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. 10. The Honble Supreme Court has further observed that there may be cases where non-explanation of the injuries by the prosecution may not affect the prosecution case but this principle would obviously apply to cases, where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and dis interested so probable, consistent and credit- worthy that it outweighs, the effect of the omission, on the part of the prosecu tion to explain the injuries. 11. Let us see whether the prosecu tion has been able to explain the injuries sustained by the accused, during the course of the same transaction and whether non-explanation of these injuries makes prosecution version doubtful and the defence version more probable. 12. In a case where both the sides have their respective version of the occurrence and where both the sides have received injuries at the hands of each other, the Court has to see as to who of them was aggressor and who was the defender. 12. In a case where both the sides have their respective version of the occurrence and where both the sides have received injuries at the hands of each other, the Court has to see as to who of them was aggressor and who was the defender. In such a case prosecution has to prove the origin or genesis of the Marpeet, that resulted in the injuries on both the sides. Santey and Ram Sahai P. Ws. 1 and 2 respectively cannot be said to be inde pendent witnesses, to prove the true origin of the occurrence because both were arrayed as accused in the cross F. I. R. of the accused Patan Din. Moreover, they haw tried to conceal the material facts during the course of their examination in Court. Santey has denied the injuries on the per son of Patan Din and his father Dubare and goes to the extent to say that none from his side (including Jagdish and Rani Sahni) was armed with any weapon. What surprising is that Santey is not even prepared to admit that Dubare is also called Shyam Bahadur (see on page 10 of his statement ). He is also evasive on the. point that Dubare had lodged a report against him and his brother on 18-9- 1977. But his witness Ram Abhilakh has clearly stated that Dubare is also called Shyam Bahadur and Jagdish and Ram Sahai had also wielded Lathis as a result of which, Dubare and Patan Din had received injuiies. It means Santey is not prepared to give a true account of the Marpeet and he wants to conceal the true version of the occurrence. It will not be safe to accept his version as such, so far as the origin or genesis of the Marpeet is concerned. Ram Sahai P. W. 2 is also not prepared to place true facts about the origin of the Marpeet. Although he con cedes that he wielded Lathi but shows his ignorance whether any one from the side of accused sustained injuries in the result. He is accused in the F. I. R. , lodged by Patan and so it will not be safe to accept his version as regards the genesis of the Mar peet. Ram Abhilakh, P. W. 5 does not ap pear to be a witness, who was present from the very beginning. He is accused in the F. I. R. , lodged by Patan and so it will not be safe to accept his version as regards the genesis of the Mar peet. Ram Abhilakh, P. W. 5 does not ap pear to be a witness, who was present from the very beginning. He clearly states in para 9 that at the time, he reached on the spot, the four accused Dubare and others were beating Ram Piyare and Santey. He Dialed in his examination-in-chief that Jag-dish and Ram Sahai participated in the Marpeet and assaulted Dubare and Patan by means of Lathis. According to him this Marpeet between two sides lasted for about ten or 20 minutes. The statement of Ram Abhilakh gives an impression that by the time he reached the spot, both sides were busy in causing injuries to each other and so Ram Abhilakh is not the witness on the point as to who assaulted first or who was the defender. He cannot say as to how this Marpeet started. 13. There is another infirmity in the prosecution case. According to Santey, Ram Sahai and Ram Abhilakh PWs. 1, 2 and 5 respectively, accused Paian gave Bal-lam blows to Ram Piyare and Santey. They have also tried to say that Patan Din gave Ballam blows in a stabbing manner. But the medical evidence contradicts this evidence to such an extent that it is difficult to reconcile. Dr. K. P. Dubey appearing as P. W. 7, who examined the injuries of Ram Piyare and Santey on 25-1-1978 at 1. 20 in the day states that injury No. 1 of Ram Piyare and injury No. 3 of Santey were caused by some sharp edged weapon. In jury reports Ext. Ka-10 and Ka-11 also indicate to the same effect. He concedes that these were possible by means of Kudal. Dr. Harish Chandra Srivastava, P. W. 3, who performed the post-mortem examination on. 30-1-1978 at 4. 30 on the dead body of Ram Piyare and who prepared post-mortem report. Ext. Ka-2, has categorically stated in para 6 that in jury No. 1 of Ram Piyare was not possible by means of Ballam. According to him injury No. 1 of Ram Piyare was possible by means of heavy cutting weapon, like Gan- dasa, Budga. 30-1-1978 at 4. 30 on the dead body of Ram Piyare and who prepared post-mortem report. Ext. Ka-2, has categorically stated in para 6 that in jury No. 1 of Ram Piyare was not possible by means of Ballam. According to him injury No. 1 of Ram Piyare was possible by means of heavy cutting weapon, like Gan- dasa, Budga. He has also stated in the same para that if Ballam is used as Lathi and in the process blade of the Ballam hits the body then such injury is possible. He con cludes by saying that injury No. 1 of Ram Piyare was more possible by small Kudal and less possible by means of Ballam. A perusal of post-mortem report reveals that bone underneath the injury No. 1 was found cut. This findingof the post-mortem examination indicates that injury No. 1 was caused by a sharp edged weapon as stated by P. W. 3 and it was not possible by means of Ballam. Noneof the witnesses has stated that Ballam was used as Lathi, if a Sallam 15 used in a stabbing manner, the bone coming under the impact of the blow will not be a cut, but will be fractured or broken. Here, the bone underneath injury No. 1, was cut and not fractured or broken. Injury No. 3 of Santey was also caused by some sharp edged weapon as deposed to by P. W. 7. 14. Learned counsel for the Slate has submitted that the injured witnesses will hardly speak a lie and therefore, this dis crepancy between oral and medical evidence, should not be attached undue importance. I am of the view that this discrepancy in the medical and oral evidence becomes material and important in view of the defence version. It has been suggested to P. Ws. 1,2 and 5 that Patan, Dubare and mother of Palan were taking water through a Nali to fields and the deceased Santey and others objected to the same and stated beating mother of Patana and Patan and Dubare defenced her by wielding Kudal and Lathi. This basis olthis defence version had come at 1. 20 p. m. on the same date in the shape of Eixt. Ka-8and Ka-9. It is true that Patan Din conecated therein the fact that Ram Piyare and others received injuries during the course of same Marpeet. This basis olthis defence version had come at 1. 20 p. m. on the same date in the shape of Eixt. Ka-8and Ka-9. It is true that Patan Din conecated therein the fact that Ram Piyare and others received injuries during the course of same Marpeet. But Ram Piyare also concealed that Patan, Dubare and mother of Paian received injuries, during the course of same transaction. 15. The trial Court has itself recorded a finding that it is doubtful whether Smt. Kalla and mother Raghuraji participated in the Marpeet. In other words that part of the evidence of alleged three eye- witnesses has not been accepted as reliableand trust worthy. If these witnesses can speak a lie as regards the role of Smt. Kalla and Smt. Raghuraji, where is the guarantee that they are speaking truth as regards the origin of the Marpeet or as regards the role of the present appellants. I do not say that if the part of the evidence of witness has been disbelieved, other part should neces sarily be disbelieved. But in this case the other part becomes unreliable in view of the fact that the medical evidence does not corroborate on a certain point. 16. The Investigating Officer has con ceded in his statement in Court that he did not note in the site plan and inspeciion memo that a pit was found on the spot. This also goes against the prosecution case and it is difficult to say that the Marpeet took place, owing to a digging of the pit. It has come in the statement of Santey that there was no enmity between him and the accused before this dispute. It is not believ able that Patan and others will go armed with said weapons, just on seeing Ram Piyare, digging a pit. There must have been some verbal altercation between the par ties, before they became armed. The proseention has not also made it leading reliable evidence as to who attacked first. The defence case becomes more probable in view of the findings of the two doctors. 17. I am of the view that the prosecu tion has not been able to prove the true genesis of the Marpeet and has not been able to prove that the appellants were ag gressors. The defence case is also prob able. The two appellants were also entitled to the benefit of doubt. 17. I am of the view that the prosecu tion has not been able to prove the true genesis of the Marpeet and has not been able to prove that the appellants were ag gressors. The defence case is also prob able. The two appellants were also entitled to the benefit of doubt. The learned Addi tional Sessions Judge committed error by holding them guilty and sentencing them as aforesaid. The appeal deserves to be allowed and conviction and sentences as recorded by the trial Court, deserve to be set a side. 18. The appeal is accordingly al lowed. The order of conviction and senten ces are set aside. Appellants are found not guilty under Section 326/34, I. P. C. , 324/34, I. P. C. and 323/34, I. P. C. and acquitted ac cordingly. They are on bail. Their bail bounds are cancelled and sureties are dis charged. 19. Let record received from the trial Court be sent back together with the copy of the judgment Appeal allowed. .