S. P. KHARE, J. ( 1 ) THE five appellants have been convicted under Ss. 148 and 307/149, Indian Penal Code and sentenced to rigorous imprisonment for one year and five years respectively. ( 2 ) THE prosecution case is that there was a dispute between Brijlal (P. W. 1) and the accused persons regarding the use of water from a tank for irrigation purposes. On 8-12-1986 Brijlal (P. W. 1) and his brother Bhaulal (P. W. 3) were working in their field in village Sawargaon with their family members. At about 3 p. m. Pustkalabai (P. W. 5) daughter of Brijlal (P. W. 1) went to take some drinking water from a nearby well and came back shouting that she has been assaulted by accused-Dhaniram by a lathi. All the five accused persons also came chasing her. They were armed with barchi, axe and lathi. They started causing injuries to Brijlal (P. W. 1 ). He sustained eight injuries. Bhaulal (P. W. 3) was also attacked by them and he received eleven injuries. They became unconscious on the spot. Mungabai, wife of Brijlal (P. W. 1) also sustained injury while saving her husband. The incident was witnessed by Kishore (P. W. 2), son of Brijlal (P. W. 1), Pustkalabai (P. W. 5) and Pawanlal (P. W. 4) Kishore (P. W. 2) lodged the report Ex. P-2 at Tirodi police station at 6 p. m. on the same date. The injured persons were sent to the hospital for examination. Brijlal (P. W. 1) and Bhaulal (P. W. 3) remained admitted in the hospital from 9-12-1986 to 26-12-1986. There was fracture in the middle finger of the left hand of Brijlal (P. W. 1 ). According to the prosecution the accused persons attempted to commit murder of Brijlal (P. W. 1) and Bhaulal (P. W. 3) in prosecution of the common object of their unlawful assembly. ( 3 ) THE accused persons pleaded not guilty. Their defence is that the complainant party was the aggressor and caused injuries to accused-Jhanaklal and Ruplal. Both of them sustained four injuries each. They acted in self-defence. It is also pleaded that accused Tikaram and Tukaram were not on the spot. ( 4 ) THE trial Court held that the accused persons were the aggressors. They have been convicted and sentenced as stated at the outset. Both of them sustained four injuries each. They acted in self-defence. It is also pleaded that accused Tikaram and Tukaram were not on the spot. ( 4 ) THE trial Court held that the accused persons were the aggressors. They have been convicted and sentenced as stated at the outset. ( 5 ) IN this appeal it is argued that the prosecution witnesses have not explained the injuries on accused-Jhanaklal and Ruplal and thus they have suppressed the true genesis and origin of the incident. It is reiterated that they were exercising their right of private defence. ( 6 ) IT would be proper to deal with the medical evidence first. Dr. S. R. Soni (P. W. 6) and Dr. K. K. Khosla (P. W. 7) have been examined. From their evidence it is proved that the injuries found on the persons of the complainant and accused side are as under :- 1. Brijlal (P. W. 1) Ex. P-6 1. Incised wound 1. 2" x 0. 2" on the right side of neck muscle deep directing backwards. Transverse. 2. Lacerated wound 1" x 0. 3" on the left side of head at frontal region directing antero posterior. 3. Contusion 1. 2" x 1. 2" on the upper part of the right shoulder. 4. Lacerated wound 2. 5" x 0. 8" on the lateral and back side of right forearm. Transverse. 5. Incised wound 2" x 0. 2" on the back side of chest at right side at the level of 10th rib directing upwards and backwards. 6. Incised wound 0. 5" x 0. 5" at right interphalangeal region. ( 7 ) LACERATED wound 1. 3" x 0. 3" on the left ring finger at back and medial side on first phalanx. ( 8 ) CONTUSION 0. 8" x 0. 8" on the back of left middle finger at first phalanx. Ex. P-12 + 13 Crack fracture proximal phalanx middle finger (left) 2. Bhaulal (P. W. 3) Ex. P-4 1. Lacerated wound 1. 4" x 0. 8" on the front side of right wrist joint. Transverse muscle deep. 2. Incised wound 1. 5" x 0. 5" on the left side of neck directing upwards and backwards muscle deep. 3. Lacerated wound 1. 6" x 0. 5" on the left side of head at frontal and parietal region directing upwards and backwards. 4. Incised wound 1. 3" x 0. Transverse muscle deep. 2. Incised wound 1. 5" x 0. 5" on the left side of neck directing upwards and backwards muscle deep. 3. Lacerated wound 1. 6" x 0. 5" on the left side of head at frontal and parietal region directing upwards and backwards. 4. Incised wound 1. 3" x 0. 2" on the parietal region and head of left side directing antero posterior. 5. Contusion 2. 5" x 1" on the left scapular region. Transverse. 6. Contusion 2. 5" x 0. 6" on the medial side of left scapula vertical 0. 5" x 0. 5" lacerated wound is present on its upper part. 7. Contusion 4. 5" x 1" on the left suprascapular region. Transverse. 8. Contusion 2" x 1" on the left side of abdomen 1" above the iliac crest. ( 9 ) CONTUSION 0. 5" x 0. 2" on the lateral side of left forearm at its middle 1/3. ( 10 ) INCISED wound 0. 9" x 0. 2" on the lateral side of the left forearm 1. 6" below injury No. 9. ( 11 ) LACERATED wound 0. 5" x 0. 2" on the back and left thumb of interphalangeal joint. 3. Pustkalabai (P. W. 5) Ex. P-10 1. Abrasion 0. 2" x 0. 2" on the front side of right thigh 4" above knee joint. It could have been caused by friction against hard and rough surface. Age of injury is about within 24 hours and will take about 10 days to heal provided no complication arises. Injury is simple in nature. 4. Mungabai Ex. P-9 1. Contusion 1. 5" x 1. 5" at the right side of face near the angle of lower jaw. It could have been caused by blow of hard and blunt object. Age of injury is about within 24 hours and will take about two weeks to disappear provided no complication arises. Injury is simple in nature. 5. Accused Jhanaklal Ex. D-5 1. Lacerated wound 1. 5" x 0. 5" on the frontal region of head at right side directing upwards and laterally bone deep surrounding 1" area is swollen. 2. Lacerated wound 3" x 0. 8" on the left side of head of temporal and parietal region. Directing upwards and laterally, bone deep surrounding 1" area is swollen. 3. Lacerated wound 0. 9" on the back of left index finger at first interphalangeal joint. 4. 2. Lacerated wound 3" x 0. 8" on the left side of head of temporal and parietal region. Directing upwards and laterally, bone deep surrounding 1" area is swollen. 3. Lacerated wound 0. 9" on the back of left index finger at first interphalangeal joint. 4. Lacerated wound 0. 3" x 0. 3" on the lateral side of left index finger of last phalanx. 6. Accused Ruplal Ex. D-6 1. Incised wound 2. 2" on the back side of left scapular region at lateral side directing upwards and laterally. 2. Incised wound 0. 9" x 0. 4" on the back of thorax on right side 2" below the level end of right scapula. Transverse and directly. 3. Contusion 1. 5" x 0. 6" above the injury No. 2 and directing upwards and laterally. 4. Contusion 0. 6" x 0. 6" on the left side of cheek. The medical evidence shows that both sides sustained injuries in the same incident 7. Now the other evidence is to be analysed. Brijlal (P. W. 1) has deposed that he was reaping the crop in his field. His daughter Pustkalabai (P. W. 5) went to a nearby well to take drinking water. She returned crying that accused Ruplal was chasing her armed with a barchi. The other four accused-Dhaniram, Tikaram, Jhanaklal and Tukaram were also with him. Jhanaklal and Tukaram were armed with axes. Dhaniram was having a barchi and Tikaram had a lathi. Ruplal was first to raise his barchi to strike and he took this blow on his left hand. Thereafter, all the accused started wielding their weapons on him. He sustained injuries on his head, right scapula, right arm and back. His brother Bhaulal (P. W. 3) came to his rescue and he was also assaulted by theaccused persons. He has further stated that he became unconscious. He regained his consciousness in the hospital. In cross-examination he has stated that he ran to save himself and then he fell down in the neighbouring field of Ojhelal. He was assaulted in his own field. He has denied the suggestion that accused-Jhanaklal came to the field of Chovalal to ease himself and then he was beaten by him, Chovalal, Bhaulal and Kamal with axe and barchi. He does not know how accused-Ruplal and Jhanaklal received the injuries. 8. Bhaulal (P. W. 3) is brother of Brijlal (P. W. 1 ). He has denied the suggestion that accused-Jhanaklal came to the field of Chovalal to ease himself and then he was beaten by him, Chovalal, Bhaulal and Kamal with axe and barchi. He does not know how accused-Ruplal and Jhanaklal received the injuries. 8. Bhaulal (P. W. 3) is brother of Brijlal (P. W. 1 ). He has corroborated the evidence of his brother. He has stated that he was cutting the crop in his field and Pawanlal (P. W. 4) was working as his labourer. The accused persons came to the field of his brother and started causing injuries to him with barchi and axe. Brijlal (P. W. 1) fell down and then they came to his field and assaulted him. He received injuries on his head, neck, wrist, right wrist and back. The injuries were bleeding. The accused persons were shouting to cause his death. He also became unconscious. He regained his consciousness after sometime when his face was washed with water. Kishore (P. W. 2) was sent to the police station for lodging the report. In cross-examination he has stated that he was cutting the crop in his field with a sickle. He has denied the suggestion that he himself, his brothers Brijlal and Chovalal opened the fight and caused injuries to Ruplal and his father Jhanaklal. He does not know how they sustained the injuries. 9. Pawanlal (P. W. 4) has deposed that he was cutting the crop in the field of Bhaulal (P. W. 3 ). He saw that accused Ruplal, Dhaniram, Jhanaklal, Tikaram and Tukaram came armed with axe and barchi to the field of Brijlal (P. W. 1) and caused injuries to him. He fell down and became unconscious. Then they came to the field of Bhaulal (P. W. 3) and attacked him. The accused persons were shouting to finish the two brothers. In cross-examination he has denied the suggestion that Brijlal, Bhaulal and Chovalal caused injuries to Ruplal and Jhanakram. 10. Pustkalabai (P. W. 5) has stated that she had gone to the well to take water. She was chased by the accused persons. They came to her field and caused injuries to her father Brijlal (P. W. 1) and her uncle Bhaulal (P. W. 3 ). 11. Ghuranlal, Patwari (P. W. 9) has prepared the spot map Ex. P-14 as per indications given by the eye-witnesses. She was chased by the accused persons. They came to her field and caused injuries to her father Brijlal (P. W. 1) and her uncle Bhaulal (P. W. 3 ). 11. Ghuranlal, Patwari (P. W. 9) has prepared the spot map Ex. P-14 as per indications given by the eye-witnesses. In this map, the incident is shown to have taken place in the field of Brijlal (P. W. 1) and Bhaulal (P. W. 3 ). ( 12 ) ACCUSED Jhanaklal and Ruplal have stated in their defence under S. 313, Cr. P. C. that Jhanaklal had gone to the field of Chovalal, brother of Brijlal (P. W. 1) to ease himself and he was assaulted by Brijlal, Bhaulal, Kamal and Chovalal by lathi, axe and sickle. The other accused persons have stated that they were not on the spot. On 8-12-1986 Jhanaklal lodged the report Ex. D-6 and Ruplal also reported as per Ex. D-10. According to these reports Jhanaklal had gone to the field of Chovalal with a lota in his hand at about 3 p. m. At that time Brijlal (P. W. 1) dealt an axe blow on his head. Bhaulal (P. W. 3) and his son Kamal caused injuries to him by sickles. Ruplal went there to save his father and he was also assaulted by these persons. Bhaiyalal (D. W. 2) has stated that accused-Tukaram was with him in village Gudrughat. They learnt that Ruplal and Jhanaklal have received injuries in an incident in village Sawargaon and therefore they went there. ( 13 ) ON a careful scrutiny of the evidence of both the sides it is found that the incident of marpit took place in the field of Brijlal (P. W. 1) and his brother. It does not appear probable that Jhanaklal had gone in the field of Chovalal at 3 p. m. to ease himself. In case he has been there with a lota only and his son Ruplal had followed him empty handed there would not have been so many injuries on the persons of Brijlal (P. W. 1) and Bhaulal (P. W. 3 ). The defence version tested on the touchstone of preponderance of probabilities does not appear to be true. The prosecution case that the accused persons were the aggressors is established beyond reasonable doubt. The defence version tested on the touchstone of preponderance of probabilities does not appear to be true. The prosecution case that the accused persons were the aggressors is established beyond reasonable doubt. They came to the field of Brijlal (P. W. 1) armed with various weapons and caused injuries to him and his brother Bhaulal (P. W. 3 ). It is more probable that Jhanaklal and Ruplal sustained injuries in this incident when Brijlal (P. W. 1) and Bhaulal (P. W. 3) tried to repel their attack. Bhaulal (P. W. 3) was having sickle in his hand as he was reaping the crop and he must have used it in self-defence. That explains the injuries on the persons of Jhanaklal and Ruplal. The prosecution witnesses may not explain their injuries from their mouth and on that score the entire prosecution case cannot be thrown out. Once it is found that the accused were the aggressors the injuries on the two accused cannot be blown out of proportions. They have also not said a word how Brijlal (P. W. 1) and Bhaulal (P. W. 3) sustained serious and grievous injuries as a result of which they fell down unconscious. Therefore, non-explanation of the injuries of the two accused on the facts and circumstances of this case is not fatal to the prosecution. Those injuries do not probabilise the right of private defence of the accused. The material which has been brought on record by the accused persons does not create reasonable doubt in the prosecution case. ( 14 ) NON-EXPLANATION of the injuries of the accused persons is not always damaging to the prosecution where on a consideration of the entire evidence it is found that the accused party was the aggressor. The case law on this point may be referred to briefly. ( 15 ) IN Mohar Rai v. State of Bihar, AIR 1968 SC 1281 : (1968 Cri LJ 1479) it was held that the failure of the prosecution to offer any explanation regarding the injuries of the accused shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. ( 15 ) IN Mohar Rai v. State of Bihar, AIR 1968 SC 1281 : (1968 Cri LJ 1479) it was held that the failure of the prosecution to offer any explanation regarding the injuries of the accused shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. In Bhagwan Tana Patil v. State of Maharashtra, AIR 1974 SC 21 : (1974 Cri LJ 145) it has been held that there is no hard and fast rule that simply because the prosecution witnesses did not explain the injuries on the person of the accused their entire evidence should be discarded. ( 16 ) IN Onkarnath Singh v. State of U. P. , AIR 1974 SC 1550 : (1974 Cri LJ 1015) it is again ruled that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused. The question as to what is the effect of the non-explanation is a question of fact and not of law. Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused, has received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. ( 17 ) IN State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 : (1975 Cri LJ 1079) it has been observed that the prosecution case was not shaken at all on account of the failure of the prosecution to explain the injuries on the person of the accused. Since prosecution did not come forward to show in what manner she received those injuries, assumption could be made to the farthest extent in her favour that she received the injuries with a stick at the hands of the deceased or any other person on his side. ( 18 ) THEN comes the oft quoted decision of the Supreme Court in Laxmi Singh v. State of Bihar, AIR 1976 SC 2263 : (1976 Cri LJ 1736) where it has been laid down that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :- (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. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. 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 disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. 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 disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. ( 19 ) A three-Judge Bench of the Supreme Court held Bhaba Nanda v. State of Assam, AIR 1977 SC 2252 : (1977 Cri LJ 1930) that the prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused. ( 20 ) THE decision of the Supreme Court in Ramsunder v. State of Bihar (1998) 7 SCC 365 : (1998 Cri LJ 4558) shows that the matter was referred for consideration by a larger Bench but it was found that the question has already been answered by two decisions of three-Judges Bench. One is Bhaba Nanda's case (1977 Cri LJ 1930) referred above. The other is Vijayee Singh v. State of U. P. , AIR 1990 SC 1459 : (1990 Cri LJ 1510) wherein the question that was posed was whether the prosecution has explained the injuries of the accused and if there is no such explanation what would be its effect. The question was answered in the words; "we are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. " It was further observed that in Mohar Rai's case (1968 Cri LJ 1479), it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh's case, AIR 1976 SC 2263 : (1976 Cri LJ 1736) also it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. Likewise in Lakshmi Singh's case, AIR 1976 SC 2263 : (1976 Cri LJ 1736) also it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. But 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 whole case. Much depends on the facts and circumstances of each case. The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecution party. ( 21 ) THE case of Rehmat v. State of Haryana, AIR 1997 SC 1526 : (1977 Cri LJ 764) has been cited on behalf of the appellants. It was held on the facts that the plea of self-defence by the accused by alleging that he was attacked by complainant party appeared to be true in absence of explanation from prosecution about injuries sustained by the accused. ( 22 ) IT is deducible from the case law discussed above that in a case where the injuries are received by the accused persons in the incident in which the prosecution side has sustained injuries the real question to be determined by the Court is which party was the aggressor. This problem is faced in cross cases or counter cases. If the prosecution is able to establish from the entire evidence and the attendant circumstances that the accused persons were the aggressors and they were first to mount the attack on the prosecution party, then the injuries sustained by the accused in the same incident would not be of much significance and it would not affect the prosecution case at all. In case the injuries on the accused are not minor or insignificant it can be presumed even in the absence of any explanation from the prosecution side that these injuries were caused to them by the prosecution party. In case the injuries on the accused are not minor or insignificant it can be presumed even in the absence of any explanation from the prosecution side that these injuries were caused to them by the prosecution party. If it is proved beyond reasonable doubt that the accused were on the offensive, the injuries sustained by them would not affect the prosecution case. It is only when the prosecution is not able to prove that the accused were the aggressors the injuries on the accused by preponderance of probability may establish that they acted in self-defence or may create a reasonable doubt in the prosecution case. The presence of injuries on the accused would not by itself or automatically establish the plea of self-defence. The Court cannot adopt an easy course to record acquittal whenever there are injuries on the accused sustained by them in the same incident. Non-explanation of the injuries on the accused persons is not fatal to the prosecution if it can be held on the totality of the evidence that they were first to commit the act of aggression. ( 23 ) IN the present case it has been found that the incident took place in the field of Brijlal (P. W. 1) where the appellants came armed and attacked Brijlal (P. W. 1) and Bhaulal (P. W. 3 ). The accused persons were the aggressors and, therefore, the only inference that can be raised is that in the said incident the prosecution witnesses Brijlal (P. W. 1) and Bhaulal (P. W. 3) also caused injuries to Ruplal and Jhanaklal. ( 24 ) A close scrutiny of the injury reports Ex. P-4, Ex. P-6 and Ex. P-8 of Brijlal (P. W. 1) and Bhaulal (P. W. 3) shows that there was fracture of proximal phalanx of left middle finger of Brijlal (P. W. 1) and it was caused by hard and blunt object. The incised injuries found on both of them have been described as simple in nature. They remain in the hospital for a number of days but it does not appear that the accused persons intended to cause their death. The charge under S. 307, I. P. C. is not proved. The offences under Ss. 324/149 and 325/149, I. P. C. are made out. Therefore, their conviction under Ss. 307/149, I. P. C. is set aside and instead they are convicted under Ss. The charge under S. 307, I. P. C. is not proved. The offences under Ss. 324/149 and 325/149, I. P. C. are made out. Therefore, their conviction under Ss. 307/149, I. P. C. is set aside and instead they are convicted under Ss. 324/149 and 325/149, I. P. C. Their conviction under S. 148, I. P. C. is maintained. ( 25 ) COMING to the question of sentence, it has to be kept in mind that the two accused persons had sustained injuries in this incident and the appeal has remained pending for more than ten years. In Rajdeo Sharma v. State of Bihar (1998) 7 SCC 507 : (1998 Cri LJ 4596), the Supreme Court has held that right to speedy trial flowing from Art. 21 of the Constitution encompasses the stage of appeal also and where this right is infringed the appellate Court can reduce the sentence if it is just and equitable in the circumstances of the case. Considering all the facts and circumstances, the sentence of each appellant is reduced to rigorous imprisonment for one year on each count which will run concurrently. The appeal is thus partly allowed. Appeal partly allowed. .