JUDGMENT - VISHNU SAHAI, J.:---Through this appeal, the appellants challenge the judgment and order dated 23rd May, 1996 passed by the Additional Sessions Judge, Biloli, in Sessions Case No. 65 of 1994, whereby they have been convicted and sentenced in the manner stated hereinafter :--- (i) Under section 302 read with section 149 of the Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs. 2,000/- each, in default to undergo R.I. for six months; (ii) under section 324 read with section 149 of the Indian Penal Code to undergo two years' R.I. and to pay a fine of Rs. 1,000/- each, in default to undergo R.I. for three months; (iii) under section 147 of the Indian Penal Code to undergo R.I. for 1 year; and (iv) under section 148 of the Indian Penal Code to undergo R.I. for 2 years. The substantive sentences of the appellants have been ordered to run concurrently. It is pertinent to mention that along with the appellants, two others, namely, Anusayabai (wife of appellant Moglaji) and Ramabai (wife of appellant Prakash) were also tried, but they have been acquitted by the impugned judgment and the State of Maharashtra has not assailed their acquittal by preferring an appeal under section 378(1) of the Code of Criminal Procedure. 2. Shortly stated, the prosecution case runs as under. The informant Kashibai, P.W. 5, and Harubai, P.W. 6, were the wife and daughter in law respectively of the deceased Nagorao. At the time of the incident, they along with the deceased were living in village Martoli, taluka Degloor, District Nanded. The appellants and the acquitted accused Anusayabai at the said time were also living in village Martoli. Acquitted accused Ramabai was living at the said time in village Avadhpur, taluka Narayanpur, District Medak (Andhra Pradesh). There was enmity between the appellants and the acquitted accused on one hand and the deceased on the other. About 8 months prior to the incident, appellants Prakash and Lalu had assaulted the deceased Nagorao resulting in the latter filing a report against them. On 23-6-1994, at about 8 a.m., appellant Prakash passed in front of the door of the house of informant Kashibai. He looked with anger towards Nagorao, who told him that he had already beaten him and why he was looking angrily at him. On 23-6-1994, at about 8 a.m., appellant Prakash passed in front of the door of the house of informant Kashibai. He looked with anger towards Nagorao, who told him that he had already beaten him and why he was looking angrily at him. On this, appellant Prakash told Nagorao that he should come towards the hotel and he would be cut into pieces. Thereafter, within a short time, appellant Prakash along with the 7 other accused persons, referred to above, came. Appellant Prakash pulled Nagorao from the house and inflicted a tubber blow on his head resulting in Nagorao falling down. Thereupon, Kashibai fell down on the body of Nagorao and asked the accused persons not to beat him. Thereafter, appellant Moglaji separated Kashibai from Nagorao. At that juncture, acquitted accused Anusayabai and Ramabai hurled stones on Kashibai. Thereafter, Appellant Lalu inflicted a sword blow on the head of Nagorao, appellant Nepal @ Amrata inflicted an axe blow on the left hand of Nagorao and appellants Raghuram, Rohidas and Moglaji inflicted stick blows on the person of Nagorao. It is said that Anusayabai and Ramabai gave blows with stone on the hip of Kashibai and during the course of incident, her mangalsutra was broken. After assaulting Nagorao, the appellants and the acquitted accused persons ran away. It is said that, when after assaulting Nagorao, they were running away, they were seen by Sarubai, P.W. 7, who lived in the neighbourhood of Kashibai. Thereafter, Padminibai, P.W. 3, daughter-in-law of Nagorao and one Sushilabai put some powdered tea over the injuries of Nagorao and wrapped the same with cloth. Thereafter, Kashibai and others took Nagorao to Hali and thereafter in a bus to Markhel Police Station. 3. The evidence of P.S.I. Mirza Rahimtullah Beg, P.W. 8, shows that on 23-6-1994 at about 10 a.m., Nagorao was brought to Markhel Bus Station by his wife and hence, he along with a constable went there. He found that Nagorao was unconscious. Consequently, he called for a jeep and sent him to the hospital at Degloor, where the doctor pronounced him dead. Thereafter, in the said hospital, he recorded Kashibai's F.I.R. and informed P.S.O. Markhel on the phone and also took crime number from him. Thereafter, he sent Kashibai and her F.I.R. to Police Station, Markhel. The F.I.R. is at Exhibit 73. 4. Thereafter, in the said hospital, he recorded Kashibai's F.I.R. and informed P.S.O. Markhel on the phone and also took crime number from him. Thereafter, he sent Kashibai and her F.I.R. to Police Station, Markhel. The F.I.R. is at Exhibit 73. 4. From the evidence on record, it appears that on the same day at 9 a.m., Crime No. 37/94, under section 324 of the Indian Penal Code was registered at Police Station, Markhel, by appellant Prakash who at the said time, was having injuries on his person and was sent for medical examination. 5. The investigation was conducted in the usual manner by P.S.I. Mirza Beg, P.W. 8, and P.I. Dattatraya Bhalerao, P.W. 9. After recording the F.I.R., P.S.I. Beg prepared the inquest panchnama of the corpse of the deceased and the spot panchnama. He sent the corpse for autopsy. 6. The evidence shows that on 23-6-1994, at about 5.30 p.m., appellants Prakash and Amrata @ Nepal were arrested and their blood stained clothes were seized by P.S.I., Beg, P.W. 8, who also found injuries on their person. Both the seizure of the clothes and the injuries on the person of the said appellants are reflected in Exhibit 35. It is pertinent to mention that the injuries of appellant Prakash are noted therein as under :--- In between ear and eyes, there was an injury by sharp object and also injuries on the neck, thumb, right hand in between two fingers and on the knees. The injuries on appellant Amrata @ Nepal are therein noted thus :--- On the left side of head, bleeding injury. It is pertinent to mention that in due course, the other 4 appellants, namely, Lalu, Moglaji, Raghuram and Rohidas, were arrested. We may mention that during the course of interrogation, these appellants expressed willingness to have the weapons which they had concealed recovered; appellant Prakash to have a tubber recovered; appellant Lalu to have a sword recovered; and the remaining two appellants to have sticks recovered. It is also pertinent to mention that the said willingness was recorded under panchnamas, and thereafter, on the pointing out of each of these appellants, the said weapons were separately recovered under separate panchanamas. However, we are not entering deeper into these recoveries, because the said weapons were sent to Chemical Analyst, who did not find blood on them. It is also pertinent to mention that the said willingness was recorded under panchnamas, and thereafter, on the pointing out of each of these appellants, the said weapons were separately recovered under separate panchanamas. However, we are not entering deeper into these recoveries, because the said weapons were sent to Chemical Analyst, who did not find blood on them. On completion of investigation, the appellants and the acquitted accused were charge-sheeted. 7. Going backwards, the autopsy on the corpse of the deceased Nagorao was conducted on 23-6-1994, between 5.05 p.m. and 6.30 p.m., by Dr. Vinayak Munde, P.W. 2, who found on it the following ante mortem injuries :--- (1) Incised wound left parietal occipital and frontal region vertical 17 cms. long x 2 cms. x 1.5 cms. blood clots seen, sharp edges; evidence of fracture of left parietal and frontal bone along the line of wound. Brain matter exposed in the middle part of wound. Caused by sharp and edged object. Grievous. (2) Contusion left forearm 5 cms. x 5 cms. lower third, green in colour deformity seen swelling seen, cripitious present. Evidence of fracture of both bones of left forearm at the side of injury. Haematoma was present. Caused by hard and blunt object. Grievous. (3) Contusion right knee 5 cms. x 2 cms. subcutaneous haematoma seen, caused by hard and blunt object. (4) Contusion left leg middle third 5 cms. x 2 cms. green in colour, caused by hard and blunt object. (5) Contusion on the back between two scapular 10 cms. x 2 cms. transverse, caused by hard and blunt object. (6) Contusion over left lumber region obligue 7 cms. x 3 cms. caused by hard and blunt object.1 (7) Contusion over left lumber region parallel to Injury No. 6, 7 cms. x 3 cms. caused by hard and blunt object. On internal examination, Dr. Munde found haematoma on the left parietal region, with fracture of ulna. In the opinion of Dr. Munde, Injury No. 1 was possible by axe, katti and sharp sword of the remaining injuries could be caused by sticks. 8. The case was committed to the Court of Sessions in the usual manner, where the appellants and the acquitted accused Anusayabai and Ramabai were charged for offences mentioned in paragraph one. They pleaded not guilty to the charges and claimed to be tried. During trial, in all the prosecution examined 9 witnesses. 8. The case was committed to the Court of Sessions in the usual manner, where the appellants and the acquitted accused Anusayabai and Ramabai were charged for offences mentioned in paragraph one. They pleaded not guilty to the charges and claimed to be tried. During trial, in all the prosecution examined 9 witnesses. Two of them, namely, Kashibai, P.W. 5 and her daughter in law Harubai, P.W. 6, were examined as eye witnesses. P.W. 7 Sarubai, a neighbour of the informant and the deceased, gave evidence, which would fall under the caption of res gestae; admissible under section 6 of the Indian Evidence Act. The defence of appellant Prakash, as transpires from his written statement which he filed after his statement under section 313 of the Code of Criminal Procedure had been recorded was that there was enmity between him and the deceased. On the date of the incident, at about 7.45 a.m., while he was going in front of the house of the deceased and Kashibai, Kashibai threw chilli powder in his eyes. Thereafter, she threw stones. On account of this, he sustained injuries on his fingers, knee and back. Thereafter, the deceased Nagorao came with a sword and tried to assault him, resulting in an injury on his ear. Again Nagorao tried to assault him with a sword, but he saved himself. While Nagorao was trying to assault him, he fell down on the ground and sustained injuries. In the meantime, appellant Nepal @ Amrata, who had reached there, was also assaulted. In his written statement, appellant Prakash has mentioned that he lodged the F.I.R. in respect of the incident, on the basis of which Cr. No. 37/94 was registered at Markhel Police Station. It is pertinent to mention that a perusal of the said F.I.R. shows that it was lodged on the date of the incident itself (23-6-1994) at 9 a.m. We may also mention that the same defence has been pleaded by appellant Amrata @ Nepal. The learned trial Judge believed the evidence adduced by the prosecution, rejected the defence of appellants Prakash and Nepal @ Amrata and convicted and sentenced the appellants in the manner stated in paragraph 1. He, however, acquitted co-accused Anusayabai and Ramabai. Hence this appeal. 9. We have heard the learned Counsel for the parties and perused the entire evidence on record. Mr. He, however, acquitted co-accused Anusayabai and Ramabai. Hence this appeal. 9. We have heard the learned Counsel for the parties and perused the entire evidence on record. Mr. Kapadia, learned Counsel for the appellants, made a twofold submission before us. He firstly contended that the evidence of both the eye witnesses of the incident, namely, the informant Kashibai, P.W. 5, and Harubai, P.W. 6, does not inspire any confidence and the learned trial Judge erred in accepting it and in basing the conviction of the appellants on it. He secondly urged that circumstances show that appellants Prakash and Amrata may have acted in exercise of right of private defence of person and, at any rate, since this is a case wherein both the prosecution and the defence are not coming out with the whole truth, the appellants deserve to be acquitted. We have reflected over both the submissions of Mr. Kapadia and find merit in them. 10. We would first like to take up the first submission canvassed by Mr. Kapadia, namely, that the evidence of informant Kashibai and Harubai, P.Ws. 5 and 6 respectively, does not inspire any confidence. In the first instance, it should be borne in mind that being the wife and the daughter in law respectively of the deceased Nagorao, they are interested witnesses and their evidence has to be evaluated with caution. And we dare say that once we do this, it would be difficult to accept it. The broad infirmities in their evidence are that although both categorically state that appellant Prakash with a tubber and appellant Lalu with a sword assaulted the deceased Nagorao on his head, however, as we have seen earlier, this is belied by the evidence of the autopsy surgeon, because, he found a solitary incised wound on the head of the deceased. In fact, the incised wound suffered by the deceased on his head was the only injury attributable to a sharp edged weapon suffered by him. Secondly, we find that Kashibai stated that appellant Amrata @ Nepal with an axe and Harubai stated that the said appellant with a katti (sharp edged weapon) assaulted the deceased on his hand, but, again, the ante mortem injuries of the deceased, which have been extracted by us earlier, do not show the presence of any incised wound on the hand of the deceased. Thirdly, we find that both Kashibai and Harubai stated that the acquitted accused Anusayabai and Ramabai hurled stones on the person, of the former and this claim of theirs, is difficult to accept, because we find that Kashibai was not medically examined and neither any reason has been furnished by the prosecution for not sending her for medical examination. On the face of the said infirmities, in our view, it would be hazardous to accept the evidence of Kashibai and Sarubai. 11. We now take up the second submission of Mr. Kapadia, namely, this is a case where, where the possibility of appellants Prakash and Amrata acting in exercise of the right of private defence of person cannot be excluded and, at any rate, since neither the prosecution nor the defence, is coming out with the whole truth, the appellants deserve to be acquitted. Mr. Kapadia canvassed this submission on the basis that in the same incident, appellants Prakash and Amrata @ Nepal also suffered injuries, which have been unexplained by the prosecution. He pointed out that appellant Prakash lodged a F.I.R. with respect to the same incident, on the basis of which a case under section 324 of the Indian Penal Code was registered, at 9 a.m. on the date of the incident itself. He also pointed out that the Investigating Officer, P.S.I. Beg in his cross examination admitted that the said appellant lodged the F.I.R. at Police Station Markhel. Mr. Kapadia also contended that one of the documents, admitted by the prosecution under section 294 of the Code of Criminal Procedure, is Exhibit 35, which pertains to the seizure of clothes of appellants Prakash and Amrata @ Nepal pursuant to their arrest on the date of the incident itself, on 23-6-1994, wherein their injuries have also been mentioned. He urged that a perusal of Exhibit 35 shows that not only the clothes of appellants Prakash and Amrata were stained with blood, but they also had injuries on their person. We have earlier, in paragraph 6, detailed the said injuries and find that they include injuries on head. 12. Mr. Kapadia strenuously contended that the injuries of appellants Prakash and Amrata @ Nepal have not been explained by the prosecution. We have earlier, in paragraph 6, detailed the said injuries and find that they include injuries on head. 12. Mr. Kapadia strenuously contended that the injuries of appellants Prakash and Amrata @ Nepal have not been explained by the prosecution. He cited the decision of the Supreme Court reported in A.I.R. 1976 S.C. 2263 (Lakshmi Singh and others v. State of Bihar)1, and urged that the failure of the prosecution to explain injuries of an accused in a murder case may lead to three inferences, two of them being that, the prosecution has suppressed the genesis of the incident and witnesses are lying on a material particular. In our view, on the face of the evidence of this case, both the aforesaid inferences can be legitimately drawn. 13. Mr. Kapadia also contended that it is not imperative in law that the accused should plead the right of private defence of person or property and the benefit of such a plea can be given if it is borne out by circumstances. In the contention of Mr. Kapadia, on the face of the injuries suffered by appellants Prakash and Amrata @ Nepal, inspite of the fact that the said appellants do not state that they assaulted the deceased in the exercise of their right of private defence of person, it would be reasonable to infer that the said appellants acted in exercise of right of private defence of person. At any rate, Mr. Kapadia urged that this is a case where both the prosecution and the defence are guilty of suppression and each side has not explained the injuries of the other. He contended that in such an eventuality, the gainer would not be the prosecution, but the defence. He contended that it is well settled that the prosecution has to swin or sink on the strength or weakness of its case and its case is not proved by infirmities in defence. 14. We have reflected over Mr. Kapadia's submission and find merit in the same. The evidence referred to above makes it manifest that appellants Prakash and Amrata @ Nepal sustained injuries on vital parts of body, during the course of the same incident, wherein the deceased was injured and their injuries have not been explained by the prosecution. 14. We have reflected over Mr. Kapadia's submission and find merit in the same. The evidence referred to above makes it manifest that appellants Prakash and Amrata @ Nepal sustained injuries on vital parts of body, during the course of the same incident, wherein the deceased was injured and their injuries have not been explained by the prosecution. It is true that although appellants Prakash and Amrata @ Nepal have not specifically pleaded that they caused injuries to Nagorao in exercise of their right of private defence of person, but it is well settled that the right of private defence need not be specifically pleaded and, if from circumstances on record, it can be inferred that the accused may have acted in exercise of right of private defence, the Court would be justified in giving its benefit to the accused. In our view, such an inference is not shut out in this case. 15. Even if it is assumed that the benefit of plea of right of private defence of person cannot be given to appellants Prakash and Amrata, the appellants would still have to be acquitted. There is no getting away from the fact that both the eye-witnesses examined by the prosecution are not truthful and the prosecution has not explained the injuries of Prakash and Amrata @ Nepal. It is true that the appellants have also not explained the injuries on the deceased, but in such an eventuality, the gainer is not the prosecution. In this connection, it would be useful to advert to the decision of the Supreme Court, reported in A.I.R. 1974 S.C. 1822 (Jamuna Chaudhary and others v. State of Bihar)2, and a Division Bench decision of the Allahabad High Court rendered in the case of (Subrati and others v. State of U.P.)3, reported in 1959 All.L.J. 423. In A.I.R. 1974 S.C. 1822, it would be useful to refer to paragraph 12 which reads thus :--- "As neither the prosecution nor the defence have, in the case before us, come out with the whole and unvarnished truth, so as to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents lay or how one or more incidents took place in which so many persons, including Laldhari and Ramanandan, were injured, courts can only try to guess or conjecture to decipher the truth if possible. This may be done, within limits, to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case." In 1959 All.L.J. 423 (supra), the Division Bench held that where both prosecution and the defence are suppressing their aggression and not coming out with true facts, the Court, only within very narrow limits, can conjecture to decide which version of the incident is correct and it would not be open to it to reconstruct a third case. In the said decision, it held that where both the prosecution and the defence are not coming out with the whole truth, the regrettable conclusion would be acquittal of the accused persons, but such a conclusion cannot be helped, because for the same it is the prosecution which is to be blamed. 16. In our judgment, the ratio laid down in the said decisions is fully applicable to our case. 17. Since in this case, we have found the evidence of the two eye witnesses to be untruthful and the prosecution has not explained the injuries of appellants Prakash and Amrata, it would not be possible for us to conclude whether the truth lies in the prosecution version or in the defence version or in neither of them. Hence, we are left with no option but to acquit the appellants on all the counts. 18. For the said reasons, in our view, the convictions and sentences of the appellants on all the four counts, viz., section 302 read with 149, 324 read with 149, 147 and 148 of the I.P.C. cannot be sustained and they deserve the benefit of doubt. 19. In the result, this appeal is allowed. We set aside the convictions and sentences of the appellants on all the four counts, namely, under section 302 read with sections 149, 324 read with sections 149, 147 and 148, of the Indian Penal Code. Appellants Prakash Moglaji Sonawane and Lalu Mallaji Waghmare are in jail and shall be released forthwith unless wanted in some other case. Appellant Amrata @ Nepal Moglaji Sonawane, Moglaji Dalu Sonawane, Raghuram Moglaji Sonawane and Rohidas Lalu Waghmare are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. Appellants Prakash Moglaji Sonawane and Lalu Mallaji Waghmare are in jail and shall be released forthwith unless wanted in some other case. Appellant Amrata @ Nepal Moglaji Sonawane, Moglaji Dalu Sonawane, Raghuram Moglaji Sonawane and Rohidas Lalu Waghmare are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. In case of the appellants have deposited the fine for the offences under sections 302 read with 149 and 324 read with 149 of the Indian Penal Code, it shall stand refunded to them. Appeal allowed. -----