JUDGMENT 1. - The appellants were indicted before the learned Addl. Sessions Judge No. 4, Kota in Sessions Case No. 43/1996 for having committed murder of Dablu @ Virendra Singh vide judgment dated 5.2.1999 they were convicted and sentenced as under: 1 Shyam under section 302 Indian Penal Code To suffer imprisonment for life and fine of Rs. 1,000/- in default further undergo three months rigorous imprisonment. 2 Sattu @ Satya Narain under section 302/34 To suffer imprisonment for life and fine of Rs. 1,000/- in default to further undergo 3 months R.1. 2. As per the prosecution story a written report (Ex.P/5) was submitted by one Jaspal Singh (PW-8) to the Police Station, Kotwali Kota, at around 9.10 p.m. on 30.4.1994 with the averments that the appellants were hurling abuses to Dablu @ Virendra Singh (now deceased) and imploring him not to give evidence against them in a criminal case else he would be liquidated. When Dablu nodded in negative the appellant-Shyam took out `Katar' and struck it in the person of Dablu. Dablu pushed Shyam down and was on him. In the meanwhile appellant-Sattu snatched `Katar' from Shyam and gave blow with it to Dablu and then both the appellants inflicted blows while Dablu was lying. Shyam then attacked Dablu with the stone and after crying loudly that they had done Dablu to death, they went away. 3. The Police Station, Kotwali, Kota initially registered a case for offence under sections. 307 & 34 IPC and a formal first information report bearing No. 134/99 was drawn. After the death of Dablu, the case was converted under section 302 Indian Penal Code and the investigation commenced. Autopsy on the dead body was conducted, inquest report and the site plan were drawn. Statements of witnesses under section 161 Criminal Penal Code were recorded. The appellants were arrested and the broken piece of `Katar' allegedly used in the commission of crime was recovered at the instance of appellant-Sattu @ Satyanarain. On conclusion of the investigation, charge-sheet was laid. In due course the case came up for trial before the learned Addl. Sessions Judge No. 4, Kota. The charges under section 302 read with Section. 34 Indian Penal Code and in the alternative under section 302 Indian Penal Code were framed. The appellants denied the charges and claimed to be tried. 4. In due course the case came up for trial before the learned Addl. Sessions Judge No. 4, Kota. The charges under section 302 read with Section. 34 Indian Penal Code and in the alternative under section 302 Indian Penal Code were framed. The appellants denied the charges and claimed to be tried. 4. The prosecution examined as many as 14 witnesses in support of its case. In their explanation under section 313 Criminal Penal Code the appellants claimed innocence. No evidence in defence however was produced. The learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 5. Mr. Sahni, learned counsel for the appellants vehemently canvassed that the copy of the first information report was sent late to the Ilaka Magistrate on 2.5.1999 and no plausible explanation was furnished by the prosecution for delayed transmission of information report. It is further urged that the eye- witnesses did not support the prosecution story as regards the breaking of the `Katar' during the course of alleged incident. The eye-witnesses are wholly unreliable, their unnatural conduct in not making attempt to save the deceased and leaving him in lurch, rule out their presence at the time of the incident. The so called discovery of `Katar' also does not inspire any confidence for the reason that the premises from where the `Katar' was allegedly recovered was not in exclusive possession of appellant - Sattu. Learned counsel for the appellants further urged that the story of the prosecution as regards the consumption of non-veg. food by the deceased has not been supported by Dr. Y.K. Sharma, (PW-11). The injuries sustained by the appellants have not been explained by the prosecution. No independent witness from the locality was examined. The key witnesses were deliberately with-held. Many criminal cases were pending against the alleged eye-witnesses and this fact itself, effects their credibility. The `Katar' allegedly recovered at the instance of Sattu was not shown to Dr. Y.K. Sharma at the time of his examination in the trial Court. The alleged eye-witnesses produced by the prosecution were got up and planted witnesses. The site plan prepared by the I.O. on the basis of statements made to him by the witnesses in the course of investigation was not admissible. Non-examination of independent witnesses despite their availability created dent in the prosecution story. The alleged eye-witnesses produced by the prosecution were got up and planted witnesses. The site plan prepared by the I.O. on the basis of statements made to him by the witnesses in the course of investigation was not admissible. Non-examination of independent witnesses despite their availability created dent in the prosecution story. Bhupendra Singh PW-13, I.O. gave false statement with the intention to secure conviction of the appellants by hook or crook. Articles allegedly seized by the prosecution were sent to FSL after a long delay, that creates a doubt about the connection of those articles with the crime. Seal impression was not forwarded to the FSL. There was inconsistency between the statement in the first information report and the testimony of informant Jaspal Singh. Learned counsel for the complainant was allowed to conduct the trial by the learned trial Judge in violation of Section 301 Cr.P.C. From the material on record, it is established that the appellants were present at Police Station when the informant Jaspal Singh PW-8 had gone to lodge the report but their arrest was shown in the intervening night of April 30 and May 1, around 1.30 a.m. Learned counsel for the appellants therefore, submitted that the appellants are entitled to benefit of doubt as no charge for having committed murder of Dablu could be established by the prosecution beyond reasonable doubt. 6. Per contra Mr. S.S. Rathore, learned Public Prosecutor for the State supported the impugned judgment and contended that the learned trial Judge has rightly convicted the appellants. 7. With the assistance of the learned counsel for the appellants and the learned Public Prosecutor we have examined the material on record. The super structure of the prosecution case is primarily built on the eye-witness account of informant Jaspal Singh PW-8, Vijay Kumar Jain @ Vij ay Kumar Bania, PW-2, Chetan Singh PW-5, Rajendra Singh PW-6 and Farid PW-7. This evidence is sought to be corroborated by the testimony of Dr. Y.K. Sharma, PW-11 and Bhupendra Singh, 1. 0. PW-13. We have closely scanned the testimony of Jaspal Singh, PW-8, Rajendra Singh, PW-6, Chetan Singh PW-5, Vijay Bania PW-3 and Farid PW-7 we find that all these witnesses had reached the spot by chance. It appears from their testimony that Dablu was known criminal and as many as thirty criminal cases were pending against him in various Courts. 0. PW-13. We have closely scanned the testimony of Jaspal Singh, PW-8, Rajendra Singh, PW-6, Chetan Singh PW-5, Vijay Bania PW-3 and Farid PW-7 we find that all these witnesses had reached the spot by chance. It appears from their testimony that Dablu was known criminal and as many as thirty criminal cases were pending against him in various Courts. The aforesaid witnesses also had criminal record and were involved in criminal cases. Dr. Y.K. Sharma PW-11 who conducted the autopsy on the dead body of the deceased found as many as 20 anti mortem injuries and the cause of death was sharp injury to liver and lungs. Appellants had also sustained injuries. 8. Appellant-Shyam sustained following three injuries vide (Ex.P/19):- 1. Incised wound 3.5 ems/4.5 cms bone deep index finger left hand. Ext. surface extending from its kundle; 2. Abrasion 1 cm x 1/2 cms. right hand dorsem radial side; and 3. Abrasion 1 cm x 1/2 cms right hand base of thumb. 9. Appellant-Satya Narain @ Sattu received the following injuries vide (Ex.P/20) : 1. Incised wound 1 cm x 1/4 ems. st. deep little finger rt. hand palmer surface middle phallange; and 2. Scratch 5 cm. liner chest cage 5 cm. below the nipple by sharp weapon. 10. The defence of the appellants was that the deceased-Dablu @ Virendra Singh wanted to kill the appellants and he inflicted katar blows on their person. The appellants somehow saved them and went to the Police Station for instituting a report. They did not know as to who caused injuries to Dablu. The injuries sustained by the appellants were got medically examined by the I.O. but the prosecution did not explain the injuries sustained by the appellants. 11. Their Lordships of the Supreme Court in Padam Singh v. State of U.P., (2000) 1 SCC 621 indicated that when the prosecution does not explain the injuries sustained by the accused at about the time of the occurrence or in the course of occurrence the Court can draw the inference that the prosecution had suppressed the genesis and origin of the occurrence and thus not presented the true vision. Where the evidence consists of interested or inimical witnesses then non-explanation of the injuries on the accused by the prosecution assumes greater importance. 12. The learned trial Judge, also dealt with this aspect of the matter. Where the evidence consists of interested or inimical witnesses then non-explanation of the injuries on the accused by the prosecution assumes greater importance. 12. The learned trial Judge, also dealt with this aspect of the matter. In the opinion of the trial Judge the injuries sustained by the appellants were caused while they had exchanged the `katar'. The learned trial Judge took a view that the deceased was unarmed and at the time when the appellants were inflicted injuries on the person of the deceased, they sustained incised wounds therefore, no explanation was required to be given by the prosecution for the injuries sustained by the appellants. We find unable ourselves; to agree with the reasoning of the learned trial Judge. The finding of the learned trial Judge is based on surmises and conjectures. 13. Conjoint reading of autopsy report of the deceased and injury reports of the appellants demonstrates following facts:- (i) As per the post-mortem report (Ex.P/13) the autopsy of the dead body of the deceased Dablu was conducted on 1.5.1994 at 9.55 a.m. and it was opined that the deceased sustained injuries within 24 hrs; (ii) The injuries sustained by the appellant-Shyam were examined at 9.15 a.m. on 1.5.1994 and it was stated in the medical injury report (Ex.P/19) that Shyam sustained injuries within 24 hrs; and (iii) Injuries sustained by appellant-Sattu @ Satya Narain were examined at 9.30 a.m. on 1.5.1994 and as per the medical report (Ex.P/20) the appellant-Sattu sustained injuries within 24 hrs. 14. In view of the duration of the injuries sustained by the deceased and the appellants it appears that the appellants and the deceased sustained injuries in the course of occurrence. The evidence of the prosecution consists of interested and chance witnesses, therefore, non-explanation of the injuries on the appellants assumes greater importance and we are inclined to draw an inference that the prosecution has suppressed the genesis and organ of the occurrence. The injuries sustained by the appellants are serious in nature. In addition to incised wound appellant-Sattu also sustained stretch caused by sharp-edged weapon on the left side of his chest and these injuries cannot be ignored. Supreme Court in Kashi Ram v. State of M.P., (2002) 1 SCC 71 indicated that the I.O. is duty bound to find out the cause of injury sustained by the accused in the course of incident. Supreme Court in Kashi Ram v. State of M.P., (2002) 1 SCC 71 indicated that the I.O. is duty bound to find out the cause of injury sustained by the accused in the course of incident. The I.O. having failed to do so, the investigation suffers from serious infirmity. 15. We find from the record that the occurrence took place at a thorough fare, without any pre-meditation and on a spur of moment. There was altercation between the appellants and the deceased. Deceased pushed appellant-Shyam down and was on him. Dablu was a known criminal having pendency of 30 criminal cases. Fearing danger to their life, the appellants struck injuries on his person. We are forced to draw this inference in view of non-examination of independent and material witnesses by the prosecution. There are certain unanswered questions. Why informant Jaspal Singh (PW-8) the real brother of the deceased, did not intervene and make attempt to remove the deceased to the hospital? How and in what manner 20 injuries could be caused by a broken Katar? 16. The question at this juncture arises as to whether the appellants in the circumstances of this case, can be held guilty of murder? 17. The scope of clause thirdly of Section 300 IPC has been a subject-matter of various decisions of the Hon'ble Supreme Court. The decision in the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 is the basic authority in this regard. Analysing the clause thirdly and as to what prosecution must prove, it was held in the said case as under:- (i) it must establish, quite objectively, that a bodily injury is present; (ii) the nature of the injury must be proved; (iii) it must be proved that there was an intention to inflict that particular bodily injury, i.e. to say that it was not accidental or unintentional or that some other kind of injury was intended; (iv) it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender." It was further observed as under : "If they inflicted injuries of that kind they must face the consequence, and they can only escape if it can be shown or reasonably deduced, that the injury was accidental or otherwise unintentional." 18. Rearing these principles in mind if we examine the facts in the instant case, we find that Clause thirdly of Section 300 IPC is not attracted. The totality of circumstances in the instant case justify an inference, that the appellants did not intend to cause murder of the deceased. There arose a situation in which the appellants had to save their life. The deceased was a history-sheeter and the testimony of Chetan Singh PW-5 reveals that the deceased-Dablu and Shyam grappled with each other and both fell down and Dablu pushed Shyam down and was on him. As already noticed appellants sustained incised wounds, therefore, in the facts of this case it is probable that the deceased on seeing the appellants, picked a quarrel with them and when they were attacked with Katar by the deceased, the appellants lost their powers of calm reasoning snatched the Katar and struck it against the deceased. It appears to us that the appellants had intended to save themselves and in that process they had exceeded their right of private defence. In these circumstances, the appellants would be guilty for offence under section 304 Part II IPC r/w Section 34 IPC and not under section 302 Indian Penal Code. The appellants have been remained in judicial custody for a period of seven years and eleven months and ends of justice would be met in sentencing them to the period already undergone by them in detention. 19. For the aforementioned reasons, we allow the aforesaid appeals in part and set-aside the conviction and sentence awarded to the appellants namely; Shyam and Sattu @ Satyanarain by the learned Addl. Sessions Judge No. 4, Kota, in Sessions Case No. 43/1996 for offences under section 302 & Section 302/34 Indian Penal Code respectively. Instead we convict the said appellants for offence under section 304 Part II read with Section 34 Indian Penal Code and sentence them to the period already undergone by them. Sessions Judge No. 4, Kota, in Sessions Case No. 43/1996 for offences under section 302 & Section 302/34 Indian Penal Code respectively. Instead we convict the said appellants for offence under section 304 Part II read with Section 34 Indian Penal Code and sentence them to the period already undergone by them. The appellants shall be released forthwith if not required in any other case.Revision petition allowed. *******