JUDGMENT M.L. VISA, J. This appeal is directed against the judgment and order dated 24.1.2001 passed by the 1st Additional Sessions Judge, Saran, in Sessions Trial No. 30/90 convicting and sentencing appellant Nagendra Singh to undergo life imprisonment under section 302 of the Indian Penal Code (in short, IPC), R.I. for 10 years under sections 307/149 IPC and R.I. for 3 months under section 225B IPC and convicting and sentencing appellants Dharmnath Singh and Jitan Singh to undergo life imprisonment under sections 302/149 IPC, appellant Deo Nath Singh to undergo life imprisonment under section 302/34 IPC. Appellant Dharmnath Singh has further been convicted and sentenced to undergo R.I. for 10 years under section 307 IPC and 1 year under section 379 IPC. Appellants Deo Nath Singh and Jitan Singh have further been convicted and sentenced to undergo R.I. for 10 years under section 307/149 IPC and 3 months under section 225B IPC. Appellant Jitan Singh has further been convicted under section 323 IPC also but no separate sentence in this head has been passed against him. All the sentences, however, have been ordered to run concurrently. 2. The case of prosecution as disclosed in Fardbeyan, in short is that informant Sri Narayan Singh (PW-7) after taking field of Maheshwari Singh PW-1) on 'Batai, towards north of his village had grown brinjals on it. On 21.9.89 appellant Dharmnath Singh was uprooting brinjals from the aforesaid field which was seen by the informant at about 2 PM when he had gone towards the field and by that time appellant Dharmnath Singh had alreaqdy plucked brinjals worth Rs.100/- and kept in his bag. Informant caught hold of appellant Dharmnath Singh and proceeded for his house but Dharmnath Singh raised alarm on which appellant Deo Nath Singh armed with lathi, Ramashray Singh (since dead) armed with 'Farsa' and appellant Nagendra Singh armed with 'Bhala' came to a road situated south of the field of informant where informant along with Dharmnath Singh by that time had reached. Ramashray Singh ordered to kill the informant and rescue Dharmnath Singh on which appellants forcibly rescued Dharmnath Singh from the custody of informant and Ramashray Singh handed over his Farsa to Dharmnath Singh who gave 'Farsa' blow on the head of informant and caused bleeding injuries. The informant fell down when appellant Jitan assaulted him with lathi causing injuries on his back and leg. The informant fell down when appellant Jitan assaulted him with lathi causing injuries on his back and leg. In the meantime, Bindhyachal Singhy, nephew of informant, came there for his rescue when appellant Deo Nath Singh gave two 'Farsa' blows on his head and appellant Nagendra Singh gave 'Bhala' blow on his abdomen causing bleeding injuries and Bindhyachal Singh fell down and became unconscious. On 'hulla Kapildeo Singh (not examined), Suresh Singh (not examined), Maheshwari Singh (PW-1) and Safi Mian (PW-2) reached there and then appellants fled away taking the bag of brinjals. Informant and injured Bindhyachal Singh were taken to Marhaura Hospital by Ravindra Singh and Kapildeo Singh who, after injured were given first aid treatment were advised to take injured to Chapra Hospital and thereafter, informant and Bindhyachal Singh were taken to Chapra Hospital where Fardbeyan of informant was recorded by S.I. Ranbir Singh (not examined). The Fardbeyan was sent to Marhaura P.S. where a case under sections 302, 307, 324, 323, 379/34I.P.C. against the four appellants and Ramashray Singh was instituted. The pol1ce after investigation submitted chargesheet against the appellants and Ramashray Singh. Cognizance of the case was taken and case was committed to the court of session where charge under sections 307/149 and 225B IPC against all the appellants barring appellant Dharmnath Singh, charge under section 307 IPC against appellant Dharmnath Singh, charge under section 302 IPC against appellants Deonath Singh and Nagendra Singh, charge under section 302/149 IPC against appellants Jitan Singh and Dharmnath Singh as well as Ramashray Singh who during the trial died and charge under section 323 IPC against appellant Jitan Singh were framed. The appellants denied the charges and they were put on trial. 3. The case of appellants as it appears from the defence witness examined on their behalf and from the trend of cross examination of prosecution witnesses is that on the day and time of occurrence informant along with deceased Bindhyachal Singh and others variously armed with 'Bhala', 'Farsa'and sword assaulted appellants Deo Nath Singh and Dharmnath Singh and appellant Dharmnath Singh lodged a case being Marhaura P.S. Case No. 183/89 against the informant and others under sections 147,148, 323, 324 and 307 IPC and the informant in retaliation has filed this case falsely implicating the appellants. The court below after trial found the appellants guilty and convicted and sentenced them as stated above. 4. The court below after trial found the appellants guilty and convicted and sentenced them as stated above. 4. In order to prove its case the prosecution has examined altogether 8 witnesses. Shri Narayan Singh (PW-7) is the informant. Maheshwari Singh (PW-1), Safi Mian (PW-2) and Ganesh Singh (PW-6) are said to be eye witnesses to the occurrence. Dr. R.S. Singh (PW-3) is the doctor who was posted as Civil Assistant Surgeon in Sadar Hospital, Chapra at the rel8/ant time and had recorded dying declaration of Bindhyachal Singh. Dr. Ramesh Chandra Jaiswal (PW-4) is the doctor who had held autopsy on the dead body of deceased. Dr. Mahadev Pd. Singh (PW-5) is the doctor who had examined the deceased and informant at Marhaura Primary Health Centre where deceased and informant were given first treatment. Arjun Jha (PW-8) is the formal witness who has proved Fardbeyan (Ext. 6), formal FIR (Ext. 7), case diary (Ext. 8) and endorsement (Ext9) of a constable when he handed over post mortem examination report to APP. 5. Dr. Mahadev Pd. Singh (PW-5), in his evidence, has stated that on 29.1.89 he was posted as Incharge Primary Health Centre at Marhaura and on that day at 2.45 PM he examined Bindhyachal Singh and found the following injuries on his person: (i) Punctured wound circular in a radius of 2" x abdominal cavity, in intestinal loop prolapse, left side lower abdomen near abdomen near umbilicus, slight distinction of abdomen. According to him this injury was grievous in nature caused by sharp pointed weapon which may be a 'bhala' and time of injury was within 6 hours. (ii) Incised wound 4" x 1/2" bone in middle of head and it was simple in nature caused by sharp cutting weapon and time of wound was within six hours. (iii) Incised wound 4" x 1/2" x bone on left side of head. (iv) Incised wound 1/2" x 1/4" x 1/ 4" on chin. Injury No.(ii) to (iv) may be caused by 'Farsa'. (v) Bruise 3" x 1" on back, caused by hard blunt substance which may be lathi and it was simple in nature. He has further said that he referred the patient to Sadar Hospital, Chapra for further treatment. (iv) Incised wound 1/2" x 1/4" x 1/ 4" on chin. Injury No.(ii) to (iv) may be caused by 'Farsa'. (v) Bruise 3" x 1" on back, caused by hard blunt substance which may be lathi and it was simple in nature. He has further said that he referred the patient to Sadar Hospital, Chapra for further treatment. He has said that on the same day he examined informant Shri Narayan Singh and found the following injuries on his person: (i) Incised wound 3" x 1" x bone in middle of head. (ii) Incised wound 1" x 1/2" x muscle deep. These injuries were simple in nature caused by sharp cutting weapon and age of injures was within 6 hours. (iii) Scratch 2" x 1/6" on right side of the neck. (iv) Bruise 3" x 1" on left thigh. Both injuries were simple in nature caused by hard and blunt substance and age of injuries was within six hours. According to him, injury Nos. (i) and (ii) was possible by 'Farsa' and injury Nos. (iii) and (iv) were caused by lathi. He has proved injury reports, marked Exts. 4 and 4/1. In cross examination this witness has said that on 21.9.89 at 2.45 PM he examined appellant Dharmnath Singh and found following injuries on his person: (i) incised wound 3" x 1/2" x bone in the middle of head, simple in nature caused by sharp cutting weapon and age of injury was within six hours. (ii) Lacerated wound 2" x 1/2" x muscle in the middle of head and it was simple in nature caused by hard and blunt substance and age of injury was within six hours. (iii) Incised wound'" x 1/2" x muscle, left scapular region and it was simple in nature caused by sharp cutting weapon and age of injury was within six hours. According to him, patient was referred to Sadar Hospital, Chapra for further treatment and sharp cutting lacerated wound may have been caused by Farsa. (iii) Incised wound'" x 1/2" x muscle, left scapular region and it was simple in nature caused by sharp cutting weapon and age of injury was within six hours. According to him, patient was referred to Sadar Hospital, Chapra for further treatment and sharp cutting lacerated wound may have been caused by Farsa. He has further said that on the same day at about above time, he examined Deo Nath Singh and found following injuries on his person: (i) Incised wound 6" x 1" x bone cut forehead (middle of head) and it was grievous in nature caused by sharp cutting weapon and age of this injury was (ii) Incised wound in all fingers of right hand and this injury was superficial, simple in nature caused by sharp cutting weapon. (iii) Incised wound complete cut on palmer aspect, left thumbs in which palmer aspect was intact and it was grievous in nature caused by sharp cutting weapon and age of injury was within six hours. (iv) Incised wound 3" x 1/2" x muscle right elbow and it was simple in nature caused by sharp cutting weapon and age of this injury was• within six hours. This patient was referred to Sadar Hospital, Chapra for further treatment. He has further said that all injuries found on his person were caused either by sword or Farsa. He has proved injury reports marked Ext. A and A/1. From his evidence it appears that on 29.1.89 he examined deceased Bindhyachal Singh who was alive then and who was taken to Primary Health Centre, Marhaura and at about the same time he examined appellants Dharmnath Singh and Deo Nath Singh. 6. Dr. Ramesh Chandra Jaiswal (PW4), in his evidence has said that on 23.9.89 he was posted as Civil Assistant Surgeon at Sadar Hospital, Chapra and on that day at about 9.15 A.M he held post mortem examination on the dead body of Bindhyachal Singh and found following ante mortem injuries: (i) One stitched sharp cut wound on the upper part of scalp in the vertical direction 4" x 1/2" x bone deep. (ii) One sharp cut stitched wound on the left lateral side of the scalp transverse in direction 4" x 1/2" x bone deep. (iii) One sharp cut stitched wound on the left ileus region 2" x 1/2" x cavity deep. (ii) One sharp cut stitched wound on the left lateral side of the scalp transverse in direction 4" x 1/2" x bone deep. (iii) One sharp cut stitched wound on the left ileus region 2" x 1/2" x cavity deep. (iv) One sharp cut stitched wound on the chin 1/2" x 1/4" x skin deep. According to him, cause of death was due to injury No. (iii) leading to haemorrhage, shock and death and all injuries were caused by sharp cutting weapon and time since death elapsed was within 18 hours from the time of examination' and injury Nos. (i) and (ii) were caused by Farsa and injury No. (iii) was cased by Bhala. He has proved post mortem examination report, marked Ext. 3. 7. Shri Narayan Singh (PW-7), the informant in his evidence has said that on 21.9.89 at about 2 PM he had gone to his field for getting the brinjals plucked and he had taken that field from Maheshwari Singh (PW-1) on 'Batai' and at that time he had called Safi Mian (PW-2), a brinjal vendor, and he saw that appellant Dharmnath Singh was plucking brinjals from his field and when he reached his field, by that time 25-30Kgs of brinjals worth about Rs.100/had already been plucked and he then caught hold of appellant Dharmnath Singh and started for his house taking the appellant with him and when appellant Dharmnath Singh raised alarm, appellant Deo nath Singh armed with 'Farsa', appellant Nagendra Singh armed with 'Bhala', appellant Jitan Singh armed with lathi and Ramashray Singh (now dead) armed with lathi and 'Farsa' came there and• by that time he had already reached a road towards south of his field. Co-accused Ramashray Singh ordered for getting Dharmnath Singh released from his custody after killing him on which all the appellants rescued Dharmnath Singh from his hold and co-accused Ramashray Singh handed over his 'Farsa to appellant Dharmnath Singh who in order to kill the informant gave two 'Farsa' blows on his head and when he fell down appellant Jit1n Singh assaulted him with lathi on his their and shoulder. When he raised alarm, his nephew Bindhyachal Singh came there running and then appellant Deo Nath Singh gave two 'Farsa' blows on his head and appellant Nagendra Singh gave 'Bhala blow on the abdomen of Bindhyachal Singh who fell down and' became unconscious. When he raised alarm, his nephew Bindhyachal Singh came there running and then appellant Deo Nath Singh gave two 'Farsa' blows on his head and appellant Nagendra Singh gave 'Bhala blow on the abdomen of Bindhyachal Singh who fell down and' became unconscious. According to him, occurrence was witnessed by Maheshwari Singh (PW-1), Suresh Singh (not examined), Kapildeo Singh (not examined) and Safi Mian (PW-2). He has further said that appellant took away brinjals which were plucked by appellant Dharmnath Singh and when appellants fled away he and his nephew Bindhyachal Singh were taken to Marhaura' Hospital where'- 'he and his nephew were treated and on 22.9.89 at 12 O'clock in the noon his fardbeyan was recorded by police in the hospital on which he put his signature (Annexure-5). He has further said that after recording his Fardbeyan his nephew was referred to Patna Medical College & Hospital and later he came to know that his nephew died in the way and his dead body was brought to Chapra. He has further said that he remained admitted in hospital for 16-18 days. 8. Maheshwar Singh (PW-1), in his evidence, has said that at the time of occurrence he was in his field in which informant had grown brinjal plants and at that time appellant Dharmnath Singh was plucking brinjals from that field and informant came there and caught hold of appellant Dharmnath Singh and took him to the road where appellant Dharmnath Singh raised hulla on which other appellants came there. Appellant Jitan Singh armed with lathi, appellant Deo nath Singh armed with 'Farsa', appellant Nagendra Singh armed with 'Bhala and co-accused Ramashray Singh armed with lathi and 'Farsa' came and started rescuing appellant Dharmnath Singh armed with lathi and 'Farsa' came and started rescuing appellant Dharmnath Singh from the hold of informant and coaccused Ramashray Singh handed over his 'Farsa to appellant Dharmnath Singh and asked him to kill the informant on which appellant Dharmnath Singh gave 'Farsa' blow on the Mad of informant and he again gave another blow, that was also on the left side of head and thereafter appellant Jitan Singh and Ramashray Singh assaulted the Informant with lathi and when Bindhyachal Singh for rescue of informant came there, appellant Deo Nath Singh gave three. 'Farsa blows on his head and chin and Bindhyachal Singh fell down. 'Farsa blows on his head and chin and Bindhyachal Singh fell down. and became unconscious and thereafter appellant Nagendra Singh gave 'Bhala' plow on his abdomen and Ramashray Singh also assaulted Bindhyachal Singh with lathi and informant also became unconscious and thereafter informant and his nephew were brought to Marhaura and from there to Chapra but Bindhyachal Singh died of injuries. 9. Safi Mian (PW-2), in his evidence, has said that he is a vegetable vendor and on the day of occurrence he had gone to village Marhaura for purchasing brinjals because one day prior to occurrence he had given advance to informant for purchasing brinjals and on the day of occurrence at about 2.30 P.M. he went to the brinjal field of informant where he saw an altercation between informant and a man on the point of brinjals and informant had caught hold of that man and thereafter 4-5 persons came there armed with lathi, bhala and he then fled away from there. He has further said that amongst accused persons who were present in court on the day when he was examined, none of them was either the person who was caught by informant on the day of occurrence or amongst those 4-5 persons who had come armed with lathi and bhala. This witness was examined on 18.1.1993 on which day appellants Nagendra Singh and Deo nath Singh were physically present in court whereas other appellants were represented through their lawyer. In cross examination he has said that he had never gone to the field of brinjal earlier and although about 15-20 persons had assembled at the place of occurrence but in assault only 4-5 persons took part but he did not identify anyone of them. 10. Ganesh Singh (PW-6) has said that at the time of occurrence, he was in his house. 10. Ganesh Singh (PW-6) has said that at the time of occurrence, he was in his house. When he heard 'hulla' he went to the field of informant where he found that a scuffle was going on between the informant and appellant Dharmnath Singh and informant was saying that appellant Dharmnath Singh after plucking brinjals was trying to flee away and thereafter appellant Dharmnath Singh raised 'hulla' on which appellant Jitan Singh armed with lathi, appellant Deo Nath Singh armed with 'Farsa', appellant Nagendra Singh armed with 'Bhala and co-accused Ramashray Singh armed with 'Farsa'came on a road near the brinjal field and co-accused Ramashray Singh handed over his 'Farsa' to appellant Dharmnath Singh and ordered to kill the informant on which Dharmnath Singh gave a 'Farsa' blow on the head of informant and thereafter, appellant Jitan Singh assaulted him with lathi. He has further said that Bindhyachal Singh, nephew of informant, came for rescue of informant and thereafter co-accused Ramashray Singh ordered his companions to kill him also on which appellant Deo Nath Singh gave two 'Farsa blows on the head of Bindhyachal Singh and appellant Nagendra Singh gave 'bhala blow on his abdomen and Bindhyachal Singh fell down and in the meantime, 5-6 villagers came there and rescued the informant and his nephew. He has further said that informant and his nephew were taken to Marhaura Government Hospital and from there to Chapra Sadar Hospital and on 22.9.89 when Bindhyachal Singh was being taken to Patna for better treatment because his condition was critical he died in the way and then his dead body was brought to Bhagwanpur Bazar police station and on 23.9.89 inquest report was prepared on which he put his signature. 11. Dr. R.S. Singh (PW-3), in his evidence, has said that on 22.9.89 he was posted as Civil Assistant Surgeon at Sadar Hospital, Chapra on which day he received requisition (Ext.1) from S.I. of Bhagwanpur Bazar Police Station stating therein that Bindhyachal Singh was admitted in hospital and his condition was serious and a request was made for noting down his dying declaration. He has further said that on the same day at about 1.15 P.M. he recorded dying delcaration (Ext. 2) of Bindhyachal Singh and although, Bindhyachal Singh gave his statement in Hindi language but he translated his statement in English. He has further said that on the same day at about 1.15 P.M. he recorded dying delcaration (Ext. 2) of Bindhyachal Singh and although, Bindhyachal Singh gave his statement in Hindi language but he translated his statement in English. He has denied the suggestion of defence that Bindhyachal Singh was not admitted in Sadar Hospital, Chapra and after death of Bindhyachal Singh he in collusion with police prepared a forged dying declaration. 12. On behalf of appellants Sunil Kumar Singh (DW-1) has been examined who has proved Fardbeyan (Ext. A) signature (Ext. B) of appellant Dharmnath Singh on the Fardbeyan and formal FIR (Ext. C). Ext. A is the Fardbeyan of appellant Dharmnath Singh recorded by SI Husnain Khan of Marhaura Police Station at 3.20 PM on 21.9.89 at Marhaura State Dispensary in which he has made allegation of assault on him and his brother against informant, deceased Bindhyachal Singh and others and Ext 'C' is a formal FIR of a case under sections 147/148/149/307/324/323 IPC against informant, deceased Bindhyachal Singh and 3 others. 13. The case of appellants is that at the alleged time on the day at occurrence when appellants Dharmnath Singh and Deo Nath Singh were in their field where they had gone for cutting a Serna/ tree which they had already sold for Rs.4000/-, informant, deceased Bindhyachal Singh and others came and assaulted appellant Deo Nath Singh with sword, 'Farsa’, 'Bhala' etc. and when appellant Dharmnath Singh tried to rescue him he was also assaulted by them. Further case of appellants is that Fardbeyan (Ext. A) of appellant Dharmnath Singh was recorded on the same day of occurrence at about 3.20 PM and or the same day a case was registered after a' awing formal FIR (Ext. C) and thereafter informant in retaliation has filed the present case which is a counter-blast of the case filed by appellants against the informant and others. 14. Learned counsel appearing on behalf of appellants has submitted that in this case Dr. Mahadev Pd. C) and thereafter informant in retaliation has filed the present case which is a counter-blast of the case filed by appellants against the informant and others. 14. Learned counsel appearing on behalf of appellants has submitted that in this case Dr. Mahadev Pd. Singh (PW-5) who is said to have examined the informant and deceased Bindhyachal Singh on 29.1.89 at Marhaura State Dispensary, in his evidence, has said that on the same day he had examined appellants Dharmnath Singh and Deo nath Singh and had found injuries including incised wounds caused by sharp cutting weapon on their persons and although injuries found on the person, of appellant Dharmnath Singh were simple in nature but so far appellant Deo Nath Singh is concerned out of 4 incised injuries two injuries were not only grievous in nature but one of them was an incised wound 6" x 1" x bone cut which was on middle of head i.e. on vital part and other injury resulted in complete cut of palmer aspect, left thumbs. It is argued that prosecution has not explained these injuries on the persons of two appellants, therefore, it creates reasonable doubt that prosecution, has not come out with true version of the occurrence. 15. Shri Lala Kailash Bihari Prasad, learned A.P.P. appearing on behalf of the State has submitted that the question of failure to explain the injuries on the accused by prosecution has been a main point for consideration in a number of cases and now this question has finally been settled by a number of decisions of the Supreme Court that non-explanation of injuries on an accused by prosecution can not by itself be a 'sole ground to reject the entire case of prosecution if the evidence is otherwise cogent and trustworthy. In the case of Ram Sundar Yadav and others Vs. State of Bihar, (1999) SCC (Cr) 103 a Bench of two-Judges of Supreme Court after observing that since the court had taken divergent views on the question involved in the appeals before it, as would appear from the case, referred to in the judgment of Supreme Court in Hare Krishna Singh Vs. State of Bihar, (1999) SCC (Cr) 103 a Bench of two-Judges of Supreme Court after observing that since the court had taken divergent views on the question involved in the appeals before it, as would appear from the case, referred to in the judgment of Supreme Court in Hare Krishna Singh Vs. State of Bihar and others, referred the matter to a larger Bench (whether prosecution is obliged to, explain the injuries sustained by accused in the same occurrence and whether failure of the prosecution to show explanation would mean that prosecution has suppressed the truth and also origin and genesis of occurrence) and thereafter a larger Bench of Supreme Court considerted the matter and held that questions involved had earlier been considered by three-Judges Bench of Supreme Court in Bhaba Nanda Sharma Vs. State of Assam, (1977)4 SCC 396 and the same question again came up for consideration before 3-Judges Bench of Supreme Court in Vijayee Singh Vs. State of U.P., (1990)3 SCC 190 and it sent the record back to the Bench to hear the matter. In the case of Vijayee Singh Vs. State of U.P., (1990) SCC (Cri) 378 it has been held as follows:- "9. ....................Relying on these two cases the learned counsel for the defence contended that in the instant case the prosecution has failed to explain the injuries on the two accused and the genesis and the origin of the occurrence have been suppressed and a true version has not been presented before the court and consequently the truth from falsehood cannot be separated and consequently the entire prosecution case must be rejected. We are unable to agree. In Mohar Rai case 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 Case 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. Likewise in Lakshmi Singh Case 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 whdre 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." 16. In the case of Rajendra Singh Vs. State of Bihar [2000(2) PLJR (SC) 205.], (2000)4 SCC 298 the principle laid down by the Supreme Court in the case of Vijayee Singh and in the case of Bhaba nanda Sharma that if the evidence is clear, cogent and creditworthy then explanation of injuries on the accused ipso facto cannot itself be a ground to discard the entire case was confirmed and thereafter in the case of Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others ( AIR 2001 SC 2328 ) it has been held as follows: "17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajendra Singh Vs. State of Bihar, (2000)4 SCC 298 (2000 AIR SCW 1314 : AIR 2000 SC 1779 : 2000 Cri. L.J. 2199) : Ram Sunder Yadav Vs. State of Bihar, (1998)7 SCC 365 : (1998 AIR SCW 3030 : AIR 1998 SC 3117 : 1998 Cri. L.J. 4558) and Vijayee Singh Vs. State of U.P., (1990)3 SCC 190 : ( AIR 1990 SC 1459 : 1990 Cri LJ 1510) all 3-Judges Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions (i) that the injuries on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case." 17. Now coming to the merit of the case, it is a fact that PW-5 Dr. Mahadev Prasad Singh who had examined the informant and injured, in his evidence, has said that he found injuries on appellants Dharmnath Singh and Deo Nath Singh and his evidence shows that Deo Nath Singh had received two grievous injuries, one on his head and another on his palm by sharp edged weapon. In this view of the matter it is to be seen how far the evidence of prosecution witnesses is cogent, clear and trustworthy. 18. As discussed above, out of 4 witnesses who have deposed on the point of occurrence, Safi Mian (PW-2) has clearly stated that he did not identify any of the persons taking part in the occurrence and about two appellants namely, Dharmnath Singh and Deo Nath Singh who were present in court when he was examined as a witness he has clearly stated that they were not among those persons. The court below has rejected the argument of defence that so far appellants Dharmnath Singh and Deo Nath Singh are concerned, at least their participation in the commission of offence becomes doubtful in view of the positive evidence of PW-2 that they were not amongst the persons who took part in the commission of offence on the ground that appellants were not known to him and for the first time he had seen them at the time of occurrence and thereafter his evidence was recorded in court after the gap of more than three years and if on the date of his examination in court he failed to identify the appellants no clean chit can be granted to those appellants, merely on the basis of his statement that they were not amongst the participants in the commission of offence. If this view of the court below is accepted even then it is obvious that so far PW-2 is concerned he has not stated anything against the appellants. Now there remains P.Ws1 and 6 who besides informant have deposed about the occurrence. PW-1 is admittedly the owner of the field which is said to have been taken by the informant on 'Batai' and he has admitted that he had given his field to informant on the basis of sharing half price of brinjals grown by informant. In his evidence he has first said that at the time of occurrence he was in the field where informant had grown brinjals and he saw that appellant Dharmnath Singh was plucking brinjals from that field and then informant came and thereafter some scuffle started between them but in para7 of his cross examination he has said that on the day of occurrence he received information from the informant at 2 PM about plucking of brinjals and in para8 he has said that when he reached his field he found informant already present there but by that time informant had not plucked any brinjal. His attention in para21 of his evidence has been drawn whether before police he had made statement that he had seen appellant Dharmnath Singh plucking brinjals, whether he had stated that co-accused Ramashray Singh came there carrying lathi in one hand and Farsa in another hand and he assaulted the informant with lathi and co-accused Ramashray Singh and appellant Jitan Singh assaulted the deceased Bindhyachal Singh with lathi. I.O. in this case has not been examined. 19. Mr. Lala Kailash Bihari Prasad learned APP has submitted that non-examination of I.O. is not fatal to the case of prosecution. It is true that as a principle it cannot be said that non-examination of I.O. will always be fatal to the case of prosecution but when attention of prosecution witnesses is drawn towards contradiction in their evidence and their earlier statement made before I.O. in that case non-examination of I.O. without sufficient reason will certainly amount prejudice to appellant. 20. Ganesh Singh (PW-6) in his cross examination has admitted that Thakur Prasad Singh is his own brother and Upendra Singh is son of Thakur Prasad Singh meaning thereby that Upendra Singh is his nephew but he has denied that appellant Dharmnath Singh has filed criminal case for on occurrence of 1989 in which he, his brother Thakur Pd. Singh and his nephew Upendra Singh are accused persons. From Ext. A and B which is Fardbeyan and FIR of the case lodged by appellant Dharmnath Singh I find that Thakur Pd. Singh and Upendra Singh are accused along with informant and deceased Bindhyachal Singh and others and parentage of Thakur Pd. Singh is mentioned as Ram Pujan Singh which is the parentage of PW-6 and Ravindra Singh and Upendra Singh are shown sons of Thakur Pd. Singh meaning thereby that they are nephews of Ganesh Singh. In this way, I find that there is no independent witness in this case and out of two witnesses besides informant, one is his co-sharer and brother and nephews of another are accused in a case filed by appellant Dharmnath Singh. Shri Lala Kailash Bihari Pd. learned APP has given much importance to Ext. 2 which is dying declaration of deceased recorded by PW-3 the doctor. In his statement the deceased told the doctor that on 21.9.89 at 2 PM appellants Nagendra Singh, Deo Nath Singh and Dharmnath Singh attacked one by one and Nagendra Singh attacked with spear, Deo Nath Singh with 'Farsa'and Dharmnath Singh with lathi. Besides this, there is no other statement in this dying declaration. This dying declaration does not show that on whom the aforesaid appellants attacked and by their attack anybody received any injury. I therefore find that dying declaration does not fasten the appellants with guilt because it is silent that appellants caused any injury to any body. Besides this, there is no other statement in this dying declaration. This dying declaration does not show that on whom the aforesaid appellants attacked and by their attack anybody received any injury. I therefore find that dying declaration does not fasten the appellants with guilt because it is silent that appellants caused any injury to any body. For the sake of argument if I assume that by this dying declaration deceased meant to say that appellants named by him attacked on him even then, merely on the basis of this document the statements recorded in it cannot be held to be proved in absence of any satisfactory corroboration because the maker of this statement is Bindhyachal Singh who was an accused in the Fardbeyan (Ext. A) lodged by appellant Dharmnath Singh and therefore, this dying declaration (Ext. 2) cannot be placed on any higher level than the Fardbeyan of appellant Dharmnath Singh and statements made in both the documents are subject to further proof for accepting them. 21. As stated above in this case besides informant, PWs1 and 6 have deposed against the appellants but then PW1 is co-sharer of informant whereas brother and nephews of PW-6 are accused persons in the counter case lodged by appellant Dharmnath Singh therefore PWs1 and 6 are interested witnesses. The court below in its judgment has observed that evidence of PW-5 shows that appellant Dharmnath Singh and Deo Nath Singh also sustained injuries at the same time when informant and deceased received injuries. About time I find that in judgment it is mentioned that it was between 8.45 AM to 2.45 PM on 21.9.89. Here I may mention that PW-5 has given the date of examination of informant and deceased as 29.1.89 which appears to be an error of record in writing. The date according to the prosecution is 21.9.89 which further appears from injury certificates (Exts.4 and 4/1) proved by PW-5 in which date of examination of deceased has already been mentioned as 21.9.89. The date according to the prosecution is 21.9.89 which further appears from injury certificates (Exts.4 and 4/1) proved by PW-5 in which date of examination of deceased has already been mentioned as 21.9.89. The court below after finding that evidence on record shows that two appellants namely, Dharmnath Singh and Deo Nath Singh had also received injuries at the same time when informant and deceased received injuries has observed that this fact suggests that there might have been assault and counter assault from both sides in which lathi, Bhala, Farsa, sword might have been used and has further tried to meet the argument raised on behalf of defence that prosecution witnesses have shown complete ignorance about any injury sustained by any of the appellants by observing that as per medical evidence all injuries sustained by both the appellants were simple in nature and none of the injuries was on any vital part which could have been noticed. It has further observed that PWs1, 6 and 7 have completely denied to have seen any injuries on Dharmnath Singh or Deo nath Singh which is quite natural because injuries were not of the nature that those could be easily noticed. Again the court below has observed that only puzzling question in this case is as to how accused Dharmnath Singh and Deo Nath Singh sustained injuries and while discussing this question it has observed that evidence of PW-5 and Ext. A and A/1 suggest that both the aforesaid accused persons might have sustained injuries in course of same occurrence in which informant and deceased sustained injuries and the prosecution has kept complete silence in this regard. It is the finding of the court below that it is human nature that one tries his best to conceal his own fault while exposing the fault of the other side and it may possibly be for this reason that the prosecution side might have avoided to disclose as to how the two accused had suffered and defence has not come forward with any such story which may explain injuries sustained by both sides and in such situation the court may guess or conjecture the true happenings on the basis of materials on record as observed by the Hon'ble Supreme Court in its decision reported in 1974 BBCJ 168. Finally the court below on this point made observation that if the entire evidence brought on record by both sides is gone into depth in the back ground of the prosecution case having been proved, it transpires that when the informant and Bindhyachal Singh were attacked by accused persons, some persons from prosecution side also might have arrived there and counter attached the accused persons forcing them to retreat and due to such counter attack, two accused persons might have sustained injuries. The court below has further made it clear that its aforesaid observation is based on facts and circumstances of the case. Here I would like to mention that the observation of court below that as per evidence of PW-5 both the appellants had received injuries which were simple in nature is not correct and is an error of record because about appellant Deo Nath Singh PW 5 has said that incised wound 6" x 1" bone cut which he found on the middle of head was grievous in nature. The observation that none of the injuries was on any vital part of the body, therefore, prosecution witnesses could not have noticed these injuries is also not supported by the evidence of PW-5 who had found incised wound on the middle of head of appellant Deo Nath Singh. The defence has brought on record the Fardbeyan (Ext. A) of appellant Dharmnath Singh in support of their case that on the day of occurrence they were assaulted by informant and his men. The court below has not given any consideration to this Fardbeyan by observing that defence has not come forward with such story which may explain injuries sustained by both sides. This is applicable to the case of prosecution as well because admittedly prosecution also has not explained the injuries to appellants. As discussed above, it is true that failure on the part of prosecution to explain injuries on accused will not itself be a ground for rejecting the case of prosecution if evidence adduced on behalf of prosecution is cogent, clear and trustworthy but I find that present case does not fall in this category because as discussed above, there is no evidence of any independent witness in this case in spite of the case of prosecution that a number of persons had assembled at the place of occurrence. 22. 22. The time of occurrence is said to be 2 PM on 21.9.1989 but fardbeyan of informant was recorded at Sadar Hospital, Chapra on 22.9.89 at 12 O'clock in the noon. PW-6 in his evidence has said that at Marhaura Hospital where informant and deceased were taken first for treatment they remained for three hours and with injured persons more persons but none of them went to police station for lodging information about the occurrence. On the other side Fardbeyan of Dharmnath Singh (Ext. A) shows that it was recorded on 3.20 hours on 21.9.89 at Marhaura State Dispensary meaning thereby immediately after the occurrence it was recorded at Marhaura Dispensary where informant and deceased of the present case were also first taken for their treatment and where they remained for three hours and thereafter, they were referred to Chapra Hospital. This shows that after lodging FIR by appellant Dharmnath Singh on 21.9.89 the informant got his fardbeyan recorded on the next day i.e. 2.9.89. This delay in lodging the Fardbeyan has not been properly explained by the prosecution. Notwithstanding this fact, since all the three witnesses i.e. informant and other two witnesses who have deposed in this case on behalf of prosecution are interested witnesses and out of them, informant, brother and nephews of PW-6 are accused in the counter case, I do not find their evidence convincing and trustworthy in absence of any corroboration by any independent witness. 23. I, therefore, find that prosecution has not come up with true version of the occurrence and for this reason, it cannot be said that it has proved its case against the appellants beyond all reasonable doubts. 24. In the result, this appeal is allowed. The judgment and order of the court below convicting and sentencing the appellants is hereby set aside. Since Appellants 2 to 4 are on bail they are discharged from the liabilities of their bail bonds. As Appellant NO.1 Nagendra Singh is in jail custody, issue release order for his release from jail custody if not required in any other case.