JUDGMENT S.L. Kochar, J. Both the aforesaid Criminal Appeals are arising out of same judgment and order of conviction and sentence. Hence the same are taken together and dispose of by this common judgment. The appellants have assailed the judgment dated 24-11-1999, of the learned XII Addl. Sessions Judge, Indore passed in Sessions Trial No. 512/1997 by which the appellants have each been convicted u/s 302/34 and 323/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 1000/- ; in default of payment of fine to undergo RI for six months and six months SI to each u/s 323/34 of the Indian Penal Code. However, the substantive sentences were directed to run concurrently. The facts shorn of unnecessary details are that in the intervening night of 27th and 28th August, 1997 at 1.40 a.m. complainant Sonu @ Prakash and his friends Satyanarayan, Rameshwar and Ashok were going towards the brick factory. When they reached near Bhavsar Tailors, the appellants Harish Sharma, his brother Munna Sharma, Shyamlal Sharma and his brother Khemchand reached over there having knife, choori and sword in their hands. All the appellants attacked on complainant party who also defended themselves. Rameshwar was severely injured. He fell on the ground and thereafter assaulted by the appellants. During the course of assault, complainant Sonu somehow saved himself and reached to the police station, Chhatripura for lodging the report. His report is Ex. P.21. He also sustained injuries on his hand. The incident was witnessed by the inhabitants of that area. The police registered the Crime No. 322/1997, u/s 307/34 of the Indian Penal Code and stepped into investigation. Deceased Rameshwar died on the same day, therefore, offence u/s 302/34 of the Indian Penal Code was also added. Spot map (Ex. P.9) was prepared. Appellants were arrested and in pursuance of their memorandum statement weapons of the offence were seized. The seized articles were sent to FSL. Postmortem of the deceased was conducted by Dr. Unda (PW.9) vide Ex. P. 15. After completion of investigation, appellants were charge-sheeted for the abovementioned offences. Appellants denied the charges and in their statement recorded u/s 313 of the Criminal Procedure Code, submitted that complainant Sonu @ Prakash and his friends attacked on appellants Khemchand, Harish and Munna for which Khemchand lodged the report in Chhatripura police station and police had registered the Crime against complainant party. Appellants denied the charges and in their statement recorded u/s 313 of the Criminal Procedure Code, submitted that complainant Sonu @ Prakash and his friends attacked on appellants Khemchand, Harish and Munna for which Khemchand lodged the report in Chhatripura police station and police had registered the Crime against complainant party. It was also submitted by the appellants that complainant Sonu @ Prakash and his friends Ashok and others in fact committed murder of deceased Rameshwar and falsely implicated them. Appellants Shyamlal took the plea of alibi. According to him, in the night of incident he went to Imli Bazar for performing pooja (katha) of deity Tejaji and he was falsely implicated in the next day morning. He examined his father Bherulal (DW.1). The appellants have filed copy of the statement of Dr. Dilip Acharya who was examined in Sessions Trial No. 119/1999 to prove the medical injury report of appellant Khemchand and Harish. They had filed certified copy of the statement of Dr. Acharya dated 29-10-1999 and certified true copy of medical report of Khemchand and Harish vide Ex. P.22 and P.23, P.24 and P.25. These reports were exhibited as D.4 to D.9. The prosecution examined as many as 15 witnesses and adduced about 36 documents in evidence. The learned trial Court found the appellants guilty and convicted them as mentioned hereinabove. The Learned Counsel for appellants vehemently submitted that the learned trial Court should have extended the benefit of Exception of section 100 of the Indian Penal Code as two appellants had acted in right of private defence of their person as they were assaulted by the complainant party and their injuries have not been explained by the prosecution witnesses in Court, They had also lodged the report (Ex. C-1). The Photostat copy of this report was taken on record in this case by the Court. FIR (Ex. C-1) also involves the question of secondary evidence. On the other hand the learned Dy. AG Shri G. Desai has supported the impugned judgment and finding arrived at by the trial Court. He has also submitted that appellants Khemchand and Harish had sustained simple and superficial injuries which is evident from the medical report filed by the police. Therefore, looking to the number and nature of injuries caused to the deceased appellants could not get any benefit of non-explanation of injuries by the prosecution witnesses. He has also submitted that appellants Khemchand and Harish had sustained simple and superficial injuries which is evident from the medical report filed by the police. Therefore, looking to the number and nature of injuries caused to the deceased appellants could not get any benefit of non-explanation of injuries by the prosecution witnesses. Learned Counsel has also submitted that appellants have not pleaded causing death of deceased in exercise of right of private defence of their person and that appellants had acted in a cruel manner and caused in total more than 40 injuries i.e. contused abrasions, incised injuries and stab wounds and as a matter of fact they had committed a brutal murder. The substantial question before us for consideration is whether the appellants are entitled to get benefit of right of private defence of person as defined u/s 100 of the Indian Penal Code or even their case falls within the four comers of exceeding of right of private defence as per provision u/s 300 Exception 2, Culpable Homicide not amounting to murder as well as whether the prosecution has proved its case beyond all reasonable doubt. To decide the aforesaid issues, we would like to advert to the medical evidence of Dr. Unda (PW.9) who proved post-mortem report (Ex. P. 15) of deceased Rameshwar. He found the following injuries: (I) Contused abrasion: (1) 3x2 cm. on the right eye brow parietal region. (2) 4x3 cm. on right eye brow on parietal region. (3) 3x2 cm. on right eye brow. (4) 2x2 cm. below right eye. (5) 5x2 cm. on right cheek. All these contused abrasions were skin deep. (II) Incised wound: (1) 12 x 0.2 cm. x 0.2 cm. on right thigh below lateral aspect. (2) 8 cm. x 0.2 cm. x 0.2 cm. above injury No. 1. (3) 3 cm. x 1 cm. x 1 cm. between both the thigh joints. (4) 6 cm. x 0.2 cm. x 0.1 cm. (5) 7 cm. x 0.2 cm. x 0.1 cm. on left left lateral aspect above one third. (6) 8 cm. x 0.2 cm. x 0.2 cm. (7) 9 cm. x 0.2 cm. x 0.2 cm. left thigh below one third. (8) 7 cm. x 0.2 cm. x 0.1 cm. (9) 8 cm. x 0.2 cm. x 0.1 cm. (10) 6 cm. x 0.2 cm. x 0.1 cm (11) 5 cm. x 0.2 cm. (6) 8 cm. x 0.2 cm. x 0.2 cm. (7) 9 cm. x 0.2 cm. x 0.2 cm. left thigh below one third. (8) 7 cm. x 0.2 cm. x 0.1 cm. (9) 8 cm. x 0.2 cm. x 0.1 cm. (10) 6 cm. x 0.2 cm. x 0.1 cm (11) 5 cm. x 0.2 cm. x 0.1 cm (12) 5 cm. x 0.2 cm. x 0.1 cm. All these injuries were situated above radius. (13) Several cut injuries on right scapula and midline on 1th thorasic skin deep ad-measuring 3 cm. x 11 cm. long and 0.1 cm. upto 0.2 cm. in breadth. (14) Incised wound on left Lumber Vertebra 3 cm. x 2 cm. x 1 cm. below injury No. 1 with external effect size upto the extent 3 cm. left and 2 cm. right would transversely placed wound present midline. (15) Multiple incised wound on lumber region going towards iliacreast size 6x8 cm. long and 0.2 to 0.3 cm. in breadth and 0.1 to 0.2 cm. in depth. (16) (a) Incised wound 3 cm. x 0.1 cm. x 1 cm. on back of right shoulder, (b) Incised wound 4 cm. x 1.5 cm. x 1 cm. This wound was located 2 cm. on the bank of 1.5 cm. of injury No. 16(1) on scapula. (17) (a) 4 cm. x 0.1 cm. x 0.1 cm. (b) 5 cm. x 0.1 cm. x 0.1 cm. (c) 3 cm. x 0.1 cm. x 0.1 cm. (d) 3 cm. x 0.1 cm. x 0.1 cm. (e) 2.5 cm. x 0.1 cm. x 0.1 cm. These injuries were on front side of neck (f) 5 cm. x 0.1 cm. x 0.1 cm. (g) 3 cm. x 0.1 cm. x 0.1 cm. These injuries were at the side of neck above sternum left side. (18) Incised wound right side on costal margin on ribs (a) 2 cm. x 0.5 cm. (b) 2 cm. x 0.5 cm. (c) 1 cm. x 0.2 cm. x 0.2 cm. Injuries No. a and b were going from upwards to downwards on mid clavicular axillary line. (19) Incised wound on left buttock 2 cm. x 1.5 cm. x 1 cm. deep laterally. (20) Several stab wounds (a) 6 cm. x 3.5 cm. upto lung cavity deep. Effect whereof was present on medial end extension. This injury was 2 cm. long which was 6 cm. (19) Incised wound on left buttock 2 cm. x 1.5 cm. x 1 cm. deep laterally. (20) Several stab wounds (a) 6 cm. x 3.5 cm. upto lung cavity deep. Effect whereof was present on medial end extension. This injury was 2 cm. long which was 6 cm. deep extending laterally 4 cm. The total length of the wound was 10 cm. Effect whereof was present on mid scapula mid line on intercostal region, (b) 7 cm. x 3.5 cm. x 5 cm. This injury was situated on the seventh intercostal space below scapula region, (c) 6 cm. x 3.5 cm. on intercostal space below injury No. 21-b. This injury was travelling upto lung cavity. They were several cut marks ad-measuring 4 cm. x 1.5 cm, 3 cm. x 1.5 cm. and 2 cm. x 1 cm. x 2 cm. respectively were present on the lung cavity. (21) Three stab wound on midline area out of which one was on the right midline and the second was on left midline, four wounds were situated on lumber region. Thus there were six stab wounds were present of different size. (22) Incised wound on right parietal region located on right vault two in numbers (a) size 6 cm. x 2 cm. x skull deep (b) 4 cm. x 1.5 cm. upto bone deep as shown in the sketch admeasuring 3.5 cm. x 1 cm. x bone deep. (23) Incised wound (a) 3 cm. x 1 cm. through and through helix (b) 3 cm. x 0.2 cm. (c) 2.5 cm. x 0.2 cm. x 0.1 cm. (d) 2.5 cm. x 0.1 cm. x 0.1 cm. These injuries were from the route of left ear downward to pinna. All the contused abrasions were skin deep and edges of incised wounds were clean cut adverting outside, one edge of stab injury was narrow whereas another edge was vide and slightly contused. All the injuries were reddish in colour having echymosis and collection of red clotted blood. Injuries were fresh and antemortem in nature caused by hard and sharp object and contused abrasions could be caused by hard and blunt object, The injuries were caused before 12 hours from the time of death of deceased. Injuries were sufficient in ordinary course of nature to cause death. All the internal organs were having effect of shock because of bleeding. Injuries were sufficient in ordinary course of nature to cause death. All the internal organs were having effect of shock because of bleeding. In his opinion, deceased died because of shock due to bleeding from the injuries and time of death was within 24 hours from the date and time of postmortem examination i.e. on 28-8-1997 at 3.30 p.m. In cross-examination of this witness, nothing substantial has come to dislodge his evidence. In view of the aforesaid medical evidence, there is no doubt about homicidal death of deceased Rameshwar. In the same incident Satyanarayan (PW.2), Sonu @ Prakash (PW.11) and Kallu (PW.14) had also sustained injuries. Their MLC reports and Ex. P. 12, P. 10 and P. 11 respectively issued by Dr. Ashuthosh Verma (PW.7). According to this witness, he medically examined all the three eye witnesses on 28-8-1997 and found following injuries. Injuries of Satyanarayan: (1) Contusion and swelling on left hand which was mainly present near wrist joint. (2) abrasion 2 cm. with medial aspect, on left above knee joint 2 cm. Injuries of Sonu @ Prakash: (1) abrasion 1 cm. at the left wrist caused by blunt object. Injuries of Ashok @ Kallu: (1) Contused abrasion on the left hand 2 cm. in length. (2) Abrasion on left parietal region size 1 cm. (3) Abrasion on the left forearm on back side. On all the above three injuries blood clots were present. At this juncture, it would be apt to mention herein the injuries said to have been sustained by appellants Khemchand and Harish vide Ex. D.7 and D.4. Injuries of Khemchand: (1) Abrasion 3 cm. x 3 cm. on left forearm upper left posterior medially oblique direction. (2) Contusion 10 cm. x 2 cm. left side upper back of chest region 4 cm. x 3 cm. oblique red colour. (3) Contusion 8 cm. x 2 cm. left shoulder back and upper back oblique red colour. (4) Contusion 8 cm. x 2 cm. on back of chest right side upper, oblique red colour. (5) Contused wound 10 x 1/2 cm. x ? left parietal region oblique blood oozing. Injuries of Harish: (1) Abrasion 3 cm. x 3 cm. left forearm upper left posterior medially obliquely directed red colour. (2) Contusion 10 cm. x 3 cm. left side upper back of chest obliquely directed. (3) Contusion 8 cm. x 3 cm. (5) Contused wound 10 x 1/2 cm. x ? left parietal region oblique blood oozing. Injuries of Harish: (1) Abrasion 3 cm. x 3 cm. left forearm upper left posterior medially obliquely directed red colour. (2) Contusion 10 cm. x 3 cm. left side upper back of chest obliquely directed. (3) Contusion 8 cm. x 3 cm. on left side back near midline oblique in direction. (4) Contusion 4 cm. x 3 cm. right side back of chest, upper left laterally oblique in direction. (5) Contusion 1 cm. x 1 cm. frontal region. Ex. D6 and D8 are x-ray examination report and no bony injury were found on the person of both the appellants. The conviction of the appellants is based on injured eye witnesses account of Sonu (PW.11) and Ashok @ Kallu (PW.14). Sonu @ Prakash (PW.11) has deposed that on the date of incident. Satyanarayan (PW.2), Kallu Jaiswal (PW.14) and deceased Rameshwar were going to leave Kallu at his house. When they reached near Bhavsar Tailors situated in Loknayak Nagar, Indore in the night between 12 and 1'o clock all the appellants attacked them. Appellants Harish was having Kattar-numa Choori, Khemchand was possessing Chaaku-numa Choori having wooden handle whereas Shyamlal and Munna carrying sword. Deceased Rameshwar fell on the ground. They continued to assault Rameshwar by their respective weapons. This witness also sustained injuries on his both the hands. He immediately rushed to police station, Chhatripura and lodged the report against the appellants. The further say of this witness is that he was detained by the police in the police station and police went on spot. In the morning he was informed by the police that Rameshwar had succumbed to the injuries caused in the incident. He proved his report (Ex. P.21). He also proved spot map (Ex. P.9) and he was sent for medical examination. According to this witness, appellant Guddu @ Khemchand also reached to police station for lodging the report and he was also detained by the police. He proved his report (Ex. P.21). He also proved spot map (Ex. P.9) and he was sent for medical examination. According to this witness, appellant Guddu @ Khemchand also reached to police station for lodging the report and he was also detained by the police. In cross-examination, para 13, he has denied the defence suggestion that he assaulted appellants by sword and appellants were assaulted first in time by he and his friends because of which Khemchand reached to police station for lodging the report, He also refuted the defence version that he and other eye witnesses were having enmity with deceased Rameshwar on account of money transaction and because of which they committed murder of Rameshwar and lodged the false report against the appellants. He has admitted about his prosecution in some criminal cases. The Learned Counsel for appellants has highlighted and submitted that this witness having criminal antecedence, therefore, could not be relied upon. We are not impressed by this argument. If otherwise the testimony of this witness stand acceptable in the facts and circumstances of the present case his evidence could not be thrown over the board only on the ground that he was prosecuted in some criminal case. We have gone through the whole statement of this witness carefully but found nothing substantial in cross-examination to discard his testimony. He also sustained injuries in the same incident. It is clear that defence has not given any suggestion to this witness that appellants acted in right of private defence of their person and complainant party was the aggressor. Satyanarayan (PW.2), the another injured eye witness has not supported the prosecution case and he was declared hostile. The next witness is Kallu @ Durga Prasad (PW.14). The say of this witness is that in the night of incident at 12-12.30'o clock he, Sonu (PW.11), Satya (Satyanarayan) (PW.2) along with deceased Rameshwar when reached near Bhavsar Tailor, the appellants accosted them, Harish and Guddu were having Kattar/choori whereas Shyamlal and Munna @ Ramnarayan were having sword. They all started assaulting indiscriminately by the respective weapons. This witness sustained injury on left and right wrist as well as left knee and hand. He further stated that Rameshwar was thrown on the ground and all the appellants continued to assault him. They ran away from the scene of occurrence to save their lives. They all started assaulting indiscriminately by the respective weapons. This witness sustained injury on left and right wrist as well as left knee and hand. He further stated that Rameshwar was thrown on the ground and all the appellants continued to assault him. They ran away from the scene of occurrence to save their lives. In the same incident, Satyanarayan and Sonu (PW.2) and (PW.11) also sustained injuries. Sonu (PW.11) lodged the report in the police station. He was got medically examined by the police. In cross-examination, para 22 he expressed his ignorance about lodging of report by appellant Khemchand in police station prior to his reaching. He also deposed that he did not see the appellants for long or enough time, therefore, would not be in a position to say whether they had any injury or not. In para 10 he admitted that they were charge-sheeted by the police and facing prosecution but denied the allegation of causing injury to appellants Khemchand and Harish. He has also denied defence suggestion that he and his friends had assaulted deceased Rameshwar and he did not see any injury on the person of appellants Khemchand and Harish. In para 27 of cross-examination, he straightway controverted defence suggestion that on 28-8-1997 he, Sonu and Satyanarayan were in drunken condition. Deceased Rameshwar also consumed liquor with them and under the influence of liquor they were not able to understand about their action. He also denied that witness Sonu in a drunken condition assaulted Rameshwar and he being a friend of Sonu, lodged a false report against the appellants and given false evidence. On going through the statements of both the injured eye witnesses in cross-examination, we have not found any clinching material which may cause dent to the prosecution case. The appellants have also not set out the case of acting in right of private defence of their person. Their case is that deceased was assaulted by witness Sonu under the influence of liquor on account of dispute over money transaction. The appellants have also not set out the case of acting in right of private defence of their person. Their case is that deceased was assaulted by witness Sonu under the influence of liquor on account of dispute over money transaction. In accused statement u/s 313 of the Criminal Procedure Code, they have not pleaded the causing of injury to deceased in exercise of right of private defence of their person but the Learned Counsel for appellants has strongly argued that because of non-explanation of injuries sustained by appellants Khemchand and Harish by the eye witnesses of the prosecution, they deserve to get benefit and the case of acting in right of private defence in their favour is probabilised. He placed reliance on Supreme Court judgment passed in case of Lakshmi Singh and Others Vs. State of Bihar, . In para 11 of this judgment, the Supreme Court has observed as under: 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. Mohar Rai and Bharath Rai Vs. The State of Bihar, , Rel. on. 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. 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. State of Gujarat Vs. Bai Fatima and Another, , Rel. on. We have gone through the entire judgment passed in case of Laxmisingh (supra) and in this judgment, it is not the only ratio decidendi that if the prosecution is not explaining the injuries on the accused persons sustained in the same incident, the only irrefutable presumption against the prosecution would be that accused persons acted in right of private defence of their person. The Supreme Court has pointed out three inferences which can be drawn if the injuries were not explained by the prosecution; (1) the prosecution has suppressed the genesis and the origin of the occurrence; (2) denial of the witnesses about presence of injuries on the person of accused would be considered that they are not giving the true story of the incident, therefore, unreliable and third is that if defence gives a version which competes in probability with that of the prosecution, then, the benefit should be given to the accused. In this judgment, the Supreme Court has considered the earlier judgments reported in State of Gujarat Vs. Bai Fatima and Another, and Mohar Rai and Bharath Rai Vs. The State of Bihar, . The Supreme Court has also considered and held that "where the injuries sustained by the accused are minor and superficial or where the evidence is so clear or cogent, under such circumstance mere non-explanation of injuries by the prosecution would not affect its case ". The total outcome of the Supreme Court judgment in Laxmisingh's case (supra) is that if accused persons have suffered serious injuries and defence version also explained it, under that circumstance, the non-explanation of injury by the prosecution would be fatal and not in every case where the accused suffered minor and superficial injuries. The total outcome of the Supreme Court judgment in Laxmisingh's case (supra) is that if accused persons have suffered serious injuries and defence version also explained it, under that circumstance, the non-explanation of injury by the prosecution would be fatal and not in every case where the accused suffered minor and superficial injuries. We have mentioned the injuries suffered by appellants Khemchand and Harish and their injuries are minor and superficial whereas in the case of Laxmisingh (supra), one accused Moharrai sustained 13 injuries and Bharatrai sustained 14 injuries. They sustained incised injuries and punctured wound including other injuries and incident occurred in day time at 4 p.m. The appellants also specifically pleaded acting in right of private defence of their person (see para four of the judgment). In the case at hand, incident occurred in night time. The appellants have not pleaded causing of injuries to deceased and the witnesses in exercise of right of private defence of their person and both the appellants sustained minor and superficial simple injuries on their person whereas deceased sustained as many as 40 injuries caused by hard and sharp object and also hard and blunt object (contused abrasions, incised wounds and stab wounds) and both the eye witnesses have also sustained injuries. Sonu (PW.11) has stated that appellant Khemchand @ Guddu was having choori having wooden handle, therefore, the injuries could be caused by hard and blunt object i.e. wooden handle also. Now the settled legal position is that when accused suffers minor, superficial and simple injuries and same is not explained by the prosecution, it would not cause any damage to the prosecution case. [See The State of Madhya Pradesh Vs. Kalu Ram and Another, ]. Now the settled legal position is that when accused suffers minor, superficial and simple injuries and same is not explained by the prosecution, it would not cause any damage to the prosecution case. [See The State of Madhya Pradesh Vs. Kalu Ram and Another, ]. We would also make it clear that when the accused is claiming benefit of any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special Exception or proviso contained in any other part of the same Code or in law defining the offence, the burden of proving the existence of circumstances for getting benefit of Exception would lie upon the accused as per provision u/s 105 of the Evidence Act, which reads as under: When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or provision contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. This is also trite law that accused is required to discharge the burden not beyond reasonable doubt but only by preponderance of probabilities. In the instant case, the eye witnesses account and medical evidence is as clear as day light regarding culpability of the appellants causing serious numerous injuries to the deceased and their defence is that deceased was done to death by eye witnesses. The appellant Shyamlal has pleaded plea of alibi and he examined his father Peerulal (DW.1) who testified that appellant Shyamlal and Khemchand are his son. He and Shyamlal were busy in religious function in the night of incident at Imli Bazar, Indore. He has admitted that in the function several persons were present but no independent witness was examined to this effect. Apart from this, such kind of oral evidence for alibi would be very easier for the accused persons to adduce in evidence. Everybody can examined easily one or two of his relations in proof of plea of alibi. It would not be sufficient to accept such oral evidence in favour of plea of alibi. We would like to point out a special phenomenon and procedure adopted by the defence and Court also permitted the same. Everybody can examined easily one or two of his relations in proof of plea of alibi. It would not be sufficient to accept such oral evidence in favour of plea of alibi. We would like to point out a special phenomenon and procedure adopted by the defence and Court also permitted the same. The appellants did not examine medical expert who examined appellants Khemchand and Harish to prove medical report Ex. D4 and D5. They have filed the certified copy of the statement of Doctor examined in cross case. The opportunity of cross-examining Doctor by the prosecution was not afforded. We are afraid that as to how D4 and D5 could be considered as substantive piece of evidence without its proof by Doctor by his examination as witness in Court as well as admissibility of the statement of Doctor examined in other case. At the most the said statement could be used to confront and render corroboration to the testimony of medical expert examined in this case. The learned trial Court has also erred in allowing such procedure as well as taking photostat copy of the RIR lodged by appellant Khemchand vide Ex. C-1 without examination of its scribe in Court and giving opportunity of cross-examination to the prosecution. This FIR Ex. C-1 also cannot be taken on record, without following the procedure for taking secondary evidence on record as per sections 65 and 66 of the Evidence Act. The Learned Counsel for appellants has submitted that prosecution has not objected filing of certified true copy of the MLC report (Ex. D4 and D5) statement of Doctor as well as photostat copy of the HR Ex. C-1, therefore, these documents can be considered in favour of the appellants. We do not agree with this argument because the provision of Evidence Act are equally applicable on both the parties and initially burden is on the party who relies on the documents to prove the same in accordance with the provisions of law. At the same time Court should also look into the matter and pass appropriate order regarding admissibility of such documents. Medical report itself is not a substantive piece of evidence. At the same time Court should also look into the matter and pass appropriate order regarding admissibility of such documents. Medical report itself is not a substantive piece of evidence. It has to be proved in Court and it can be used at the most for refreshing the memory of the witness as per provision u/s 159 of the Evidence Act and for corroboration u/s 157 of the Evidence Act (See 1979 Cri.L.J. 236, 1980 Cri.L.J. 853). Thus, in view of the aforesaid legal and factual discussion, we do not find any infirmity in the impugned judgment, therefore, fully concur with the same. In the result, these appeals are hereby dismissed having no substance. Appellants Harish S/o Ghasiram and Khemchand @ Guddu S/o Peerulal are on bail. They are directed to surrender their bail bond before the trial Court on 17th October, 2006 and the trial Court is directed to send them to jail to serve out the jail sentence. On failure of both the appellants to surrender on 17th October, 2006, the trial Court is directed to take appropriate legal action against them under intimation to this Court. Original judgment be retained in Criminal Appeal No. 1653/1999 and a copy of this judgment be placed in the record of connected Criminal Appeal No. 1664/1999.