A. P. LAVANDE, J.:- All these appeals are being disposed of by common judgment and order since they arise out of judgment and order dated 30/9/2003 passed by Additional Sessions Judge, Amravati in Sessions Case No.50/1997. 2. The appellant in Criminal Appeal No.629/2003 is original accused no.6; the appellants in Criminal Appeal No.687/2003 are original accused nos.2, 3, 4, 8 and 9; the appellant in Criminal Appeal No.726/2003 is original accused no.1 and respondents in Criminal Appeal No.96/2004 are original accused nos.5, 6 and 7. By the impugned judgment and order original accused nos. 1 , 2. 3, 8 and 9 have been convicted for having committed offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code and sentenced to undergo R.I. for two years each and imprisonment for life and to pay fine of Rs.l000/- each in default to suffer R.I. for two years each: the accused no.6 has been convicted for offences punishable under Sections 147 and 148 of the lndian Penal Code and sentenced to suffer imprisonment for six months on each count and she has been acquitted of the offence punishable under Section 302 of the Indian Penal Code. accused no.5 and accused no.7 have been acquitted of offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code. Criminal Appeal Nos.629/2003. 687/2003 and 726/2003 have been filed by the respective accused challenging their conviction and sentences whereas Criminal Appeal No.96/ 2004 has been filed by State of Maharashtra challenging the acquittal of accused nos.5 and 7 for offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code and the acquittal of the accused no.6 for the offence punishable under Section 302 of the Indian Penal Code. The accused shall hereinafter be referred to as per their status before the trial Court. 3. Briefly, the case of the prosecution is as under:- On 2.3.1991 Mahadeo Amrut Pawar (PW 1) resident of Takarkheda Sambhu lodged report with Walgaon Police Station. In the said report he has stated that his elder brother Sangitrao Amrutrao Pawar and his sons Sukhadeo and Vishnu were staying near the house of Punjab Bhagwat, who was addicted to liquor and under the influence of liquor used to quarrel with Sangitrao and his family members. In the said report he has stated that his elder brother Sangitrao Amrutrao Pawar and his sons Sukhadeo and Vishnu were staying near the house of Punjab Bhagwat, who was addicted to liquor and under the influence of liquor used to quarrel with Sangitrao and his family members. Due to frequent quarrels, proceedings under Section 107 of the Code of Criminal Procedure were initiated by Walgaon Police Station. On 1.3.1991 at 10.00 p.m. there was quarrel between accused persons and the family members of the informant. The accused beat his brother and his sons. He received information from one Laxman Solanke whereupon he along with Mahadeorao Khande proceeded to the spot of incident and noticed that Vinayak, Punjaji, Bhashkar, Vijay and Sunil were armed with sticks and Punjab was armed with an iron rod. After reaching the spot all the above referred accused assaulted Sangitrao and his sons Sukhadeo and Vishnu and left the spot. Sangitrao and Sukhadeo had succumbed to the injuries. Since Vishnu had sustained serious injuries, he was taken to the hospital. After the report was lodged at Police Station, Walgaon, P.S.O. Walgaon went to the spot and thereafter he carried out the Investigation by preparing spot panchanama, inquest panchanama and referred dead bodies to hospital for post-mortem examination. The articles lying on the spot were seized, Thereafter all the accused were arrested. The accused were also referred to medical examination since injuries were found on number of the accused. The clothes of the accused were seized and forwarded to CA. for analysis. After completion of the investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class. Since the offences were exclusively triable by Sessions Court, the case was committed to the Court of Sessions. Charge under Sections 147, 148,302 read with Section 149 of the Indian Penal Code was framed against all the accused. The accused pleaded not guilty to the charge. The prosecution examined 15 witnesses to prove the case against the accused and produced several documents. The accused did not examine any witness in defence. The trial Court, upon appreciation of the evidence, held that all the offences were proved against the accused nos.l, 2, 3, 4,8 and 9. The trial Court acquitted accused nos.5 and 7 for all the offences and convicted accused no.6 for offences punishable under Sections 147, 148 and acquitted under Section 302 of the Indian Penal Code. The trial Court, upon appreciation of the evidence, held that all the offences were proved against the accused nos.l, 2, 3, 4,8 and 9. The trial Court acquitted accused nos.5 and 7 for all the offences and convicted accused no.6 for offences punishable under Sections 147, 148 and acquitted under Section 302 of the Indian Penal Code. 4. Mr. S. V. Manohar, learned counsel for the appellants submitted that neither PW -1 Mahadeo Pawar nor PW -6 Mahananda, the wife of Vishnu is an eye-witnesses to the incident of assault, as claimed by them and their versions that they were eye-witnesses to the entire incident is improbable. Learned counsel further submitted that the prosecution has suppressed genesis of the crime in question and. therefore, the conviction of the accused deserves to be quashed and set aside. He further submitted that the investigation has been tainted and one sided inasmuch as injuries on accused nos. Punjab A-1, Vijay A-3, Sunil A-4, Sau, Kanta A-5, Sau. Usha A-6 and Punjaji A-9, some of which were grievous in nature have not been explained by the prosecution thereby rendering prosecution story unreliable. According to learned counsel, the accused acted in exercise of right of private defence as suggested to the prosecution witnesses and the defence taken is probabilised by the presence of injuries on the above referred accused which have absolutely not been explained by the prosecution. According to learned counsel, statement of Mahananda (PW 6) which was recorded on 2.3.1991 has not been produced because the same was not supporting the prosecution case and, therefore, the prosecution has not come out with true version of the incident. According to learned counsel, since the prosecution has suppressed the genesis and original of the occurrence and has not presented true version, all the accused were entitled to acquittal, In support of his submissions, Mr. Manohar relied upon the following judgments:- (i) Babu Ram and others Vs, State of Punjab: [ (2008)3 SCC 709 : 2008 ALL SCR 687] and (ii) Laxmi Singh and others Vs. State of Bihar: (1976)4 SCC 394 . 5. Mr. Daga and Mr. Ghurde, learned counsel appearing for the appellants in Criminal Appeal Nos.629/2003 and 726/2003 supported the submissions made by Mr. Manohar. 6. Per contra, Mr. State of Bihar: (1976)4 SCC 394 . 5. Mr. Daga and Mr. Ghurde, learned counsel appearing for the appellants in Criminal Appeal Nos.629/2003 and 726/2003 supported the submissions made by Mr. Manohar. 6. Per contra, Mr. Doifode, learned APP appearing for the State of Maharashtra submitted that since the accused had taken right of private defence, the burden of proving defence lay on them which has not been discharged by the accused. According to learned APP, the accused by taking right of private defence have admitted that they assaulted the deceased causing them injuries, which ultimately resulted in their death but the accused have not explained under what circumstances they exercised their right of private defence. According to learned APP, the stand of the accused has not been consistent and, therefore, the conviction of the accused by the impugned judgment and order cannot be faulted. He further submitted that the evidence on record clearly establishes that the offences under Sections 147, 148.302 read with Section 149 of the Indian Penal Code against the accused nos.5, 6 and 7 and, therefore, acquittal of respondents 5, 6 and 7 for offences under Sections 302 read with Section 149 of the Indian Penal Code deserves to be quashed and set aside. In support of his submissions, Mr. Doifode relied upon the judgment of the Apex Court in the case of Katta Surendra Vs. State of U.P. : 2008 Cri.L.J. 3196 and Bangaru Venkata Rao Vs. State of Andhra Pradesh: 2008 Cri. L.J. 4523. 7. We have carefully considered the submissions made by learned counsel for the accused and learned APP for the respondent and perused the record as well as judgments relied upon. 8. In order to prove that the death of Sangitrao, Sukhadeo and Vishnu was homicidal, the prosecution examined Dr. Panditrao Kandalkar (PW 14) . In the course of his evidence, he produced post-mortem reports Ex.100, 101 and 102 in respect of Vishnu, Sukhadeo and Sangitrao respectively. According to the witness, he conducted autopsy on the dead bodies of above three persons on 2.3.1991 and in all these cases the death was cumulative effect of multiple external injuries and corresponding internal injuries, which were caused on account of great and violent force. He further deposed that Article nos. 1 to 9, 12 and 16 would have caused injuries mentioned in post-mortem reports. He further deposed that Article nos. 1 to 9, 12 and 16 would have caused injuries mentioned in post-mortem reports. He further deposed that the injuries were sufficient to cause of the concerned deceased in the ordinary course of nature. He further stated that the contents of the post-mortem reports were correct. 9. It is well settled that post-mortem report is not substantive evidence, by Itself. The witness did not depose about the contents of the post-mortem reports. Mere production of post-mortem reports and the statement that the contents of the post-mortem reports were true, by itself, would not prove the contents of the post-mortem reports in the absence of specific reference to the contents of the post-mortem reports. We are really surprised that neither Public Prosecutor conducting the trial nor the learned Judge, who had responsibility of putting questions to witness, who was examined as an expert and was expected to give opinion regarding injuries and cause of death did not think it fit to put relevant questions to the witness. In the absence of any reference in the deposition of the witness as to the contents of the post-mortem reports, we are unable to place any reliance on the post-mortem reports to hold that the injuries mentioned in the said reports were found on the deceased. Therefore, we are unable to hold that the death of Sangitrao, Sukhadeo and Vishnu was homicidal. 10. To prove the assault on the above referred three deceased persons, the prosecution examined two eye-witnesses namely Mahadeo Pawar (PW I) who had lodged report at Walgaon Police Station against the accused on 2.3.1991 at 1.30 a. m. He deposed that he knew all the accused, Sangitrao was his brother, Sukhadeo and Vishnu were the sons of deceased Sangitrao and they were residing in front of the house of Punjab Bhagwat (accused no. 1 ). There was dispute on account of drainage between the deceased and the accused and on account of the said dispute chapter proceedings were initiated against the accused no. 1 Punjab. He further deposed that about 11 years before the date of deposition, which was the day of Dhuliwandan at about 10.00 to 10.30 p.m. one Laxman Solanke came to his house and informed that Dhangar company was beating his brother. He, therefore, along with Mahadeo Khande went to the house of Sangitrao and saw accused nos. 1 Punjab. He further deposed that about 11 years before the date of deposition, which was the day of Dhuliwandan at about 10.00 to 10.30 p.m. one Laxman Solanke came to his house and informed that Dhangar company was beating his brother. He, therefore, along with Mahadeo Khande went to the house of Sangitrao and saw accused nos. 1 , 2, 3, 8 and 9 were beating Sangitrao, Sukhadeo and Vishnu. Punjab accused no.l had iron rod in his hand and other accused were having sticks. He also saw that three women were present, one of whom was wife of Punjab and second was wife of Vinayak and third was wife of Punjaji. Accused nos. 1 , 2 and 8 put the stones on the body of all the three deceased. He saw that Sukhadeo and Sangitrao were dead while Vishnu was alive. He went to Walgaon Police Station and lodged report (Ex.55). He also identified thumb impression on printed F.I.R. (Ex.56). He identified the sticks and iron rod which were shown to him. In cross-examination he deposed that his house was at a distance of 200 feet from the house of Sangitrao. He was confronted with portions A and B in the statement dated 2.3.1991 and he stated that he had not made those statements to the police. The witness was confronted with the statement in which it was not stated that he had seen accused nos.1, 2, 3, 4, 8 and 9 assaulting deceased with sticks and iron rod. The witness stated that he could not assign any reason for omission in the statement. In further cross-examination he stated that he did not have knowledge that on the date of incident all the three deceased had consumed liquor and had threatened the accused. He also did not know as to whether all the three deceased assaulted Punjab and his wife accused no.5 when they came out of the house and going to police station. He also denied suggestion that three deceased persons assaulted accused no.9 Punjaji. He did not know if the accused nos.1. 3 and 8 assaulted the deceased in their self defence. He further stated that when he came on the spot, he saw dead bodies of Sangitrao and Sukhadeo and Vishnu had injuries and he saw the accused running away from the spot. 11. He did not know if the accused nos.1. 3 and 8 assaulted the deceased in their self defence. He further stated that when he came on the spot, he saw dead bodies of Sangitrao and Sukhadeo and Vishnu had injuries and he saw the accused running away from the spot. 11. Mahananda Pawar (PW 6) the wife of Vishnu Pawar deposed that on the date of incident at about 9.00 p.m. her husband told her that he was going to answer the call of nature and within 1-2 minutes she heard shouts from outside. Therefore, her elder brother in law Sangitrao went to see. Firstly her husband Vishnu was assaulted by the accused and when her father-in-law and Sangitrao went there they were also assaulted by the accused, who were armed with sticks and iron rod and on account of the assault Sukhadeo and Sangitrao died on the spot. She and her mother-in-law went running and they intervened and at that time her husband was lying in the drainage. She lay herself on her husband to rescue him from the assault, however, she was removed aside by the accused and thereafter the accused went away to their houses. She and her mother-in-law took Vishnu out of drainage. After some time police came there and took her husband to Irwin hospital, Amravati. Her husband expired at midnight in between 2.00 or 3.00 a. m. In cross-examination she admitted that after about six years of the incident she had performed second marriage and she was residing with her husband and her children. She stated that her statement was recorded on 3.3.1991. In the second statement on 9.3.1991 there was no mention that accused nos.1, 2, 5, 6,7,8 and 9 were beating her husband but the same was mentioned in her statement dated 3.3.1991. In the statement dated 9.3.1991 names of only accused nos. 1. 2 and 8 were mentioned as assailants. Further cross-examination she admitted that on 2.3.1991 the police had come to Irwin hospital and P.S.I. made inquiry from her and had recorded statement. She denied suggestion that the deceased had consumed liquor on the date of incident and had gone towards the house of accused no.1 and threatened him with dire consequences. She denied suggestion that her husband, father-in-law and mother-in-law, armed with stones had assaulted the accused. She denied suggestion that the deceased had consumed liquor on the date of incident and had gone towards the house of accused no.1 and threatened him with dire consequences. She denied suggestion that her husband, father-in-law and mother-in-law, armed with stones had assaulted the accused. She denied suggestion that her husband armed with iron rod and her father in law and brother-in-law armed with sticks assaulted accused no.1 Punjab and accused no.5 Kanta when they were proceeding to lodge report. He denied suggestion that accused nos.1, 3 and 8 acted in exercise of right of private defence of themselves and other co-accused and the deceased were assaulted in exercise of right of private defence. He further deposed that when the incident was going on, the people in the neighbourhood had assembled and Arun Nimbarte, Arun Dhoke, Dhondbaji Shobe, Gulabrao Mhaske and R. K. Deshmukh had assembled near the spot. She denied the suggestion that she had not witnessed the incident. 12. Before we analyse the evidence of two eye-witnesses, it would be appropriate to refer to the evidence of Dr. Ramesh Gaikwad (PW 13) who had examined some of the accused upon requisition from Police Station, Walgaon. His deposition discloses that he had examined accused no. 1, 3, 4, 5, 6 and 9. He deposed that he had issued certificates Exhibit nos.46 to 51 which were admitted by the defence. He further deposed that injuries in the said certificates had caused during the scuffle. Exhibit nos.46 to 51 which have been admitted by the accused discloses that accused nos.1, 3, 4,5,6 and 9 had injuries on their person. The certificates disclose that the above mentioned accused had injuries, the details of which are as under :- (i) Accused No.1 Panjab Bhagwat : (i) Contusion on It. clavicle middle 1/3rd about 3" x 2" caused by hard and blunt object adviced x-ray to exclude fracture and (ii) Lacerated wound on posterior aspect of parietal bone of skull vertically about 1" in length. All the injuries are caused by hard and blunt object and heal within 7 days of time if there will be no fracture. (ii) Accused No.9 Bhaskar Bhagwat: (i) Contusion on parietal region about 6" x 2" caused by hard and blunt object (ii) semi conscious x with vomiting on suspecting head injury advised x-ray and further treatment in General hospital, Amravati and (iii) Contusion on Lt. (ii) Accused No.9 Bhaskar Bhagwat: (i) Contusion on parietal region about 6" x 2" caused by hard and blunt object (ii) semi conscious x with vomiting on suspecting head injury advised x-ray and further treatment in General hospital, Amravati and (iii) Contusion on Lt. shoulder x joint with restricted x movements suspecting dislocation of shoulder joint advised x-ray. The above all wounds are caused by hard and blunt object and they would heal within 10 days if there is no fracture. (iii) Accused no.3 Vijay Bhagwat : (i) Contusion at left forearm upper 1/3rd area surrounding elbow joint about 4 inch in girth with 6" in length and (ii) lacerated wound on Rt. elbow joint about 1 1/2" association with contusion surrounding it about 4" x 6" . All above 1 and 2 injuries caused by hard and blunt object with suspecting fracture beneath it advised x-ray & further treatment. (iii) lacerated wound on Lt. frontal region about 1" x 1/2". (iv) contusion on Lt. fore leg lower 1/3rd with contusion about 4" x 4" . Injury nos.3 and 4 were caused by hard and blunt object and they would heal within 10 days of time if there will be no fracture. (iv) Accused no.4 Sunil Punjaji Bhagwat : (i) Contusion on Lt. elbow joint about 3" x 2" lateral aspect caused by hard & blunt object. (ii) Contusion on Lt. x supra clavicle x region about 2" x l" caused by hard and blunt object. The wounds would heal within 7 days of time. (v) Accused no.5 Kanta Bhagwat : (i) Contusion on Rt. elbow joint about 2" x 2" with restricted movement suspecting dislocation of elbow joint, advised x-ray, injury caused by hard and blunt object. The above wound would heal within 7 days of time if there will be no fracture. (vi) Accused no.6 Usha Bhagwat : (i) Lacerated wound on thumb at Rt. hand posteriorly V shaped injury about 3" x 2" caused by hard and blunt object. (ii) Contusion 2 in number of Lt. upper arm obliquely about 3" x 1" & 4" x 1" caused by hard and blunt object. All the wounds are 6 and 8 hours old and would heal within 7 days of time. 13. Perusal of the above referred certificates clearly proves that accused nos. 1,3,4,5,6 and 9 had injuries on 2.3.1991 when they were examined. upper arm obliquely about 3" x 1" & 4" x 1" caused by hard and blunt object. All the wounds are 6 and 8 hours old and would heal within 7 days of time. 13. Perusal of the above referred certificates clearly proves that accused nos. 1,3,4,5,6 and 9 had injuries on 2.3.1991 when they were examined. Accused no.1 had lacerated wound on posterior aspect of parietal bone of skull, accused no.9 was semiconscious, accused no.3 had lacerated wound on left elbow joint and also lacerated wound on left elbow joint and also lacerated wound on left frontal region of head about 1" x 2" which was caused by hard and blunt object. Accused no.5 Kanta had contusion on right elbow joint with restricted movements suspecting dislocation of elbow joint and she was advised x-ray. The injuries was caused by hard and blunt object. 14. The above mentioned referred certificates clearly discloses that some of the accused had grievous injuries and they were found within few hours of the incident in question. The question which, therefore, arises for consideration is what is the effect of non-explanation of the said injuries on the accused. Perusal of the deposition of the above referred two eye-witnesses discloses that neither of them has made any reference to any assault by the deceased on any of the accused. 15. In Laxmi Singh Vs. State of Bihar (supra) relied upon by Mr. Manohar, the Apex Court held that in murder case in case of non-explanation of injuries sustained by the accused at the time of occurrence or in the course of altercation the Court can draw the following inferences (i) that the prosecution has suppressed genesis and origin of the occurrence and has thus not presented the true 19 version; (ii) that witnesses who have denied the presence of injuries on person of the accused are lying on a most material point and therefore their evidence is unreliable; (iii) that in case there is a defence version which explains the injuries on person of the accused, it is rendered probable so as to throw doubt on the prosecution case. 16. 16. The Apex Court further held that the omission on the part of the prosecution to explain 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 version. However, there may be cases where the non-explanation of injuries by the prosecution may not affect the prosecution case. This principal would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence was so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy that it far outweighs the effect of the omission on the part of the prosecution to explain injuries. The Apex Court further held that the truth and falsehood were so inextricably mixed together that it is difficult to separate them and if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case. The principle laid down in Laxmi Singhs case has been reiterated in Babu Rams case by Apex Court. 17. In the case of Katta Surendra (supra) the Apex Court altered the conviction under Section 302 of the Indian Penal Code to Section 304 (I) of the Indian Penal Code. In the said case, the incident had taken place upon an attempt by the villagers to lay road. The accused along with others came armed and objected to laying of road. The mob pelted stones on accused and his men. The accused gave fatal blow to deceased much after pelting stones on people. The Apex Court held that the accused was not entitled to claim protection under right of private defence but considering the circumstances, the Apex Court altered conviction to Section 304, Part I of the Indian Penal Code. 18. Having regard to the evidence brought on record by the prosecution, more particularly, the evidence of the two witnesses to which we have made reference above, we are of the considered opinion that the ratio laid down in the cases of Laxmi Singh and Babu Ram, 2008 ALL SCR 687 (supra) is squarely applicable in the present case. 18. Having regard to the evidence brought on record by the prosecution, more particularly, the evidence of the two witnesses to which we have made reference above, we are of the considered opinion that the ratio laid down in the cases of Laxmi Singh and Babu Ram, 2008 ALL SCR 687 (supra) is squarely applicable in the present case. The prosecution evidence itself suggests that two accused had sustained grievous and simple injuries and six accused had sustained simple injuries within a few hours from the incident. There is absolutely no explanation coming forth from the prosecution as to how these injuries were caused to the said accused. Therefore, the only inference that can be drawn is that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. Both the above referred witnesses have denied assault by the deceased on the accused and consequently the injuries on the persons of the accused and as such their evidence does not inspire confidence being unreliable. The defence taken by the accused that they acted in exercise of right of private defence appears more probable in this background. The evidence of two eyewitnesses does not inspire confidence in the light of the principles laid down by the Apex Court in the aforesaid judgments. Moreover, the prosecution has not proved by leading cogent evidence that the death of three deceased was homicidal. Even if other evidence led by the prosecution is considered, the same is not sufficient to bring home the guilt to the accused. Therefore, all the accused are entitled to benefit of doubt. Insofar as the argument of Mr. Doifode that since the accused have taken right of private defence and since they have not discharged the burden of proving the same the conviction cannot be faulted is concerned, we are not able to accept the same. The initial burden of proving the case against the accused is always on the prosecution and the mere fact that accused have taken defence that they acted in exercise of right of defence of private defence, by itself, is not sufficient to hold that the prosecution has proved its case against the accused. The ratio of the judgment in Katta Surendra (supra) is not applicable since the fact situation in the said case is entirely different. The ratio of the judgment in Katta Surendra (supra) is not applicable since the fact situation in the said case is entirely different. Similarly, the judgment in the case of Bangaru Venkata Rao (supra) is also not applicable since in that case the Apex Court has considered the/scope of Exception 1 and 4 to Section 300 of the Indian Penal Code. 19. For the reasons aforesaid, Criminal Appeal Nos.62912003, 687/2003 and 726/2004 filed by the accused-appellants are allowed and the appellants are acquitted of the offences for which they were convicted by the trial Court. Bail bond executed by the appellant in Criminal No.629/2003 shall stand discharged. The appellants in Criminal Appeals 687/2003 and 726/2003 are ordered to be released forthwith if not required in any other case. Criminal Appeal No. 96/2004 filed by the State of Maharashtra is dismissed. Bail bonds executed by the respondents shall stand discharged. Appeal allowed.