JUDGMENT I.S. Shrivastava, J. 1. This appeal has been preferred under Section 374 of the Cr.P.C by appellant Kamalsingh being aggrieved by the judgment dated 29/02/1996 passed by the Court of Shri S.G. Mansare, 1st Additional Sessions Judge, Shajapur in Special Case No. 213/1994, by which the appellant has been convicted under Sections 304 part -II & 323 of the IPC and sentenced to undergo rigorous imprisonment of five years with fine of Rs. 1000/-; in default of payment of fine to undergo simple imprisonment of one year and fine of Rs. 500/-; in default of payment of fine to undergo simple imprisonment of three months respectively. 2. According to the prosecution story, on 25/05/1994 complainant Banesingh was going to fertilize his field. He saw near his well, that his father Ghisilal and accused Kamalsingh were abusing each other. On protest by Banesingh, accused Kamalsingh assaulted him with Kharl e (a wooden rod), which caused bleeding injuries on his head. When Subhansingh, brother of the complainant and his mother Umedbai reached there to rescue, accused Kamalsingh also assaulted them with kharle, due which they sustained grievous injuries. The quarrel was pacified by Ramkishan PW-4 and Babu Kha. According to complainant Banesingh, there was a function at the house of Sawaisingh in the village; at that time, there was an altercation between accused Kamalsingh and Ghisilal PW-3, therefore, accused Kamalsingh assaulted complainant's father Ghisilal and mother Umedbai. At that time, accused Kamalsingh had threatened that he would kill them. Thereafter, complainant's mother Umedbai was taken to police station - Kalapipal in a bullock cart and FIR Ex.-P/1 was lodged there. On basis of which, Crime No. 114/1994 under Sections 341, 323 and 506 of the IPC was registered. After the death of Umedbai during treatment, offence under Section 302 of the IPC was added to it. After completion of investigation, challan was filed against accused Kamalsingh, Mathuraprasad, Modsingh and Ratansingh under Sections 302, 341, 323, 506/ 34 and 326 of the IPC. After trial, co-accused Ratansingh, Mathuraprasad and Modsingh were acquitted from the charges under Sections 302/ 34 and 323/ 34 of the IPC. Accused Kamalsingh was acquitted from the charges under Section 302/ 34 and 506-B of the IPC convicting and sentencing him under Sections 304 part-II and 323 of the IPC as mentioned herein above. Hence present appeal has been filed by accused Kamalsingh. 3. Accused Kamalsingh was acquitted from the charges under Section 302/ 34 and 506-B of the IPC convicting and sentencing him under Sections 304 part-II and 323 of the IPC as mentioned herein above. Hence present appeal has been filed by accused Kamalsingh. 3. It has been argued on behalf of the appellant that the FIR was lodged against single accused Kamalsingh and thereafter, co-accused Ratansingh, Modsingh and Mathuraprasad were involved in the case. By the impugned judgment dated 29/02/1996, the co-accused have been acquitted from the charges levelled against them. The prosecution witnesses did not support the prosecution case. There were serious contradictions and omissions in their statements; they were not reliable. A cross report was lodged by accused Mathuraprasad against Banesingh on the same day about the incident; on the basis of which, crime No. 131/1994 under Sections 323, 324, 34, 506 of the IPC was registered. Injured Mathuraprasad was taken to hospital for treatment. After his medical report, above offence was registered against Banesingh and Ajabsingh. Medical report of Mathuraprasad was also exhibited in defence. The evidence of prosecution witnesses denied with the injuries of Mathuraprasad and did not give any explanation and suppressed the genesis and genuineness of the offence, hence their statements were not reliable, but the Trial Court has not appreciated this important fact. Only interested witnesses were examined by the prosecution; no independent witness was examined by the prosecution. It has been specifically mentioned by accused Kamalsingh that when Banesingh assaulted accused Mathuraprasad, suddenly Umedbai came in between them, due to which Kharla hit the head of Umedbai. The injuries to Umedbai was not caused by them. In this case, co-accused Modsingh, Ratansingh and Mathuraprasad have been acquitted. It was not established that at the time of the incident, these three accused were present. Hence the appellant was not liable to be convicted. Accordingly, the appeal be accepted. 4. It has been argued on behalf of the respondent's counsel/State that by the prosecution evidence, the prosecution case was proved. The appellant has rightly been convicted and sentenced, hence this appeal being devoid of merit, be dismissed. 5. Considered the circumstances. Record of the Trial Court perused. 6. In prosecution evidence, the three witnesses Banesingh PW-1, Gitabai PW-2, sister-in-law of Banesingh and Ghisilal PW-3 have been examined. No other independent witnesses have been examined in this respect. Ramkishan PW-4 is also the son-in-law of Umedbai. 5. Considered the circumstances. Record of the Trial Court perused. 6. In prosecution evidence, the three witnesses Banesingh PW-1, Gitabai PW-2, sister-in-law of Banesingh and Ghisilal PW-3 have been examined. No other independent witnesses have been examined in this respect. Ramkishan PW-4 is also the son-in-law of Umedbai. In examination-in-chief, complainant Banesingh PW-1 has stated that when he was going with the bullock cart towards his field with fertilizers, on the way, accused Kamalsingh was assaulting his father Ghisilal. On seeing Banesingh, Kamalsingh left his father and started assaulting him with kharla, due to which he sustained injuries on the head. At the same time, Umedbai and Gitabai had come at the spot, accused Kamalsingh also assaulted them, due to which, Gitabai PW-2 sustained injuries on her leg. Umedbai was assaulted with Kharle by Kamalsingh, Ratansingh, Modsingh and Mathuraprasad, due to which, Umedbai sustained grievous injuries on the head and she became unconscious. Thereafter, Banesingh and his brother took Umedbai at Police Station-Kalapipal where FIR Ex-P/1 was lodged. He further deposed that at the time of the incident, Nandu and Babu had come at the spot. He has deposed that in FIR Ex.-P/1, he mentioned that Ratansingh, Modsingh and Mathuraprasad assaulted his mother Umedbai with kharla and lathies, but he did not give reason why it had not been noted in the FIR. In this way, this witness has exaggerated his statement from the FIR latter on. 7. In the police statement of Banesingh PW-1, it was mentioned that when he was going to his field taking fertilizers, he heard noise and he saw that accused Kamalsingh was abusing his father Ghisilal and blood was oozing from the head of Mathuraprasad. On protest to abuse, accused Kamalsingh took out kharla from the bullock cart and assaulted on his head, which caused bleeding injuries. When Subhansingh tried to pacify the quarrel, accused Ratansingh, Modsingh and Mathuraprasad came there. At the same time, Umedbai and Gitabai also came there. Then, Mathuraprasad pushed his father Gisilal towards Kamalsingh. Ratansingh and Modsingh told to kill him. Thereafter, Kamalsingh assaulted his father Gisilal with kharla. When his mother Umedbai rushed to save him, Kamalsingh also assaulted her with khalra on her head; due to which she sustained bleeding injuries and fell down. Gitabai PW-2 was also assaulted. Ramkishan PW-4 also came there to pacify the matter. Ratansingh and Modsingh told to kill him. Thereafter, Kamalsingh assaulted his father Gisilal with kharla. When his mother Umedbai rushed to save him, Kamalsingh also assaulted her with khalra on her head; due to which she sustained bleeding injuries and fell down. Gitabai PW-2 was also assaulted. Ramkishan PW-4 also came there to pacify the matter. In the court statement, Banesingh PW-4 denied the police statement Ex.-D/1 that the blood was oozing from the head of Mathuraprasad. In this way, he has not supported this fact. On specific question, he said that he did not see the blood oozing from the head of Mathuraprasad though, he has admitted that a case is pending for the same incident in the Court of Shaujalpur on the report lodged by Mathuraprasad. In that case, Ajabsingh is also accused. He has admitted the fact that when he reached the police station, accused Kamalsingh and Mathuraprasad were present there and they were also present in the hospital, but he has denied the fact that whether they were examined by the doctor or not? He has also admitted the fact that before the incident, his father Gisilal were abusing each other. In this way, this witness has denied the fact in police statement that blood was oozing from the head of Mathuraprasad. He has also denied with the fact that Mathuraprasad was having injuries on his head and has not given explanation about the injuries of Mathuraprasad though he admits that a cross case is pending for the same incident in the Court. 8. Ghisilal PW-3 in examination-in-chief has deposed that on the date of incident, he was going to the well and Kamalsingh abused him and on protest, Kamalsingh assaulted him. Accused Mathuraprasad assaulted him with kicks and fists. Accused Kamalsingh assaulted Banesingh with Kharla. Thereafter, all the three co-accused assaulted him. When his wife and daughter-in-law came there after hearing noise, then Kamalsingh assaulted his wife, due to which she sustained injuries and fell down. Kamalsingh also assaulted his daughter-in-law, due to which she sustained injuries on the leg. Thereafter, his son took her to Police station- Kalapipal by bullock cart. In cross-examination, he deposed that he did not see any injury in the head of Mathuraprasad. Kamalsingh also assaulted his daughter-in-law, due to which she sustained injuries on the leg. Thereafter, his son took her to Police station- Kalapipal by bullock cart. In cross-examination, he deposed that he did not see any injury in the head of Mathuraprasad. In the police statement of Gisilal in portion A - A, D-D and E- E, it was mentioned that there was function at the house of Sawaisingh, in which a goat was slaughtered and all the people were also offered liquor. Mathuraprasad, Kamalsingh, Ajabsingh Ratansingh and he also were drunk. After drinking, Kamalsingh abused him and all the persons were present there. On protest by him not to abuse, accused Kamalsingh abused and quarreled with him. Thereafter, at about 3 pm Mathuraprasad, Ajabsingh and Kamalsingh left the spot. Thereafter, there had quarrel between Mathuraprasad and Ajabsingh and Ajabsingh had assaulted Mathuraprasad in his head by wooden rod; due to which, he suffered bleeding injury, but Ghisilal PW-3 has denied that he gave A to E portion of police statement Ex.-D/3. Ghisilal PW-3 has also deposed that he reported the fact in Ex.-D/3 that Mathuraprasad assaulted him with kicks and fists on the chest, at the same time, Banesingh and Subhagsingh came there and Kamalsingh had also assaulted. He also stated the fact in the police statement that all the accused persons assaulted him. Kamalsingh assaulted Gitabai, but these facts have not been mentioned in his police statement Ex.-D/3. He has also admitted that he has illegal possession over Badliwala khet while on paper, accused Ratansingh is entered as Bhuswami. Whenever Ratansingh demanded the possession of the field back, quarrel raised on this point. In this way, there are serious contradictions and omissions in the statement of Ghisilal PW-3. 9. Gitabai PW-2 has deposed that on the date of incident, husband Subhansingh and complainant Banesingh PW-1 were going with the bullock cart loaded with fertilizer to the field. Banesingh was running the bullock cart. Kamalsingh started abusing Benesingh and father-in-law Ghisilal near the well. Hearing the cries, when she and her mother-in-law Umedbai reached the spot, they saw that Kamalsingh assaulted Banesingh in the head. Thereafter, Kamalsingh assaulted her father-in-law on the shoulder;. When her mother-in-law Umedbai reached there, he also assaulted her with kharla which caused injuries in her head. When she tried to pacify the quarrel, he also assaulted Gitabai with wooden rod. Thereafter, Kamalsingh assaulted her father-in-law on the shoulder;. When her mother-in-law Umedbai reached there, he also assaulted her with kharla which caused injuries in her head. When she tried to pacify the quarrel, he also assaulted Gitabai with wooden rod. In this way, she alleged only person Kamalsingh and has not deposed about the active part of Mathuraprasad, Ratansingh, Modsingh in the incident. In cross-examination, she has deposed that she does not know whether before the incident Ajabsingh and Banesingh assaulted Mathuraprasad and Kamalsingh. She has deposed that she had reported the fact in the portion A to A of Ex.-D/2 that Banesingh assaulted Kamalsingh, but she does not know the reason why the same has not been mentioned in the police statement Ex.-D/2. 10. Ramkishan PW-4 has deposed that he was sitting at about 4.30 pm at the bawadi; at that time, Banesingh PW-1 and Subhansingh were going with bullock cart to the field. At the same time, Banesingh came running and said to Kamalsingh, Ratansingh, Modsingh, Mathuraprasad, why they were assaulting his father. On this, Kamalsingh assaulted Banesingh in his head with wooden rod. Subhansingh came to rescue. Umedbai also came there to rescue. Umedbai also said that why they are assaulting her husband. Then Modsingh said "leave the male and assault the female". Thereafter, Kamalsingh assaulted Umedbai with lathi in her head; due to which, she fell down and blood started oozing. Thereafter, she was taken by Banesingh, Ajabsingh and Subhansingh to Kalapipal from where doctor referred Umedbai to the hospital at Bhopal where she succumbed. In cross-examination, he has denied A -A to C-C portion of Ex.-D/4. In this portion, it was mentioned that that his father-in-law Ghisaram, Ajabsingh, Kamalsingh, Mathuraprasad along with 10 to 11 persons went for lunch of meat of goat to the house of Sawaisingh. There he was sitting at Bawadi and was smoking, at the same time from the side of the house of Sawaisingh, Kamalsingh, Mathuraprarad and Ajabsingh came there and Ajabsingh quarreled with Mathuraprasad and he assaulted in the head of Mathuraprasad, which caused bleeding injury. In this way, this witness has not supported the above story that Mathuraprasad was injured at that time by Ajabsingh. 11. There is omissions in his police statement Ex.-D/4 of the fact that Ratansingh, Modsingh and Mathuraprasad were assaulting Ghisiram. This fact has not been mentioned in his police statement. In this way, this witness has not supported the above story that Mathuraprasad was injured at that time by Ajabsingh. 11. There is omissions in his police statement Ex.-D/4 of the fact that Ratansingh, Modsingh and Mathuraprasad were assaulting Ghisiram. This fact has not been mentioned in his police statement. Similarly, the fact that Modsingh told to leave male and assault female and they assaulted Umedbai, has not been mentioned in his police statement. In this way, this witness has exaggerated his statement and there is contradictions and omissions in his statement. The fact that after reaching Subhansingh on the spot, they also reached, has not been mentioned in his police statement. 12. In cross-examination, Banesingh PW-1 has admitted that at the time of the incident, there was a function at the house of Sawaisingh in which he was invited with his family. There was also a program of lunch. He has denied the fact that he also went there to join it. He has also denied that a goat was slaughtered there and all the people consumed liquor. Gitabai has admitted that on the same day, there was a function at the house of Sawaisingh, who is her relative and they were invited in this program. Before lunch, the incident took place. Ghisiram PW-2 has admitted the same fact that on the day, there was a program at the house of Sawaisingh and he with his family was invited there and the accused persons were also invited. He also admitted the fact that before lunch, all the persons consumed liquor. Latter on, he said that he does not know. Further, he has deposed that he was going to attend the program, the quarrel took place. About the fact that goat was slaughtered, he has stated that he does not know. Ramkishan PW-4 has denied all these fact that there was a function at the house of Sawaisingh which he attended. He has admitted the fact that Umedsingh suffered injuries in this quarrel. He could not see that at the time of pacifying the quarrel, who assaulted whom. He does not remember that Gitabai was present there or not? In this way, all these witnesses has not supported the prosecution case. Name of Mathuraprasad, Modsingh and Ratansingh were not mentioned in the FIR, but they are involved. He could not see that at the time of pacifying the quarrel, who assaulted whom. He does not remember that Gitabai was present there or not? In this way, all these witnesses has not supported the prosecution case. Name of Mathuraprasad, Modsingh and Ratansingh were not mentioned in the FIR, but they are involved. There are contradictions and omissions in the statement of the witnesses, hence the statement of the witnesses Banesingh, Gitabai, Ghisiram and Ramkishan cannot be believed. There is no independent witness to support the incident. 13. As regard to explanation of injuries of the defence, Dr. Gopal Mishra PW- 7 in cross-examination has deposed that on 25/05/1994 at about 6 pm, he examined Mathuraprasad and gave MLC Ex.-D/5. He found lacerated wound on the right parietal region of his head in size 2 ½ " × ¼ " × bone deep. Second injury was found ½ " below which was incised wound in size 1 ½ " × ¼ " × ¼ ". On both the injuries, blood had clotted. Injury No. 1 was caused by hard and blunt object and was within the period of 8 to 12 hours and injury No. 2 was caused by hard and sharp object and was within the period of 12 hours. The injuries were simple in nature. In this way, the injury of defence was established by the evidence. The copy of FIR of crime No. 131/1994 also shows that Mathuraprasad was injured by Banesingh and Ajabsingh and the report was lodged by Mathuraprasad. Though his report has not been exhibited in defence, true copy has been filed. Hence from the defence evidence it was proved that at the same time, Mathuraprasad sustained injuries. 14. From the police statement, Ex.-D/1 of Banesingh, Ex.-D/3 Ghisilal and Ex.-D/4 Ramkishan, it is clear that Mathuraprasad sustained injuries in his head, but all these witnesses have denied the fact that they saw any injury on Mathuraprasad at that time. Even they have not given any explanation for the injuries of the defence. 15. As regard to injuries sustained by Umedbai, according to Ex.-P/21, she succumbed due to the injuries in her head. Even they have not given any explanation for the injuries of the defence. 15. As regard to injuries sustained by Umedbai, according to Ex.-P/21, she succumbed due to the injuries in her head. It has been the defence of the accused Kamalsingh and Mathuraprasad that during quarrel, Banesingh assaulted on the head of Mathuraprasad; suddenly Umedbai came in between them and the assault of Banesingh hit the head of Umedbai, due to which she sustained injuries. Ramkishan PW-4 in this respect has admitted in the last paragraph of cross-examination that it is correct to say that in mutual assaulting, Umedbai sustained injuries in her head; he could not see in pacifying the quarrel, who assaulted whom. This shows that there may be a possibilities that Umedbai suddenly reached to pacify the quarrel and when Banesingh assaulted Mathuraparasad, an assault of Banesingh hit the head of Umedbai. It is clear from the statement of Banesingh PW-1, Ghisalal PW-3 and Ramkishan PW-4 that before this incident took place, Mathuraprasad sustained injuries on his head, but the prosecution witnesses has denied this fact, but by defence evidence, the injuries of Mathuraprasad has been proved, hence it cannot be said that after Mathuraprasad was assaulted by prosecution witnesses, the incident took place in defence. 16. It is also clear from the prosecution witnesses Banesingh PW-1, Gitabai PW-2, Ghisilal PW-3 and Ramkishan PW-4 that they have admitted that Mathuraprasad was injured at that time. They have not given any explanation for his injuries though Banesingh PW-1 admits that Mathuraprasa and Kamalsingh were at the police station and at hospital, when he reached there. 17. In Laxmi Singh v. State of Bihar AIR 1976 SC 2263 , it has been held that following inference from such non-explanation of injuries of the accused is drawn; 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. 18. 18. The same is the condition in this case that the prosecution witnesses has suppressed the genesis and origin of the incident and has not told true story. They have not supported the fact as mentioned in their respective police statement that Mathuraprasd was having bleeding head injuries prior to this incident which is said to caused by Banesingh and Ajabsingh. In this way, the statements of prosecution witnesses are not reliable. 19. In Dulesingh and Ors. v. State of M.P. 1999 (1) JLJ 69 , it has been held that partisan witnesses contradicting FIR and police statement, not explaining injuries of accused, cause of incident also omitted - conviction cannot be based on such evidence. In Mantaram v. State of M.P. 1997 (2) MPLJ 7 , it has been held that injuries on the persons of the accused not explained. FIR tainted. No punishment can be recorded. 20. On the basis of the above discussions, I am of the view that under these circumstances, in this case the prosecution witnesses has exaggerated their statements in the Court and no explanation was given by them about the injuries sustained by the defence. Even the witnesses have denied the fact that Mathuraprasad was having blood injury on his head. The statements of the prosecution witnesses is full of contradictions and the prosecution witnesses are not believable and reliable. Hence this appeal deserves to be allowed. 21. Accordingly, this appeal is allowed and the conviction of the appellant Kamalsingh under Section 304 part-II and of the IPC is set aside. Fine, if any deposited, be returned to the appellant. The appellant is on bail; his bail bonds shall stand discharged. Ordered accordingly.