JUDGMENT : PANKAJ BHANDARI, J. 1. Accused-appellants have preferred this Criminal Appeal aggrieved by judgment and sentence dated 27.09.2018 passed by learned Additional District & Sessions Judge, No.2, Hindaun City, whereby appellants namely; Surendra Kumar @ Vishmbhar, Subhash @ Neta and Smt. Geeta each have been convicted and sentenced for the offences stated as under:- (i) Section 302 read with 149 I.P.C.- life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. (ii) Section 324 read with 149 I.P.C.- two years rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo two months rigorous imprisonment. (iii) Section 148 I.P.C.- two years rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo two months rigorous imprisonment. (iv) Section 323 read with 149 I.P.C.- six months rigorous imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo fifteen days rigorous imprisonment. (v) Section 341 I.P.C.- fine of Rs.500/- and in default of payment of fine, to further undergo seven days simple imprisonment. Rajkumar has been convicted and sentenced for the offences stated as under:- (i) Section 302 I.P.C.- life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. (ii) Section 324 read with 149 I.P.C.- two years rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo two months rigorous imprisonment. (iii) Section 148 I.P.C.- two years rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo two months rigorous imprisonment. (iv) Section 323 read with 149 I.P.C.- six months rigorous imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo fifteen days rigorous imprisonment. (v) Section 341 I.P.C.- fine of Rs.500/- and in default of payment of fine, to further undergo seven days simple imprisonment. Mohan Lal has been convicted and sentenced for the offences stated as under:- (i) Section 302 read with 149 I.P.C.- life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. Mohan Lal has been convicted and sentenced for the offences stated as under:- (i) Section 302 read with 149 I.P.C.- life imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. (ii) Section 324 I.P.C.- two years rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo two months rigorous imprisonment. (iii) Section 148 I.P.C.- two years rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to further undergo two months rigorous imprisonment. (iv) Section 323 read with 149 I.P.C.- six months rigorous imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo fifteen days rigorous imprisonment. (v) Section 341 I.P.C.- fine of Rs.500/- and in default of payment of fine, to further undergo seven days simple imprisonment. All the sentences were directed to run concurrently. 2. (iv) Section 323 read with 149 I.P.C.- six months rigorous imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to further undergo fifteen days rigorous imprisonment. (v) Section 341 I.P.C.- fine of Rs.500/- and in default of payment of fine, to further undergo seven days simple imprisonment. All the sentences were directed to run concurrently. 2. Succinctly stated the facts of the case are that parcha bayan (Ex.P-1) of Bhagwan Sahay Soni (PW-1) was recorded on 28.07.2013, which reads as under:- ^^ipkZ c;ku Jh Hkxoku lgk; iq= Jh f'kopj.k tkfr lksuh mez 21 lky fuoklh 'kgjkdj Fkkuk VksMkHkhe ftyk djkSyh ¼jkt0½ gky tSj bykt lh,plh VksMkHkhe ftyk djkSyh cflyflys vkenk rgjhj Jheku ,evks lkgc lh,plh VksMkHkhe fnukad 28-07-2013 us nfj;kr ij c;ku fd;k fd vkt fnukad 28-07-2013 dks lka; djhc 7&8 cts 'kke esjh eEeh foeyk nsoh igkM+h ij ysfVªax djus x;h FkhA jkLrs esa esjh eEeh dks vdsyk ns[kdj fo'kEHkj jk.kk] xhrk] eksgu] js'ke] /kkik] fxj/kkjh] lqHkk"k] fo'ofiz;] jktdqekj] foosd] y{eh vpkud vk x;h vkSj esjh eEeh dks jksddj ekjihV dhA gYyk lqudj eSa] gfjvkse] f'kopj.k ¼esjk firk½ jkts'k] ogka ij igqaps vkSj esjh eEeh dks cpk;k rks bu lHkh yksxksa us esjh] esjs firk f'kopj.k o esjs HkkbZ gfjvkse o jkts'k fd ykBh] MaMksa] iRFkjksa o ryokj ls ekjihV dhA ekjihV esa ge lHkh ifjokj okyks ds txg txg 'kjhj esa pksVs vk;hA ge ?kk;y gksdj tehu ij fxj x;sA vklikl ds dkQh yksx ogka ij vk x;sA geus iqfyl o ,EcwySal dks Qksu fd;kA FkksM+h nsj ckn ,Ecwysal vk x;h vkSj ges ykdj vLirky esa HkrhZ djk;k x;kA esjk] esjk firk o HkkbZ;ksa dk vLirky esa bykt py jgk gSA esjs flj o gkFkksa esa pksVsa vk;h gS tks esjs jktdqekj us gkWdh ls ekjh FkhA bu yksxksa us gesa tku ls ekjus dh o xksyh ls mM+kus fd /kedh nh FkhA dy bu yksxksa us eq>ls nk: fiykus fd tcjnLrh dh Fkh rks eSaus euk dj fn;kA >xM+k blh ckr dks ysdj fd;k gSA esjs firk f'kopj.k ds T;knk pksVs vk;h tks bu lHkh yksxksa us ekjh gSA ipkZ c;ku yCt o yCt fy;k tkdj et:c dks i&#2338dj lquk;k x;kA lqu le> lgh eku vius gLrk{kj fd;sA^^ 3. On the basis of said parcha bayan, police registered the First Information Report No.282/2013 (Ex.P-2) at Police Station Todabhim, District Karauli for the offences under Sections 143, 323 and 341 of I.P.C. During the course of investigation, Shivcharan expired. Police, therefore, after conclusion of the investigation, filed charge-sheet against the accused/appellants for the offences under Sections 147, 148, 149, 323, 341, 324 and 302 I.P.C. The learned Trial Court framed charges against the accused/appellants and they denied the charges and sought trial. As many as 31 witnesses were examined on behalf of the prosecution and 35 documents were exhibited on behalf of the prosecution. In defence, 17 documents were exhibited. However, no witness was produced in defence. Accused-appellants were examined under Section 313 Cr.P.C. The learned Trial Court after hearing the arguments, convicted and sentenced the accused/appellants as mentioned herein above. Aggrieved by the conviction, accused/appellants have preferred this appeal. 4. It is contended by counsel appearing for the appellants that a cross parcha bayan (Ex.D-4) was recorded prior to recording of the parcha bayan (Ex.P-1) of this case and the complainant side were chargesheeted. It is also contended that as many as 6 persons sustained injuries on the accused side. Appellant- Surendra Kumar sustained 3 injuries and his injury report is exhibited as Exhibit-D/9; appellant-Subhash sustained 6 injuries, one of which was grievous and his injury report is exhibited as Exhibit-D/10 and his X-Ray report is exhibited as Ex.D/11; appellant-Mohan Lal sustained 4 injuries and his injury report is exhibited as Exhibit-D/17; appellant-Rajkumar sustained 5 injuries and his injury report is exhibited as Exhibit-D/16 and appellant- Geeta sustained 5 injuries, out of which, one was fracture and her injury report is exhibited as Exhibit-D/12 and her X-Ray report is exhibited as Ex.D/13. 5. It is further contended that in the parcha bayan, it was mentioned that Vimla Devi (PW-2) was attacked and beaten by the accused/appellants side. However, Vimla Devi has not sustained any injury and her injury report has not been produced before the Court. It is contended that complainant side was also chargesheeted and dispute took place in front of the house of the accused/appellants. In fact, the complainant side attacked the accused/appellants side and caused injury to as many as 6 persons, whereas the deceased has sustained a single blow. Other person from the complainant side Bhagwan Sahay sustained 4 simple injuries. It is contended that complainant side was also chargesheeted and dispute took place in front of the house of the accused/appellants. In fact, the complainant side attacked the accused/appellants side and caused injury to as many as 6 persons, whereas the deceased has sustained a single blow. Other person from the complainant side Bhagwan Sahay sustained 4 simple injuries. All the other injured persons from the complainant side have sustained simple injuries. It is also contended that prosecution has failed to explain the injuries sustained by the accused side. In this regard, counsel for the appellant has placed reliance on "Lakshmi Singh & Ors. vs. State of Bihar" (1976) 4 Supreme Court Cases 394. 6. It is contended by counsel for the appellants that initially police registered the F.I.R. for offences under Section 143, 323 and 341 of I.P.C. It is also contended that deceased sustained head injury and he died after eight days of the incident. As per Dr. Amar Singh (PW-12), the said injury can be caused by a fall. It is also contended that the independent witnesses- Bhagwan Sahay (PW-6) and Rajendra (PW-7) have turned hostile and the prosecution has not been able to establish that the accused were the assailants. It is also contended that prosecution witnesses have stated that two blows were given on the head of the deceased, whereas as per the medical evidence, deceased sustained only one blow on head. 7. Counsel appearing for the appellants has placed reliance on "Padam Singh vs. State of U.P." 2000 Cr.L.R. [SC] 133, "State of Rajasthan vs. Rajendra Singh" (2009) 11 Supreme Court Cases 106 & "Babu Ram & Ors. vs. State of Punjab" (2008) 2 Supreme Court Cases (Cri) 727. 8. Learned Additional Govt. Adv. as well as counsel appearing for the complainant have vehemently opposed the criminal appeal. It is argued by counsel appearing for the complainant that there is specific evidence that accused-Rajkumar gave a blow on the head of the deceased with a hockey stick. It is also argued that all the accused came together armed with lathis and sword and caused injuries to the complainant side, thus they are all liable under Section 149 I.P.C. and the learned Trial Court has not committed any error in convicting the accused/appellant-Rajkumar for offence under Section 302 I.P.C. and rest of the appellants for offences under Section 302 read with 149 I.P.C. 9. It is also contended by counsel appearing for the complainant that Vimla Devi was surrounded by accused/appellants and they started beating her and on her raising alarm, the other persons from the complainant side reached the place of occurrence, thereafter, appellants mercilessly gave beatings to the complainant side. It is contended that in fact deceased-Shivcharan has sustained two injuries on head and the injury was sufficient in ordinary course of nature to cause death. 10. We have considered the contentions and have perused the material available on record. 11. At the outset, it may be noted that parcha bayan (Ex.D-4) of Surendra Kumar, who is accused/appellant before us was recorded on 28.07.2013. This was the first parcha bayan recorded by the police and, thereafter, parcha bayan (Ex.P-1) which is subject matter of this trial was recorded. It is also not in dispute that as many as 6 persons sustained injuries on the accused side, out of which, 3 persons have sustained fractures. However, from the complainant side, except Shivcharan who died after eight days of the incident, the other injured namely; Bhagwan Sahay, Hari Om & Rajesh have sustained simple injuries. It is also not in dispute that the incident took place in front of the house of the accused, as Bhanwar Lal (PW-11), Investigating Officer has admitted that the incident took place in front of the house of the accused side. 12. Prosecution case as set up in the parcha bayan (Ex.P-1) and in the statement of witnesses is that when Vimla Devi went to ease herself and was returning from the hills, she was attacked by the accused side and was given beating by them. Vimla Devi (PW-2) in her examination-in-chief has stated that she was surrounded and was given beating by Dhapa, Girdhari, Resham, Mohan, Rajkumar, Geeta, Surendra Kumar @ Vishmbhar, Vishvapriya, Subhash @ Neta & Laxmi. Prosecution, however, has utterly failed to establish the factum of Vimla Devi receiving injuries, for the very reason that no injury report of Vimla Devi has been produced before the Court. The genesis of the crime is thus missing in this case. 13. Bhagwan Sahay Soni (PW-1) has admitted that they were hospitalized at the lower floor of the hospital and accused side were hospitalized on the upper floor of the same hospital. This witness has stated that Rajkumar and Subhash gave blow on the head of Shivcharan (deceased). The genesis of the crime is thus missing in this case. 13. Bhagwan Sahay Soni (PW-1) has admitted that they were hospitalized at the lower floor of the hospital and accused side were hospitalized on the upper floor of the same hospital. This witness has stated that Rajkumar and Subhash gave blow on the head of Shivcharan (deceased). Hari Om (PW-3) has stated that accused gave blow with lathis to her mother for 10 to 12 minutes. He has further stated that her mother was bleeding from head and shoulder and she was soaked with blood. However, this witness has in the same statement at a later stage has stated that his mother was not in injured condition. Rajesh (PW-5) has also stated that his mother did not go to the hospital for getting herself medically examined but she sustained injuries. As per this witness, there were as many as 25 persons on the accused side who were involved in the offence. He has stated in his crossexamination that his father sustained 5 injuries on his head and those were caused by Geeta, Mohan Lal, Vishvapriya, Rajkumar, Subhash, Dhapa, Girdhari and Laxmi. Bhagwan Sahay S/o Mangilal (PW-6) has turned hostile. 14. It is pertinent to note that prosecution witnesses have denied causing injuries to the accused side and they have concealed material facts from the Court. Prosecution has thus failed to explain the injuries caused to the accused side. In the case of "Lakshmi Singh & Ors. vs. State of Bihar" (supra) the Hon'ble Apex Court has held that where the prosecution fails to explain the injuries on the accused side, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. 15. "State of Rajasthan vs. Rajendra Singh" (supra) was the case where the accused had sustained two bleeding injuries which were visible, yet the witnesses stated that they had not seen any injury on the person of the accused. The Hon'ble Apex Court held that High Court was justified in not placing reliance on their evidence. 16. In the case of "Babu Ram & Ors. The Hon'ble Apex Court held that High Court was justified in not placing reliance on their evidence. 16. In the case of "Babu Ram & Ors. vs. State of Punjab" (supra), Apex Court reiterated that in a murder case, the non-explanation of 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 prosecution has suppressed genesis and the origin of the occurrence and has thus not presented the true version; 2. 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; 3. 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. 17. In light of the above judgments, if we scan the evidence of this case, none of the prosecution witnesses have explained the injuries caused to 6 persons on the accused/appellant side, including 3 persons, who have sustained fractures, whereas all the persons on the complainant side have sustained simple injuries, including Shivcharan, who later on died after 8 days of the incident. Initially, after recording the parcha bayan (Ex.P-1), police registered the case only under Sections 143, 323 & 341 I.P.C. It is also evident to note that statement of Bhagwan Sahay (PW-1), Vimla Devi (PW-2) & Hari Om (PW-3) under Section 161 Cr.P.C. were recorded on 07.08.2013, i.e. after 10 days of the incident and after deceased-Shivcharan had expired. The argument of counsel for the appellants that the complainant side attacked the accused side and when the accused were trying to save themselves, the deceased had a fall and sustained injuries due to fall cannot be ruled out, for the very reason that the deceased has sustained only one single injury and the doctor (PW-12) has also opined that the said injury could be caused by a fall. 18. 18. The prosecution witnesses cannot be treated to be of sterling worth, for the very reason that they have made a false story of Vimla Devi being rounded up and being given beatings by the accused side, secondly, they have not explained the injuries caused to as many as 6 persons on the accused side, including 3 persons namely; Subhash, Geeta and Vishvapriya, who have sustained grievous injuries i.e. fractures. As per Dr. Amar Singh (PW-12) & Dr. Sumant Datta (PW-17), deceased has sustained one injury on his head and they have stated that the same could have been caused as a result of fall. Even if we consider this injury not by fall and assign this injury to Rajkumar, still the case would not travel beyond Section 100 I.P.C., for the very reason that Rajkumar himself and his relatives have sustained 5 injuries, including fractures and he in exercise of right of private defence had given a blow on the head of Shivcharan and the same cannot be said to be exceeding the right of private defence, as the injury sustained by Shivcharan was simple in nature. The learned Trial Court has clearly erred in convicting the accused/appellants as both sides have sustained injuries, therefore, even if the accused side have caused injuries to the complainant side, the same would travel within the ambit of Section 100 I.P.C. and they have not exceeded the right of private defence, for the very reason that they have caused simple injuries to all the persons on the complainant side, whereas they themselves have sustained grievous injuries. In "Deo Narain Versus The State of U.P." 1973 SCC (1) 347, the Apex Court was dealing with a case, which was on similar facts, wherein injuries were caused to the accused side by lathis and the accused side used spears, as a result of which, one of the persons of the complainant side expired. The Apex Court after elaborately dealing with the provisions of Sections 100 & 102 of IPC came to the conclusion that when a blow of lathi is caused on the head, it gives a rise to the other side to exercise his/her right of private defence. Even use of the lathi by one side gives right to the other side, as there is a reasonable apprehension of danger to the body. Even use of the lathi by one side gives right to the other side, as there is a reasonable apprehension of danger to the body. The Apex Court in that case gave the benefit to the accused side and held that the accused had caused injuries exercising their right of private defence and as a result, the accused was acquitted. 19. The learned Trial Court has further erred in convicting the accused/appellants only on the evidence adduced by the prosecution that Rajkumar gave a blow with hockey stick to Shivcharan (deceased). Court below has not at all dealt with the right of private defence, the factum of wrong story set up by the prosecution that Vimla Devi was attacked and also the fact of not disclosing the injuries caused to as many as 6 persons on the accused side. 20. In view of the above, the present Criminal Appeal, therefore, deserves to be and is accordingly, allowed. The judgment and sentence dated 27.09.2018 passed by learned Additional District & Sessions Judge, No.2, Hindaun City, is quashed and set aside. The accused/appellants are acquitted of the charges levelled against them. The appellant No.1-Surendra Kumar @ Vishmbhar, appellant No.3-Mohan Lal & appellant No.5-Smt. Geeta are on bail and the bail bonds earlier submitted by them shall stand cancelled. The appellant No.2-Subhash @ Neta and appellant No.4-Rajkumar are in custody, they be set at liberty forthwith, if not required in any other case or for any other purpose. 21. The appellants are directed to furnish bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with provisions of Section 437-A of Cr.P.C. before the Registrar (Judicial) of this Court within four weeks from the date of their release, to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months. 22. The record of the learned Trial Court be sent back forthwith.