1. The material facts are that on 1.2.1974 Loola (PW-1) grandson's head-shaving ceremony, (mundan sanskar) in which according to the custom of the caste of the appellants and also the prosecution witnesses Loola (PW-1), Majhli Bahu (PW-2) and others who belong to the caste of the appellants kuchaiyan (small sweet puries) are distributed, had taken place. These kuchaiyans had been distributed to others but not to the appellants or their women-folk. This at about 3 p.m. that day, led to an exchange of abuse between the women-folk of the two parties near the house of Dhandua. In the meantime the appellant Punna happening to arrive at the scene, caught hold of the neck of Buchchee (PW-4). Thereupon his (Buchchee's) mother Badi Bahu (since dead) rushed to save her son, when the appellant Punna dealt a lathi blow at her elbow and the appellant Pusaua an axe blow on the right side of her head with the resultant bleeding. Loola (PW-1) went to rescue his wife Badi Bahu but the appellant Pusaua dealt a blow at his waist and the appellant Punna a lathi blow on his left hand entailing fractures of his radius and ulna bones. Loola's (PW-1) nephew, Shobha (PW-5) rushed to rescue his uncle when the appellant Nanhu caused him simple hurts by means of lathi. Mst. Majhli Bahu (PW-2) was beaten by the appellant Dhandua and Balo (PW-3) by the appellants Dhandua and Punna. Nanhe Bhai (PW-6) was beaten by the appellants Pusaua and Ghasita Mst. Badi Bahu died on 5.2.1974.

2. In Munir Khan vs. State of U.P. AIR 1971 SC 335, it was held that in a mutual fight there does not arise any question of common object and hence the principle underlying section 147 IPC, would not be applicable. If in the judgment of the learned Additional Sessions Judge there was no common object of the appellants and they could not be convicted of offences charged with the help of section 149 IPC, the same reasoning should have applied also in relation to offences punishable under sections 147 and 148 IPC. Both these offences punish rioters section 147 punishes simple rioting and section 148 those rioters who at the time of the commission of rioting are armed with deadly weapons or with anything which used as a weapon of offence is likely to cause death. But the proof of either of these offences requires among other requirements an assembly of five or more persons with a common object specified in section 141 IPC. In this case as there has been a finding that there was no common object of the assembly of the appellants, it follows that neither of them could be found guilty of simple rioting or rioting while being armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death. Convictions and sentences of appellant Pusaua under section 148 IPC of appellant Punna under section 147 IPC of appellant Dhandua under section 147 IPC and of the appellant Nanhu under section 147 IPC, are, therefore illegal and are set aside.

3. Neither of the prosecution witnesses Loola (PW-1), Majhli Bahu, Baio, Buchchee, Shobha and Nanhe Bhai has categorically given any explanation about the injuries sustained by the appellants.

4. The consequences of non-explanation of the injuries sustained by the accused at about the time of occurrence gives rise to the inferences (i) that the prosecution has suppressed the genesis of the occurrence and thus not presented the true version, (ii) that the witnesses denying the injuries sustained by the accused are lying on a most material point and therefore, their evidence is unreliable, (iii) that in the case there is a defence version explaining the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The non-explanation of injuries assumes much importance where evidence is that of interested or inimical interested witnesses or where the version of defence competes in probability with that of the prosecution. Lakshmi Singh and Others vs. State of Bihar, AIR 1976