JUDGMENT 1. - This appeal has been directed against the judgement dated November 27, 1971 of the learned Sessions Judge, Pali, whereby the convicted the accused appellants Mehanduda and Madia for committing the murder of Jeewan (Since deceased) and causing injuries to PW/1 Mst. Sarwani, PW/5 Sarwan and PW/8 Harji and sentenced them as under:- Mehanduda u/s 302 IPC Life Imprisonment (rigorous) and a fine of Rs. 100/-, in default of payment of fine to further undergo six month's rigorous imprisonment. u/s 324 IPC Two year's rigorous imprisonment. The substantive sentences were ordered to run concurrently. Madia u/s 323 IPC One year's rigorous imprisonment each for causding simple injuries on the person. Sarwani and Sarwan i.e. two years' rigorous imprisonment both the sentences were ordered to run concurrently. The other three accused viz. Kishna, Heera and Chouthia were acquitted of all the charges framed against them. Accused Chhoga son of Raju was found to be abscording and as such no order was passed regarding him. 2. The fields of Jeewan (since deceased) and his father PW.11 Bakhta are adjacent to the fields of accused Mahenduda, Kishna and others. The fields of PW.11 Bakhta, father of the deceased were being irrigated by the well known as "Dhedki" and the fields of the accused were irrigated by the well "Dhed". There are three 'neem' trees growing on the southern side of the watercourse passing near the well "Dhed". There was a long standing dispute regarding the ownership of these trees between the family members of Jeewan (deceased) and the family members of accused Mehanduda. On the date of occurrence, that is, December 26, 1970 just before the occurrence PW.1 Mst. Sarwani was picking up billies in her field. PW.10 Aidan was operating the Persian wheel and PW.5 Sarwan was diverting the water towards the wheat crop. In the noon time Jeewan (deceased) came to the filed and saw accused Mehanduda cutting the branches of the 'neem' tree. Jeewan (deceased) objected to it and the accused Mehanduda climbed down from the "neem" tree. A verbal alteration took place between them. Hearing the noise PW.1 Mst. Sarwani, PW.5 Sarwan and PW.10 Aidan proceeded towards the water course and when they climbed up the water course near the 'Dhed" well, they noticed that the six accused persons viz. Jeewan (deceased) objected to it and the accused Mehanduda climbed down from the "neem" tree. A verbal alteration took place between them. Hearing the noise PW.1 Mst. Sarwani, PW.5 Sarwan and PW.10 Aidan proceeded towards the water course and when they climbed up the water course near the 'Dhed" well, they noticed that the six accused persons viz. Mehanduda, Madia, Kishna, Heera, Chouthia and Chhoga were inflicting injuries on the person of Jeewan (deceased), Mehanduda inflicted blows on the person of Jeewan (deceased) both from the sharp and the reverse side of the axe, while accused Kishna, Heera and Madia inflicted lathi injuries and accused Chouthia and Chhoga facilitated the infliction of injuries by holding Jeewan (deceased).In the course of the incident PW.8 Harjit intervened to save Jeewan (deceased) but they were also belaboured. As a result of the injuries Jeewan met with instantaneous death. PW.10 Aidan was chased by the accused but as he could not be caught, noinjury was inflicted on him. After some time PW.11 Bakhta, father of Jeewan (deceased) came to the field. The eye witnesses of the occurrence narrated the entire story to him. Thereafter he went to the Police Station Kalu to lodge a first information report of this occurrence. The distance between the Police Station and the place of occurrence is 18 miles. The first information report of this occurrence was recorded by PW.17 Shri Arzal Khan at 11.30 p.m. on December 26, 1970. The first information report is Ex.P22. A case under Sections 302 and 323 was registered against all the above mentioned six accused persons. As no conveyance was available, the Sub-Inspector of Police reached the place of occurrence at 10.30 A.M. on December 27, 1970. He prepared a description memo of the dead body of Jeewan (deceased) Ex. P12, and inspected the site He found a blood-stained axe belonging to the accused lying near the dead body. As the axe was blood stained it was seized and sealed on the spot. The seizure and the site inspection memo is Ex. P13. He also prepared the site plan Ex. P14 and inquest report Ex. P15. The autopsy on the dead body of Jeewan(deceased) was performed by PW.15 Dr. G.S. Rathore. The post mortem report is Ex. P.4. PW.15 Dr. G.S. Rathore found the following external injuries on the dead body of Jeewan:- 1. P13. He also prepared the site plan Ex. P14 and inquest report Ex. P15. The autopsy on the dead body of Jeewan(deceased) was performed by PW.15 Dr. G.S. Rathore. The post mortem report is Ex. P.4. PW.15 Dr. G.S. Rathore found the following external injuries on the dead body of Jeewan:- 1. Lacerated wound on left side of temporal region at angle of left eye measuring 8 cm x 3 cm x 2 cm. 2. Lacerated wound transverse on temporal region left side near ear measuring 10 cm x 2 cm x 3 cm. 3. Lacerated wound arch shaped on left side behind ear measuring 10 cm x 2 cm x 1 cm. 4. Laceerated transverse wound on left side of the neck extending from front to back vertibal column arch shaped measuring 10 cm x 6 cm x 6 cm. 5. Lacerated wound over occipital region measuring 6 cm x 4 cm stained with fresh blood. 6. Transverse lacerated wound measuring 3 cm x 1 cm x 1 cm over occipital region. 7. Lacerated longitudinal wound over occipital region measuring 5 cm x 2 cm x 1/2 cm. 8. Penetrating longitudinal with laceration on left side posterior deep below angle of left scapula measuring 11 cm x 5 cm depth upto thorax and abdomen. 9. Penetrating lacerated wound on lumber region back more on left side measuring 11 cm x 4 cm depth deep into abdominal cavity. On dissection of the dead body he found the following internal injuries:- 1. Thorax:- On walls, ribs and cartileges : due to wound No. 8, the walls and rib of thorax posteriorly had been cut under wound No. 8. On examining pleurae near wound No. 8, cut and crushed. Larynx and trachae healthy. Right lung was congested on section found filled with blood clots. The left lung due to wound No. 8 in continuation underlying middle and lower lobe of left lung has been pierced on section the blood clots were found, Some part of the lung also seen coming out of wound No. 8. On examination the pericardium, a penetration is seen at apex deep to wound No. 8. On examination of heart a penetration with coming out of blood at apex. The heart was pale. On cutting section ventricles were found empty with only some blood clots inside. Large vessels of neck vein were found cut with blood clots. 2. On examination the pericardium, a penetration is seen at apex deep to wound No. 8. On examination of heart a penetration with coming out of blood at apex. The heart was pale. On cutting section ventricles were found empty with only some blood clots inside. Large vessels of neck vein were found cut with blood clots. 2. ABDOMEN:- Posteriorly there was a lacerated wound No. 9 on lumber region. Anterior well of abdomen was healthy. Due to wound No. 8, the petitioner was pierced on posterior region (Lumber). On examination, the stomach was found normal, but slightly distended. On giving incision, it was found that it gave bad smell, but was empty. I found small intestines (some sloops)distended. The external injury mentioned at No. 9 went upto kidney where there was a pierce wound and blood clots were found inside. 3. CHANIUM AND SPINAL CORD:- A cut with crushing in lumber vertebral region with fracture and dislocation due to wound No. 9. The spinal cord cut and crushed in lumber region. 4. MUSCLES, BONES AND JOINTS:- The following fractures were noted:- (i) The temporal bone of left side condylar part of mandible and maxillary bone left side were fractured. The muscles over these bones were also crushed all due to wound Nos. 1 and 2. (ii) Fracture with dislocation and cut at lumber region due to wound No. 9." He further opined that the injuries No. 4, 8 and 9 could be caused by sharp edged weapon like an axe Ex. 1. The fractures of condylar, part of mandible and maxillary bone were due to injuries Nos. 1 and 2. The injury No. 3 caused dislocation of the service occipital bone. He found the injuries Nos. 5, 6 and 7 grievous. The cause of death of Jeewan (deceased) in his opinion, was due to excessive haemorrhage and shock due to perforation of vital organs and injuries. The same doctor examined PW.5 Sarwan and found the following injuries on his person:- "1. Swelling with tenderness 4 cm x 3 cm on lower end of left thigh anterior aspect about knee joint. 2. Incised wound 2 cm x 1 cm x 1 cm transverse in occipital region. 3. Swelling with tenderness in area of 4 cm left fore-arm anterior aspect. 4. Swelling with tenderness in area of 5 cm x 5 cm over left shoulder (back). 5. 2. Incised wound 2 cm x 1 cm x 1 cm transverse in occipital region. 3. Swelling with tenderness in area of 4 cm left fore-arm anterior aspect. 4. Swelling with tenderness in area of 5 cm x 5 cm over left shoulder (back). 5. Abrasion 11 cm x 3 cm on back thorecic region on left side. 6. Bruise 2 cm dorsum of left foot. 7. Bruise 2 cm x 1 cm left leg back side. 8. Swelling with tenderness in an area of 5 cm x 5 cm right thigh back side. All the injuries on the person PW.5 Sarwan were found to be simple in nature. In the opinion of the doctor the injury No. 2 could be caused by axe Ex. 1. Rest of the injuries could be caused by a blunt weapon. The injury report of PW.5 Sarwan is Ex. P5. 3. On the same day PW.1 Mst. Sarwani was clinically examined. The injury report is Ex. P7. In the opinion of the doctor the injuries sustained by her could be caused by a blunt weapon. 4. PW.8 Harji was also clinically examined by the same doctor on the same day. The injury report is Ex. P6. In the opinion of the doctor the injury No. 1 sustained by PW.8 Harji could be caused by axe Ex. 1. 5. The accused Mehanduda, Heera, Madia and Kishna were arrested on December 27, 1970. Their arrest memos are Ex. P6 to Ex. P19. The blood stained clothes were seized from their possession. The seized articles were sent to the Chemical Examiner. The report of the Chemical Examiner regarding the clothes of the accused-appellant Mehanduda and Madia, as well as regarding axe Ex. 1 is Ex. P8 and the report of the Serologist is Ex. P.9. The axe Ex. 1 found on the place of occurrence near the dead body and the clothes recovered from the possession of the accused-appellant Mehanduda and Madia were found to be stained with human blood vide Ex. P.9. The police after usual investigation submitted a challan against the five accused in the Court of Munsiff Magistrate, Jetaran who after taking proceedings under Section 207A Criminal Procedure Code committed all the accused to the Court of Sessions at Pali. 6. The accused pleaded not guilty to the charge. 7. In support of their case the prosecution examined 17 witnesses. The police after usual investigation submitted a challan against the five accused in the Court of Munsiff Magistrate, Jetaran who after taking proceedings under Section 207A Criminal Procedure Code committed all the accused to the Court of Sessions at Pali. 6. The accused pleaded not guilty to the charge. 7. In support of their case the prosecution examined 17 witnesses. The learned Sessions Judge found the statement of PW.15 Dr. G.S. Rathore not satisfactory, who was, according to the learned Judge, an inexperienced doctor and as such he examined CW.1 Dr. J.N. Upadhya as a court witness. The statements of the accused recorded by the committing court were brought on the record of the trial court. The accused in heir statements recorded under Section 342 Criminal Procedure Code denied their complicity in the crime and examined 10 witnesses in support of their defence. Out of the four eye witnesses of the occurrence, the learned Sessions Judge observed regarding PW.1 Mst. Sarwani that she was picking up the chillies at a considerable distance from the place of occurrence and must have taken some time in reaching there and her statement that she saw her father being manhandled pushed to ground and then being inflicted injuries by the accused, was very much doubtful. As regards PW.5 Sarwan, he observed that in this considered opinion the witness reached the spot when the accused appellant Mehanduda was inflicting the injuries by the reverse side of the axe Ex.1. He also held that the axe Ex.1 was in the hand of accused-appellant Mahanduda and in his opinion the injuries No. 3, 4, 8 and 9 were caused by the sharp side of axe Ex. 1 and the author of these injuries in all probabilities was no other than the accused Mehanduda. He further held that he was also responsible for causing some of the injuries on the head of Jeewan (deceased) by the reverse side of the axe Ex.1. As regards PW.10 Aidan the learned Judge opined that the witness reached the spot last of all and at the time when the beating of Jeewan (deceased) was over or almost over. PW.8 Harji was declared hostile by the prosecution and no reliance was placed on his statement. He held the defence witnesses unworthy of trust and disbelieved them in toto. PW.8 Harji was declared hostile by the prosecution and no reliance was placed on his statement. He held the defence witnesses unworthy of trust and disbelieved them in toto. As regards PW.11 Bakhta, the author of the first information report, he observed that the witness falsely deposed that he had seen the accused persons coming in the village and two of them informed him about the killing of the deceased. He further expressed his doubt about the participation of the accused, Kishna, Heera and Chouthia in the occurrence. They were not members of an unlawful assembly and their mere presence at the spot does not lead to the conclusion that they shared a common intention with the accused Mehanduda and Madia. On the basis of the above finding the learned Judge acquitted the three accused Heera, Kishna and Chouthia and convicted and sentenced the two accused appellants as mentioned above. 8. Aggrieved with the above mentioned judgement the convicted accused-appellants have challenged their conviction and sentences by this appeal. 9. It cannot be disputed that Jeewan (deceased) was the victim of a murderous assault. PW.15 Dr. G.S. Rathore, who performed the post mortem examination on the dead body of Jeewan (deceased) found nine injuries on the body. Some of them were incised injuries and some of them were caused by a blunt weapon. The death of the deceased was due to excessive haemorrhage and shock due to perforation of vital organs and the injuries sustained by the deceased Jeewan mentioned in the post mortem report Ex. P.4 as detailed above. 10. Mr. M.C. Bhandari, learned counsel for the accused-appellants has urged that there are outstanding features of this case which are sufficient to throw a doubt on the entire prosecution case. The first information report of this occurrence was lodged after a considerable time. The entire prosecution case is sought to be proved by the partisan evidence which ought not to have been accepted in this case. The learned counsel further urged that the conviction is based on the testimony of a single witness PW.5 Sarwan who is a partisan and inimical witness. He implicated the six accused persons three of whom have been proved innocent. The witness had no qualm of conscience in implicating the innocent persons. The learned counsel further urged that the conviction is based on the testimony of a single witness PW.5 Sarwan who is a partisan and inimical witness. He implicated the six accused persons three of whom have been proved innocent. The witness had no qualm of conscience in implicating the innocent persons. He has made purposeful improvements in his statement before the trial court and has been contradicted in material particulars from his police statement and the statement recorded before the committing court. The case of the acquitted accused cannot be separated from that of the convicted accused appellants and as there is no cogent and reliable evidence against the appellants they ought to have been given benefit of reasonable doubt. The learned Additional Advocate General supported the findings and judgement of the trial court. He agrees that the evidence of PW.8 Harji is of no avail either to the prosecution or to the accused. 11. The first information report Ex.P.2 was lodged at the Police Station, Kalu at 11.30 p.m. on December 26, 1970. Although Mr. Bhandari has urged that there was delay in lodging the first information report, we find it difficult to accept this submission. The occurrence, according to the prosecution case, took place at 3 p.m. As a result of the injuries sustained in the course of the occurrence, Jeewan (deceased) died instantaneously and PW.1 Mst. Sarwani and PW.5 Sarwan received injuries. PW.11 Bakhta must have got stunned because of the sudden occurrence, in which his son Jeewan (deceased) had sustained fatal injuries causing instantaneous death and in which two of his other relatives were also injured. PW.11 Bakhta is not an eye witness of the occurrence. After giving first aid to the injured he must have heard the narration of events from the eye witnesses. All this must have taken considerable time. It is pertinent to note that PW.1 Bakhta is an old man aged 70 years. He was required to cover a distance of 18 miles in a cold winter night, month of December. In such circumstances the lodging of the first information report on December 26, 1970 at 11.30 p.m. by an old man, who had been recently bereaved of son Jeewan (deceased) and who was worried about the seriousness of the injuries sustained by his grant son, cannot be said to be a delayed one. 12. In such circumstances the lodging of the first information report on December 26, 1970 at 11.30 p.m. by an old man, who had been recently bereaved of son Jeewan (deceased) and who was worried about the seriousness of the injuries sustained by his grant son, cannot be said to be a delayed one. 12. As regards the effect of the acquittal of the three accused Kishan, Heera and Chouthia, it is sufficient to note that the State has not filed any appeal against the acquittal of the acquitted accused. We will proceed on the assumption that the prosecution allegations regarding participation of the three accused in the assault on Jeevan (deceased) on December 26, 1970 has not been substantiated and the account of the occurrence given by the injured persons as well as the other witness is partly untrue. 13. The case of the prosecuted is that it was Mehanduda who inflicted injuries on the person of Jeewan (deceased) with the axe Ex. 1 and other accused inflicted 'lathi' blows. The prosecution for this purpose relied upon the ocular evidence of four eye witnesses out of whom PW.8 Harji, who was injured during the occurrence, his presence on the scene of occurrence cannot be doubted, has made a vacillating statement. he has contradicted himself on material points. He was declared hostile by the prosecution. The trial court has disbelieved his statement. Neither the prosecution nor the defence has placed any reliance on his statement in appeal before this court. We find no reason to hold otherwise, and place no reliance on any part of his statement. 14. Now remains the ocular evidence of the other three eye witnesses. PW.5 Sarwan, PW.1 Mst. Sarwani and PW.10 Aidan, two of whom were the close relatives of Jeewan (deceased) and the third one a partner in cultivation. It is not likely that the eye witnesses would spare the real assailants. At the same time we have to guard against the possibility of over implication and implication of an innocent person along with the real culprit. The need of the pre-caution becomes all the more obvious when it is kept in view that the ocular evidence is of partisan nature and the witnesses are also inimical to the accused persons. it is in such a situation that a duty is cast upon the court to separate the grain from the chaff. 15. The need of the pre-caution becomes all the more obvious when it is kept in view that the ocular evidence is of partisan nature and the witnesses are also inimical to the accused persons. it is in such a situation that a duty is cast upon the court to separate the grain from the chaff. 15. Now first of all we will examine the evidence of PW.5 Sarwan who is the most important witness and has been relied upon by the court as an eye witness of the assault on the person of Jeewan (deceased), as such we will first of all consider whether the statement of this witness can be held to be sufficient, enough to bring home the guilt to the accused appellants, and to what extent. 16. PW.5 Sarwan stated that on December 26, 1970 prior to the occurrence he was watering the field of the wheat crop. PW.10 Aidan was working on the Persian wheel at his father's well and his sister PW.1 Mst. Sarwani was picking up chillies in the filed. His father Jeewan (deceased) came at the well in the afternoon. Seeing the accused Mehanduda cutting the branches of the 'neem' tree his father Jeewan (deceased) protested and forbade him to cut the branches of the tree. The accused Mehanduda insisted on his right to cut the branches of the tree, whereupon his father went towards the well known as 'Dhed' which belonged to the accused party. The accused Mehanduda alighted from the tree and a verbal altercation incepted between his father and the accused. Hearing the noise the witness,his sister PW.1 Mst. Sarwani and PW.10 Aidan went at the water course where the accused his father Jeewan (deceased) were at the stage of verbal warfare. PW.8 Harji also arrived at that time. Accused Mehanduda was armed with an axe Ex. 1, while the accused Kishan,Heera and Madia were armed with 'lathis'. The accused Chouthia and Chhoga were unarmed. All the accused persons threw Jeewan (deceased) down. The accused Mehanduda gave an axe blow on the neck of his father and thereafter he delivered two more blows with the same weapon on the back and waist of Jeewan (deceased). All these three injuries were inflicted by the sharp side of the axe. Mehanduda further inflicted several injuries by the reverse side of the axe on the head of Jeewan (deceased). All these three injuries were inflicted by the sharp side of the axe. Mehanduda further inflicted several injuries by the reverse side of the axe on the head of Jeewan (deceased). The other accused persons viz. Madia, Heera and Kishan inflicted injuries by 'lathis' on the person of his father. The other two accused persons viz. Chouthia and Chhoga were holding his father on the ground by catching his legs. The witness further goes on to state that the accused went on inflicting blows till his father died. The witness, his sister PW.1 Mst. Sarwani, PW.10 Aidan and PW.8 Harji tried to intervene verbally. But the accused did not desist from beating his father. He and his sister and PW.8 Harji got down from the water course towards the place where his father Jeewan (deceased) was lying. At that time the accused Mehanduda threatened them nor to intervene otherwise they will meet the same fate as that of his father. The accused Media inflicted one blow on his sister and accused Mehanduda inflicted an axe blow from the sharp side of the axe on his hand, and thereafter, the accused Media gave 7 or 8 lathis blows on his person. Accused Mehanduda inflicted one more blow on the left foot of the witness. His sister PW.1 Mst. Sarwani dragged him aside and thereafter the accused Mehanduda gave an axe blow on the middle finger of the left hand of PW.8. Harji while the accused Madia hit him by the 'lathi'. PW.10 Aidan was chased upto some distance but he could not be caught. All the six accused persons left the scene of occurrence leaving behind the axe Ex. 1 on the place of occurrence. After a few minutes his grand father PW.11 Bakhta reached the place of occurrence. The witness and other persons narrated to him the whose event and thereafter his grand father went to lodge the first information report at the Police Station, Kalu. The axe, with which the accused appellant Mehanduda inflicted the injuries on the person of his father Jeewan (deceased), the witness himself, and PW.8 Harji, was Ex. 1 and the same was left by the accused on the spot. More or less the same is the statement of PW.1 Mst. Sarwani and PW.10 Aidan. At variance with the above statement this witness made a different statement before the committing court and the Police. 1 and the same was left by the accused on the spot. More or less the same is the statement of PW.1 Mst. Sarwani and PW.10 Aidan. At variance with the above statement this witness made a different statement before the committing court and the Police. The witness was confronted with his earlier statement before the Committing Court in which he had stated that PW.10 Aidan shouted at him as well as his sister PW.1 Mst. Sarwani to run and help Jeewan(deceased) who was being beaten. There upon his sister came to him and then the witness himself and his sister went running towards the place of occurrence.Instead of explaining the contradictions he stated that he did not state so. The counsel for the accused had put him questions and as the witness had become nonplus condition in reply to the questions put by the counsel for the3 accused he might have said "yes" but it was a fact that neither Aidan (PW.10) raised shouts nor his sister came to him. The witness further goes on to state that he and the two other witness PW.1 Mst.Sarwani and PW.10 Aidan went of their own accord after hearing the exchange of hot words between his father Jeewan (deceased) and the accused Mehanduda. This improvement in his statement before the trial court was made with an obvious purpose behind it, to minimise the time of his reaching on the scene of occurrence. The witness in his statement before the trial court did not assign any injury to Mehanduda from the sharp side of the axe Ex.1 on the head of Jeewan (deceased). He was confronted with the portion marked A to B of his police statement Ex. D.6 in which he had stated that the injuries were inflicted by the sharp side of the axe on the back, waist and on the head and at several places by Mehanduda.The witness instead of explaining the contradictions had the braveness to state that he did not state that the blows were given by the sharp side of the axe on the head of this father. This improvement in his statement at the trial was made by the witness to make his evidence consistent with the medical witness because according to both the doctors PW.15 Dr.S.G. Rathore and CW.1 Dr. This improvement in his statement at the trial was made by the witness to make his evidence consistent with the medical witness because according to both the doctors PW.15 Dr.S.G. Rathore and CW.1 Dr. J.N. Upadhya a none of the injuries sustained by Jeewan (deceased) as his head could be caused by the sharp side of the axe Ex.1. Admittedly PW.5 Sarwan was diverting the water towards the wheat crop in his field and was at a distance of 25 pawandas from the scene of occurrence. We must have taken at least few minutes in coming out of the field and climbing up the water course and as such he could not have seen the entire occurrence but he has no compunction in narrating the whole story as an eye witness of the entire occurrence. He admitted in cross examination that his father Jeewan (deceased) was pushed down on the western side of the water course and a man standing on the western side of the water source was not visible from the place where he was irrigating his field, on account of the raised place of the water course and similar was the case from the place where his sister PW.1 Mst. Sarwani was picking up chillies. In his police statement he did not mention that the accused Madia, Heera and Kishan inflicted lathi blows on Jeewan (deceased). The witness when confronted with his police statement stated that specifically their names were not mentioned but general allegation were made against them. In variance with his statement before the trial court; in his statement before the committing court marked E to F in Ex. D.4 the witness stated that he went to call his grand father and brought him there. When confronted with this portion of the statement the witness instead of explaining the contradictions repeated patent answer that he had not stated so, and that he had been confused when he was being cross examined by the counsel for the accused party and so he had said so. The witness in his statement recorded by the trial court stated that he remained on the scene of occurrence from the commencement of the quarrel till his grand father Bakhta (PW.11) left the scene of occurrence for lodging the first information report. He was contradicted with the portion marked G to H of his statement Ex. The witness in his statement recorded by the trial court stated that he remained on the scene of occurrence from the commencement of the quarrel till his grand father Bakhta (PW.11) left the scene of occurrence for lodging the first information report. He was contradicted with the portion marked G to H of his statement Ex. D.5 recorded by the committing court wherein he stated that he went shouting in the village that his father had been killed. But at that time also no body from his village came except the witness and his grand father. When given an opportunity to explain this contradiction he repeated his parrot like answer; he had become nonplus under cross examination so it appears that he had stated so. Besides the above mentioned contradiction he was also confronted with the various portions of his statement made before the Police but the witness failed to explain any of those contradictions. The parrot-like repetition of the same explanation for every contradiction by the witness is suggestive of the fact that he was tutored prior to making a statement in the trial court. All the above mentioned contradictions and introduction of new facts which are vital for determining the liability of accused appellant Mehanduda for the murder of Jeewan (deceased) are bound to arise suspicion and doubt about the veracity of the statement of this witness. 17. Out of the remaining two witnesses the daughter of the deceased Jeewan is PW.1 Mst. Sarwani. More or less to the same effect is the statement of PW.1 Mst. Sarwani. She admitted under cross examination that her father was caught and dragged on the western side of the water course. From the chilli filed, where she was picking them, the western side of the water course is not visible. In her statement Ex. D.3 recorded by the committing court she had stated that after climbing up the water course she saw her father lying dead. The witness was confronted with the above mentioned statement marked C to D in Ex. D.3. Instead of giving a cogent and reliable explanation she, like her brother PW.5 Sarwan, repeated the same common answer that as the counsel for the accused was asking questions with vehemence so she might have stated so, as mentioned above, but she never meant it. D.3. Instead of giving a cogent and reliable explanation she, like her brother PW.5 Sarwan, repeated the same common answer that as the counsel for the accused was asking questions with vehemence so she might have stated so, as mentioned above, but she never meant it. She was confronted with various portions of her statement recorded by the police and the committing court on the other material points but she failed to explain the contradictions appearing in her statements recorded at different stages of the case. The trial court has for good and sufficient reasons held that her statement that she saw the accused persons man handling her father, pushing him on the ground and then inflicting the injuries on his person is very much doubtful. After a careful scanning of the record we find no reason to hold the witness reliable. 18. The next witness is Aidan (PW.10). More or less a similar statement has been made by him as made by PW.1 Sarwani and PW.5 Sarwan. After considering the various contradiction in his statement made before the trial court, the learned Sessions Judge held that this witness reached the scene of occurrence last of all, in all probability after hearing the shriekes of Jeewan (deceased). When he reached, the occurrence was over. He might have seen all the accused persons present on the spot and the injured but it is not credible that he saw the accused persons inflicting injuries on the person of Jeewan (deceased) or any of the witnesses. The learned Additional Advocate General appearing for the State has also not placed any reliance on the statement of this witness as an eye witness of actual assault. We have no cogent and convincing reason to hold otherwise. 19. The material omissions, contradictions and inherent improbabilities in the statement of the three eye witnesses coupled with the introduction of new facts, at the stage of trial which are vital for determining the liability of the accused-appellants do raise suspicion and doubt about the veracity and credibility of the ocular evidence of these witnesses. 20. The other infirmity of the prosecution case is that according to PW.1 Mst. Sarwani, PW.5 Sarwan and PW.10 Aidan accused Mehanduda inflicted only three blows with sharp side of the axe Ex. 1 on the person of Jeewan (deceased) out of which the first blow was inflicted on the neck. 20. The other infirmity of the prosecution case is that according to PW.1 Mst. Sarwani, PW.5 Sarwan and PW.10 Aidan accused Mehanduda inflicted only three blows with sharp side of the axe Ex. 1 on the person of Jeewan (deceased) out of which the first blow was inflicted on the neck. The other two blows were inflicted on the back and waist. Both the doctors PW.15 Dr. G.S. Rathore and CW.1 Dr. J.N. Upadhya have stated that the neck injury No. 4 mentioned in the post mortem report Ex. P.4 could not have been caused by the axe Ex. 1. Injuries No. 8 and 9 were mentioned in the post mortem report Ex. P.4 as penetrating wounds with laceration. Their dimensions as mentioned are 11 cm x 5 cm and 11 cm x 4 cm. It is pertinent to note that the dimensions of the sharp edged injuries sustained by PW.5 Sarwan son of Jeewan (deceased) and PW.8 Harji are 2 cm x 1 cm x 1 cm deep and 5 cm x 2 cm x 2 cm x 1 cm respectively. Regarding injuries Nos. 8 and 9 mentioned in Ex. P.4 Dr. J.N. Upadhya who was examined as expert by the Court has stated that the doctor who performed the post mortem by slip mentioned the word 'penetrating instead of incised'. 21. The above mentioned contradictions in the statement of the two medical experts, major differences between the dimensions of the injuries sustained by the deceased Jeewan and the weapon of offence axe Ex.1 reveal a reasonable doubt about the use of the axe Ex.1 by Mehanduda on the person of deceased Jeewan. No doubt it is the duty of the court to make an attempt to separate the grain from the chaff the truth from falsehood but this could only be possible when the truth is separable from the falsehood. In the present case, the truth is inseparably mixed up with the falsehood. All the three eye witnesses have in one breath implicated the three acquitted accused namely Kishan, Heera and Chouthia, who have been held to be innocent by the trial court. The major contradictions appearing in their statements regarding vital part of the prosecution story has made the entire prosecution case highly doubtful. 22. All the three eye witnesses have in one breath implicated the three acquitted accused namely Kishan, Heera and Chouthia, who have been held to be innocent by the trial court. The major contradictions appearing in their statements regarding vital part of the prosecution story has made the entire prosecution case highly doubtful. 22. As regards the recovery of the blood stained axe Ex.1 at the instance of accused Mehanduda, suffice is to say, that he inflicted injuries on the person of PW.5 Sarwan and PW.8 Harji from the sharp side of axe Ex. 1. The learned counsel for the accused appellant Mehanduda has not challenged his conviction under Section 324 Indian Penal Code for causing injuries to PW.5 Swaran and PW.8 Harji. The discovery of the blood stained axe Ex. 1 at the instance of accused Mehanduda which was ultimately found to be stained with human blood by the Serologist in the present circumstances of the case is not sufficient to connect the accused with the murder of Jeewan (deceased), because it could be stained with Human blood while inflicting injuries of PW.5 Sarwan and PW.8 Harji. The recovery of the blood stained clothes from the person of accused Mehanduda which were later on found to be stained with human blood is also not sufficient to connect the accused with the murder of Jeewan (deceased) in the absence of any other reliable evidence. The extent of the blood found on the clothes has not been proved. The blood stains found on his clothes need not detain us any long because it is the case of the prosecution that he inflicted injuries on PW.5 Sarwan and PW.8 Harji from the sharp side of the axe and the blood oozing out of their injuries could have very well fallen on his clothes. 23. The trial court has failed to notice the above mentioned circumstances which throw considerable doubt on the prosecution case as a whole against the accused appellants. We are not at all satisfied with the evidence led on behalf of the prosecution, and it does not exclude reasonable doubt in regard to the guilt of the accused appellant Mehanduda regarding the murder of Jeewan (deceased). The prosecution case against Mehanduda regarding the murder of Jeewan (deceased) cannot be said to have been proved beyond reasonable doubt. We are not at all satisfied with the evidence led on behalf of the prosecution, and it does not exclude reasonable doubt in regard to the guilt of the accused appellant Mehanduda regarding the murder of Jeewan (deceased). The prosecution case against Mehanduda regarding the murder of Jeewan (deceased) cannot be said to have been proved beyond reasonable doubt. The prosecution story 'may be true' but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. 24. The net result of the above discussion is that the appeal is partly allowed and the conviction and sentence of the accused-appellant Mehanduda for committing the murder of Jeewan (deceased) is set aside. However, the conviction and sentence of accused-appellant Mehanduda for inflicting injuries on the person of PW.5 Sarwan and PW.8 Harji is maintained. The conviction and sentence of the accused appellant Madia under Section 323 Indian Penal Code is also maintained. However, it is made clear that the accused appellants shall be entitled to the benefit of the provisions of Section 408, Criminal Procedure Code, for the period detention,if any, undergone by them during the investigation, enquiry or trial of the case. *******