Judgment Birendra Prasad Sinha, J. 1. The two appellants have been convicted under Sec.302 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. They have also been convicted under Sec.148 of the Indian Penal code and have been. sentenced to undergo rigorous imprisonment for two years each. The sentences have been ordered to run concurrently. 2. These appellants were put on trial, along with five others, who have since been acquitted. They were charged under Sec.302 read with Sec.149 of the Indian Penal Code, for being members of an unlawful assembly with the common object or committing the murder of Thakuri Ram. They were also charged under Sec.147 of the Indian Penal Code. Accused Kabutri Devi was further charged under Sec.323 of the Indian Penal Code for voluntarily causing hurt to the informant, Lalita Devi (P. W.5), and accused Devendra Kandu, bima Kandu, Ghonchu Kandu and Rajballam Dusadh were further charged under Sec.303 read with Sec.149 of the Indian Penal Code, for being members of the unlawful assembly with the common object of assaulting Kalawati Devi (P. W.4 ). As stated above, these five accused persons were acquitted of all the charges levelled against them by the trial court. 3. The prosecution case, in brief, was that on the 5th July, 1971, at about 8 p. m. , the first informant (P. W.5) and her deceased father, Thakuri ram, along with P. W.7 (younger brother of the first informant), were all sitting at their Darwaja. The accused, persons are said to have come over there variously armed with the house of Appellant Mo.1, Baijnath Kandu, and they dragged Thakuri Ram and took him to the Darwaja of Appellant Baijnath. Thereafter; it is alleged, appellant Baijnath Kandu struck a bhala blow in the left Panjara of Thakuri Ram, and appellant No.2, assaulted him with a sword. Kalawati Devi (P. W.4), as also the first informant, Lalita Devi (P. W.5), were also the assaulted by Lathi by some of the accused persons. According to the first information report, the motive for the occurrence was that there were certain litigations between the deceased Thakuri Ram on the one hand and the accused persons on the other, and, on the date of the occurrence, there was a date in one of the cases. According to the first information report, the motive for the occurrence was that there were certain litigations between the deceased Thakuri Ram on the one hand and the accused persons on the other, and, on the date of the occurrence, there was a date in one of the cases. It was also alleged that appellant Baijnath Kandu was also pressing the deceased to withdraw the cases filed against him. 4. The defence, as disclosed from the cross-examination of the witnesses, as also the written statement filed on behalf of the accused persons, appears to be that the informant, Lalita Devi, used to live with her father in her Naihar even after her marriage and several unsocial elements and undesirable persons used to visit the house of Thakuri Ram and there always used to be Hangama on that account. According to the defence version, the house of Thakuri Ram had turned into a centre of anti-social and undesirable elements. On the day of the occurrence, it is stated, some anti-social elements had come to the house of the deceased and, as usual, in course of merrymaking, there was some hangama in his house. Narayan Kandu, father of appellant Baijnath Kandu, asked Thakuri Ram as to why he was creating Hangama in the Mohalla. Being annoyed and enraged with this protest, Thakuri Ram, with his son, Daya Ram, his son-in-law and others, is said to have attacked Narayan Kandu with a Farsa, while Narayan was entering his fenced courtyard. When appellant Baijnath protested, he was also assaulted with a Farsa and got injuries on his leg and the culprits, having assaulted them, fled away from the house out of fear and subsequently the accused persons learnt that Thakuri Ram was killed in the melee last night. The accused persons seriously challenged the manner of occurrence, as alleged by the prosecution and asserted that they had been implicated, on account of enmity. 5. In all ten witnesses were examined on behalf of the prosecution. P. Ws 2, 6 and 7 were tendered and P. Ws 1 and 3 turned hostile. P. W.10 is the doctor, who had examined the injuries on the persons of the first informant and her mother (P. Ws 5 and 4, respectively ). The charge-sheet was submitted by P. W.8 and the case had been investigated by P. W.9. P. Ws 2, 6 and 7 were tendered and P. Ws 1 and 3 turned hostile. P. W.10 is the doctor, who had examined the injuries on the persons of the first informant and her mother (P. Ws 5 and 4, respectively ). The charge-sheet was submitted by P. W.8 and the case had been investigated by P. W.9. As such, the case really rests on the evidence of P. W.4, Kalawati Devi, and P. W.5, Lalita Devi, the first informant. 6. As stated, above, the trial court found the two appellants guilty of committing the murder of Thaknri Ram, by assaulting him with a Bhala and a sword, respectively, and, accordingly, convicted them under Sec.302 of the indian Penal Code. The case was not established against the rest of the accused persons and they were acquitted. 7. Mr. Tarini Prasad, learned Counsel appearing on behalf of the appellants, has seriously challenged the manner of occurrance and has submitted that the appellants have been falsely implicated in the case out of enmity. 8. Before considering the points raised by the learned Counsel, it may be relevant here to state some of the admitted facts of the case It is admitted that there were certain criminal cases going on between the deceased Thakuri Ram on the one hand and appellant Baijnath Kandu on the other from before the occurrence. It is also admitted that in some of those casses appellant Baijnath i Kandu and others had been acquitted, while Thakuri Ram had been convicted.4he relationship between the two families on this account had been strained. The other admitted fact is that on the date of the occurrance, the night was dark and it had rained heavily. The informant (P. W. .5) had two major brothers, namely, Daya Ram and Kailash Ram. Her husband Maheadra Ram had gone to the Police Station, along with her, at the time lodging the first information report. There there person were not examined as witness in the case. 9. Now I proceed to examine the different points urged by the learned counsel for the appellant. Mr. Tarini Prasad contended that it is absolutely unnatural and, improbable that the accused pereon would drag Thakuri Ram in their courtyard and kill him there. There there person were not examined as witness in the case. 9. Now I proceed to examine the different points urged by the learned counsel for the appellant. Mr. Tarini Prasad contended that it is absolutely unnatural and, improbable that the accused pereon would drag Thakuri Ram in their courtyard and kill him there. It is submitted that if they had intended to kill Thakuri Ram and had come variously armed, they would have killed him in the house of Thakuri Ram itself or in the Gali between the house os the deceased and the house of appellant no.1, Baijnath Kandu. 10. The Investigating Officer, P. W.9 reached the place of occurrence at about 9.25 p. m. At that time it was raining. He found the dead body of Thakuri Ram in the outer compound of the house of appellant Baijnath. A Bhala blade was also found near the dead body. This outer compound is about 26 ft. from east to west and 10 ft. from north to south. In the north there is a well 7 f t high. There is also a Tar (palm) tree in the north-eastern corner of the compound, where the dead body of Thakuri Ram was found. He also found some blood marks with water. Out of the northern compound wall, there is a three feet wide Gali, north of the compound wall, and adjacent north of the said Gali is the house of the deceased Thakuri Ram. 11. The prosecution case is that Thakuri Ram was dragged into the compound of appellant Baijnath, where he was assaulted and killed. It does not seem probable, that the accused persons would drag Thakuri Ram into their own compound and assault him there, if they could do so in the Sehan of Thakur ram, where he was sitting, or in the Gali between the houses of Thakuri Ran and appellant Baijnath. It is not likely that the accused persons would create evidence against themselves. In facts it fits with the defence case that Thakuti Ram enteened into the fenced court yard of appellant Baijnath with a Farsa and attacked Narayan Kandu, father of appellant Baijnath with the Farsa. 12. Learned Counsel further submitted that appellant Baijnath and his father had received cut injuries on their legs. In facts it fits with the defence case that Thakuti Ram enteened into the fenced court yard of appellant Baijnath with a Farsa and attacked Narayan Kandu, father of appellant Baijnath with the Farsa. 12. Learned Counsel further submitted that appellant Baijnath and his father had received cut injuries on their legs. P. W.9 arrested appellant baijnath and accused Narayan near the Patna Bus Stand on the 10th July, 1971 he found cut injuries on the left leg and heel of appellant Baijnath. He also found some cut injuries on the right leg of accused Narayan, father of appellant baijnath. When examined, appellant Baijnath and his father had given out to the I. O. as to how they had received the injuries. He had also get them examined by doctors and had obtained injury reports. When appellant Baijnath am his father Narayan Kandu were produced in the courts, injuries on their persor were found. This also appears from the order-sheet of the Subdivisional magistrate dated the 11th July, 1971. When this question was put to P. W.5 she could not deny and merely stated that she did not know that appellan baijnath and his father, Narayan Kandu, had been assaulted with Farsa b; thakuri Ram at the time of the alleged occurrence. It is true that the injury report or any medical certificate for the injuries of these two person are not or the record, but, it is apparent that they had received certain injuries at the time of the occurrance. This also fits in with the defence case. In paragraph No. of the written statement, it has been categorically stated that appellant Baijnath and his father, Narayan Kandu, received injuries in their leg and that they has been assaulted with Farsa by Thakuri Ram, The Investtigating Officer, P. W. has no doubt stated that he got these two persons examined by a doctor and also obtained injury reports, but, it is unfortunate that the said injury reports have not been brought on the record, this as I have stated above, probabilitises the defence varsioa that the occurrence took place in a different manner and not in the manner as alleged by the procecution. 13. Mr. Tarini Prasad next contended that the son and the son-in-law of the deceased Thakuri Ram, even though present, had not been examined on behalf of the prosecution. 13. Mr. Tarini Prasad next contended that the son and the son-in-law of the deceased Thakuri Ram, even though present, had not been examined on behalf of the prosecution. " In her evidence, P. W.5 has stated that she had gone to the Police Station along with her husband and her brother. The first informant had reached the Police Station only 45 minutes after the alleged occurrence, that is to say, at about 8.45 p. m. P. W.5 also stated that at the time of the occurrance her elder sister and her Bhaujai also were present in the house it is surprising that neither of these persons were examined by the prosecution it has been stated in the written statement that Thakuri Ram, Daya Ram and the son-in-law of Thakuri Ram and others attacked Narayan Kandu, father of appellant Baijnath Kandu, while he was entering his fenced courtyard. It is possible that for this reason the brother and the husband of the first informant were not examined by the prosecution. The elder sister-in-law of the first informant ware also material witness, as they must have seen the occurrence, if they were present in the house, but, they were also withheld by the prosecution for the reasons best known to them. 14. Tarini Prasad submitted that the conviction of the appellants solely on the basis of the evidence of P. Ws 4 and 5 cannot be maintained. P. W.4 has stated that at the times of the occurrence, it was raining heavily and she was sitting, along with her daughter, at her Darwaja and was crying from there, but no person from the Mohalla came there. The Sahan of appellant Baijnath is about 18 to 20 cubits long, which is frnced from all sides. P, W.4 herself stated that the wall is about 6-7 feet in height. There was only two doors in the wall. The night was dark and the Investigating Officer (P. W.9) has stated that he had written his diary in the light of his torch. This shows that there was no other light at the place of the occurrence, and, as such there was no possible means of identification. Wnen both these witnesses were sitting at their Darwja and crying from there, it could not be possible for them to identify, who was assaulting whom. This shows that there was no other light at the place of the occurrence, and, as such there was no possible means of identification. Wnen both these witnesses were sitting at their Darwja and crying from there, it could not be possible for them to identify, who was assaulting whom. Mr Prasad also pointed out several contradictions in the evinence of P. Ws 4 and 5. But, in view of what I have stated above, I do not think it necessary to deal with those contradictions. 15. In the first information report, P. Ws 1 and 3 were named as eyewitnesses. In court they did not support the prosecution case and were declared hostile. P. W.1 stated that he did not know who killed Thakuri Rain. In cross-examinition by the defence, he stated that appellant Baijnath had filed two criminal cases against him and one Gulabchand. In one of those criminal cases, Thakuri Ram also a co-accused. They had also been convicted. A case had been filed by the son of Thakuri Ram against appellant Baijnath in which gutteni (P. W.1) was a witness on behalf of the son of Thakuri Ram P. W.1 had also given evidence in another case filed by Lalita Devi (P. W.5 ). In such a situation, if the occurrence had taken place in the manner as alleged by the possession, P. W.1 would have deposed on behalf of the prosecution. But, it appears, he was not ready to depose falsely. P,w.3, Gulabchand, son of p. W.1, stated in his evidence that he was going through, that Rasta, when he heard that Thakuri Ram had been killed. He also that stated Thakuri Ram and baijnath had quarrelled in the Gali and at that time it was raining heavily. He also stated, like P. W.1 that he had been convicted in a case filed by appellant Biijnath. It appears that this witness was also not prepared to "depose falsely. The prosecution case, therefore reses only on the evidence of P. W.4 and P. W.5. It is unsafe to convict the appellants on the evilence of such interested witnesses. Apart from being inimical, they do not seem to have spoken the truth. 16. Considering all these facts and circumstances, I am of the opinion that the prosecution has not been able to prove its case beyond all reasonable doubts. It is unsafe to convict the appellants on the evilence of such interested witnesses. Apart from being inimical, they do not seem to have spoken the truth. 16. Considering all these facts and circumstances, I am of the opinion that the prosecution has not been able to prove its case beyond all reasonable doubts. The appellants are, therefore, entitled to the benefit of doubt. The appeal is accordingly allowed and the conviction and the sentence passed against the appellants are set aside and they are directed to be set at liberty forthwith, if not required to be detained in connection with any other case. Chaudhary Sia Saran Sinha, J.- I agree to the order proposed by my learned brother, but, I would like to add the following few more reasons in support of the order proposed. 17. On the evidence and the materials on the record, it is difficult to accept the suggestion of the prosecution that P. W.1 and P. W.3 did not support the prosecution on being gained over by the appellancs. On the own showing of the prosecution, these two witnesses were of the camp of the prosecution. In such circumstance, no earthly reason could be pointed out by the learned counsel for the State for which these two witnesses would have gone over to the side of the appellants. 18. The two witnesses named in the first information report having not supported the prosecution, the conviction rests on the evidence of two interested witnesses, namely, P. W.4 and P. W.5. I call them interested for the reason that they are close relatives of the deceased and they share the hostility of the deceased with the two appellants. True it is that the evidence of an interested witness should not be thrown aside only on that ground, and that the same has to be scrutinised and judged in the light of the probabilities of a case. A perusal of the evidence of these two witnesses discloses that they went back upon their earlier statements made before the Police as also before the committing court. It is also noticed that whenever any inconvenient question was put to them, they took recourse to memory, a plea often adopted by an untrustworthy and unreliable witness. A perusal of the evidence of these two witnesses discloses that they went back upon their earlier statements made before the Police as also before the committing court. It is also noticed that whenever any inconvenient question was put to them, they took recourse to memory, a plea often adopted by an untrustworthy and unreliable witness. These a part, the evidence of these two witnesses stand discredited by the finding of acquittal recorded by the trial court in respect of the other persons. True it is that the maxim, "falsus in omnibus" is not to be blindly ked in appraising evidence adduced in our courts where witnesses seldom the whole truth, but often resort to exaggerations, embellishments and padding upto support a story however true in the main. It is the function of the court to disengage the truth from falsehood and to accept what it finds to be true, and reject the rest. It is only where truth and falsehood are in extricably mixed up, polluting beyond refinement, the entire fabric of the narration given by a witness, that the court might be justified in rejecting his evidence in toto. in the instant case, the two parts of the prosecution story are so connected that it cannot be safe to accept one part and reject the other, The trial court has rejected the evidence of these two witnesses on amongst others the ground that they never went to the Darwaja of the accused. If that be so, as it appears to me, it would be totally unsafe to accept their statement regarding identification of the culprits as regards the assault on the deceased as well. I have given my anxious consideration to the evidence of these two witnesses and I am of the confirmed view that the same is totally unacceptable and unfit for reliance. 19. The medical evidence, furnished by Dr. D. D. Kalawar, who was examined as P. W- 4 in the committing court, and whose evidence has been tendered under Sec.291 of the Code of Criminal Procedure, appears to be in conflict with the ocular version, which also introduces infirmity in the prosecution case. This doctor found only one punctured wound on the person of the deceased and as many as six incised wounds. He did not find any injury said to have been caused by hard and blunt substance, such as a Lathi, etc. This doctor found only one punctured wound on the person of the deceased and as many as six incised wounds. He did not find any injury said to have been caused by hard and blunt substance, such as a Lathi, etc. P. W.4 had stated before the Police about the infliction of Bhala blows by appellant baijnath on the deceased. Similarly, P. W, 5 had also stated before the Police about the appellant Baijnath hurling several Bhala blows on the deceased. Confronted with the findings of the doctor, above mentioned, thess two witnesses resiled from their earlier statements before the Police. The first information report did not specifically state about appellant Ramjatan hurling more than one sword blow Even the evidence of P. W.4 and P. W.5 does not disclose any such position. But, as stated above, the doctor finds six incised wounds said to have been caused by sword. As against the statement of P. W.5 that the accused persons armed with Lathi, the e being five more such accused, assaulted the deceased with Lathi for about five minutes, the doctor does not find any injury of Lathi. Besides introducing infirmity in the prosecution case, this also creates doubt about the competency of these two witnesses in witnessing the actual assault on the deceased. 20. Apart from the non-examination, amongst others, of the elder sister and the brothers wife of P. W.5, the prosecution rest contented simply by tendering P. W.7 who, on the own showing of the prosecution, was also a material witness. In a case where any witness known to the prosecution is able to sweaar to facts very meterial to the case, the proper procedure to follow is to ask him to give evidence on oath as to the several facts knowa to him, which are relevant to the case, though other witnesses might have also spoken to the same facts. Merely tendering him, for cross-examination, is not a practice which should be encouraged, specially in murder cases, as it would be very unfair to the accused. 21. Apart from the other facts and circumstances of this case, the evidence of P. W.1 is that in spite of her being a married girl, obviously young in age, Lalita Devi (P. W.5) instead of residing in her Sasural was residing in her Naihar. 21. Apart from the other facts and circumstances of this case, the evidence of P. W.1 is that in spite of her being a married girl, obviously young in age, Lalita Devi (P. W.5) instead of residing in her Sasural was residing in her Naihar. His further statement is that people, after drinking, often visited the house of Thakuri Ram, presumably with bad intentions, which created hangama. This offers a link to probabilise the defence version stated above. 22. Corning to the charge under Sec.148 of the Indian Penal Code, in view of the acquittal of the other accused persons, as recorded by the trial court, and the wordings of the existing charge under Sec.148 of the Indian Penal Code against the two appellants alone cannot stand, irrespective of the question of the merits of the case. 23. Before I conclude, I must refer to the contention of the learned counsel for the appellants, who bitterly criticised the inaction of the investigating officer in not preparing the sketch map of the place of occurrence. The investigating officer, no doubt, claimed to have done so, but the materials on the record show the position to be otherwise. The topography of the place of occurrence and its surroundings, is such that the sketch map would have given an inkling to the correct understanding of the defence version, and, as further contended by the learned Counsel, this might have motivated the investigating officer in not preparing the sketch map in utter dereliction of his duty. Appeal allowed.