Judgment V.N. Misra, J. 1. THIS is an appeal from the judgment and order of Sri Surya Prasad III Additional Sessions Judge, Banda by which he convicted the appellants-Lal Bahadur Singh, Had Bahadur Singh, Nawal Kishore, Jaswant Singh, Indra Jit Singh, Babu Lal Singh, Shambhu Singh, Khilloo Singh, Ram Asrey Singh, Iqbal Singh, Dwarka Singh, Rameshwar Singh, Shailendra Singh and Yadu Rai Singh-under Sees. 304/149, 3077149 and 323/149 IPC and sentenced each one of them to imprisonment for life under the first count, 10 years R. I. under the second count and one year R. I. under the third count. He further convicted Jaswant Singh and Ram Asrey Singh under Sec. 148 IPC and the remaining ones under Sec. 147 IPC and sentenced the former set to three years R. I. and the latter set to two years' R. I. each. 2. ALL the appellants who are Thakurs and are closely related to each other, are residents of village Santar, P. S. Baberu, district Banda. Lola who lost his life in this case also belonged to village Santar and his house was quite close to the house of the appellants. He belonged to Yadav caste. Kallu, Indrapal P. W. 1, Lotan P. W. 2, Smt. Kunwaria P. W. 3 and Gangadin (all injured) are relations of Lola deceased and their houses are also close to his house. It appears that for some time past the relations between the appellants on the one hand and Lola deceased, Kallu and others on the other had been far from satisfactory. Some litigations had taken place between them and this thing had quite soured their relations. One of the fields of appellant Indra Jit Singh was close to the field of Kallu, nephew of the complainant (PW 1). On 24-3-1973 at about 4 P. M. appellant Indra Jit Singh took his bullock cart to his field for carrying his harvested crop from there. He unyoked 'the bullocks from the cart and after a little while those bullocks strayed into the field of Kallu and started damaging the crop standing therein. The complainant happened to be present near Kallu's field at that time and he asked appellant Indra Jit Singh to drive away his bullocks from the field of Kallu. Indra Jit Singh gave no heed to his words, whereupon the complainant himself drove away the bullock from Kallu's field. The complainant happened to be present near Kallu's field at that time and he asked appellant Indra Jit Singh to drive away his bullocks from the field of Kallu. Indra Jit Singh gave no heed to his words, whereupon the complainant himself drove away the bullock from Kallu's field. This thing caused annoyance to Indra Jit Singh and he started hurling abuses on the complainant. The complainant also) retaliated and abused Indra Jit Singh. Tempers, however, cooled down after a short while and the complainant then left the place. 3. ON 25-3-1973 at about 7 A. M. or so Smt. Kunwaria P. W. 3 sister-in- law of the complainant, went to the shop of one Ghisla Bhujwa in the village to purchase betel nuts. Ghisla Bhujwa inquired from her about the quarrel which had taken place between appellant Indra Jit Singh and the complainant on the previous evening. She lost no time and started telling him about the facts that had led to the quarrel. In the meantime appellant Indra Jit Singh also happened to come to the shop of Ghisla Bhujwa. He scolded Smt. Kunwaria for defaming him in the village for nothing. She took exception to this thing and insisted on telling the true facts to Ghisla Bhujwa. Appellant Indra Jit Singh lost his temper and started abusing Smt. Kunwaria. Smt. Kunwaria returned home and told the complainant and the other members of the family including Lola deceased about the treatment meted out to her by appellant Indra Jit Singh. Soon thereafter appellant Rameshwar Singh and Khilloo Singh carrying lathis with them happened to pass in front of the house of Lola deceased. Lola inquired from them as to why appellant Indra Jit Singh had abused Smt. Kunwaria at the shop of Ghisla Bhujwa. Instead of feeling sorry for the conduct of appellant Indra Jit Singh, they adopted an aggressive posture and told him that Indra Jit Singh had done a right thing and he would continue to insult his family members in future also. This; led to an exchange of hot and indecent words between the two sides. The other appellants heard these hot and indecent words and they rushed to the house of Lola to teach him a lesson. At that time Jaswant Singh and Ram Asrey Singh were armed with guns, while the rest were armed with lathis. This; led to an exchange of hot and indecent words between the two sides. The other appellants heard these hot and indecent words and they rushed to the house of Lola to teach him a lesson. At that time Jaswant Singh and Ram Asrey Singh were armed with guns, while the rest were armed with lathis. Khilloo Singh, Dwarka Singh and Rameshwar Singh cornered Lola and started assaulting him with lathis. Smt. Kunwaria shouted for help hearing which Kallu, Indrapal P. W. 1, Lotan P. W. 2 and Gangadin rushed to the rescue of Lola. Indra Jit Singh fell upon Smt. Kunwaria and gave her lathi blows. Likewise Bahadur Singh and Shailendra Singh surrounded Indrapal and beat him with lathis, while Rameshwar Singh and Iqbal Singh beat Kallu and Gangadin resoectively Lal Bahadur Singh and Shambhu Singh did not lag behind and they gave lathi blows to Lola. Indrapal and others from the side of the complainant had also been carrying lathis and they wielded their lathis in self defence. In that process appellant Lal Bahadur Singh also received some injuries. In the meanwhile a large number of villagers collected there and on their intervention the appellants left the place and ran away. While they were going away Jaswant Singh and Ram Asrey Singh fired their guns in the air. 4. LOLA had received serious injuries and had become unconscious. Indrapal P. W. 1 immediately wrote a report (Ex. Ka-1) and left for Thana carrying LOLA on a bullock cart. He delivered that report at the thana at 11.30 A. M. On the basis of that report a case was registered against the appellants. LOLA was immediately sent to Primary Health Centre Baberu for medical aid. Kallu, Lotan, Smt. Kunwaria, Indrapal and Gangadin had also gone to Thana and they too were sent to Primary Health Centre; Baberu for medical examination. LOLA as also these five persons were examined by Dr. V. N. Upadhya between 1 P. M. and 3.30 P. M. on the same day and he found the following injuries on their bodies:- In jury of LOLA :-Lacerated wound 2 1 /2 cm x 2 cm skin deep on right side of forehead, 11 cm back from right eye brow. Injury of Kallu :-Lacerated wound 3 cm x 2 cm skin deep on front part of left index finger of hand. Injury of Kallu :-Lacerated wound 3 cm x 2 cm skin deep on front part of left index finger of hand. Injury of Lotan :-Lacerated wound 3 cm x I cm skin deep on right side of scalp 6 cm above right eye. Injury of Smt. Kunwaria :-Lace ratted wound 8 cm x 2 cm x skin deep on scalp on right side 12 cm above right eye brow. Injury of Indrapal:--Lacerated wound 3 cm x 1 cm x skin deep on middle of scalp 12 cm above front right. Injury of Gangadin :-Lacerated wound 5 cm x 1 cm x skin deep on right side of scalp 16 cm back from right eye brow. The condition of Lola was found unsatisfactory and he was sent to district hospital Banda for medical aid. Lola, however, succumbed to his injuries in the hospital on 27-3-73. 5. THE post mortem examination on the dead body of Lola was conducted by Dr. K. L. Pillai on 28-3-73 at 3 30 P.M. He found the following one ante mortem injury on the dead body:- 1. Lacerated wound 2 1/4 cm x 1.715 cm skin deep on the right half of forehead, 11 cms back from the right eye brow (inner end) and 16 cms above the right ear. Examining internally the autopsy surgeon found fracture of several skull bones underneath the injury. 6. AFTER the usual investigation was over S.I. Munni Lal Misra P.W. 11 submitted a charge sheet against the appellants. The appellants pleaded not guilty and claimed to be tried. But for appellant Lal Bahadur Singh the other appellants denied their participation in or for that matter any connection with the crime in question. Appellant Lal Bahadur Singh, however, gave his own version of the incident. He stated that on 25-3-1973 at about 8.30 A. M. he had been to the house of appellant Ram Asrey when he saw his brother appellant Khilloo Singh coming running towards the house of Ram Asrey. According to him, as soon as he arrived near the door of the bouse of Ram Asrey, Chandrapal, Lola, Bhola, Jhandu, Indrapal, Vishesher, Kallu, Ram Saran, Gangadin, Lotan and Rampal rushed forward to beat him with lathis. He (Lai Bahadur Singh) inquired from them as to why they were out to beat Khilloo Singh. Those persons then started beating him with lathis. He (Lai Bahadur Singh) inquired from them as to why they were out to beat Khilloo Singh. Those persons then started beating him with lathis. He and Khilloo Singh also wielded lathis in their self defence. According to him, he too had been badly injured. 7. LAI Bahadur Singh also went to Thana and lodged a report there. He had injuries on his body and the police sent to kirn also to Primary Health Centre Baberu for medical examination He too was examined by Dr. V. N. Upadhya on the same day and he found the following injuries on his body :- 1. Lacerated wound 7 cm x 2 cm x bone deep on left side of forehead 12 cm x above left ear and 14 cm back from left eve brow, margin torn and irregular. Direction antero posterior, blood oozing, semi conscious. 2. Contused abrasion 4 cm x 2 cm on left side of chest 9 cm outer to left nipple. 3. Abrasion 4 cm x 4 cm on top of right shoulder. The learned Additional Sessions Judge found the prosecution case fully proved against the appellant and he, therefore, convicted and sentenced them as indicated above. Aggrieved, they have come up in appeal to this Court. 8. WE have heard the learned counsel for the parties at sufficient length and after doing so we are firmly of the view that this appeal must be allowed. WE find that the court below has not approached this case in a proper manner with the result that it fell in error and passed a wholly wrong order of conviction against the appellants. It appears that some incident did take place near the houses of the parties who are neighbours and in that incident six persons, namely, Lola, Kallu, Lotan, Smt. Kunwaria, Indrapal and Gangadin received injuries from the side of the complainant and one person, namely, Lal Bahadur Singh received injuries from the other side. WE have already mentioned about the injuries received by these persons in the earlier portion of this judgment. All the six persons injured from the side of the complainant received one injury each. Appellant Lal Bahadur Singh had, however received three injuries. The injury by Lola was on his head, some of his skull bones got fractured and he died two days latter. All the six persons injured from the side of the complainant received one injury each. Appellant Lal Bahadur Singh had, however received three injuries. The injury by Lola was on his head, some of his skull bones got fractured and he died two days latter. The question that, however, calls for answer is whether or not all the appellants had participated in the commission of this crime. They are 14 in number and the injuries which the injured persons received from the side of the complainant total six only. In the FIR it was mentioned that all the appellants barring Jaswant Singh and Ram Asrey Singh lad given lathi blows to these injured persons. If 12 persons had in fact participated in the assault and wielded lathis, then the number of tin juries received by the injured persons from the complainant's side would have been much more than six in number. If they were considerate enough to give one lathi blow to each of the injured persons, then in that event also the injuries received by them could not have been less than 12. Probably the prosecution was conscious of this infirmity in the case and it, therefore gave a twist to the facts of the case and started saying that all the appellants did not collectively cause injuries to the six injured persons from the complainant's side. All the witnesses, namely, Indrapal P. W. 1, Lotan P. W. 2, Smt. Kunwaria P. W. 3 and Ram Pal P. W. 4 were made to state that appellants Nawal Kishore, Babu Lal Singh and Yaduraj Singh simply exhorted their companions to beat and on their exhortation Khilloo Singh, Dwarka Singh and Rameshwar Singh assaulted Lola, Indra Jit Singh assaulted Smt. Kunwaria, Hari Bahadur Singh and Shailendra Singh assaulted Indrapal, Lal Bahadur Singh and Shambhu Singh assaulted Lotan, Rameshwar Singh assaulted Kallu and Iqbal Singh assaulted Gangadin. On the face of it the facts stated that the witnesses in Court are an improvement on the first information report and this improvement has been introduced with a design to make the mode of assault consistent with the medical evidence on record. However, the inconsistency still continues to stare in the face. On the face of it the facts stated that the witnesses in Court are an improvement on the first information report and this improvement has been introduced with a design to make the mode of assault consistent with the medical evidence on record. However, the inconsistency still continues to stare in the face. Even if one took it for a moment that the appellants had assaulted the various injured persons in the manner as stated by the witnesses that will hardly make any difference to the actual position. In that event also the injured persons from the side of the complaint should have received many more injuries than six in number. Seeing the number of injuries received by the injured persons we are absolutely certain in our mind that all the appellants had not participated in the commission of this crime. There is partibandi in the village and the Thakurs are at logger heads with the Yadavas. Where there are party factions there is always a tendency to include innocent with the guilty and it is extremely necessary for the Court to guard against such a danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence, evidence which satisfied the consciences of the Court. All the eye witnesses examined by the prosecution (P. Ws. 1 to 4) are Yadavas and, therefore, highly partisan witnesses. Almost all of them are also accused in the cross-case and it, therefore, lies in their interest to say things which would go against the accused persons. Much reliance cannot, therefore, he placed on their evidence. Their evidence does not satisfy us beyond all doubt that all the appellants had participated in the commission of this crime. The incident in question was said to have been seen by several persons living in the vicinity but they were not examined by the prosecution. Obviously they were withheld with an oblique motive. Probably they were not prepared to swear to a false case and so the prosecution chose not to produce them in Court. Therefore, on the basis of the evidence as it exists on record we are not prepared to hold with certainty that all the appellants had perpetrated this crime. On the other hand we feel that some innocent persons have been roped in. Therefore, on the basis of the evidence as it exists on record we are not prepared to hold with certainty that all the appellants had perpetrated this crime. On the other hand we feel that some innocent persons have been roped in. WE are not certain that even among the appellants there are no innocent persons. The eye witnesses involved all of them equally, either they are all guilty or they are all innocent But, when it is doubtful whether they are all guilty, everyone of them must get the benefit of doubt. The prosecution itself is to blame for this doubt raising in our mind. It is true that in cases of this type it is the duty of the Court to make an attempt to separate the grain from this chaff but only if it is possible to do so. In certain circumstances it may be found to be an impossible task. This is exactly the position which we have to face in this case. On the basis of the evidence present on the record it is clear that all the appellants had not participated in the commission of this crime. Some of the appellants are definitely innocent and have been falsely roped in. One cannot say with certainty who among the appellants are innocent and who are guilty. In such a situation, the Court is left with no option but to acquit all the appellants. 9. IN the result, we allow this appeal and set aside the conviction and sentences passed against the appellants. They are on bail, their bail bonds are discharged and they need not surrender to them. Appeal allowed.