S. B. MAJMUDAR, J. ( 1 ) IN this appeal against acquittal the appellant-State has challenged the order of acquittal rendered by the learned Additional Sessions Judge Bhavnagar in sessions case No. 43 of 1980 in favour of respondents Nos. 1 and 2 original accused Nos. 1 and 2. Original accused No. 3 was also acquitted. The State appeal against her acquittal came to be dismissed by this court at admission stage while the appeal against acquittal was admitted only against respondents Nos. 1 and 2 original accused Nos. 1 and 2 respectively. We shall refer to respondents Nos. 1 and 2 with reference to their original position in the sessions Case as accused Nos. 1 and 2 respectively in the later part of this judgment. ( 2 ) THE prosecution case in short against the accused is that in the morning of 28. 3. 1980 an incident occurred at village Nana Jadara in Mahuva taluka of Bhavnagar district near the Wada or open court-yard of the complainant Manglubhai Tapubha whereunder the complainant received serious injuries at the hands of the accused and his father Tapubha lost his life. The accused are the next door neighbours of the complainant and their residential houses are situated side by side. They are also having back yards or Wadas behind their residential houses which have common intervening boundaries on the side where these two Wadas adjoin each other. . The prosecution case is that the complainant and his father were staying in huts constructed by them in their field called wadi situated on the outskirts of their village Came to morning of the incident by about 8-30 a. m. the complainant who had come to Purchase certain household things from the village came to know that the accused were trying to encroach upon a part of their Wada adjoining their residential house in the village. The complainant thereupon returned to his hut situated in the Wadi and conveyed this information to his father. Thereupon the complainants father rushed to the spot with a view to finding out the truth about the complaint against the accused. The complainant also followed. One Vashram Shiba whose services were requisitioned by the complainants father for spreading insecticide in his field also followed the complainant and his father. Thereupon the complainants father rushed to the spot with a view to finding out the truth about the complaint against the accused. The complainant also followed. One Vashram Shiba whose services were requisitioned by the complainants father for spreading insecticide in his field also followed the complainant and his father. When they reached their Wada and came near the hedge intervening between the Wadas of the accused and the complainant accused No. 1 Visa Ravat accused No. 2 Gabha Ravat and their mother Sajuben original accused No. 3 were found working in their Wada. They started abusing them when they noticed them. The accused were armed. Accused No. 1 had an axe accused No. 2 had a dharia while accused No. 3 was armed with a stick as well as a sharp cutting instrument like a dagger. According to the prosecution the accused mounted attack on the complainant and his father. Accused No. 1 gave an axe blow on the right shoulder of the complainant. Accused No. 3 gave stick blows and knife blows to the complainant while accused No. 2 gave a dharia blow on the head of the deceased Tapubha. They also started beating the father of the complainant. Deceased Tapubha fell down on the spot after becoming unconscious. The complainant also sat down on spot having received bleeding injuries The accused then fled from the scene of offence. Ultimately the injured complainant as well as his father were removed to Mahuva hospital when they were examined by Dr. Varu ex. 14. The complainant and his father were admitted as indoor patients. The complainant was later on removed to Sir T. Hospital Bhavnagar for further treatment. In the meantime Dr. Varu informed the police station officer Mahuva about the incident. The police station officer came to the hospital and recorded the first information report of the complainant dictated by the complainant. Dr. Varu also examined accused Nos. 1 and 3 who had later on come to Mahuva hospital. We will later on refer to the injuries noticed by Dr. Varu on accused Nos. 1 and 3. Pursuant to the complaint filed by the complainant before the police station officer Mahuva investigation ensued. Statements of various witnesses were recorded panchanama of the scene of offence was made. In the meantime the complainants father succumbed to his injuries. Dr. Charaniya ex. Varu on accused Nos. 1 and 3. Pursuant to the complaint filed by the complainant before the police station officer Mahuva investigation ensued. Statements of various witnesses were recorded panchanama of the scene of offence was made. In the meantime the complainants father succumbed to his injuries. Dr. Charaniya ex. 20 performed the post-mortem examination on the dead body of the deceased. The post-mortem notes are proved and exhibited at ex. 21. Accused Nos. 1 and 2 who had presented themselves in police station at Mahuva were arrested while accused No. 3 was arrested later on from Mahuva hospital where she was admitted as indoor patient. Ultimately all the three accused were chargesheeted for the offences under sections 302 and 326 read with section 34 I. P. C. The learned J. M. F. C. Mahuva committed the accused to stand their trial before the Sessions court at Bhavnagar. Sessions case against them was registered as sessions case No. 43 of 1980 before the learned Additional Sessions Judge Bhavnagar. Charge against them was framed by the learned trial Judge. The accused pleaded not guilty to the charge. The learned trial Judge thereafter held the trial recorded evidence of the prosecution witnesses and after hearing the learned counsel for both sides came to the conclusion that the prosecution had not been able to establish its case against the concerned accused and hence acquitted all the three accused. As noted earlier the State has preferred the appeal before this court against all the three accused. But earlier at admission stage this court was pleased to dismiss the appeal against acquittal against accused No. 3 and appeal against accused Nos. 1 and 2 was admitted to final hearing and that is how it has reached final hearing before us. . . . . . . . . . . . . . . . . ( 3 ) WE may now proceed to deal with the nature of the prosecution evidence led at the trial against tale accused in support of the prosecution case which we have noticed earlier. However before we do so we must mention the fact that the present appeal is an appeal against acquittal. . . . . . . . ( 3 ) WE may now proceed to deal with the nature of the prosecution evidence led at the trial against tale accused in support of the prosecution case which we have noticed earlier. However before we do so we must mention the fact that the present appeal is an appeal against acquittal. In the light of the settled legal position even though we are entitled to reappreciate the entire evidence if we ultimately find that the view taken by the learned trial judge is equally possible and reasonable in the light of the evidence on record no case for our interference in acquittal appeal can be said to leave been made out by the appellant. If however it is found that the appreciation of evidence made by the learned trial Judge is lope sided perfunctory and the conclusion reached by him on the evidence on record appears to be an impossible one or is an unreasonable one we well be entitled to interfere with the order of acquittal and pass proper orders against the concerned accused. In this connection we may have a birds eye view of the settled legal position. In the case of K. Gopal Reddy v. State of A. P. A. I. R. 1979 S. C. 387 Chinappa Reddy J. speaking for the Supreme Court has made the following pertinent observations in connection with the powers of the appellate court in appeal against acquittal:-"at one time it was thought that an order of acquittal could be set aside for substantial and compelling reasons only and court used to launch on a search to discover those substantial and compelling reasons. However the formulae of substantial and compelling reasons good and sufficiently cogent reasons and strong reasons and the search for them were abandoned as a result of the pronouncement of the Supreme Court in Sanwat Singh v. State of Rajasthan ( AIR 1961 SC 715 ) in which the Supreme Court harked back to the principles enunciated by the Privy Council in Shree Swarup v. Emperor (AIR 1954 PC 227 (2) and reaffirmed those principles. After Sanwat singh case the Supreme Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Shee Swarups case. After Sanwat singh case the Supreme Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Shee Swarups case. Occasionally phrases like manifestly illegal grossly unjust have been used to describe the orders of acquittal which warrant interference. But such expressions have been used more as flourishes of language to emphasis the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion. In some cases (Ramabhupala Reddy v. State of A. P. AIR 1971 SC 460 ; Bhim Singh Rup Singh v. State of Maharashtra AIR 1974 SC 286 etc. ). it has been said that to the principles laid down in Sanvat Singhs case may be added the further principle that if two reasonable conclusion can be reached on the basis of the evidence on record the appellate Court should not disturb the finding of the trial court. This. of course is not at new principle It stone out of (he fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt. But fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is therefore essential that any view of the evidence in favour of the accused must be reasonable even as any doubt the benefit of which an accused person may claim must be reasonable (What is meant by proof beyond a reasonable doubt stated)". It is therefore essential that any view of the evidence in favour of the accused must be reasonable even as any doubt the benefit of which an accused person may claim must be reasonable (What is meant by proof beyond a reasonable doubt stated)". It has also been further observed as under:-"where the trial court allows itself to be beset with fanciful doubts rejects creditworthy evidence forelonder reasons and takes a view of the evidence which is but barely possible it is the obvious duty of the High Court to interfere in the interest of justice lest the administration of justice be brought to ridicule". In the aforesaid decision of the Supreme Court various judgments of the Supreme Court on the point have been noted with approval. It is not necessary for us to refer to all these decisions on the point. But we may profitably refer to a recent decision of this court in State v. Kanubhai 25 G. L. R. 1019 where a Division Bench consisting of S. L. Talati and J. P. Desai JJ. considered the nature of the powers and functions of the High Court in appeals against acquittal in the light of the decisions of the Supreme Court on the point. S. L. Talati J. speaking for the Division Bench made the following pertinent observations in para 5 of the report. The said observations are based on various Supreme Court decisions and the decision of the Privy Council in Sheo Swarups case (supra ). These observations read as under:-"before we reappreciate the evidence we would like to state that we are conscious of the fact that we are hearing an appeal from acquittal. The law on the point is well settled and in a case of Sheo Swarup and Ors. v. King Emperor reported on A. I. R. 1934 Privy Council 227 the learned Judges held as under":secs. 417 418 and 428 of the Code (Cr. P. C.) give to the High court full power to review at large the evidence upon which the order of acquittal was found and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No Limitation should be placed upon that power unless it be found expressly stated in the Code. P. C.) give to the High court full power to review at large the evidence upon which the order of acquittal was found and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No Limitation should be placed upon that power unless it be found expressly stated in the Code. But in exercising the power conferred by the code and before reaching its conclusions upon fact the High Court should and will always give proper weight and consideration to such matters as - (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of doubt; and (4) the slowness of an appellate court in disturbing a finding of tact arrived at by a Judge who had the advantage of seeing the witnesses. This judgment is followed constantly by the Supreme Court and in the case of Sanvat Singh and Others v. State of Rajasthan A. I. R. 1961 S. C. at page 714 the Supreme Court observed as under:-" In an appeal against acquittal the appellate court has full power to review the evidence upon the order of acquittal is founded. The principle laid down in Sheo Swarups case AIR 1934 PC 227 (2) afford a correct guide for the appellate courts approach to a case in disposing of such an appeal and different phraseology used in the judgments of the Supreme Court such as (i) substantial and compelling reasons (ii) good and sufficient cogent reasons and (iii) strong reasons are not intended to curtail the undoubted power of an appellate court in anappeal against acquittal to review the entire evidence and to come to its own conclusion but in doing so it should not any consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts but should also express these reasons in its judgment. which leads to it hold that the acquittal was not justified". which leads to it hold that the acquittal was not justified". In another case Bhagwati and others v. state of Uttar Pradesh reported in A. I. R. 1976 S. C. at page 1449 it was observed as under:-"the power of an appellate court to review evidence in appeals against acquittal is as extensive as its power in appeals against conviction. Before an appellate court can set aside an order of acquittal it must carefully consider the reasons given by the trial court in support of its decision and give its own reasons for rejecting them. If the finding reached by the trial Judge cannot be said to be unreasonable the appellate court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. the appellate court therefore. should be slow in disturbing the evidence of fact of the trial court and if two views are reasonably possible of the evidence of fact of the trial court and if two views are reasonably possible of the evidence on the record it is not expected to interfere simply because it would have taken a different view it the case had been tried by it. Having stated this law we are clearly of the opinion that if the view which the learned Sessions Judge took was a reasonable view or that it was a possible view we would not interfere with it. Bearing this principle in mind we have gone through the entire evidence on record and also the judgment rendered by the learned Sessions Judge Bharuch". It is in the light of the aforesaid settled legal position that we proposed to grapple the question posed for our consideration with a view to finding out as to whether the decision rendered by the learned trial Judge can be said to he based on a reasonable view of the appreciation of the prosecution evidence and whether it is a possible view or not. ( 4 ) NOW coming to the prosecution evidence regarding the actual happening on spot we have got the first information report or complaint ex. 46 which was earlier marked A by the learned trial Judge. ( 4 ) NOW coming to the prosecution evidence regarding the actual happening on spot we have got the first information report or complaint ex. 46 which was earlier marked A by the learned trial Judge. The complaint was recorded by the police sub-inspector Mahuva on the day of the incident that is 28. 3. 1980 at about 10-15 a. m. Thus complaint was recorded within 1-112 hours of the happening of the incident. The complaint was recorded at Mahuva when the complainant and his father were at Mahuva municipal hospital where they were taking treatment after the assault as indoor patients. We may mention that even though the learned trial Judge in para 33 of his judgment has held that complaint mark A should be treated as F. I. R. and should be exhibited as Ex. 46 by some clerical mistake subsequent statement of the complainant as recorded by the Taluka Magistrate Mahuva which was then recorded as a dying declaration at 10645 a. m. in the Mahuva municipal hospital was marked as ex. 46. The learned counsel for the appellant State as well as learned counsel for the accused are agreed that this is merely a clerical error and that the F. I. R. ex. 46 would be the F. I. R. produced and marked A while the dying declaration marked B would remain admitted on record but not as F. I. R. Thus the said dying declaration of the injured witness Manglubhai shall be given Ex. No. 46-A for the sake of convenience. Wa must make it clear at this stage that though the dying declaration of injured person Manglubhai ex. 46-A has been proved on record of this case by the prosecution by examining the Taluka Magistrate Mr. N. N. Mehta ex. 27 and even though injured eye witness Manglubhai fortunately survived the said dying declaration ex. 46-A as recorded by the witness will remain legally admitted on record as it would not be hit by section 162 of the Cr. P. C. for the simple reason that it can go in evidence under section 157 of the Evidence Act as it would be a formed statement made by a witness relating to a relevant fact and it is made before an authority competent to investigate the fact. The Taluka Magistrate is such competent authority as seen from section 164 (1) of the Cr. The Taluka Magistrate is such competent authority as seen from section 164 (1) of the Cr. P. C. It is obvious that such a statement would not be hit by section 62 as it is not a statement made by the person to any police officer in the course of investigation. The Taluka Magistrate has recorded this statement on his own and it is nobodys contention that any police officer was present at that time. The Taluka Magistrate was not cross-examined by the learned counsel for the defence. Consequently the dying declaration ex. 46-A can legally be considered of course to a limited extent as laid down by section 157 of the Evidence Act to corroborate the testimony of the injured eye witness Manglubhai and not as substantive evidence by itself. ( 5 ) HOWEVER the learned counsel for the respondents pitched his faith on the injuries suffered by the accused in the incident and accuseds right of private defence which is accepted by the learned trial Judge. It is therefore necessary for us to closely examine this aspect of the matter. We may note at this stage that the order of acquittal passed by the learned trial Judge against the concerned accused heavily leans on this aspect of the matter. The learned trial Judge has taken the view that the accused were entitled to the right of private defence and that has gone a long way in persuading the learned trial Judge to acquit these accused persons. So far as the injuries to the accused are concerned Dr. Varu ex. 14 noted the following injuries on accused Nos. 3 and 1 when they were examined by him at the Mahuva hospital at 11 a. m. the day of the incident. The injuries on accused No. 3 were noted as under:- (I) Red abrasion on the outer aspect of right buttock. (II) Tenderness and swelling on upper 1/3rd of right thing no external marks of injury. No fracture clinically. (III) Swelling and tenderness on lower 1/3rd part of left forearm on outer aspect. No external marks of injury clinically. No fracture. So far as accused No. 1 is concerned the witness noted the following injuries on him when he examined him at 8 p. m. on the day of the incident:- (I) A linear red abrasion of 5 em. on dorsal aspect of right forearm 1 below the elbow joint. No external marks of injury clinically. No fracture. So far as accused No. 1 is concerned the witness noted the following injuries on him when he examined him at 8 p. m. on the day of the incident:- (I) A linear red abrasion of 5 em. on dorsal aspect of right forearm 1 below the elbow joint. No fracture was found clinically. (II) Tenderness and swelling on the ventral aspect of middle 1/3rd of right thigh. No external marks of injury and no fracture clinieally. A mere look at these injuries shows that none of them was a bleeding injury and they were all trivial injuries which could not be even noticed by outsiders. It is also interesting to note what the accused have stated in their statements under section 313 Cr. P. C. We are not much concerned with the injuries found on the body of accused No. 3 as she has been acquitted and her acquittal has become final. We may therefore refer to the injuries noticed on accused No. 1 by Dr. Varu. So far as accused No. 2 was concerned he had not received any injury. Accused No. 1 in his statement ex. 4 under section 313 when being confronted with the finding of Dr. Varu about his injuries noticed by Dr. Varu when he examined him stated that it was not true and he had received no injuries. Even that apart injuries received by accused No. 1 were so trivial in nature that they would not have been noticed easily by any one. Such trivial injuries in any case were not required to be explained by the prosecution. But even apart from that the prosecution has tried to explain these injuries accused No. 1 from the initial stage of complaint itself. To recapitulate in the complaint ex. 46 it is in terms stated that after accused No. 1 mounted attack with an axe on the complainant his father gave one stick blow which landed on the hand of; accused No. 1 and it is thereafter that accused No. 2 gave a dharia blow on the head of the accused. Thus from the very inception the prosecution has tried to explain the injuries caused in the incident to accused No. 1 and that is attributed to the stick blow given by the deceased. Thus from the very inception the prosecution has tried to explain the injuries caused in the incident to accused No. 1 and that is attributed to the stick blow given by the deceased. Under these circumstances it cannot be said that the prosecution has not tried to explain the injuries on the accused especially accused No. 1. Even otherwise the injuries were so trivial and on such part of the person of the accused that they would not have been easily visible to outsiders. The emphasis placed by the learned trial Judge on the non-explanation of injuries caused to the accused by the prosecution is therefore ex-facie misconceived. It is not the the law that however trivial might be the injuries suffered by the accused in the incident and however invisible they might be to an outsider they should all be explained by the prosecution and otherwise the prosecution would be liable to fail. With respect the learned trial Judge has totally misappreciated and misapplied the ratio of the Supreme Court decision in Laxmi Singhs case 1976 SCC 671 (supra ). So far as the defence case of private defence of the concerned accused goes it must be kept in view that the incident happened near the hedge dividing the two Wadas of the complainant and the accused. The accused were trying to extend the hedge of their Wada towards the side of the complainants wada. The complainant when having been apprised of this fact rushed on spot with his father and naturally they would like to see from their side of the Wada as to what was the extent of encroachment and construction which was being done by the accused from their side. At this stage the accused mounted the assault with deadly weapons like dharia and axe on the complainant side when the complainant and his father were standing in their own Wada adjoining the Wada of the accused. Thus the accused were the aggressors. They started assault on the complainant side. That part of the prosecution case has been well established in the light of the eye witness account of the concerned witnesses which we have discussed earlier. Once this is established it cannot be said that the accused had any right of private defence. Thus the accused were the aggressors. They started assault on the complainant side. That part of the prosecution case has been well established in the light of the eye witness account of the concerned witnesses which we have discussed earlier. Once this is established it cannot be said that the accused had any right of private defence. The only suggestion made on behalf of the defence to the prosecution witnesses was that when the complainant and his father went on spot from their field to inquire about the nature of construction being carried on by the accused in their Wada they were armed with sticks. It goes without saying that villagers usually move with sticks and even though the complainant and his father might have gone with sticks in their own Wada to find out as to what was the extent of encroachment made on spot by the accused it cannot be said that they were aggressors from any view point. They were not armed with deadly weapons as the accused. The accused mounted attack with Dharia and axe on the complainant side. Consequently it has got to be held that the accused were the aggressors and they started attack with deadly weapons. The complainant got hurt in the process and it is at that stage that his father in order to save his son from further blows by sharp cutting instruments from the accused gave one stick blow to accused No. 1. It is at this stage that accused No. 2 gave a severe dharia blow on the head of the deceased which went very deep and damaged the brain tissues and lacerated his whole head after fracturing it. That proved fatal. In these circumstances it is impossible to accept the defence version that they had a right of private defence and in exercise of the said right injuries were caused by them to the injured complainant as well as his father deceased. It has got to be kept in view that severe injuries were caused to the complainant as have been noted by Dr. Varu ex. 14. As seen earlier Dr. Varu had noted in injuries on the person of the complainant out of which four were incised wounds and six were C. L. W. s and one was a fracture on clavicle. Varu ex. 14. As seen earlier Dr. Varu had noted in injuries on the person of the complainant out of which four were incised wounds and six were C. L. W. s and one was a fracture on clavicle. Thus the complainant was assaulted with a sharp cutting instrument as well as ky hard and blunt substance like stick on various part-s of his body. A ferocious attack was mounted on him by the accused armed with different weapons and his father was also given a fatal blow which took his life. Looking to the force employed by the accused on the complainant side it cannot be said that they had any right of private defence which can protect them despite such a ferocious attack on their on the complainant and his father. With respect to the learned trial Judge it is impossible a) lake the view that this is a case in which the complainant and his side were aggressors and that the accused had a right of private defence especially in the light of the trivial injuries received by accused Nos. 1 and 3 and that therefore they were entitled to inflict those grave injuries on the complainant and his father and therefore they were entitled to be acquitted. In our view the reasoning of the learned trial Judge on this aspect is totally unreasonable and represents an impossible view. ( 6 ) WE must note at this stage that the learned trial Judge with respect has not tried to separate the grain from chaff. He has on the contrary felt helpless and according to him it is impossible to separate grain from chaff and hence that exercise is not undertaken at all. In our view the prosecution evidence and the picture projected by it does not represent such a helpless situation for the court. It is now well settled by a series of judgments of the Supreme Court that where some embellishments improvements and inaccuracies are found in the eye witness account of the prosecution witnesses. the case has to be examined from the point of view as to whether the pivot of the prosecution case gets supported by acceptable evidence ignoring minor contradictions and inaccuracies. the case has to be examined from the point of view as to whether the pivot of the prosecution case gets supported by acceptable evidence ignoring minor contradictions and inaccuracies. In Bhoginbhai Hirjibhai v. State of Gujarat A. I. R. 1983 S. C. 753 the Supreme Court speaking through M. P. Thakkar J. has made the following pertinent observations:-"overmuch importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance". In the very same report the principles underlying appreciation of evidence of injured eye witness have been highlighted. In para 11 of the report it has been laid down as under:-"on principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exulpate the real offender the evidence of a victim of a sex-offence is entitled to great weight absence of corroboration notwithstanding". In the present case also witness Manglubhai was the injured witness who had received 11 injuries. The learned trial Judge with respect had totally brushed aside his evidence without making an effort to find out as to whether On the core question his evidence was acceptable or not. In the case of State of U. P. v. Shankar A. I. R 1981 S. C. 897 Sarkaria J; speaking for the Supreme Court made the following observations:-" In this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the court to separate the truth from the chaff and accept what appears to be true and reject the rest. It is only where the testimony to a witness is tained to the core. the flasehood and the truth being inextricably interwind that the court should discard his evidence in toto". It is the function of the court to separate the truth from the chaff and accept what appears to be true and reject the rest. It is only where the testimony to a witness is tained to the core. the flasehood and the truth being inextricably interwind that the court should discard his evidence in toto". In that case it was held:-"mere fact that some of witnesses did not admit or had expressed ignorance about certain collateral facts was hardly a ground to reject their ocular account when there was general agreement among them with regard to the substratum of the persecution case". As we will show the learned trial Judge while passing the order of acquittal has not made any real effort to separate the grain from the chaff and being carried away with minor injuries received by the accused and by wrongly making available the right of private defence to the accused acquitted them. With respect the reasoning adopted by him and the conclusion reached by him amount to throwing the baby out with the bath water. ( 7 ) NOW is the time for us to see as to what offences have been committed by the accused. So far as accused No. 1 is concerned the prosecution evidence of the complainant shows that accused No. 1 had given one blow to him on his right shoulder. It appears that other injuries caused to the complainant possibly might have been caused by accused No. 3. As accused No. 3 is acquitted. we do not deal with this aspect. So far as accused No. 1 is concerned the prosecution case implicates him only with one blow on the right shoulder of the complainant. Evidence of Dr. Varu ex. 14 shows that the blow attributed to accused No. 1 so far as the complainant is concerned has resulted in injury No. is which is already noted in details earlier. There is no medical evidence to show that this injury has resulted into any fracture. B. G. Donda ex. ( 8 ) WHO later on examined the complainant at Bhavnagar hospital has noted one C. L. W. on the right shoulder region of the complainant. IF is pertinent to note that it was not an incised wound which was noted by Dr. Varu. Even apart from that as per the medical evidence of Dr. B. G. Donda ex. ( 8 ) WHO later on examined the complainant at Bhavnagar hospital has noted one C. L. W. on the right shoulder region of the complainant. IF is pertinent to note that it was not an incised wound which was noted by Dr. Varu. Even apart from that as per the medical evidence of Dr. Donda that injury did not show any fracture. It must therefore. be held that it was a simple hurt. If that is so accused No. I would remain liable to be convicted under section 324 I. P. C. 22 So far as accused No. 2 is concerned he is said to have given one dharia blow on the head of the deceased and that part of the evidence has stood well acceptable and believable. Now it must be kept in view that as per the prosecution case when the complainant and his father rushed to their Wada and were standing in their Wada accused No. 1 had started attack and gave one axe blow on the complainant and it is at that stage that the deceased inflicted one stick blow on accused No. 1 presumably to save his son from further attack. It is only then that accused No. 2 is said to have given a dharia blow on the head of the deceased. Thus the prosecution case itself suggests that all-of a sudden something must have developed on spot wherein in a heat of moment accused No. 2 must have inflicted the dharia blow on the head of the deceased after the deceased had given one blow to accused No. 1 with his stick. In view of the fact that only one blow with dharia was inflicted by accused No. 2 on the deceased which made him unconscious we cannot say that accused No. 2 intended to finish the deceased ox that he intended to cause him the very same injury which was likely to cause his death. The only thing which can be said with confidence is that the prosecution has been able to establish that accused No. 2 intended to cause an injury to the deceased which was likely to cause death. The medical evidence shows that the injury received by the deceased was sufficient to cause his death. The only thing which can be said with confidence is that the prosecution has been able to establish that accused No. 2 intended to cause an injury to the deceased which was likely to cause death. The medical evidence shows that the injury received by the deceased was sufficient to cause his death. In our view on the facts of this case exception 4 to section 300 I. P. C. gets attracted which reads as under:-"culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heal of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner". It must be noted that the accused would have never anticipated that the complainant and his father would rush on spot from their field on having come to know about the construction being carried on by the accused on spot. Under these circumstances it cannot be said that the accused had any common intention to finish the complainant and his father Whatever happened must have happened on spot as a result of sudden quarrel and in a heat of passion: Consequently no question of applicability of section 34 I. P. C. would arise on the facts of this case. Each accused would remain liable for the injuries caused to the complainant and his father which can be attributed to him. It is also easy to visualise that before actual assault some exchange of words or abuses might have taken place. Consequently accused No. 2 can certainly get advantage of exception 4 to section 300. As he has given only one blow which landed on the head of the deceased he cannot be said to have taken undue advantage or to have acted in a cruel or unusual manner. There appeared to be a dispute right or wrong about the boundaries of the Wadas of the accused and the complainant situated side by side in the village. There appeared to be a dispute right or wrong about the boundaries of the Wadas of the accused and the complainant situated side by side in the village. Considering all these aspects of the matter accused No. 2 can be said to have committed an offence not of murder but an offence punishable under section 304-I I. P. C. as the act of inflicting of a dharia blow on the head of the deceased can be said to have been done by him with an intention of causing such bodily injury on the deceased as was likely to cause death. As a result of the above discussion acquittal of accused No. 1 will have to be set aside and accused No. 1 shall be convicted of an offence under section 324 of having caused a simple hurt to the complainant with an axe while accused No. 2s acquittal will have to be set aside and he shall be convicted of an offence under section 304-I I. P. C. for having caused the death of the deceased Tapubha by inflicting on his head an injury with a dharia. (Rest of the judgment is not material for the reports.) appeal allowed: Acquittal set aside. .