JUDGMENT S. I. Jafri, J. 1. Ramesh Chand, Prakash Chand, Naresh Chand and Sita Ram have filed this appeal against their conviction and sentence under Section 302/34 and 307/34 IPC recorded by Sri K. C. Bhargava, 2nd Additional Sessions Judge, Muzaffarnagar, by his judgment and order dated 12th December 1977, They were sentenced to undergo life imprisonment and seven years R. I. under the aforesaid sections of the Penal Code respectively. Together with the appellants, Ramesh Chand s/o Bhagwan, Somi, Khemma and Chander were also prosecuted but they were acquitted by the trial court. The State of U. P. did not file any appeal against their acquittal, and, therefore, we are left to deal with the cases of the present appellants who had preferred the appeal. 2. The appellants Prakash Chand, Naresh Chand and Sita Ram are brothers and they are the sons of Saheblal. Ramesh Chand appellant is the son of Ram Chander who is the brother of Saheb Lal. In this way, Ramesh Chand appellant is related to the rest of the appellants being their cousin. Ramesh Chand appellant is said to have been armed with a double barrel gun, Prakash Chand with rifle, Naresh Chand with revolver and Sita Ram with Katta (country made pistol) at the time of the occurrence whereas, the acquitted accused namely, Ramesh son of Bhagwan, Somi, Khemma and Chander were alleged to have been armed with Kattas. 3. The appellants are the residents of village Alipore, Police Station Titavi, District Muzaffarnagar. The deceased also belonged to the same village and both the parties are Tyagi by caste and they are neighbours as well. It is alleged that Pyara PW 1, Onkar PW 2, Sunhera and Ram Kishan had erected a well on 12-9-1976 towards the south of their Gher shown by letter 'A' and 'B' in the site-plan Ex. Ka-16 prepared by Siya Ram PW 7, the Investigating Officer of this case and while the said wall was being constructed by them, Prakash Chand and Naresh appellants arrived there at about 8 a. m. and asked them to refrain from constructing the wall. Upon this, Pyara PW 1 told them that they were constructing the wall on their own land. Upon this, Pyara PW 1 told them that they were constructing the wall on their own land. Both the appellants, then, had threatened Pyara PW 1 and others that if they would not stop from constructing the wall, they would be shot by fire arms when Sita Ram and Ramesh appellants would come back to the village. 4. The case of the prosecution is that at about 2 or 2.30 p. m. on 13-9-1976 when Onkar PW 2, Kacheru deceased, and Sunheri were sitting on one cot and Ram Kishore and Pyara PW 1 were occupying another cot in front of the Gher of Vishambhar and were enjoying Hukka, all the appellants along with the acquitted accused climbed upon the roof of Mulhar with their respective fire arms in their hands as stated above and out of them, Ramesh Tyagi exhorted that the complainant would be given lession for constructing the wall whereupon all the accused resorted to firing towards Pyara and others with the result Onkar PW 2, Ram Kishore, Sunhera and Kachheru had sustained gun shot injuries, Kachheru fell down inside the gallery of the Gher of Vishambhar on receiving the injuries and succumbed to his injuries instantaneously on the spot. The witnesses Pirthi, Dalla PW 3, Dharam Singh and Chaman were attracted to the scene of the occurrence and on their intervention, all the eight accused persons had made good their escape. After the occurrence, Pyara PW 1 went to the police station Titavi and handed over his written report Ex. Ka. 1 regarding the occurrence to the Head constable Hari Shanker Sharma who prepared the chik report Ex. Ka. 6 on the basis of the aforesaid written report at 4 p. m. the same day. He also registered a case in the General diary of the Police Station, a copy of the said entry is Ex. Ka. 7. Ka. 1 regarding the occurrence to the Head constable Hari Shanker Sharma who prepared the chik report Ex. Ka. 6 on the basis of the aforesaid written report at 4 p. m. the same day. He also registered a case in the General diary of the Police Station, a copy of the said entry is Ex. Ka. 7. Sia Ram PW 7 was present at the Police Station at the time of the registration of the case who took up the investigation of the case and left for the place of occurrence and found the dead body of the deceased Kachheru inside the gallery of Vishambhar, conducted the inquest on the dead body of the deceased and despatched the same in sealed cover along with other connected documents to the Chief Medical Officer, Muzaffarnagar for post mortem examination through constable Abdul Salam He also recorded the statement of Pyara PW 1 and other witnesses the same day. On 14-9-1976, he recorded the statement of Dalla PW 3 and some other witnesses. Some blood and two ticklies were recovered by the Investigating Officer near the dead body of the deceased inside the gallery of Vishambhar. He also found pellets and ticklies near the house of Kashi Ram on the path-way and prepared recovery memo Ex. Ka-13. He also found two live cartridges of 3i5 bore from the roof of Mulhar and took the same into his possession. The two cartridges are Exs. 9 and 10. 5. Dr. M. P. Agarwal, PW 9 examined the injuries of Onkar Singh on 13-9-1976 at 10.15 p. m. and found the following injuries on his person: 1. Multiple Gun shot wounds of entry of size 1 cm x 1 cm dispersed on the antero 1 at surface of left upper arm Advised X-ray. The Doctor opined that the injury was caused by fire-arm. DR. M. P. Agarwal also medically examined the injuries of Ram Kishore injured at 10.10 p. m. on 13-9-1976 and found the following injuries on his person: Sub-conjectual haemorrhage left eye. No exit wound or laceration could be detected. For better examination he is referred to opthalmic surgeon. Advised X-ray for orbit. 6. The same doctor also examined the injuries of injured Sunhera at 10,20 p. m. on 13-9-1976 and found the following injuries on his person : 1. No exit wound or laceration could be detected. For better examination he is referred to opthalmic surgeon. Advised X-ray for orbit. 6. The same doctor also examined the injuries of injured Sunhera at 10,20 p. m. on 13-9-1976 and found the following injuries on his person : 1. Three i m. m. x 1 m. m. sized gunshot wounds of entry on right chest on following area with surgical emphasema 4" x 3" and 1/2" above 2nd joint of clavicle and 1/4" below medial part of right clavicle. 2. Two gunshot wounds of entry 1 m. m. x 1 m. m. specified on the antero medial surface of right upper arm. 3. One gunshot wound of entry 1 m. m. x 1 m. m. specified on nose. 4. One gunshot wound of entry 1 m. m. x 1 m. m. on the upper and ante-costal part left upper arm specified. The doctor opined that the injuries were caused by fire-arm object. Dr. N. D. Bahuguna PW 8 conducted autopsy on the dead body of Kachheru at 4 p. m. on 14-9-1976 and found the following ante-mortem injuries on his person : 1. Two abrasions each 1/8 " x 1/8 "-1" apart on upper part chest wall right side. 2. Two gun shot wounds, each 1/8 " x 1/8 " x deep into chest cavity (close to each other) just below the right nipple (Surgical emphysema present on right side chest front aspect). No blackening or tattooing present. 3. Seven abrasions each 1/8" x 1/8" on front of chest wall middle lower part. 4. Abrasion 1/8" x 1/8" on upper part sternum middle. 5. Two Abrasions each 1/8" x 1/8"- 1 1/2" apart on upper part chest wall right side. 6. Two gun shot wounds each 1/8" x 1/8" x deep into chest cavity 2" below right nipple at 7' O Clock position going in thigh 4th and 5th inter-costal space. No blackening or tattooing. 7. Two gun shot wounds each 1/8 " x 1/8 " x chest cavity deep near each other-close to left nipple at 1 O' clock position no blackening of tattooing. 8. Abrasion 1/4" x 1/2" left side abdominal wall middle. 9. Abrasion 1/8" x 1/8" on left side abdominal wall lower part. 10. Two gun shot wounds each 1/8" x 1/8" x muscle deep in front of upper part left thigh no blackening, iattooing present. 11. 8. Abrasion 1/4" x 1/2" left side abdominal wall middle. 9. Abrasion 1/8" x 1/8" on left side abdominal wall lower part. 10. Two gun shot wounds each 1/8" x 1/8" x muscle deep in front of upper part left thigh no blackening, iattooing present. 11. Six abrasions each 1/8" x 1/8" x muscle deep on buter part in an area of 6" x 4". 12. Gunshot wound 1/8" x 1/8" x muscle deep on buter part left wrist no blackening or tattooing. 13. Abrasion 1" x 1/4" on back of lower 3rd left fore-arm. 14. Three gunshot wounds each 1/8" x 1/8" x muscle near each other on back of lower part left fore-arm no blackening or tatooing. 15. Bruise with abrasion 1 1/2" x 1/2" back of middle right forearm. 16. Abrasion 1/8" x 1/8" on back of lower part right fore-arm. 17. Bruise with abrasion 1, 1/2" x 1/2" on back of lower part right arm. 18. Abrasion 1/4" x 1/4" on back of dorsum of right hand middle part. 19. Abrasion 1/8" x 1/8" on back of dorsum of left hand middle part. The Doctor attributed the cause of death to shock and haemorrhage on account of gunshot injuries. Doctor N. C. Sharma, PW 1 examined the injuries of Prakash appellant on 9.05 a. m. on 18-9-1976 in the District JaiI Muzaffarnagar. He had found the following injuries on his person : 1. Incised wound 1" x 1/5" x muscle deep on the right side of the chest 4 1/4" above the right nipple at 11 O' clock position oblique. 2. Scabbed abrasion 1/2" x 1/10" on the left side abdomen 3" away from umblicus at 4' O' clock position. 3. Scabbed abrasion 1/4" x 1/4" on the inner border of right scapula. 4. Contusion 1, 1/2" x 3/4" on the inner side of right thigh 1" above the knee. 5. Lacerated wound 1/2" x 1/4" x bone deep on the front of right leg 3, 1/2" above the ankle. 7. According to the opinion of the Doctor, the injuries were simple and they were about 5 days old. 8. After concluding the investigation, Sia Ram PW 7 submitted charge-sheet Ex. 5. Lacerated wound 1/2" x 1/4" x bone deep on the front of right leg 3, 1/2" above the ankle. 7. According to the opinion of the Doctor, the injuries were simple and they were about 5 days old. 8. After concluding the investigation, Sia Ram PW 7 submitted charge-sheet Ex. Ka-17 against all the eight accused persons, Out of the appellants, Ramesh Chand stated in his statement under Section 313 CrPC that Sunhera, Kacheru and Onkar PW 2, were constructing a wall in front of his door, which opens on the northern side towards the Kharanja. His brother Prakash asked these persons to stop the construction but they continued to construct the wall whereupon Prakash started demolishing the said wall and while doing so, Prakash was assaulted by them by means of spear and lathis. Prakash fell down on the ground on receiving the injuries and in his bid to save Prakash, he had opened fire from his gun as a result of which Sunhera, Kacheru and Ram Kishore had sustained the injuries. A similar statement was given by Prakash appellant in his statement also under Section 313 CrPC. 9. Sita Ram appellant stated that on the day of occurrence, he was not present in the village as he had gone to audit the U. P. Cooperative Land Development Bank at Sardhana, District Meerut. All the remaining accused denied their presence in the occurrence. 10. The appellants examined Dr. N. C. Sharma DW 1 Amrit Kumar DW 2, Hari Shanker DW 3, Jagdish Prasad Agarwal DW 4 and Shiv Raj Singh DW 5 in their defence. The trial court also examined Sri S. C. Garg CW 1 and Trilok Chand CW 2. The prosecution examined in all 10 witnesses in support of its case and out of them Pyara PW 1, Onkar PW 2 and Dalla PW 3 were examined as eye witnesses of the occurrence. 11. The trial court did not rely on the testimony of Dalla PW 3 and held that he was not present at the time of occurrence as he had reached there at a later stage. We have very cautiously and carefully gone through the evidence of Dalla PW 3 and we are in complete agreement with the reasons given by the trial court in not placing reliance on his testimony. We have very cautiously and carefully gone through the evidence of Dalla PW 3 and we are in complete agreement with the reasons given by the trial court in not placing reliance on his testimony. We are now left with the evidence of complainant Pyara PW 1 and his nephew Onkar Singh PW 2 in support of the prosecution case. 12. Pyara PW 1 deposed in his evidence before the trial court that he, Kacheru deceased, Onkar PW 2, Sunhera and Ram Kishore were sitting on two cots in front of the Gher of Bishambar in the Gali at about 2 or 2.30 p. m. and were enjoying Hukka at the time of occurrence when all the aforesaid eight accused persons armed with their respective weapons as stated above came at the roof of Mulhar and out of them Ramesh appellant cried out loudly that they would teach them lesson for constructing the wall and started firing towards us, with the result that Onkar PW 2, Ram Kishore, Kacheru and Sunheri had received gun-shot injuries. Kacheru fell down in the gallery of Vishambhar and succumbed to his injuries spontaneously on the spot. He stated that after the occurrence, he went to the police station and there he bad lodged his report of the occurrence. He further stated that one day prior to the occurrence, while they were constructing a wall on the southern side of their Gher on their land, Prakash and Naresh appellants arrived there at about 8 a. m. and restrained them from constructing the said wall but on their refusal to stop construction of the said wall, appellants Prakash and Naresh had threatened them and said that if they will not desist from constructing the wall, they would be gunned down after the return of Sita Ram and Ramesh appellants in the village. He admitted in his cross-examination that all the 8 accused persons had fired with their arms towards them from the roof of Mulbar. It is also an admitted case of the prosecution that the roof of Mulhar stood at a height of 13 to 14 feet from the ground level where PYARA PW 1 and others were sitting on two cots. He also admitted that a she buffaloe had also been hit by gun shots during the occurrence, but he did not mention this fact in his report. He also admitted that a she buffaloe had also been hit by gun shots during the occurrence, but he did not mention this fact in his report. He further admitted that the she buffaloe was tied to a Khoonta (peg) fixed in the eastern wall of the house of Sunhera on the Kharanja on the southern side. PW 7, Sia Ram, the Investigating Officer had also admitted in his evidence that when he arrived at the place of occurrence, he had found the she buffaloe tied to a Khoonta on the eastern side of Kharanja on the north-western corner of the house of Mulhar. He further stated that the she buffaloe was tied to some hook which was fixed on the wall of the house of Mulhar. He also deposed that the aforesaid she buffaloe had sustained pellet injuries. It has also been admitted by PYARA in his cross-examination that the houses of Shambhu, Kashi Ram and Raja Ram are situated on the northern side of the place of occurrence at some distance. He stated that there was an impact of firing on the wall of Kashi am at a distance of 13 to 14 feet from the level of the ground. In cross-examination, he denied the suggestion that they were constructing the wall in front of the northern door of the appellant Ramesh on the day of occurrence, and when Prakash appellant started to demolish the said wall, they fell upon him giving beating by means of Lathi and spear and it was in a bid to save the life of Prakash that Ramesh had opened fire from his licensed gun causing injuries to the injured and deceased. He also denied the injuries on the persons of Prakash appellant. Onkar PW 2 is injured. He is the nephew of Pyara complainant. He also denied the injuries on the persons of Prakash appellant. Onkar PW 2 is injured. He is the nephew of Pyara complainant. He had corroborated the statement of Pyara PW 1 to the effect that at the time of occurrence, he along with Pyara, Kacheru, Ram Kishore and Sunhera were sitting on the Kharanja in front of the house of Vishambhar on two cots, and they were enjoying Hukka at that time when all the eight accused persons armed with their respective weapons reached the top of the roof of Mulhar and Ramesh appellant after hurling abuses, cried out loudly that they would be given lesson for constructing the wall and saying this all the accused had started firing towards us with the result, he, Sunhera, Ram Kishore and Kacheru had sustained injuries He further stated that Kacheru after receiving the injuries, fell down to the ground in the gallery of Vishambhar and breathed his last instantaneously on the spot. He also stated that his injuries were examined by the Doctor. He also deposed that at the time of occurrence on receiving injuries, blood had cozed out from their wounds but it did not fall on the ground. He also denied the suggestion that they had constructed a wall in front of the northern door of appellant Ramesh and on the demonstrations made by Prakash appellant, he was assaulted with Lathis and spears by them and by way of saving the life oi Prakash, appellant Ramesh had opened fire from his licensed gun towards them with the result that he, Ram Kishore, Sunhera and Kacheru had sustained injuries. 13. The defence examined Dr. N. C. Sharma to prove the injuries on th( person of Prakash appellant. The aforesaid doctor stated that he had examinee the injuries of Prakash at 9.05 a. m. on 18-9-1976 in the District Jail itself an( according to him, injury no. 1 on the person of the appellant was caused by Sharp edged weapon like Ballam and the rest of the injuries with lathis. He also stated that it is probable that injuries were caused to the injured Prakash on 13-9-1976. Dr. Sharma was cross-examined by the prosecution but not suggestion was put to the doctor that the incised wound on the chest of Prakash appellant could be fabricated or self-inflicted. 14. Sita Rum appellant pleaded alibi. He also stated that it is probable that injuries were caused to the injured Prakash on 13-9-1976. Dr. Sharma was cross-examined by the prosecution but not suggestion was put to the doctor that the incised wound on the chest of Prakash appellant could be fabricated or self-inflicted. 14. Sita Rum appellant pleaded alibi. He examined Hari Shanker DW and J. P. Agarwal DW 4 in his defence. Hari Shanker who is senior Assistant Audit Officer, stated that on the day of occurrence, SITA Ram accused was auditing accounts at Sardhana, District Meerut, and he had given the Too programme which he had proved. J. P. Agarwal DW 4 stated that c 31-9-1976, he was cashier in Land Development Cooperative Bank, Sardhana an on that day, SITA Ram accused had audited the Bank from 10 a. m. to 5 p.m. an he had checked the opening balance in the cash book and he had also signed on in his presence. Here, it is pertinent to note that Sardhana lies at a distance of ; miles from the place of occurrence and, therefore, much importance cannot be given to the evidence of alibi in view of the fact that a man can convenient cover a distance of 37 miles by means of road transport within two house and, therefore, the alibi of SITA Ram accused is of no help to him. It cannot be disputed that both the witnesses Pyara and Onkar Sing are highly partisan and they are also inimically disposed towards the accused be their evidence cannot be brushed aside merely on that score. Their evident can very well be relied upon for convicting the appellants if it passes through the crucial testing on the touch-stone of reliability. The only requirement of law is that the evidence of interested witnesses has to be carefully scrutinised in order to place reliance on their testimony. 15. Sri C. S. Saran, learned counsel for the appellants urged that the story set up by the prosecution that all the eight accused who were armed with double barrel guns, rifle, revolver and Kattas (country made pistols) tad fired towards the witnesses who were sitting on the ground on two cots from the roof of Mulhar is completely demolished by the medical evidence adduced in this case. The learned counsel submitted that the three injuries of Sunhera and the single injury of Onkar PW 2 are of the size of 1 mm. x 1 mm. and from the seat of the injuries, it appears that they are the out come of a single shot by a 12 bore cartridge. The learned counsel further submitted that the gun shot injuries of the deceased also appear to be the result of one gunshot injury caused by 12 bore cartridge of LG make. All these injuries are on the front portion of the deceased. The learned counsel for the appellants further stated that no fire-arm injury was found on the person of Ram Kishore alleged to have been injured by gunshot on medical examination. It is significant to note that there is complete absence of any rifle or revolver injury on the person of the injured and the deceased. We are, therefore, in complete agreement with the submission made by the learned counsel for the appellants that the statements of the prosecution witnesses that all the 8 accused had opened fire towards them with their respective weapons, are tainted with falsehood and cannot be believed by any stretch of imagination. Moreover, it was also pointed out by the learned counsel for the appellants that in view of the opinion of Dr. Bahuguna PW 8, that it was probable that the injured and the deceased had sustained injuries by fire arms when the assailants had fired from the same level towards the deceased and the injured. The prosecution case that the firing was done by the accused from the roof of Mulhar from a height of 12 to 13 feet from the ground level towards the injured and the deceased who were sitting on the grounds on the Kharanja in front of the house of Vishambhar, cannot be believed at its face value. Moreover, it may also be noted that according to the statement of the investigating officer, the she buffaloe which was tied near the door of Mulhar to a hook (Khoonta) on the ground, had also sustained gunshot injuries. The she buffaloe could not have sustained gunshot injuries, if the firing had taken place from the roof of Mulhar towards the northern side on the ground at a distance of 19 yards where the injured and the deceased were sitting on the cots. The she buffaloe could not have sustained gunshot injuries, if the firing had taken place from the roof of Mulhar towards the northern side on the ground at a distance of 19 yards where the injured and the deceased were sitting on the cots. Further more, it was also pointed out that impact of bullet found at a height of 14 feet on the wall of Kashi Ram at a distance of 33 yards from the roof of Mulhar is also not probable if the firing was done from roof of Mulhar. it was also pointed out that the story that at the time of firing, the injured and the deceased were puffing Hukka is also not supported by the recovery of Hukka on the spot. According to the Sub-Inspector, he did not find any Hukka on the spot. It is further significant to note that the Investigating Officer did no find any blood on the place where the deceased and injured were sitting on the cots. He, no doubt, found some blood and two ticklies in the gallery of Bishambhar near the dead body of the deceased Khacheru. It is therefore, highly doubtful that the Tiklies could have travelled to a distance of 19 yards inside the gallery of Bishambhar if the firing had taken place from the roof of Mulhar. The learned counsel for the appellants had rightly contended that the statement of the two witnesses viz. Pyara and Onkar Singh that they had identified the respective weapons in the hands of eight accused persons from a distance of 19 yards while the accused were at the roof of Mulhar is not believeable.. It is note-worthy that no pellets or tiklies were found at the scene of occurrence by the Investigating Officer where the injured and the deceased were sitting on the two cots at the time of occurrence. Even the cots were recovered by the Investigating Officer on the spot. 16. We are, therefore, of the view that the story set up by the prosecution that all the eight accused persons had fired from their respective weapons towards the witnesses and the deceased, is not worthy of reliance. WE further hold that the prosecution evidence that the firing was done by the appellants from the roof top of Mulhar is also not believable. WE further hold that the prosecution evidence that the firing was done by the appellants from the roof top of Mulhar is also not believable. Ramesh appellant stated in his statement under section 313 CrPC that he had caused injuries to the injured and the deceased by firing from his licensed gun in order to save the life of his brother Prakash who was being assaulted by the injured and the deceased by means of lathi and spear when the injured and the deceased were constructing the wall in front of the northern door of his house. Dr. N. C. Shanna has examined the injuries of Prakash on 18-9-1976 and he had found the injuries on his person and according to him, the injuries on the person of Prakash appellant, might be caused on 13-9-1976. Here, it is important to note that there is nothing on the record which may establish that any wall was being constructed by the injured and the deceased in front of the northern door of Ramesh appellant and when Prakash objected to the constructions of the wall, the witnesses and the deceased had assaulted him with lathis and spears with the result that Ramesh Chand had exercised his right of private defence in causing injuries to the injured and the deceased. It may further be noted that the appellant Ramesh or Prakash did not lodge any report giving their own version of the occurrence at the Police Station. They did not even send any complaint to the concerned authorities. Moreover, there is no evidence that Prakash had got his injuries examined before 18-9-1976. Under the circumstances as said above, we are unable to hold that Ramesh appellant had exercised his right of private defence in causing injuries to the injured and the deceased in order to save his brother Prakash Chand. It is no doubt true that Ramesh appellant stated in his statement under section 313 CrPC that in order to save his brother Prakash Chand, he had caused injuries to the deceased and the injured but he had failed to discharge the burden lying on him u/Sec. 105 of the Evidence Act while pleading the exception as contained in Section 100 IPC. Under the circumstance, it is to be considered whether the admission of the accused Ramesh can be taken in its entirety or it is open to the court to dissect the statement and to pick out a part of the statement which is incriminative for convicting the accused. The learned counsel for the appellants has referred to 1963 AWR 165 Narain Singh v. Mate of Punjab where it was said as under : "The courts below were of the view that the prosecution evidence as it stood, was insufficient to bring home the charge against Narain Singh and his nephews. The case for the prosecution that Narain Singh was armed with a stick and joined in the assault upon Bachan Singh was sought to be established by affirmative evidence. The case failed because the evidence in support of the case was unreliable. Narain Singh admitted that he had caused injuries to Bachan Singh with a Kirpan carried by him, but he explained that he caused the injuries when he was thrown down and Bachan Singh was attempting to strangulate him. There can be no doubt that if a person reasonably apprehends that his assailant is attempting to strangulate him, exercise of the right of defence of person extends even to causing death of the assailant. Narain Singh pleaded that he had fallen down and Bachan Singh attempted to strangulate him and. therefore, he caused injuries to Bachan Singh in exercise of the right of self defence. This plea bad to be considered as a composite plea ; it was not open to the court to investigate whether Narain Singh could have reasonably apprehended such injury to himself as justified him in causing the death of Bachan Singh. Where a person accused of committing an offence sets up at his trial a plea that he is protected by one of the exceptions, general or special, in the Indian Penal Code, or by other law defining the offence the burden of proving the Exception undoubtedly, lies upon him. But this burden is only undertaken by the accused, if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence charged. The prosecution case, however, did not by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. But this burden is only undertaken by the accused, if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence charged. The prosecution case, however, did not by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. His responsibility if any, arose only out of the plea raised by him, if the plea amounted to a confession of guilt the court could convict him relying upon that plea, but if it amounted to admission of facts and raised a plea of justification, the court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification. " 17. We, therefore, hold that it is not open to us to dissect the statement of Ramesh appellant from his statement recorded u/Sec. 313 CrPC and pick out a part of his statement which is incriminating for the conviction of the appellant. We have already held that the prosecution has failed to establish its case and the story set up by it is tainted with false-hood. Under the circumstances it is not open to us to hold a third case and convict the appellant Ramesh relying upon the incriminating part of his statement recorded under section 313. 18. Having considered all the facts and circumstances of the case; we come to the irresistible conclusion that the prosecution has failed, to bring home the guilt to the appellants beyond a shadow of doubt, and, therefore, the order of conviction and sentences recorded by the trial court cannot be sustained. In the result, the appeal is allowed. The conviction and sentences recorded by the trial court are set aside. The appellants are on bail. They need not surrender. Their bail bonds shall stand automatically cancelled. Appeal allowed.