JUDGMENT : ( 1. ) THE appellant has challenged his conviction recorded by the First Additional Sessions Judge, Morena, in Sessions Trial No. 56/1984. The appellant was charged for having committed an offence punishable under Section 149 read with Section 302, Indian Penal Code, but he was convicted under Section 302, indian Penal Code, and sentenced to imprisonment for life. ( 2. ) JAGDISH Prasad, appellant Vasudeo, Ramniwas, Munshilal and Sukhprasad are all brothers and sons of Ram Singh. Against all these five brothers, the First Additional sessions Judge, Morena, framed charges under Sections 147 and 149 read with Section 302, indian Penal Code for having committed the murder of Siyaram on 28-11-1982 in village Nepri. The trial Court has acquitted Jagdish Prasad, Ramniwas, Munshilal and sukhprasad from the charges for which they were tried, but convicted the appellant under Section 302, Indian Penal Code, simpliciter by the impugned judgment. The appellant was found guilty for haying committed an offence punishable under Section 302, Indian Penal Code, for which he was not charged separately. ( 3. ) THE prosecution case during the trial was that on 28-11-1982 at about 5. 00 p. m. while deceased Siyaram was driving his motor cycle with pillion rider Damodar Prasad (P. W. 1) towards Police Station Kailaras, the appellant placed his bicycle in front of his motor cycle and, consequently, the deceased Siyaram was stopped. It is alleged that the appellant called his brothers, who were acquitted at the trial, and exhorted to kill siyaram. The deceased is alleged to have been assaulted by the appellant and the acquitted accused persons with hard blunt instruments, slaps and kicks, and then was allegedly thrown in a well. Admittedly, inside the well there was an angled iron affixed in the middle for the support of the pumping machine, upon which he fell and sustained several injuries and fractures. He was rescued and taken out from the well by Sunderlal (P. W. 3), Shankarlal (P. W. 4), Mangalia (P. W. 6) and Gyasi (P. W. 10 ). He was rushed to primary Health Centre, Kailaras, where he is alleged to have died. A report Dehati nalishi (Ex. P. 1) was allegedly got written at the Primary Health Centre, Kailaras, and the same was registered on 29-11-1982 at 8. 00 p. m. which is Ext. P. 13. He was rushed to primary Health Centre, Kailaras, where he is alleged to have died. A report Dehati nalishi (Ex. P. 1) was allegedly got written at the Primary Health Centre, Kailaras, and the same was registered on 29-11-1982 at 8. 00 p. m. which is Ext. P. 13. Investigating officer Abhai Singh Kushwah (P. W. 9) is said to have arrived at the well, prepared inquest report (Ex. . P. 2) and then sent the injured to the Primary Health Centre. During the trial, the prosecution examined Damodar Prasad (P. W. 1), Sunderlal (P. W. 3), shankarlal (P. W. 4) and Mangalia (P. W. 6) as eye-witnesses. Dr. R. P. Agrawal (P. W. 2)was examined to prove the post mortem report (Ext. P. 6 ). The defence of the appellant during the trial was that on the date of the incident he was proceeding to Kailaras on bicycle. He met deceased Siyaram and Damodar Prasad (P. W. 1) travelling in a motor cycle. They complained to him that acquitted accused Jagdish Prasad had quarrelled with Siyaram. Upon this, the appellant is said to have said : "if Jagdish Prasad goes to your house you kill him but you also counsel your (Damodar Prasads) daughter-in-law anguri Bai (P. W. 5) not to encourage Jagdish Prasad to illicit relationship. " Damodar prasad (P. W. 1) is said to have rebuked his son Siyaram and, out of shame, he jumped into the well and sustained the injuries. The acquitted accused persons pleaded alibi. The learned trial Judge recorded his findings, which are being capsulised below : (i) Abhai Singh Kushwah, Sub-Inspector of Police (P. W. 9) reached Nepri village immediately after the incident and prepared inquest report (Ex. P. 2), ext. P. 14 and Ext. P. 15, and on this point Damodar Prasad (P. W. 1) is found to be telling a lie. (ii) Abhai Singh Kushwah (P. W. 9) was careless in recording the first information report (Ext. P. 13) and delayed it by 24 hours, while the distance between Primary Health Centre, Kailaras and the Police station, Kailaras, is only a furlong. (iii) The appellant in his statement recorded under Section 313, Criminal procedure Code, admits his presence at the site of the incident, but that admission cannot be the basis for conviction. P. 13) and delayed it by 24 hours, while the distance between Primary Health Centre, Kailaras and the Police station, Kailaras, is only a furlong. (iii) The appellant in his statement recorded under Section 313, Criminal procedure Code, admits his presence at the site of the incident, but that admission cannot be the basis for conviction. (iv) The defence taken by the appellant that Siyaram died of suicide by jumping in the well has not been proved by the accused by adducing any evidence. Hence it is rejected. (v) Damodar Prasad (P. W. 1) has been found telling a lie with regard to the fact of illicit relationship of his daughter-in-law Anguri Bai (P. W. 5) with acquitted accused Jagdish Prasad. (vi) All the prosecution witnesses are closely related to the deceased and inimical to the appellant and that Sunderlal (P. W. 3) and Shankarlal (P. W. 4) are not reliable witnesses except on the point that the appellant was present at the time of the incident. (vii) The first information report (Ex. P. 13) was delayed due to consultations and deliberations, and the acquitted four accused persons were falsely roped in. (viii) Though no independent witnesses of the locality have been examined, yet the appellant can be convicted on the sole testimony of Damodar Prasad (P. W. 1 ). (ix) Damodar Prasad (P. W. 1) has denied the suggestion of the defence of death of Siyaram by suicide; hence, it is proved that the appellant assaulted and killed the deceased. (x) The evidence of the prosecution except against the appellant is suspicious. (xi) Giving the benefit of doubt, four out of five accused are acquitted, and only appellant is convicted under Section 302, Indian Penal Code, etc. , etc. ( 4. ) SHRI J. P. Gupta, learned counsel for the appellant, has argued forcefully that the appellant was not independently charged, for having committed an offence punishable under Section 302, Indian Penal Code, but he was charged under Section 149 read with Section 302, Indian Penal Code, and Section 149 being a substantive offence, from which he should be deemed to have been acquitted, the conviction of the appellant is bad in law and needs to be set aside. Shri Govind Singh, learned government Advocate appearing for the State, controverted the contentions of Shri j. P. Gupta. The learned counsel took us through the entire evidence on record. Shri Govind Singh, learned government Advocate appearing for the State, controverted the contentions of Shri j. P. Gupta. The learned counsel took us through the entire evidence on record. ( 5. ) IT is settled that the offence under Section 149, Indian Penal Code constitutes a substantive offence and creates vicarious liability upon all the five or more, if the act has been done by any one of them. There is a legal distinction between a charge under section 302, Indian Penal Code, and a charge of constructive liability under Section 302 read with Section 149, Indian Penal Code, i. e. , being a member of an unlawful assembly, the common object of which was to kill the deceased. Section 149 creates a specific and distinct offence, and it postulates an assembly of five or more persons having a common object, as named in Section 141 of the Indian Penal Code. It is, thus apparent that the learned trial Judge acted without jurisdiction in convicting the appellant under Section 302 Indian Penal Code, simpliciter, while acquitting rest of the four from the charges of sections 147, 149/302, Indian Penal Code, Lakhan Mahto, AIR 1966 SC 1742 . Similar view, previous to Lakhan Mahto (supra), was taken in the cases of Nanak Chand, AIR 1955 SC 274 , and Suruj Pal, AIR 1955 SC 419 . We are, therefore, of the view that the conviction of the appellant is liable to be quashed on this point alone. But, as we have been addressed extensively with regard to the facts and circumstances of the case, we proceed to give our reasons for recording the verdict of acquittal of the appellant on facts also. ( 6. ) ADMITTEDLY, Damodar Prasad (P. W. 1) is the father of the deceased, while sunderlal (P. W. 3), Shankarlal (P. W. 4) and Mangalia (P. W. 6) are the cousin brothers of the deceased. They are, thus, closely related to deceased Siyaram. Damodar Prasad (P. W. 1) had admitted in his deposition that there is a long standing enmity between the appellant and his brothers and his family and several, criminal cases are pending in different criminal Courts. This fact has been found proved in paragraph 18 of the impugned judgment, and that is why the trial Court has refused to place reliance upon the testimony of Sunderlal (P. W. 3) and Shankarlal (P. W. 4 ). This fact has been found proved in paragraph 18 of the impugned judgment, and that is why the trial Court has refused to place reliance upon the testimony of Sunderlal (P. W. 3) and Shankarlal (P. W. 4 ). Mangalia (P. W. 6) has turned hostile to the prosecution. Thus, there remains on record the sole testimony of damodar Prasad (P. W. 1), and it would be prudent to consider whether for maintaining the conviction of the appellant, Damodar Prasad can be relied upon or not. Damodar prasad is, admittedly, the near relation of the deceased and inimical to the appellant. While appreciating the testimony of Damodar Prasad (P. W. 1), we shall keep in our mind Darva Singh, AIR 1965 SC 328 , that in a trial for an offence of murder where the witness is a close relation of the victim and is shown to share the victims hostility to the appellant, that makes it necessary for the criminal Courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. Damodar Prasad (P. W. 1) has already been discredited on several facts and has been found to be telling a lie by the learned trial Judge in the impugned judgment. We shall, therefore, examine afresh Ext. P. 2, the inquest report. According to Abhai Singh Kushwah (P. W. 9), six panchas were called on the spot, i. e. , near the well in village Nepri, for preparing the inquest report. One of the panchas was damodar Prasad (P. W. 1 ). He had signed Ext. P. 2. According to the opinion of the panchas, Siyaram died due to fall in the well, having sustained injuries by the angled iron affixed inside the well. This opinion has been marked in Ext. P. 2 at Atoa and has been put in cross-examination of Damodar Prasad, who has denied to have signed any such opinion in presence of the panchas. Damodar Prasad (P. W. 1) upon whose testimony the appellants conviction stands, is again found to be telling a lie, when he was confronted with Ext. P. 1, Dehati Nalishi, signed and recorded by him. In this report he had mentioned that his daughter-in-law Anguri Bai (P. W. 5) was having illicit relationship with the acquitted accused Jagdish Prasad. Damodar Prasad (P. W. 1) upon whose testimony the appellants conviction stands, is again found to be telling a lie, when he was confronted with Ext. P. 1, Dehati Nalishi, signed and recorded by him. In this report he had mentioned that his daughter-in-law Anguri Bai (P. W. 5) was having illicit relationship with the acquitted accused Jagdish Prasad. As already mentioned earlier, in the impugned judgment the learned trial Judge has recorded his finding that the first information report (Ext. P. 13) was delayed by 24 hours, because deliberations and consultations were going on for implicating the acquitted accused persons also. It is significant to note that Abhai Singh Kushwah (P. W. 9) in para 8 of his deposition has clearly averred that no person of the village informed him that the appellant and the acquitted accused persons had thrown Siyaram into the well or they had assaulted him. It would also be significant to note that in Ext. P. 2 injury by marpit is nowhere mentioned. Damodar Prasad (P. W. 1) is further found to be telling a lie in para. 13 of his deposition when he says that Abhai Singh Kushwah (P. W. 9) had not come at all near the well and had not prepared any inquest report. In para 14 of his deposition he says that no police personnel was present near the well or in the village till he reached the primary Health Centre. ( 7. ) UNDOUBTEDLY, Damodar Prasad (P. W. 1) remains the sole eye-witness of the incident. On several facts he has been disbelieved by the learned trial Judge. No doubt, conviction can be based on the testimony of a sole witness, if he is reliable. But if he is found to be telling nine lies out of ten facts, then what is the guarantee that the tenth fact is true ? In Karunakaran, AIR 1976 SC 383 , the Supereme Court has observed : "where an accused is going to lose his life in a serious charge of murder, it is not only necessary that the Court should be circumspect and closely scrutinise the evidence to come to an unhesitating conclusion that the eye-witness on whose testimony the conviction is based is absolutely reliable. Where the sole witness on whose testimony the conviction was based had himself given the fir and there were serious departures in his evidence from the version given in FIR and the evidence was contradicted by the medical evidence, Held on facts that the High Court failed to consider the intrinsic quality of evidence of the witness. " It would be relevant to note further and appreciate the testimony of Dr. R. P. Agrawal (P. W. 2), who had performed autopsy upon the dead body of Siyaram. This witness was asked whether there were any injuries by hard blunt instrument upon the body of the deceased, or not. He has replied in negative, and further contended that looking to all the injuries together, it can be said that all the injuries can be sustained if the deceased falls in the well. Dr. R. P. Agrawal (P. W. 2) was questioned by the Court, and he replied to it in the last part of his deposition that considering all the injuries together, it can be said that they were the result of fall in the well, and that no signs of injuries caused by hard blunt instrument, as alleged by the prosecution, were found over the dead body. ( 8. ) WHILE commenting upon the impugned judgment, it is the duty of this Court to scrutinise the evidence carefully and in terms of felicitous metaphor separate the grain of truth from the chaff of falsehood. The trial Court has virtually built a separate case of its own departing from the case of the prosecution and the defence. Thus, the learned trial Judge has built up or reconstructed a story of his own. The trial Court without discarding the filth of chaff has misdirected itself completely on the point of law as well as on points of facts. With regard to the burden of proof, again the trial Court has misdirected itself and came to the conclusion that it was for the defence to examine wit nesses in defence, and then and only then, the defence can be relied upon. The trial court completely forgot Pratap, 1976 SC 966. Assuming that the burden was upon the defence to prove its case, the burden of the accused is not so onerous as that which lies on the prosecution. The trial court completely forgot Pratap, 1976 SC 966. Assuming that the burden was upon the defence to prove its case, the burden of the accused is not so onerous as that which lies on the prosecution. The prosecution is required to prove its case beyond all reasonable doubt, and the accused can discharge his onus by establishing a mere preponderance of probability. If we look to the facts and circumstances of the case, it can safely be concluded that the defence taken by the appellant during the trial may be true. The admission made by an accused in his statement under Section 313, Criminal Procedure code, has to be taken up as a whole, and the trial Court cannot split it up in parts for using it against the accused. Assuming the presence of the appellant at the time of the incident was an admission, then the whole evidence was required to be read in consonance with other parts and not in isolation. We, therefore, unhesitatingly conclude that the conviction of the appellant recorded by the learned trial Judge in the impugned judgment cannot be upheld. ( 9. ) CONSEQUENTLY, this appeal is allowed; the impugned judgment of conviction is set aside and the appellant is acquitted. He be set at liberty forthwith if not required in any other offence. Appeal allowed.