Judgment BHARGAVA, J, J. ( 1 ) - These two appeals arise out of common judgment dated 28. 7. 1987 passed by Session Judge, Alwar in Session Case No. 99/84 convicting the accused appellants Chandu, and Budh Singh (in appeal No. 389/ 87), u/s 302 IPC and sentencing each of them to undergo life imprisonment and a fine of Rs. 1,000/- in default of payment of fine, six months R. I. and convicting accused appellant Jodh Sihgh u/s 307 IPC and sentencing to 10 years R. I. and a fine of Rs. 500/-, In default of payment of fine, four months R. I. while acquitting Aivaj, Jodh Singh s/c Arnar Singh, Shyo Singh. Roozdar, Asar Khan, Rahman. Heeralal, Smt. Mozabi and Smt. Bashiri (in appeal No. 125/1987 ). ( 2 ) AYUB Khan (PW- 1) lodged a first information report (Ex. P. 1) at about 3. 30 p. m. on 20. 1. 1984 stating therein that at about 10 a. m. he along with others (named therein) bad gone to his field TChidiya Pee Wala Khet for cutting mustard crop. At about 1 P. M. he along with others came home after Jumma Ki Namajt and when they reached to the field at about 2. 30 pm. accused persons were putting the crop, which they had cut in the morning, into the tractor of Amar Singh and when they resented and asked them not to do so, Dalmod stated that he will not allow them to carry the, crop, whereupon some altercation took place and accused Chandu fired on Dalmod. Amar Singh also fired a shot on Hakim. Jodh Singh fired at Sahid. Budha fired on Abdul and other accused persons inflicted injuries by Pharsi and lathi, on the members of the complainant party. ( 3 ) ON the aforesaid report, a case u/s 302 IPC was registered. The police after usual investigation, submitted challan against 16 persons out of whom 13 were committed to the court of Sessions, whereas three accused Batooni, Sher Khan and Gafoondi were ordered to be tried in Childrens Court. Sher Khan died during trial and case is still pending against Batooni and Gafoondi, in the Children Court, Session Judge, Alwar, after trial, convicted and sentenced accused Chandu, Budh Singh and Jodh Singh (in Appeal No. 389/87) as aforesaid and acquitted the ten accused respondents in Appeal No. 125/87 against acquittal of ten accused persons. Sher Khan died during trial and case is still pending against Batooni and Gafoondi, in the Children Court, Session Judge, Alwar, after trial, convicted and sentenced accused Chandu, Budh Singh and Jodh Singh (in Appeal No. 389/87) as aforesaid and acquitted the ten accused respondents in Appeal No. 125/87 against acquittal of ten accused persons. ( 4 ) WE have heard learned counsels for the accused appellants as also the Public Prosecutor and Shri Prabhat Kumar, for the complainant side, and have gone through the judgment of the trial court as also the voluminous record of the case. ( 5 ) BOTH accused party as well as complainant party belong to the same family their family ancestor being Jagroop had two sons- (i) Aiwaj and (ii) Chhote. Sessions of accused party whereas Chhote, wife Chandi and to the complainant party. It is an admitted fact that both complainant party and the accused party were not keeping good relations and there were not keeping good relations and there were disputes between them with regard to their land and cultivatory rights over it. Litigation is still pending between the parties in that connection. Occurrence of incident has not been denied by the accused Mauzbe, Banno and Asar Khan received injuries during the course of occurrence. Their injury reports are Ex D. 25, Ex. D. 26, Ex. D. 27, Ex. D. 28 and Ex. D. 29 respectively and they have been duly proved by PW-4 Dr. Prabhu Dayal Saini and PW-13 Dr. R-K. Mishra. Lateon Mst. Banno, one of the of these injuries received by her, after nearly eight days of the incident. ( 6 ) PROSECUTION examined as many as 19 witnesses. Accused persons, in their statements recorded under section 313 Cr. P. C. have denied the allegations. Accused Sheo Singh and Amar Singh have filed their separate written statements in which they have stated that they were in possession of the land in dispute and had cultivated mustard (Sarson), and the complainant party wanted to take possession of the land. It was also stated by them that litigation is pending but so far, they have not been successful. The complainant party wanted to cut their crop and take it forcibly from the field. When the accused persons resented and objected to it, the compersons party gave beating to the members of the accused party and reopened fire. It was also stated by them that litigation is pending but so far, they have not been successful. The complainant party wanted to cut their crop and take it forcibly from the field. When the accused persons resented and objected to it, the compersons party gave beating to the members of the accused party and reopened fire. As a result of this, Banno, who was pregnant, died along with her child in the womb. The accused persons did not examine any defence wetness. Prosecution examined as many as 11 eye - witnesses namely PW-11 Batooni, who are all injured and related. Prosecution has not examined even a single independent eye - witness have given a graphic description, a parrot like evidence. We do not find any material contradiction which is almost accused persons were having any fire arms with the prosecution witnesses, in that position, the accused persons would not have suffered injuries. The cross-case filed by the accused persons by way of private complaint, since the police had given. Final statements of eye witnesses PW-2 Shafi, PW-3 Saddique, PW-4 Juhroo PW-6 Mst. Jaituni, PW-7 Saida w/o Sappi and PW-10 Hajra after four days i. e on 24. 1. 1984, and that of PW11 by these witnesses and that given by the and PW-19 Bhagwati Prasad is contradictory and therefore, cannot be believed and does the trial court itself. According to the prosecution case, the place of incident was Chidiya peer ka Khet but strangely enough, Chdiya peer ka khet has not been shown in the site plan (Ex. D. 1) nor is there any reference to it in the statements of witnesses recorded u/s 161 Cr. P. C. The prosecution case further is that there were two tractors one belonging to the complainant party and the other belonging to the accused party nut there are no marks of tractor on the field and therefore, the story of tractor also becomes very doubtful, as to whether the complainant party had a tractor or the accused party had the tractor and as to who was trying to take away the crop. The story that the complainant party had gone in the morning to the field for cutting the crop, that the menfolk had come for the Jumma - ki Namaaj, and had gone back to the field at 2 30 when the incident happened, also does not even find support from the prosecution evidence and there are several contradictions and omissions in the statements of the prosecution witnesses recorded before the police u/s 161 Cr. P. C. as also in the court. Therefore, the prosecution has not come out with a true genesis of the occurrence and it remains shrouded in the mystery. Even the Session Judge, who has given a very detailed judgment, has found that the prosecution witnesses are not reliable and has discarded their evidence and has not believed their statements with regard to ten accused persons whom he has acquitted. In the judgment, Session Judge has observed at a Dumber of places that their evidence is not reliable and they are not truthful witnesses, and have not spoken truth. Learned counsel for the appellants bas submitted that evidence of such witnesses who are all injured, related, belongs to the same family and are inimical towards the accused persons, should not be believed, specially when they have been dis-believed qua other ten accused persons who have been acquitted by the trial court and the entire prosecution case must be discarded, since it is not possible to separate grain from the chaff and their evidence should be discarded as a whole and should be believed even against the accused appellants Chandu, Budh Singh and Jodh Singh. In this connection, he has placed reliance on Balake Singh and others v. The State of Punjab Lakshmi Singh and others v. State of Blhar, and Fatya Fateh Lal and others v. State of Rafasthan for the proposition that since the prosecution has not explained the injuries to the accused persons, the whole prosecution case should be rejected. Reliance has also been placed on Gafoor v. The State of Rajasthan, where their Lordships have observed that if the evidence given by the injured witnesses who are closely related and are highly interested, uniformly gives the sequence of events which took place during the occurrence and further gives graphic descripition, their evidence seems to be tutored and therefore, no reliance can be placed on such witnesses. Learned counsel for the appellants has also placed reliance on G B. Patel v. State of Maharashtra where their Lordships have observed that the delay in recording the statements of the eye witness u/s 161 Cr. P. C. by the police amounts to serious infirmity in the prosecution case and it casts a cloud of suspicion on the credibility for the entire warp and woof the prosecution story. For the same proposition, he has also placed reliance on Babu Maulana and six others v. State of Rajasthan and Mahaveer and others v State of Rajasthan7. ( 7 ) LEARNED trial case itself after analysing the voluminous prosecution evidence, has come to the conclusion that charge u/ss. 148 and 149 IPC framed against the accused persons has not been proved and therefore, it has not recorded conviction of the accused persons, u/ss. 1948, and 149 IPC and that implies that the prosecution has failed to prove that the accused persons in pursuance of an unlawful object had conspired to give beating and the unlawful assembly has not been proved. Learned Sessions Judge, having discarded and not believed the statements of the injured eye witnesses with regard to ten other accused persons (in appeal No. 125/87) who have been acquitted by the trial court, has placed reliance on their evidence with regard to the conviction of appellants in Appeal No. 389/h7. Evidence of all these eye witnesses is so intermixed that it is not possible to sort out as to which portion of their statement is truthful which could be relied on and therefore, conviction of the accused appellants cannot be maintained and no reliance should be placed on the testimony of interested relative, injured and tutored eye witnesses. ( 8 ) LEARNED counsel for the appellants bas also submitted that since the accused party had also received injuries, and ultimately, one of them Smt. Binno died alongwith her child in Womb, shows that they had a right of private defence and in this connection, he has placed reliance on Munsi Ram and others v. Delhi Administration and Gyarsaya and others v. State of Rajasthan. Learned counsel for the appellants has also submitted that the prosecution has failed to examine any of the independent witness who were available at the site, even according to the prosecution, and therefore, an adverse inference should be drawn against the prosecution for not examining those witnesses. Learned counsel for the appellants has also submitted that the prosecution has failed to examine any of the independent witness who were available at the site, even according to the prosecution, and therefore, an adverse inference should be drawn against the prosecution for not examining those witnesses. Prosecution, in the present case, has examined only interested witnesses who were their relatives and also injured at the time of the incident. Litigation was also pending between the parties and there was old enemity between the parties. In this connection, reliance has been placed on Beer Singh v. State of U. P. , Harbhan and others v. State of Rajasthan and others and Pyare Lal and others v. State of Rajasthan12. On the other hand, learned Public Prosecutor and the complainants counsel have submitted that the accused persons were aggressors and they were taking away the crop which was sown and cut by the complainant party and when this was objected to, the accused party inflicted severe injuries and also made gun fire with the result that several persons from the side of the complainant party died. The accused persons had made in discriminatory firing and merely because the prosecution has not been able to explain the injuries sustained by the accused persons, the whole prosecution case cannot be discarded, and merely because come of the accused persons have been acquitted by the trial court, no inference could be drawn that the evidence against the accused appellants is also not reliable. In the present case, the State Government has filed an appeal against acquittal of the ten accused persons and it is the duty of the Court to separate grain from the chaff and to disengage the truth from the falsehood and to accept the truth and to reject the falsehood. The trial court was perfectly justified in convicting the accused appellants. The evidence of the witnesses who were admittedly present at the place of occurrence, will not implicate accused persons falsely and their evidence should not be discarded merely because they are related or are injured. The court should examine their evidence with caution and should scrutinise to find out the genesis of the occurrence and the substratum of the prosecution story. The court should examine their evidence with caution and should scrutinise to find out the genesis of the occurrence and the substratum of the prosecution story. In this connection, reliance has been placed on Ram Lakhan did others v. State, Taga and Lakha v. State of Rajasthan, Jai Ram v. State of Rajasthan, Hare Krishna Singh and others and Ram Kumar Upadhya v. State of Bihar and Mahendra Singh v. State of Rajasthan. They have further submitted that merely because statements of the eye -witnesses were recorded late, or that the police was not so vigilant during investigation, the whole prosecution case cannot be disbelieved and the evidence of the witnesses should not be rejected. In this connection, reliance has been placed on Baladin and others v. State of Uttar Pradesh. ( 9 ) WE have given our thoughtful consideration to the various submissions made at the bar and have carefully gone through the evidence and the other record of the case. ( 10 ) IT is an admitted fact that the complainant and the accused party both are very closely related and they are the descendants and have common ancestor Jagroor. There was a dispute regarding possession of the land as also about the cultivatory rights and litigation was going on between them when the incident took place. It is also not denied that the incident happened at the relevant time and members of both accused and the complainant party received injuries in the said incident. Prosecution has failed to explain the injuries received by the accused persons and all the eye - witnesses are wholly- silent regarding the injuries received by the accused persons, and they have, in fact, penied that the accused persons received any injury at the time of the occurrence. Mst. Banno, from the side of the accused party, died alongwith her child in the womb, as a result of the injuries received by her and six: persons from the complainant side died. It is really very unfortunate. Trial court has not placed reliance on the evidence of eye - witnesses qua the ten accused persons who have been acquitted by it. Trial court further found that the prosecution had failed to prove that there was any unlawful assembly or that the accused party had an unlawful common intention/object in furtherance of which they had attacked the complainant party. Trial court further found that the prosecution had failed to prove that there was any unlawful assembly or that the accused party had an unlawful common intention/object in furtherance of which they had attacked the complainant party. Therefore, the trial court acquitted the accused persons of the offences u/ss. 147, 148 and 149 IPC. All the eye-witnesses are interested, relative and also inimical against the accused persons because of prior litigation going on between the parties relating to cultivatory possession of the land. The prosecution has failed to adduce any independent witness. The evidence of the eye - witnesses has been disbelieved qua the ten accused persons and the trial court has found at number of places in the judgment that the eye - witnesses have belied themselves on several points. ( 11 ) IN the present case, the falsehood and the truth, if any, are so intermingled that it is not possible to separate truth from the falsehood or grain from the chaff and it will be unsafe to rely on such evidence to convict the accused appellants for an offence u/s 302 IPC. It is not a case where there was only one accused person but in the present case, there are number of accused persons. Accused persons have claimed both right of private defence with regard to property as also person and it is very difficult to ascertain as to which accused person is responsible for the death of the deceased persons, and therefore, none of the accused appellants could be convicted u/s 302 IPC or u/s 302/34 IPC, as has been observed in State of Bihar v. Nathu Pandey and others. It is just possible that some of the accused persons may be responsible for the death of the six: persons from the side of the complainant party but it is not safe to act on surmises and conjectures so as to believe the prosecution case against each of the accused persons beyond reasonable doubt, and if there is any doubt, benefit of doubt is to be given to the accused person. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go un-punished. There may also be an element of truth in the prosecution story against the accused persons. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go un-punished. There may also be an element of truth in the prosecution story against the accused persons. The prosecution story may be true: but between may be true and must be true, there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted as has been held by their Lordships of the Supreme Court in Sarwan Sinah v. State of Punjab. In the present case, we do not find the prosecution evidence as reliable and un-impeachable, and therefore, the accused appellants are entitled to benefit of doubt. ( 12 ) IN the result, Appeal No. 389/1987 Chandu and others v. State of Rajasthan is allowed, tb judgment passed by the Session Judge, Alwar. convicting and sentencing the appellants u/ss. 30 and 307 IPC is set aside. The accused appellants Chandu. Budh Singh and Jodh Singh are in Jai they should be released immediately, if not required in any other case. Consequently. Appeal No. 125/1987 State of Rajasthan v. Avaz and others fails and is hereby dismissed. Appeal dismissed