JUDGMENT 1. 1. This appeal is directed against the judgment dated 30.9.1981 passed by the learned Sessions Judge, Bharatpur, whereby the appellants have been convicted and sentenced as under:- Lila Singh U/s 325/34, IPC sentenced to undergo 3 years. R. 1 with a fine of <F30171M>L<F255D> 200/- in default 3 months' R. 1.. Shiv Shanker & Mst. Kiran Devi U/s 325/34, IPC Granted benefit of probation. 2. Briefly stated the facts of the case are that on the basis of a report lodged by Subhas (PW 2) a case was registered against the appellants for the offences under Sections 302 & 302/34 IPC. After usual investigation, challan was filed against the appellants and the trial Court framed charges under Sections 302 & 302/34, IPC against the appellants. In all ten witnesses have been produced by the prosecution in support of the charges. After recording the statement of the appellants, under Section 313. Cr P. C. and hearing the parties the learned trial Court passed the impugned judgment convicting and sentencing the appellants, as indicated above. Hence this appeal. 3. In the report lodged by Subhash, it was alleged that the deceased (Dal Chand) his son-Subhash, & his relative-Ram Babu (husband of sister-in- law) were sitting outside the house of Ram Babu at 8 0' clock in the evening of 4th December, 1980. and at the time, Deshraj (younger brother of Subhash) came there and made a complaint that Lilasingh and his son have assaulted him (Deshraj), and that,thereupon,the complainant party went towards the house of Lila Singh to rebuke him (accused) but when the complainant party were about to reach at the house of the accused than Lilasingh and his son Shiv Shanker closed the doors of their house and went upstair at the roof wherefrom. all the three accused-appellants pelleted stones at the complainant party thereby caused injuries on the person of Dalchand and Deshraj as a result of which Dal Chand died. 4. I may state that Dal Chand sustained two injuries-one was found to be grievous and which subsequently proved fatal. Learned trial Court convicted the appellants on the prosecution evidence of Subhash (PW 2), Deshraj (PW 3), Kartar Singh (PW 9), the other eye witnesses. i e. Idu (PW 4), and Rambabu (PW 7) did not support the prosecution. The learned trial Court while appreciating the evidence of Subhash (PW 2). Learned trial Court convicted the appellants on the prosecution evidence of Subhash (PW 2), Deshraj (PW 3), Kartar Singh (PW 9), the other eye witnesses. i e. Idu (PW 4), and Rambabu (PW 7) did not support the prosecution. The learned trial Court while appreciating the evidence of Subhash (PW 2). Deshraj (PW 3), and Kartar Singh (PW 9), observed that specific overt-act a.,signed to the appellant, Lila Singh, appears to be false and in this view of the matter, the learned trial Court disbelieved the version of these three witnesses and held that these three witnesses are partly reliable and partly unreliable. 5. Shri N. L. Tibrewal, learned counsel for the appellants, contended that when the aforesaid three witnesses were held to be partly unreliable then in that situation it was obligatory for the prosecution to have produced some independent witnesses in order to support the testimony of these three witnesses. In this regard, the learned counsel cited a decision of the Supreme Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 , and in the cited decision (supra), their Lordships observed as under:- "In the first category of proof. the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of single witnesses, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example in cases of sexual offences or of the testimony of an approve:; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a particular in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict if it is satisfied that the testimony of a single witness is entirely reliable." 6. Taking aid of the principles laid down in cited decision (supra), learned counsel for the- appellants contended that even if the witnesses are held to be partly reliable then too, their testimony w.is not to be acted upon in the absence of corroboration by the evidence of an independent witness because the same was lacking in the present case. Therefore, according to him, the learned trial Court was not justified in placing reliance upon these three witnesses (ut supra). 7. In order to examine the point as to whether the evidence of this trioka (PW3, PW2 & PW9) can be held to be partly reliable, I have gone through their evidence. Subhash (PW2) deposed inter-alia that at the time when the appellants, went to the roof of their house the appellant. Lilasing threw a brick which hit the head of Dal Chand and after sustaining injuries by the aforesaid brick he (Dal Chand) fell down, and subsequently, other accused-appellants threw stones which caused injuries on the nose and neck of the deceased. No other specific overt-act has been assigned to the appellants by this witness (PW2) Deshraj (PW3) deposed the similar act of the appellants. Kartar Singh (PW9) has deposed that the accused-appellant, Lila Singh threw stone which hit the head of the deceased, Dal Chand and that, even after the deceased sustained injuries, the accused-persons were throwing stones. But this witness (PW9) nowhere stated that by the aforesaid act of pelleting stones, some of the persons from the complainant side sustained injuries. Kartar Singh (PW9) has deposed that the accused-appellant, Lila Singh threw stone which hit the head of the deceased, Dal Chand and that, even after the deceased sustained injuries, the accused-persons were throwing stones. But this witness (PW9) nowhere stated that by the aforesaid act of pelleting stones, some of the persons from the complainant side sustained injuries. Moreover, the aforesaid version of Kartar Singh (PW9) is discrepant to the evidence of Subhash (PW2) and Deshraj (PW3) who, in their statements as mentioned above stated that only one brick was thrown by the appellant, Lilasingh which hit on the head of the deceased. 8. The learned trial Court disbelieved this part of the version given out by the trioka (PW2, PW3 and PW9) that the brick was thrown by the appellant, Lila Singh which caused fracture on his head and subsequently proved fatal. It is thus clear that the learned trial Court while disbelieving the said part of the prosecution story misplaced reliance on the evidence of the trioka on the point of specific overt-act attributed to the appellants. But still, it held that the evidence of this trioka (PW2, PW3 & PW9) is partly reliable. However it failed to point out as to which part of the evidence of this trioka is believable. Thus, when only specific overt act attributed to the appellants has been disbelieved by the trial Court, then no other overt-act stated by the prosecution witnesses remains to be acted upon. It is thus clear that when there was no specific allegation against the appellants in the evidence of this trioka (PW2, PW3 & PW9), then the Court could not have set up different story which was never alleged by the prosecution witnesses. 9. In Devilal v. State of Rajasthan, AIR 1971 SC 1444 , their Lordships of the Apex Court observed that if the bedrock of the prosecution case that the accused came armed with guns to throw a challenge to complainant party, could not,prove as a fact the whole prosecution case would fall like a pack of cards. Their Lordship then observed that in criminal trials it is of prime importance for the accused to know as to what the exact prosecution case is, and if the pivot of the prosecution case is not accepted a new prosecution case cannot be made to imperil defence. 10. Their Lordship then observed that in criminal trials it is of prime importance for the accused to know as to what the exact prosecution case is, and if the pivot of the prosecution case is not accepted a new prosecution case cannot be made to imperil defence. 10. According to the medical evidence, Dal Chand had sustained two abrasions on his person. The prosecution allegation was that all the three accused appellants pelleted stones causing injuries to Dal Chand. A look at the number of injuries sustained on the person of Dal Chand on the very face of it falsifies the prosecution case that all the three accused appellants participated in pelleting of the stones. On the very face of record, it is clear that at least one of the appellants did not participate if not all of them. The prosecution evidence cannot distinguish acts of any of the accused appellants to trace out person who did not participate and in these circumstances, all the appellants are entitled to get benefit of doubt. The learned trial Court erred in holding the appellants guilty for the of Section 325, with the aid of Section 34. IPC because, admittedly, the appellants were in their house the members of the complainant party came there with an intent to assault them. The incident took place at the initiation of the complainant party and looking to the facts and circumstances of the case, it can be said that it was not known to the accused-appellants that the complainant party would come to their house and would make any rabuke or protest. Thus, it cannot be said that the accused-appellants had any intention to commit murder of Dal Chand or cause grievous injuries on his person. From the proved facts about the origin of the fight and the manner in which the incident took place, the provisions of Section 34, IPC, cannot be invoked and the learned trial Court emomitted an error of law in convicting the appellants with the aid of Section 34, IPC. 11. As said earlier, the learned Sessions Judge has himself. held that it has not been proved by the evidence on record as to which of the appellants caused which of the particular injury on the person of Dal Chand. In these circumstances also. none of the appellants could be convicted under Section 325 IPC, simpliciter. 12. 11. As said earlier, the learned Sessions Judge has himself. held that it has not been proved by the evidence on record as to which of the appellants caused which of the particular injury on the person of Dal Chand. In these circumstances also. none of the appellants could be convicted under Section 325 IPC, simpliciter. 12. Looking to the evidence, as discussed above, it is thus clear that in this case, it has not been proved that the deceased (Dal Chand) sustained any grievous injury at the hands of the appellants. In this view of the matter, none of the appellants can be held guilty for the under Section 325, IPC, simpliciter or under Section 325 read with Section 34, IPC. 13. For reasons stated above, this appeal is allowed, the impugned judgment of the Sessions Judge, Bharatpur is set aside. The appellants, Lila Singh, Shiv Shanker & Smt. Karan Devi are acquitted of the s charged. The appellants are on bail. They need not surrender. Their bail bonds stand can- celled. The record along with malkhana articles if any be sent forthwith.Appeal Allowed. *******