JUDGMENT Nagendra Rai, J. Five appellants were put on trial before the Second Additional Sessions Judge, Dumka on the accusation that they have murdered Nandkishore Mahto and caused hurt to Kisto Mahto, the informant of this ease, who convicted them under section 302 read with section 34 and u/s 147 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for life u/s 302/34 I.P.C. but did not award any sentence u/s 147 I.P.C. He further convicted appellant Lobin Chandra Mahto u/s 323 I.P.C. and sentenced him to undergo rigorous imprisonment for three months with a direction that the sentences awarded to him shall run concurrently. Learned counsel appearing on behalf of the appellants stated that appellant no. 2 Lobin Chandra Mahto is dead. 2. Appellant no. 1 is the father and the four appellants are his sons. There is a village Jamua within Pathargawan Police Station in the district of Godda (S.P.) and the appellants are the residents of Judge Tola, whereas, the deceased Nand Kishore Mahto and the informant are resident; of Barka Tola of the said village. The prosecution version in brief, is that on 5-8-79 at about 6 to 7 P.M. an altercation was going on between the deceased Nand Kishore Mahto on one hand and the appellants on the other hand with regard to grazing of the field of Nand Kishore Mahto by the she-goat of the accused-appellants. When the altercation was going on Kisto Mahto arrived there and requested them to settle the matter through Panchayati, but the accused appellants did not pay any heed and started assaulting Nand Kishore Mahto with lathi, as a result of which he fell down. When he protested he too was assaulted by Lobin Mahto on his head by lathi. Thereafter, according to the prosecution the aforesaid accused persons took away Nand Kishore Singh inside the Angan of the house and closed the door from the inside of the house. Kisto Mahto went to the house of the Chowkidar Jaldhar Mahto (P.W.3) and informed about the occurrence. The informant and Jaldhar Mahto came at the house of the appellants and requested them to open the door but the accused persons did not open the door. Thereafter, they went to inform the brother of the deceased, namely, Jai Prakash Mahto (P.W.7) about the occurrence. The informant and Jaldhar Mahto came at the house of the appellants and requested them to open the door but the accused persons did not open the door. Thereafter, they went to inform the brother of the deceased, namely, Jai Prakash Mahto (P.W.7) about the occurrence. Jai Prakash Mahto along with other persons, namely, P.W.13 Mahadeo Mahto, P.W.8 Srishtidhar Mahto and P.W.9 Balram Mahton came to the house of the appellants and they also requested the appellants to open the door but they did not do so. Thereafter, the prosecution witnesses remained there to keep watch over the house of the appellants and Chawkidar Sahadeo Mahto (P.W.2) was sent to inform the police. 3. The Officer-in-charge of Pathargawan Police Station Sahdeo Mandal (P.W.1) arrived at the place of occurrence at 4 A.M. and recorded the Fardbeyan of Kisto Mahto (Ext. 1) on the basis of which a first information report (Ext. 2) was drawn up. The door of the house of the appellant was opened at the instance of the Officer-in-charge and the dead body of the deceased was found in the Angan. A blood stained Kudal was also found at some distance from the place of occurrence concealed under the leaves of palm tree. The investigating officer also found blood near the dead body and blood stained lathi in a field (of Mahadeo Mahto P.W.13) out side the house of the appellants. He sent the dead body for postmortem examination and also sent the injured Kisto Mahto to Pathargawan Hospital for examination of his injury. He examined the eye witnesses and after completing the investigation submitted charge-sheet against the appellants and thereafter they were put on trial, which was ended in their conviction as stated above. 4. The prosecution, in support of the case, examined 17 witnesses out of them P.W.4 Arjun Mahto, P.W.5 Jaldhar Mahton, P.W.6 Karu Mahton and the informant P.W.12 Kisto Mahto are the eye-witnesses P.W.2 Sahadeo Mahton and P.W.3 Jaidhar Mahton are Chawkidars who went to inform the police about the occurrence. 5. P.W.1 Sahdeo Mandal, at the relevant time, was the Officer-in-charge of Pathargawan police station and he investigated the case P.W.16 Raghbendra Sharma at the relevant time was posted as Civil Assistant Surgeon in Godda Hospital and conducted autopsy over the dead body of the deceased. P.W.8 Srishtidhar Mahton, P.W.9 Balram Mahton, P.W.11 Khori Mahto and P.W.14 Baiguni Mahton are the tendered witnesses. P.W.8 Srishtidhar Mahton, P.W.9 Balram Mahton, P.W.11 Khori Mahto and P.W.14 Baiguni Mahton are the tendered witnesses. P.W.7 is Jai Prakash Mahton, brother of the deceased, and is a witness on the point that he was informed about the occurrence by the informant P.W.10 Jogendra Mahton is a witness on the point that he heard the cry of the deceased while he was being assaulted and thereafter went to the place of occurrence along with other persons. P.W.13 Mahadeo Mahton is another Chawkidar and he is a witness on the point that the deceased had grown paddy on the land given by him on Batai and also on the point that he also along with the brother of the deceased went at the place of occurrence after being informed by other witnesses. P.W.15 Kartik Mahton is a seizure list witness and P.W.17 Daroga Mahton is a formal witness who has proved the injury report of the informant (P.W.12). 6. The defence of the appellants, in brier, is that they have been falsely implicated in the case and the prosecution have not come with true version before the court. The deceased and others entered into the house of the appellants to commit dacoity and in that process the deceased was apprehended and assaulted. The defence has not examined any witness in support of its version. 7. The prosecution relies on the evidence of four eye-witnesses in support of its case, namely, P.Ws. 4, 5, 6 and 12. All the eyewitnesses have consistently stated that the appellants assaulted the deceased with lathi and when the informant intervened he too was assaulted by one of the appellants, namely, Lobin Chand Mahton and, thereafter, the deceased was dragged inside the house. The eye witnesses and the other witnesses were guarding the house and the Chawkidar was sent to report the matter to the Police. 8. Learned counsel appearing for the appellants submitted that the eye-witnesses as well as other witnesses examined in this case belong to one group and some of them are inimical to the accused persons, and as such their evidence is to be rejected. From the materials on the record it appears that P.W.2 Sahadeo Mahton, P.W.2 Jaldhar Mahton and P.W.13 Mahadeo Mahton are brothers. P.W.2 has stated in his evidence that P.W.4 Arjun Mahton and P.W. 10 Jogendra Mahton are his Gotias. From the materials on the record it appears that P.W.2 Sahadeo Mahton, P.W.2 Jaldhar Mahton and P.W.13 Mahadeo Mahton are brothers. P.W.2 has stated in his evidence that P.W.4 Arjun Mahton and P.W. 10 Jogendra Mahton are his Gotias. P.W.5 whose name is also Jaldhar Mahton has stated that all the persons who came on hulla at the place of occurrence were the men of the group of Nand Kishore Mahton, the deceased. P.W.10 Jogendra Mahton has admitted that prior to the occurrence appellant Dubraj Mahto has instituted a case against him and one Ghansyam Mahto, father of P.W.4 Arjun Mahton. He has further stated that Dubraj Mahton has filed a criminal case against him and the deceased. The materials on the record further show that P.W.7 Jai Prakash Mahton and P.W.9 Balram Mahton are brothers of the deceased. P.W.8 Srishtidhar Mahton is the cousin of the deceased. Thus, it is evident from the record that all the witnesses are of one group and they are inimical to the appellants. However, only because the witnesses are of one group and are on inimical terms, their evidence cannot be rejected, as submitted on behalf of the appellants, but their evidence is to be scrutinised with care and caution. 9. In the present case there are certain features which create doubt about the prosecution case. According to the evidence of the witnesses, after the appellants assaulted the deceased he was taken inside the house in the Angan and the door was closed from inside. The informant and other witnesses have stated that P.Ws. 4, 5 and 6 and other persons were asked to remain at the house of the appellants for the purpose of guarding the house and Sahadeo Mahto, Chawkidar, was sent to inform the police. They remained guarding the house till the arrival of the Police Officer at 4 in the morning on the following day. When the Police Officer came the door was opened by one of the female members of the house. The dea1 body was found, but surprisingly enough, the appellants were not present in the house. There is no evidence on the record that there was any other exit door in the house of the appellants or while the prosecution party was watching the house of the appellants any how they managed to escape from the house. The dea1 body was found, but surprisingly enough, the appellants were not present in the house. There is no evidence on the record that there was any other exit door in the house of the appellants or while the prosecution party was watching the house of the appellants any how they managed to escape from the house. In my view the evidence of the witnesses on this material part of the prosecution case is not worth acceptance. 10. Similarly, the prosecution version regarding the arrival of the Police Officer at the place of occurrence is also not free from doubt. According to the Investigating Officer (P.W.1) while he was returning from the village Khaira to Barkagaon, Chawkidar (P.W.2) Sahadeo Mahton met him and informed about the occurrence and thereafter he proceeded to the place of occurrence. P.W.2 Sahadeo Mahton has supported the said fact, but he has stated in his statement that he and his brother P.W.3 Jaldhar Mahton both went to inform the police and the Officer-in-charge met them in the way Jaldhar Mahton has been examined as P.W.3 in the case. He has stated that while he and his brother were going to inform the police, a constable met them in the way. They told him about the occurrence. He said to them that Officer-in-charge was coming and thereafter they returned to the place of occurrence. Thereafter the Police Officer arrived. He has further stated in the cross-examination that the accused persons had earlier lodged a report at the Police Station and they were present at the Police Station when he went there. In view of the aforesaid statement, the prosecution version that it was Sahadeo Mahto who went to inform the police does not inspire confidence. The Investigating Officer (P.W.1) has admitted that he recorded the statement of Sahadeo Mahton in the case diary and on the information of Sahadeo Mahton he proceeded with the investigation of the case. The said statement of Sahadeo Mahton has been withheld by the prosecution. The Investigating Officer (P.W.1) has admitted that he recorded the statement of Sahadeo Mahton in the case diary and on the information of Sahadeo Mahton he proceeded with the investigation of the case. The said statement of Sahadeo Mahton has been withheld by the prosecution. Besides this another feature to be noticed in this case is that Sahadeo Mahton has stated that while he was on night duty, he noticed the appellants near Barkabandh and thereafter he came to the place of occurrence and went to inform the police, but the evidence on the record does not show that he has stated about this fact either to the Police Officer or to the prosecution witnesses before lodging of the Fardbeyan in this case and so this statement appears to have been made by him only to explain the absence of the accused persons in the house when the Police Officers arrived. 11. Even with regard to the manner of occurrence, it cannot be said that the prosecution case has been proved beyond doubt inasmuch as according to the evidence of the eyewitnesses each of the five appellants assaulted the deceased with lathi and thereafter they took the deceased inside the house. The postmortem report shows only five injuries on the person of the deceased. The Investigating Officer found blood stained Kudal in the Angan. As no other injury on the person of the deceased was found, the presence of blood stained Kudal is not consistent with the prosecution version. No doubt, hardly one comes across to a witness whose evidence does not contain grain of untruth or exaggeration or embellishment, it is the duty of the court to scrutinise the evidence with a view to find out the truth; in other words, the court has to separate the grain from chaff. But, while separating the grain from chaff, the court cannot disbelieve the material part of the evidence and at the same time convict the accused by re-constructing a story of its own on the basis of the remaining evidence on the record. In the present case, as stated above, the evidence of the witnesses on the material parts does not inspire confidence. In the present case, as stated above, the evidence of the witnesses on the material parts does not inspire confidence. The informant (P.W.12) is the injured eye witness, but the injury report with regard to his injury has not been proved in accordance with law by the prosecution, as the Compounder has proved the injury report and has stated in his evidence that he does not know about the posting of Dr. Kamlesh Kumar Singh. The evidence of the informant, as stated above, is not worth reliance. 12. No doubt, the defence has not adduced any evidence in support of its case, but from the evidence of P.W.3, to the effect that the accused informed about the occurrence to the police officer and they were seen at the police station and also in view of the fact that the prosecution version that P.W.2 was sent to inform about the occurrence to the police, is doubtful, the defence version that the deceased received injury while he had gone to commit dacoity appears to be probable one. 13. In view of the aforesaid infirmities in the prosecution case, the prosecution has not proved the case against the appellants beyond reasonable doubt and, accordingly, they should be given benefit of doubt in this case. 14. In the result, the appeal is allowed and the conviction and sentence awarded to the appellants are act aside. The appellants are discharged from their bail bonds. S.H.S. Abidi, J. - I agree.