Judgment Dharampal Sinha, J. 1. This appeal is directed against the judgment and order dated 30-l-19f 8 passed by Smt. Shakuntala Sinha, 2nd Additional Sessions Judge, Giridih, whereby appellant No. 1 has been convicted for the offence punishable under Sec. 324 of the Indian Penal Code and appellant No. 2 has been found guilty for the offence punishable under Sec. 302 of the Indian Penal Code, and the former has been sentenced to undergo rigorous imprisonment for one year and the latter to imprisonment for life and also to pay fine of 1,000.00 and in default thereof to undergo simple imprisonment for six months. Some other co-accused, who had been put on trial along with the appellants were found not guilty and ordered to be acquitted by learned 2nd Additional Sessions Judge. 2. The case of the prosecution may briefly be stated as follows: On 3rd of April, 1985, the informant, Sahdeo Mahto, P.W. 9, along with his father, Nathu Mahto, the deceased, and his brother, Bhuneshwar Mahto, P. W. 1, were constructing a wall by the side of their house situated in Pachamba Diwan Tola within Sadar sub-division of Giridih. At about 6 p.m. these two appellants, along with one Gopal Mahto, one Talewar Mahto and one Bandhu Mahto (who all have been acquitted by the learned court below) came to the place and started removing bricks of the wall under construction. The informants father and brother protested whereupon the appellants and their companions started assaulting the persons of the side of the informant with planks kept there. At that stage appellant No. 1 Lakshman Mahto gave Farsa blow on the head of Bhuneshwar Mahto and appellant No. 2 gave a blow with spade on the head of Nathu Mahto, who fell down. Thereafter several persons assembled and the accused persons left the place. The two injured were taken to Giridih Hospital where from Nathu was referred to Rajendra Medical College and Hospital, Ranchi, where he died on 9-4-1985, i.e. six days after the occurrence. At Giridih Hospital, a Police Officer record the Fardbeyan (Ext. 4) on the statement of Sahdeo Mahto on the basis of which a formal F.I.R. was drawn up, and thereafter there was investigation and trial followed by the judgment under this appeal. At Giridih Hospital, a Police Officer record the Fardbeyan (Ext. 4) on the statement of Sahdeo Mahto on the basis of which a formal F.I.R. was drawn up, and thereafter there was investigation and trial followed by the judgment under this appeal. The defence of the appellants was that they had been falsely implicated and that the persons of the informants side had themselves assaulted some persons of the accused side for which a counter case had also been instituted, giving true version of the occurrence. 3. It may be noticed here that appellant No. 1 had been charged for the offence punishable under Sec. 307 of the Indian Penal Code but he has been found guilty for the offence punishable under Sec. 324 of the Indian Penal Code. Appellant No. 1 along with several others had been charged for the offence punishable under Sec. 149 of the I.P.C. read with Sec. 302 of the I.P.C. but they were all acquitted of that charge. There were also charge for the offence punishable under Sec. 148 of the I.P.C. against both the appellants but they have been acquitted of that charge. Appellant No. 2 was charged for the offence punishable under Sec. 302 of the I.P.C. and he has been found guilty for the offence. 4. A perusal of the record of the lower court discloses that the prosecution in support of its case examined in all twelve witnesses and two witnesses were examined by the defence. One of the defence witness Dr. Sheo Narayan Prasad had been examined as P.W. 3, also when he had deposed about the examination of the injuries on the persons of the informants side while as defence witness he deposed about the finding of the injuries on some persons of the accused side. Out of the witnesses examined P.W. 1 Bhuneshwar Mahto, P.W. 2 Jiwlal Mahto, P.W. 4 Khiria Devi, P.W. 5 Shyam Ram, P.W. 8 Ajay Rana and P.W. 9 Sahdeo Mahto figured as eye-witnesses of the alleged occurrence, P.W. 6 was a formal witness and P.W. 7 and 10 were tendered. P.W. 3, Dr. Sheo Naryan Prasad and P.W. 11 Dr. Renu Bala are witnesses, who deposed about examination of the injured and about holding of the post-mortem examination respectively and P.W. 12 was the Investigating Officer, Satish Chandra, Pathak. P.W. 3, Dr. Sheo Naryan Prasad and P.W. 11 Dr. Renu Bala are witnesses, who deposed about examination of the injured and about holding of the post-mortem examination respectively and P.W. 12 was the Investigating Officer, Satish Chandra, Pathak. Out of the defence witnesses examined, one was the doctor and other was Lakshman Mahto, appellant No. 1, himself. 5. The learned Additional Sessions Judge after considering the evidence came to the finding that other charges which had been framed against co-accused and the appellants were not established but she found guilty the appellant Nos. I and 2 of the offence punishable under Secs. 324 and 302 of the I.P.C. respectively and passed the sentences against them as already indicated above. 6. Mr. P.S. Dayal, learned Counsel for the appellants assailed the finding of the conviction of the learned court below by raising the following contentions: First, it was submitted that the Fardbeyan, indicated that the informant and the deceased had been constructing a mud wall to which protest was made and then the occurrence took place; but this story had been changed at the evidence stage when it was said by the prosecutions witnesses that a brick wall was being constructed. This, according to his submission, throws doubt on the whole of the prosecution case. Secondly, it was submitted that several of the witnesses examined by the prosecution were not named in the Fardbeyan as having been present and yet these non-F.I.R. witnesses have figured as eyewitnesses of the occurrence and their evidence, therefore, cannot be considered as credible. He next submitted that only interested witnesses who are sons and the widow of the deceased have deposed in support of the prosecution case but such interested testimony cannot be basis of conviction. He further contended that the prosecution witnesses have suppressed the fact that the appellant No. 1 and one Bandhu (an acquitted accused) had also sustained injuries as was deposed by the doctor, D.W. 1, and this suppression itself throws doubt on the prosecutions case. He further submitted that since three other co-accused have been acquitted by the trial court on the basis of the same evidence of the witnesses, a substantial part of the prosecutions case has been disbelieved and yet finding of conviction has been recorded against only two, who are the appellants, which should not have been done by the learned court below. Finally he submitted that conviction of the appellant No. 2 for the offence punishable under Sec. 302 of the IPC is not proper and justified even if the allegation of the prosecution that appellant No. 2 had given blow with spade on the head of Nathu, who ultimately died is accepted to be true. According to his submission since no blow was repeated by appellant No. 2 and only one injury had been caused the conviction of the appellant No. 2 should, at best, have been for offence punishable under Sec. 304, Part II of the I.P.C. and the sentence also could be passed accordingly, but the learned court below has wrongly held appellant No. 2 guilty for the offence punishable under Sec. 302 of the I.P.C. and sentenced him imprisonment for life. 7. On the other hand, Mr. Barnwal S. Lal submitted that the finding of the learned court below is fully justified and properly based on the evidence on the record. He pointed out that appellant No. 1 had examined himself as witness (D.W. 2) and he also admitted about construction of wall by the informants side and protest by the appellants side and so whether there was mud wall or a brick wall being constructed would be immaterial and the fact that in the Fardbeyan, there was reference of only mud wall seems to be because of some confusion about the wall which existed from before, which was the mud wall in place of which a brick wall was being constructed. He further submitted only because some of the witnesses were not named in the F.I.R., their evidence cannot be disbelieved only for that reason, particularly when even the appellant No. 1 during his evidence admitted presence of some of the non-F.I.R. witnesses at the spot. He further pointed out relying on the evidence of appellant No. 1 himself that the informants side had been constructing wall from the morning and only in evening at about 6 p. m., the accused side went therewith arms and in such a situation if appellant No. 2 gave a blow on the head of Nathu Mahto, who eventually died, it was obvious that the accused side had gone there determined to kill and so the conviction of appellant No. 2 for the offence punishable under Sec. 302 of the I.P.C., according to him, is quite proper. 8. 8. The point that arises for decision in this appeal is whether or not the finding of the learned court below holding the appellants guilty of the offences of which they have been respectively convicted is proper and justified on the evidence brought on the record in view of the contentions raised during the hearing of the appeal. 9. Before considering the aforementioned contentions raised, it is considered necessary to briefly refer to the evidence on the record. P. W. 1, Bhuneshwar Mahto deposed to the effect that at about 6 p. m., he too was doing work of construction of all with his father and brothers, Sahdeo Mahto and Jiwlal Mahto and his mother was also there. According to him the . appellants along with Taleshwar, Gopal and (sic)andhu (since acquitted) came and started uprooting the bricks to which this witness and his father protested, whereafter the accused side started assaulting with planks the informants side. He further stated that immediately thereafter Lakshman gave Farsa blow on the head of this witness causing incised and bleeding injury and Babulal gave blow with spade on the head of father (Nathu) of this witness and his father fell down and became senseless. Some persons then assembled there and this witness and their father were carried to Giridih Sadar Hospital and his father was latter carried to Rajendra Medical College and Hospital, Ranchi, where he died on 9-4-1985. His cross-examination shows that the parties are agnates and the appellants are his cousin brothers and they all reside in the different parts of the same house. They have got their common Angon (courtyard) and the informants side are living in the northern part and the appellants side on the southern side. It has been elicited during his cross-examination that one brick wall had previously been constructed towards the west and another was under construction towards south. According to his evidence the work of wall construction had started in the morning at south. It has further been elicited during his cross-examination that after removing mud wall, they were constructing brick wall at that very place. It was suggested to him that the southern wall was being constructed after encroaching upon some portion of land in the share of the accused and they (the informants side) were trying to close the path way of Talewar (an acquitted co-accused). It was suggested to him that the southern wall was being constructed after encroaching upon some portion of land in the share of the accused and they (the informants side) were trying to close the path way of Talewar (an acquitted co-accused). This suggestion was categorically denied by this witness. This witness is F. I. R. named witness and this witness is a witness, who had sustained injury himself and nothing has been pointed out during the whole of the argument as to why the evidence of this witness should be rejected as a unreliable. 10. Informant as P. W. 9 has also deposed to the effect that at about 6 p. m., he along with his father, brother and mother were constructing a wall when five accused persons including the appellants came and started uprooting the bricks of the wall situated towards the south-west corner. He also deposed that his father and brother, P. W.1, Bhuneshwar Mahto protested and then the accused side started assaulting with planks and thereafter Lakshman (appellant No. 1) gave a blow of Farsa on the head of P. W. 1. He deposed that then his father (Nathu) caught Lakshman, whereupon appellant No. 2 Babulal Mahto gave a blow on the head of Nathu, who fell down and became senseless. According to him when people started assembling there, the accused persons ran away. He further deposed about the victims being carried to Giridih Hospital and about reference of his father to Rajendra Medical College and Hospital on the next following day and about his death latter. This witness stated that Shyam Sundar Ram, Jagarnath Ram and Ajay Rana had also been the occurrence. In the Fardbeyan, however, this witness does not seem to have stated about this fact nor has stated about her mothers presence in the construction of a house. This part of the statement may, therefore, be considered to be a development but so far substratum of the prosecution case as far as the same relates to the allegations against appellants, his evidence seems to be consistent with the contents of the Fardbeyan as well as the evidence of P. W. 1. 11. This part of the statement may, therefore, be considered to be a development but so far substratum of the prosecution case as far as the same relates to the allegations against appellants, his evidence seems to be consistent with the contents of the Fardbeyan as well as the evidence of P. W. 1. 11. P. W. 2, Jiwlal Mahto, a son of the deceased also deposed to the effect that he along with his parents and brothers were constructing wall before the occurrence had taken place at 6 p. m. According to him, the appellants and others three came there and started uprooting the bricks and when protest was made the appellants and their companions indulged in assault with planks and appellant No. 1 gave Farsa blow on the head of Bhuneshwar Mahto, P.W. 1 and when the father of this witness caught hold by Lakshman, Babulal Mahto, appellant No. 2 gave blow with spade on the head, as a result of which his father fell down and became senseless. Later he was referred to Rajendra Medical College and Hospital, Ranchi, where he died according to this witness. Although this witness is not specifically named in the Fardbeyan, his presence at the place of occurrence has been deposed to not only by P. W.s but also by appellant No. 1, who examined himself as D. W. i. His presence at the place of occurrence is also probale because he was also expected to be present in his own house near which the wall was being constructed. 12. P. W. 4, Khiria Devi, is the mother of the informant and widow of the deceased, Nathu, Mahto. She also figured as eye witness of the occurrence and deposed, inter alia about giving of Farsa blow by appellant No. 1 on Bhuneshwar Mahto and by appellant No. 2 with spade on the head of her husband. This witness is not named in the Fardbeyan as having been present and one inherent flow in her testimony appears to be that she stated in paragraph 5 of her cross-examination that she had not been examined by the Investigating Officer and whatever she deposed about the occurrence, she deposed for the first time in the court. This witness is not named in the Fardbeyan as having been present and one inherent flow in her testimony appears to be that she stated in paragraph 5 of her cross-examination that she had not been examined by the Investigating Officer and whatever she deposed about the occurrence, she deposed for the first time in the court. So on the point of occurrence, her evidence cannot be considered to be free from doubt, Her evidence regarding her husband being referred to Rajendra Medical College and Hospital, Ranchi and that she had taken her husband to Rajendra Medical College and Hospital, Ranchi, where he died seems to be acceptable for it was natural that she would have accompanied her injured husband when he was referred to Rajendra Medical College and Hospital, Ranchi. 13. Two other witnesses, P. W. 5, Shyam Sunder Ram and P. W. 8, Ajay Rana have also been figured as eye witnesses of the occurrence. P. W. 5 explained his presence at the place of occurrence. P. W. 5 explained his presence at the place of occurrence by stating that he had gone to the house of the deceased during course of distributing the Prashad of Ram Naumi and then he had seen the occurrence. He is not a natural and probable witness of the locality and his cross examination shows that Ram Naumi had been celebrated three days earlier and so it is unlikely that he would be going with Prashad after the interval of three days. It also appears that his attention was drawn to his previous statement before the Investigating Officer and the Investigating Officer, P. W. 12 has deposed to the effect that Shyam Sunder had not stated before him that he had gone to Nathus house for giving Prashad nor did he say about the occurrence of assault. P. W. 8. Ajay Rana, also was asked question as to whether he had stated about the alleged assault before the police and the Investigating Officer, P. W. 12, stated that this witness Ajay Rana had not deposed before him about the assault with spade on Nathu by Babulal. P. W. 8. Ajay Rana, also was asked question as to whether he had stated about the alleged assault before the police and the Investigating Officer, P. W. 12, stated that this witness Ajay Rana had not deposed before him about the assault with spade on Nathu by Babulal. So the evidence of P. W. 4, P. W. 5 and P. W. 8, in my opinion, cannot be accepted as credible in so far as they deposed about giving of Farsa blow by appellant No. 1 on Bhuneshwar or giving of spade blow by appellant No. 2 on Nathu. But so far as the evidence of P. W. 1, P. W. 2 and P. W. 9 is concerned, there does not appear to be any infirmity. Their evidence also finds support from the evidence of Investigating Officer, P. W. 12, who stated that he had found three of the bricks of the wall having been removed. Their evidence finds also corroboration from the evidence of the doctor, P. W. 3, Sheo Narayan Prasad, who stated to have examined Nathu Mahto on 3-4-1985 at 8.20 p. m. and had found one injury which was "incised injury on the front part of the head 1 1/2 X 1/4" X 1/4" deep caused by sharp cutting weapon", which might be a by blade of spade. The evidence of another Doctor Renu Bala, P. W. 11 shows that she held post-mortem examination on the dead body of Nathu Mahto and she found "stitched wound 12 c. m. long on the left temporal and perietal region of head". According to her there was also crack fracture of right temporal bone and separation of coronal suture. Cause of death according to her opinion was due to head injury and the injury was ante-mortem. Of course she stated that it had been caused by some hard and blunt substance, which might be blunt portion of a spade. But it seems that the victim had been assaulted several days before the post-mortem examination was done and stitching of the wound had already been done, and this doctor stated to have found stitch. It was natural, by that time there was no appearance of sharp cutting injury and the doctor because of underlying fracture came to the opinion that it could be possibly caused by the blunt portion of the spade. It was natural, by that time there was no appearance of sharp cutting injury and the doctor because of underlying fracture came to the opinion that it could be possibly caused by the blunt portion of the spade. The doctor, who had earlier examined this injured had definitely and categorically stated that he had found incised injury and he had seen the victim before any surgical interference. Taken together the evidence of the two doctors gives indirect support to the allegation that Nathu had been given a blow with spade to which he ultimately succumbed after several days of infliction of the injuries. The evidence of P. W. 3 also shows that when he had examined Bhuneshwar Mahto at 8.30 p. m. on 3-4-1985, he had found on his person one incised injury on head of the size of 3" X 1/4" X 1/4" deep, caused by sharp cutting weapon which could be a Farsa. This doctor P. W. 3 gave the age of injury of both on Nathu and Bhuneshwar within six hours which fits in with the evidence given by P. W. 1, P. W. 2 and P. W. 9 to the effect that assault had taken place at 6. p. m. 14. During their examinations under Sec. 313, these appellants did not plead and specific defence but only they denied the allegation about which the evidence had been led by the prosecution. Two witnesses, however, were examined by the defence. D.W. 1 was the same doctor, who had deposed in favour of the prosecution as P.W. 3. This doctor deposed to the effect that he had examined Bandhu Mahto (one of the acquitted accused) at 8.25 p.m. on 3-4-1985 and found one lacerated injury on head 3-1/2" x 1/4" deep and another lacerated injury on left leg in front part 1" X 1/4" x skin deep. He further stated to have examined Lakshman Mahto, appellant No. 1, at 8.42 p.m. on that very day and found one swelling on left side of waist 2" X 2", one swelling on left side of forehead 2" X 2" and one abrasion on right thumb 1/4" X 1/4" X skin deep. Age of the injury given by the doctor was within six hours. 15. Age of the injury given by the doctor was within six hours. 15. D.W. 2 (appellant No. 1) deposed "to the effect that P.W. 1, P.W. 2 and P.W. 9 were constructing wall of brick by the side of mud wall since 8 a.m. on 3-4-1985 and this witness forbade them but they did not listen and continued construction of the wall. He further deposed that on the same day at about 6 p.m. when his brother Bandhu Mahto came from Giridih, he informed him about construction of the wall by P.W. 1, P. W. 2 and P.W. 9 and Bandhu then went to protest whereupon they assaulted him with Lathi and also brick. He further deposed that they also assaulted this witness. He also deposed to have lodged an information with the police which is Ext. A-1. He denied to have indulged in any assault on Nathu or his family members. Though he stated during examination-in-chief that he had protested to construction of the wall, during cross-examination, he denied that he made any protest. Though he stated about assault with Lathi on his brother, Bandu, but in the information, which he lodged Ext. A-1, there is no mention of assault on Bandhu with Lathi. He has not specified as to which of the three persons (P.W. 1, P.W. 2 P.W. 9) had assaulted Bandhu or this witness. His cross-examination shows that Bandhu Mahto had been given only one Lathi blow but this fact is not stated in his information Ext. A-1. He stated that Bandhu was assaulted with brick on his thigh. The doctor, D.W. 1, has not stated to have found any injury on the thigh of Bandhu. So the evidence of this witness does not appear to be acceptable. It may be noticed that it was not suggested to P. W. 1, P.W. 2 or P.W. 9 that they had assaulted Bandhu or Lakshman, 16. After discussing the evidence that has been brought on the record, the contentions raised on behalf of the appellant may now be examined. As regards the first contention that there is reference in the Fardbeyan about construction of mud wall, it may be noticed that the evidence of both the sides indicates clearly and definitely that in place of mud wall a brick wall was being constructed and the Investigating Officer also found three of the bricks having been uprooted. As regards the first contention that there is reference in the Fardbeyan about construction of mud wall, it may be noticed that the evidence of both the sides indicates clearly and definitely that in place of mud wall a brick wall was being constructed and the Investigating Officer also found three of the bricks having been uprooted. So a mention in the Fardbeyan about mud wall appears to be of no significance. As regards the contention about several of the witnesses of the prosecution not being named in the F. I. R., I have already indicated above that the evidence of non-F.I.R. witnesses, namely, P.W. 4, P.W. 5 and P.W. 8 cannot be accepted as credible but presence of Jiwlal Mahto in the construction of the wall from the morning itself has been deposed even by the appellant No. 1 and the evidence of the informant and the injured Bhuneshwar P.W. 1 appears to be quite satisfactory and credible and finds corroboration from the contents of the Fardbeyan and the evidence of the doctor and the Investigating Officer. True they may be considered to be interested being the member of the same family, but only because of their interestedness, their evidence cannot be rejected out right. Their evidence need to be scrutinised more carefully and with caution and as I have already stated above, their evidence is satisfactory and no adverse comment was made against their evidence even during the course of argument. Besides, as already indicated, their evidence regarding genesis of the occurrence and assault by the two appellants on P.W. 1 and Nathu finds corroboration from the evidence of the doctor and Investigating Officer. 17. I may mention here that the learned Counsel for the appellants relying on paragraph 6 of the judgment reported in the case of Subhash Kamkar and Ors. V/s. State of Bihar 1985 BLJ 216 submitted that if a witness is not named in the First Information Report, no reliance can be placed. In that case P.W. 3, Ram Pravesh Prasad, son of the deceased had figured as an eye witness of the occurrence besides one P.W. 5, the widow of the deceased. V/s. State of Bihar 1985 BLJ 216 submitted that if a witness is not named in the First Information Report, no reliance can be placed. In that case P.W. 3, Ram Pravesh Prasad, son of the deceased had figured as an eye witness of the occurrence besides one P.W. 5, the widow of the deceased. About P.W. 3, the learned Single Judge has made an observation in paragraph 6 of the judgment which reads as follows: ...Though (P.W. 3) has supported the prosecution case as an eye witness, but as his name does not find place in the first information report, no reliance can be placed, on his evidence. In evidence, (P.W. 5) has stated that when her husband had fled away on getting one Lathi blow to the house of Gupteshwar, she as well as her son (P.W. 3) went there to save her husband, but this fact has also not been mentioned in the first information report that her son had also gone there. Therefore, in my opinion, it is not safe to place any reliance on the evidence of (P.W. 3). I do not think that the observation of the learned Single Judge can be said to have laid down such a very wide proposition of law as that if a witness is not named in the first information report, no reliance can be placed on his evidence. In the fact of the particular case, non-mentioning of the name of P.W. 3 in the F.I.R. was one ground for rejecting his evidence, but rejection was also because some other fact with which that witness was associated had also not been mentioned in the first information report. It cannot be an invariable rule that a witness not named in the first information report cannot (in every case) be relied at all. Because the first information report may be lodged in different circumstances and some times, it may not contain details about the witnesses present at the time of occurrence. The informant may not even know the name of all persons, who were seen by the informant to be present at the place of occurrence and the informant may name only some of the witnesses adding that some others were also present. The informant may not even know the name of all persons, who were seen by the informant to be present at the place of occurrence and the informant may name only some of the witnesses adding that some others were also present. A first information may be lodged by a person, who has not seen the whole of the occurrence and might have rushed to inform the police when an occurrence had started. There are innumerable circumstances in which F.I.R. can be lodged, and so whether a witness not named in the first information report should or should not be relied upon may depend upon the nature of the first information report, the extent to which it contains detail, the circumstances in which it is lodged, the competence of the informant and many other such factors. So this wide proposition, of the learned Counsel for the appellants who has based his argument on the aforementioned decision, that a witness not named in the F.I.R. cannot be relied upon cannot be accepted as correct. In the instant case though P.W. 2, Jiwlal Mahto, had not been mentioned in the F.I.R., about his presence in the construction of the wall, there is a evidence of appellant No. 1 himself, who chose to examine himself as a defence witness. So, I do not think his evidence can be rejected as unreliable on the ground that he is not in the F.I.R. (Fardbeyan). 18 As regards the argument that the P.W.s have suppressed the fact of injury on appellant No. 1 and his brother Bandhu, it may be noticed that there is nothing definite to indicate that during course of the same occurrence, which the prosecution has alleged, Bandhu and Lakshman had received injuries. The evidence of Lakshman as already stated above is not satisfactory. He stated above is not satisfactory. He stated about earlier protest having been made by him about the construction of wall which had stated at 8 a.m. but he denied about it during his cross-examination that he made any protest. If he did not protest as he categorically stated in his cross-examination, there could be no occasion for any assault on him and so there could be no injury on his person. If he did not protest as he categorically stated in his cross-examination, there could be no occasion for any assault on him and so there could be no injury on his person. He during his cross-examination also stated about bringing of some other persons, who too prohibited construction of wall (and he has specifically named one Sewa and one Jagdish, who had been called by him) at about 2 p.m. where Nathu, Sahdeo, Bhuneshwar and Jiwlal were constructing wall. Sewa and Jagdish have not been examined. The injuries allegedly found by the doctor on Lakshman or Bandhu were not of any serious nature, all being simple and the prosecution cannot be said to have suppressed the fact about injuries on the appellants unless it is shown that the injuries had been caused in the same occurrence which the prosecution has alleged. 19. It may be mentioned that the learned Counsel for the appellant cited two decisions reported in the cases of Patori Devi and Anr. V/s. Amar Nath and Ors -- and State of Rajasthan V/s. Madho and Anr. 1991 Supp (2) Supreme Court Cases 3)6, and has submitted that when the prosecution has not explained injuries on the person of the accused (appellants), a doubt is cast on the version given by the eye-witnesses examined by the prosecution. In the former case, the High Court had found that the prosecution witnesses had suppressed some part and exaggerated the part played by the accused. It appears that in that case when the victim, deceased, had been found to sustain 30 sharp and blunt weapon injuries, the three accused too had sustained in all 22 blunt weapon injuries. In that situation, the judgment of acquittal of the High Court was upheld and the appeal dismissed. In the latter case, one of the respondents, Kishna, had sustained six injuries, five of them on the skull region and an another respondent, Madho, too had sustained six injuries, two on the skull region and the injuries were not explained by the prosecution and in that situation the finding of the High Court was upheld by the Supreme Court. In both the cases, it was indicated that the injuries suffered by the accused side had been caused at the time of the occurrence itself. In both the cases, it was indicated that the injuries suffered by the accused side had been caused at the time of the occurrence itself. In the instant case, I have already indicated above the injuries are neither numerous nor serious nor is it indicated that those injuries on the person of appellant No. 1 and Bandhu, the acquitted accused, were caused in the same occurrence. Injuries were either swelling or abrasion and some of them only skin deep and none of them more than 1/4" deep. Unless the injuries are serious and unless it is indicated that the injuries had been caused in the same occurrence, I do not think that the prosecution can be saddled with burden of explaining the injuries. So, I reject the argument of the learned Counsel on this point. 20. As regards, the contention that some ether co-accused have been acquitted and so the appellants should have been acquitted, it may be mentioned that unlike the case and evidence against other (acquitted) accused, there is specific case of using definite weapons against the appellant ; and there is consistent and satisfactory evidence so far giving of Gandasa blow by appellant No. 1 on Bhuneshwar and giving of spade below by appellant No. 2 on Nathu is concerned. This substantial part of the prosecutions case seems to have been established beyond all reasonable doubt ; and so only because some other co-accused against whom there was no specific case and satisfactory evidence were given benefit of doubt, it cannot be held that this part of the allegation against the appellants also must necessarily fail only because of that reason. The Court has to make an attempt to separate the grain from the chaff, the truth from the falsehood. Of course, if grain and chaff are so inextricably mixed up that they cannot be separated then only the whole case of the prosecution can be thrown out. I think that in this case, the learned Court below seems to have accepted, the grain and rejected the chaff. Of course, if grain and chaff are so inextricably mixed up that they cannot be separated then only the whole case of the prosecution can be thrown out. I think that in this case, the learned Court below seems to have accepted, the grain and rejected the chaff. In my considered opinion, the prosecution have been able to establish beyond all reasonable doubt the fact that appellant No. 1 gave Grasa blow on the head of Bhuneshwar, P. W. 1, at the alleged time and place and appellant No. 2 had given blow with spade on the head of Nathu at the alleged time and place as a result of which he died after some days. 21. The finding of the learned Court below holding appellant No. 1 guilty for the offence punishable under Sec. 324 of the I.P.C. in my opinion, is fully justified and based on evidence on record. As regards appellant No. 2, Babulal Mahto, however, the, finding of the learned Court below holding guilty for the offence punishable under Sec. 302 of the I.P.C., in my opinion, needs modification, because I find some force in the contention of the learned Counsel for the appellants that only one blow with spade on the head was given and the blow was not repeated and this spade blow had been given when Nathu had caught hold of appellant No. 1 as has been stated by the informant as well as by P. W. 2 just after appellant No. 1 had given blow of Farsa on P. W. 1 Bhuneshwar. In such a situation, when only one blow was given which might be with the object of rescuing the appellant No. 1 from the clutch of Nathu, it cannot definitely be said that the intention in giving blow with spade on Nathus head was only to kill him. In such a situation, when only one blow was given which might be with the object of rescuing the appellant No. 1 from the clutch of Nathu, it cannot definitely be said that the intention in giving blow with spade on Nathus head was only to kill him. But since the blow with spade was given on head and the spade had been used with sufficient force, which is indicated by the fact that the doctor holding post-mortem examination found under being fracture, which proved fatal, though after some days of the infliction of the injury, it can safely be held that appellant No. 2 was guilty for the offence punishable under Sec. 304, Part II of the I, P. C., though not of the offence punishable under Sec. 302 of the I.P.C., So, in this view of the matter, the offence of which the appellant No. 2 had been convicted should be the offence punishable under Sec. 304, Part II of the I.P.C. and not under Sec. 302 of the I.P.C. The argument of Sri Barnwal S. Lal that the appellants had gone in the evening determined to kill, when the wall was admittedly being constructed from morning as the evidence indicates, and so appellant No. 2 has rightly been convicted of the offence punishable under Sec. 302 of the I.P.C., in my opinion, is not acceptable for the simple reason that appellant No. 2 had gone to the place of occurrence not with a very deadly weapon but only with a spade. So the appellant No. 2 is held guilty of the offence punishable under Sec. 304, Part II of the I.P.C. The proper sentence to be awarded for the offence punishable under Sec. 304, Part II of the I.P.C. in the circumstances of the case, in my opinion, would be the sentence appellant No. 2 to undergo rigorous imprisonment for seven years and to pay fine of Rs. 3,000 (rupees three thousand) with the direction that if the fine is realised, the same may be paid to the widow of the deceased by way of compensation. The point for decision in this appeal is, accordingly, answered. 22. In the result, therefore, appeal is dismissed, except for modification in the offence of which the appellant No. 2 had been found guilty and the sentence passed against him. The point for decision in this appeal is, accordingly, answered. 22. In the result, therefore, appeal is dismissed, except for modification in the offence of which the appellant No. 2 had been found guilty and the sentence passed against him. The conviction and sentence passed against appellant No. 1 is, accordingly, upheld but so far appellant No. 2 is concerned, he shall stand acquitted for the offence punishable under Sec. 302 of the I, P. C. but shall stand convicted for the offence punishable under Sec. 304. Part II of the I.P.C. and shall undergo rigorous imprisonment for seven years and pay fine of Rs. 3,000 (rupees three thousand,) only. If the fine is not paid, he shall undergo simple imprisonment for further period of one year. The fine or any part of it, if realised, shall be paid to the Khiria Devi, widow of the deceased. Amir Das, J. 23 I agree.