Hegde, J.- In this appeal the State of Mysore challenges the correctness of the decision of the learned Sessions Judge at Dharwar, in Sessions Case No. 14 of 1959 on his file, wherein the respondents in this appeal were acquitted of the charges under which they were tried. It is said that the respondents (who will be hereinafter referred to according to their array in the trial Court) who were members of an unlawful assembly in furtherance of the common object of that assembly, murdered two persons (Viravva and Udayasingh) on the morning of 6th December, 1958, in front of the house of A-4 Venkatappa Adivappa Ningareddy. They were charged (under section 148 as well as under section 302 read with sections 149 and 109, Indian Penal Code The prosecution case is that in the village of Kalwad, in which village the parties lived, there were two factions; one of the factions was led by A-3 Ramappa Ningappa Ningareddi whereas the other faction was led by the deceased Udayasingh; the accused belonged to the faction led by A-3 Ramappa whereas the deceased persons and some others belonged to the faction led by deceased Udayasingh It is said that on the early morning of 6th December, 1958, P.W. 10, Basavannawa the sister-in-law of deceased Virayya, went to fetch water. When she was passing in front of the house of A-4, A-2 Narasappa Marappa Sivalli dashed against her She came back and reported this matter to her mother-in-law, P.W. 3 Virawa. When she was so reporting the matter to P.W. 3, it was overheard by her brother-in-law deceased Virayya and deceased Udayasingh who were sitting outside. Infuriated at the conduct of A-2, deceased Virayya, accompanied by deceased Udayasingh, went towards A-4’s house evidently to reprimand the culprit. Sensing that some untoward incident may happen, P.W. 3 followed Virayya and Udayasingh. She was soon joined by P.W. 1 Yellappa. On going to the scene, deceased Virayya asked the persons gathered there as to why they had behaved so indecently towards his sister-in-law. At that time all the accused were sitting on the Katta of A-4. A-3 retorted as to who he was to question them and that he could take his revenge if he was bold enough to do so. At that stage P.W. 3 intervened and asked deceased Virayya and Udayasingh to return to their houses and avoid any further quarrel. At that time all the accused were sitting on the Katta of A-4. A-3 retorted as to who he was to question them and that he could take his revenge if he was bold enough to do so. At that stage P.W. 3 intervened and asked deceased Virayya and Udayasingh to return to their houses and avoid any further quarrel. When Virayya and Udayasingh were about to return to their houses, A-3 taunted Virayya as to why he was going back when he had come there with great courage. This taunt evidently touched Udayasingh to the quick. He picked up a stone and threw it on the persons gathered on the Katta. Thereupon, A-6 Hanumanthappa Ningappa Poojar beat deceased Virayya with a stick on his left ankle; on receiving that blow, Virayya fell down; at that time P.W. 3 rushed to the scene and covered her son; A-2 Narasappa pushed her aside and stabbed Virayya twice on his neck; seeing this, Udayasingh picked up a yoke and threw it towards their assailants; then A-3 went and grappled with him (Udayasingh); at the same time, A-1 Hanumanthareddi cut him with an axe on his back; A-4 Venkatappa gave another blow with an axe to Udayasingh; A-2 Narasappa also stabbed him; A-5 to A-8 heat him with sticks; thereafter the accused left the injured and went back to the Katta; the injured were removed to their houses; soon after Virayya and Udayasingh died; the Village Patil, on learning about the incident, came to the scene but did not record any statement from any one of the eye-witnesses; he sent his own report to the Police Station which is marked as Exhibit 23. On the next day A-3, also filed a complaint of his own (Exhibit 40). At the time of the incident, A-3 to A-5 and the discharged accused Rangappa were also injured. The existence of two factions, one led by A-3 and the other by deceased Udayasingh, is not disputed. In fact, the cross-examination on behalf of the accused has tried to establish that fact. Hence it is unnecessary to go into that aspect in detail. It is equally undisputed that the incident in question flared up as a result of A-2 dashing against P.W. 10. P.W. 10 Basavannawa speaks to that fact. Her evidence is corroborated by P.W. 3. The evidence of P.Ws. Hence it is unnecessary to go into that aspect in detail. It is equally undisputed that the incident in question flared up as a result of A-2 dashing against P.W. 10. P.W. 10 Basavannawa speaks to that fact. Her evidence is corroborated by P.W. 3. The evidence of P.Ws. 10 and 3 gains support from the facts elicited during the cross-examination of P.W. 10. It was suggested to her during her cross-examination that A-2 dashed against her accidentally while attempting to provide passage for her. But she denied that suggestion. In fact, during her cross-examination, the fact that A-2 dashed against her on the morning in question, was not challenged. On this point, further corroboration is available from Exhibit 40, the counter-complaint filed by A-3. In the last paragraph of that complaint it is stated: "Previous day to this incident cart was kept in front of the cattleshed of Venkappa. When the wife of Somaya (P.W. 10) came near the cart, the pot being broken as it was dashed to the cart and she went home and told something in her house and so these people came and beat me and my brother’s son Venkappa with axe and also they beat Ningappa with the yoke." The allegations in Exhibit 40 were not fully adhered to during the cross-examination of P.W. 10. In Exhibit 40, an attempt was made to show that the incident in relation to P.W. 10 occurred on the evening of 5th December, 1958. But this attempt was evidently given up during the trial. Therefore, we may safely accept the evidence of P.Ws. 10 and 3 regarding the cause of the incident. At this stage, we may deal with the finding of the Court below as regards the motive for the occurrence. That aspect of the case was considered by the trial Court in paragraph 24 of its judgment. Therein, it has observed: " So far as the motive is concerned two stories are sponsored on behalf of the prosecution: (1) the rivalry between Udayasingh and his followers on the one side and A-3 Ramappa and his followers on the other side, and (2) the molestation of Basavannawa, P.W. 10, the wife of Somayya, the brother of the deceased Virayya. It has been stated by P.W. 1 supported by P.Ws. It has been stated by P.W. 1 supported by P.Ws. 3, 3 and 4 that Udaya- singh used to stage some other dramas and each one had his followers, some two years prior to the offence, and rivalry by both the opposite camps was exhibited in Moharrum festivals and Bhajan recitals on the occasion of Jatras and there were some skirmishes on one such occasion some six months, prior to this offence. P.W. 12 (I.O.) has also stated in his statement that he was about to take proceedings against both the parties on the report of the Police Patil, but the proceedings had to be dropped as the rival parties had compromised on the intervention of the elders. Shivasingh, P.W. 11, has stated that relations with A-3 were strained when A-3 had pressed for the return of the advance pay from him when his services were terminated within six months and for that purpose both P.W. 11 Shivasingh and the deceased Udayasingh had to mortgage their land for payment. But with all that, it is to be observed that when nothing in that connection had happened just a few days prior to the alleged occurrence and all was quite on all fronts at least for six months, it is unthinkable that for no reasons one fine morning the accused persons had planned and prepared and armed themselves with the object of doing away with the life of Udayasingh in general and Virayya in particular who was no more than a mere actor in Udaysingh’s camp and against whom there was no particular enmity with any of the accused persons.“ It is somewhat difficult to follow this reasoning. It is nobody’s case that the accused persons lay in wait for murdering Virayya or Udayasingh. The prosecution evidence discloses that the incident took place in a very casual manner. It started with A-2 dashing against P.W. 10. Deceased Virayya and deceased Udayasingh went to the house of A-4 to question A-2 about it. Therefore, the quarrel ensued between the two groups which ended with the incident with which we are concerned. The trial Judge’s comments on this aspect appear to us to be beyond the point. In fact, as mentioned earlier, there is no controversy between the parties as to the cause of the incident. Therefore, the quarrel ensued between the two groups which ended with the incident with which we are concerned. The trial Judge’s comments on this aspect appear to us to be beyond the point. In fact, as mentioned earlier, there is no controversy between the parties as to the cause of the incident. The evidence relating to the factions that existed in the village was placed before the Court merely to show that there was tension between the two groups. It is not the prosecution case that the incident had any direct relationship with the factions that existed. Undoubtedly the background was the faction; but the immediate cause was the dashing of A-2 against P.W. 10. The learned trial Judge, in our view, had misdirected himself in considering the prosecution evidence bearing on the question of the immediate cause for the incident. Now coming to the incident proper, there is no dispute as regards the time and place of the occurrence. Admittedly, the incident took place in front of the house of A-4. Prosecution witnesses speak about it. The accused have given no version of their own. The evidence of P.Ws. 1 to 4 on this point gains corroboration from the testimony of P.W. 7, the Police Patil, who, as we shall see presently, is a partisan of the accused. He swears to the fact that immediately after the occurrence, he went to the scene of occurrence; there he saw blood stains; he also saw on the Katta of A-4, A-1 to A-5. We may at this stage refer to the contents of Exhibit 40. It is also seen from that document that the incident took place near the house of A-4. From the material on record, we may safely conclude that Veerayya and Udayasingh were injured near the house of A-4 at about 8-a.m., on 6th December, 1958. Deceased Veerayya had sustained as many as six injuries as seen from Exhibit 17, the post-mortem certificate issued by P.W. 6, Dr. Somasekhar. According to P.W. 6, out of those 6 injuries, two were serious injuries which were likely to cause death though not sufficient in the ordinary course of nature to cause death. They were injuries Nos. 4 and 6. Injury No. 4 was an incised gaping wound 1¼” X ½“X 1” on the left side of the neck 1“above the clavicle and 3” left to the medial line. They were injuries Nos. 4 and 6. Injury No. 4 was an incised gaping wound 1¼” X ½“X 1” on the left side of the neck 1“above the clavicle and 3” left to the medial line. Injury No. 6 was an abrasion 1“X 1” on the front at left leg 6“above the medial malleolus. Both the bones of the leg were broken at this side. The doctor stated that injury No 4 could be caused by a knife whereas injury No. 6 could have been caused by a blunt and hard instrument like a stick. Deceased Udayasingh had sustained as many as 9 injuries as seen from Exhibit 18, the post-mortem notes issued by P.W. 6. Out of those injuries, injury No. 3 was a grievous one whereas the other injuries were simple. Injury No. 3 was an incised gaping wound 1½” X ¾“X 2” on the back at the level at medial angle of scapula and 2“right to the medial line. At this stage itself it may be noticed that A-3, A-4 and A-5 had also sustained injuries at the time of the occurrence. The wound certificate issued to A-3 is marked as Exhibit 19. It shows that A-3 had sustained two injuries, one of which was a mere swelling whereas the other was an incised gaping wound 1½” X ½“X ¼” on the head in the left parietal region 4“above the ear. A-4 had sustained one iunjury as seen from Exhibit 20. It was an incised semi-circular gaping wound 4” X ¼“X ¼” on the fromt of the head and forehead. A-5 had sustained a toe injury, vide Exhibit 21. It was a C.L.W. 1½“X 1” skin deep on the dorsum of left great toe just behind the nail. As regards the incident two versions are put forward. The prosecution version is spoken to by P.Ws. 1 to 4. The accused’s version is disclosed in Exhibit 40 as well as in the statements given by A-3 to A-5 under section 342, Criminal Procedure Code. As mentioned earlier, the complaint, Exhibit 40 was filed one day after the occurrence. As regards the incident two versions are put forward. The prosecution version is spoken to by P.Ws. 1 to 4. The accused’s version is disclosed in Exhibit 40 as well as in the statements given by A-3 to A-5 under section 342, Criminal Procedure Code. As mentioned earlier, the complaint, Exhibit 40 was filed one day after the occurrence. In that complaint it is stated as follows: “There was ‘marawari’ going on between my brother’s son Venkappa (A-4) and his brother Ningappa (A-5) on one side and (1) Udayasingh Narasingappa Navalgund (deceased), (3) Virayya Maharudrayya Balikai (deceased), (3) Karadasi alias Muttya Bhimadasi Hugar (P.W. 2), (4) Somayya Maharudrayya Balikai (brother of deceased Virayya), (5) Siddaya Maharudrayya Balikai (brother of deceased Virayya), (6) Gurappa Parwatappa Abbigeri (P.W. 4) on the other side. Udayasingh and Somayya were holding axes, and the remaining persons were armed with sticks. 1 took Bikol and began to beat Udayasingh. Udayasingh beat me with the axe to my left head and ear. Many persons assembled. I became unconscious and fell down. After I regained consciousness I came to know that I was made to sit on the Katta of cattle-shed and I was bandaging. Whole body was stained with blood. On enquiry I came to know that Somayya beat Venkappa also with axe. Venkappa showed the injury. His injury was also bandaged. In the meantime I learnt that Udayasingh and Virayya were taken to their respective houses and they expired.” This complaint was not tried to be supported by any evidence in the case. The accused have not examined any witnesses on their side. Further, the case put forward in Exhibit 40 was not suggested to anyone of the prosecution witnesses and in particular it was not even suggested to P.W. 7 the Police Patil. It is also inconsistent with the evidence of all the prosecution witnesses including that of P.W. 7. Further, it is substantially falsified by the statements of A-3 to A-5 under section 342, Criminal Procedure Code. A-3 in his statement stated as follows: “Udayasingh, brother of Veeraya, Veeraya, P.Ws. a and 4 were attacking A-4 my cousin and I went to rescue him and they beat me. Udayasingh gave an axe blow and P.W. 4 held me and I fell unconscious.” A-4 in his statement had stated that Udayasingh, Veerayya and his brothers as well as P.Ws. a and 4 were attacking A-4 my cousin and I went to rescue him and they beat me. Udayasingh gave an axe blow and P.W. 4 held me and I fell unconscious.” A-4 in his statement had stated that Udayasingh, Veerayya and his brothers as well as P.Ws. 1 and 4 well armed came and attacked him; Sommayya gave an axe blow and he (A-4) was injured. A-5 had stated that Udayasingh and Veerayya along with his brothers and P.Ws. 2 and 4 had assaulted them. But during the cross-examination of P.W. 1 it was suggested to him that Udayasingh, Veerayya and the eyewitnesses in this case had attacked the party of the accused. The relevant portion of the evidence of P.W. 1 on this point is found in paragraph 20 of his deposition. It is as follows: “It is false to suggest that myself, Udayasingh, Virayya and the eye-witnesses of this case had gone well armed to fight if necessary with the persons who had played mischief with the sister-in-law of Virayya........It is false to suggest that I had run away when there was an exchange of words between the two rival groups and that I had not seen any incident as detailed above.” Obviously, the accused were not definite about the stand to be taken by them. As seen earlier, the accused had sustained some injuries, but they were all of very minor character. None of the injuries sustained by any one of the accused was grievous in nature. Barring P.W. 2, other P.Ws. were not even cross-examined about the injuries sustained by the accused. Accused have offered no explanation about the injuries sustained by deceased Virayya and deceased Udayasingh. Hence the version contained in Exhibit 40 must be considered as a desperate attempt to have a counter-version. The evidence of P.Ws. 1 to 4 fully supports the prosecution case. The question for consideration is whether their evidence can be believed. The trial Court rejected the evidence of P.Ws. 1 and 3 on the ground that it is not satisfactorily established that they had witnessed the occurrence. It rejected the evidence of P.Ws. 2 and 4 on the ground that they were partisan witnesses and that they were themselves accused in the counter-case. It was elicited from the I.O. that a charge-sheet had been filed against P.Ws. 1 and 3 on the ground that it is not satisfactorily established that they had witnessed the occurrence. It rejected the evidence of P.Ws. 2 and 4 on the ground that they were partisan witnesses and that they were themselves accused in the counter-case. It was elicited from the I.O. that a charge-sheet had been filed against P.Ws. 2 and 4 before the learned First-Class Magistrate at Hubli for the injuries caused to A-2 to A-5 during the course of the incident. It is unfortunate that that case was not tried along with the present case. From the material on record it is clear that both the cases relate to the same incident and they could be correctly termed as counter-cases. It is of utmost importance that cases arising out of the same incident should be tried by the same Judge as far as possible. It is also necessary that the two cases should be tried one after another and the decision rendered after hearing both the cases, though, no doubt, the Judge should not mix up the evidence in one case with the evidence in the other. But the fact that they have not been so done cannot be said to have vitiated the trial. If we are satisfied that the evidence of P.Ws. 1 to 4 is trustworthy, then it is our duty to deal with the case before us according to law inspite of the fact that the materials in the counter-case are not before us. If the accused rely on any special plea, it was open to them to place the necessary materials before the Court. They cannot take advantage of their omission, deliberate or otherwise, to ask this Court to acquit them on the sole ground that they have failed to disc large their burden. The first question that we have to address ourselves is whether the finding of the Court below that P.Ws. 1 and 3 did not witness the occurrence is correct on facts. We regret to say that the learned trial Judge did not bear in mind the true facts of the case in scrutinising the evidence of P.W. 1. We have earlier noticed that A-4 in his statement had specifically stated that P.W. 1 was one of his attackers. 1 and 3 did not witness the occurrence is correct on facts. We regret to say that the learned trial Judge did not bear in mind the true facts of the case in scrutinising the evidence of P.W. 1. We have earlier noticed that A-4 in his statement had specifically stated that P.W. 1 was one of his attackers. Whether the fact stated in his statement is true or not, it lends weight to the evidence of P.W. 1 when he claims to have witnessed the occurrence. The presence of P.W. 1 at the scene of occurrence when the occurrence took place appears to us to have not been contested by the accused. We have earlier referred to the cross-examination of P.W. 1. It was specifically suggested to him that he along with P.Ws. 2 and 4 and the deceased persons went to attack the party of the accused. This suggestion puts beyond controversy the presence of P.W. 1 at the time of the occurrence. This aspect of the case was completely overlooked by the trial Court. The trial Court’s reasons for coming to the conclusion that P.W. 1 did not witness the occurrence are set out in paragraph 45 of its judgment, the relevant portion whereof reads thus: "The most controversial issue in this case is the presence or absence of P.W. 1 on the scene of occurrence. While the prosecution has urged that he is an impartial witness, the learned defence counsel has stressed that he is enemy No. 1 of the accused persons and was not at all present on the scene. (We fail to see how this contention could have been urged in view of the stand taken during the cross-examination of P.W. 1). I am very much reluctant to hold that he was actually present on the scene as was stated by him and as was urged by the prosecution and my reasons to come to that conclusion are as follows: (a) His blood stained clothes were neither produced by him nor were seized by the police which would have been a very strong and material evidence in this case. (b) He is the only witness who had seen the incident from the beginning to the end and it would have been quite natural on his part to narrate the same before the Police Patel Siddangouda (P. W. 7) who according to him had visited the house of Virayya in his presence. But neither he volunteered to say what had exactly happened nor narrated a word when Siddangouda asked Somayya about it and when Somayya expressed that he did not know anything as to how Virayya was injured. This very fact is quite opposed to the psychology of an eye-witness that he should keep quiet when the village authority was searching for truth and was anxious to get the first hand information. Even if the statement of Siddangouda were to be ignored about this silence for getting information from P.W. 1, the statement of P.W. 1 cannot be ignored when be admits that Siddan gouda came to the house of the injured in his presence and he did not disclose a word to Siddangouda. (c) He did not participate in any other dramas, Bhajana or Melas of the rival groups and did not know exactly as to when Shivasingh was dismissed and when A-3 pressed for his money, yet he never hesitates to give a touch of personal knowledge to all his hearsay stories about the enmity between the accused persons on the one hand and Udayasingh and his followeres on the other. (d) Admittedly he is a first cousin of A-1. The brother-in-law of the discharged accused, whose sister was married to the father of A-4 and A-5, but quite contrary to the psychology of near relatives, he has come forward to say all that can be possible to enrope his relatives and their associates I should have readily believed him had he been an educated or a learned man or a man of high character and repute held in high esteem by his society. But to my great disappointment, he has denied that there existed a step-mother of his who is closely related to A-1 and who was the subject of an age long litigation between his family and the family of A-1. He also denies his liaison with Fakirawa and did not admit that she lived in his own house which is otherwise proved satisfactorily. He also denies his liaison with Fakirawa and did not admit that she lived in his own house which is otherwise proved satisfactorily. (e) He was neither called nor examined by P.W. 12 unlike the other important eye-witnesses, on that very night, but was examined after the inquest panchanama and the other panchanamas were over." Some of the facts mentioned by the learned Sessions Judge are not correct. The reasons mentioned above for rejecting the testimony of P.W. 1 can hardly be stated to be satisfactoy. The reasons given in clauses (c) , (d) and (e) are highly irrelevant for the purpose of finding out whether P.W. 1 had witnessed the occurrence or not. The fact that he (P.W. 1) did not participate in the dramas and Bhajanas conducted by the rival groups by itself is wholly insufficient to discredit his evidence-when he speaks about the strained relationship between the two groups. The criticism of the learned Sessions Judge that because of the fact that P.W. 1 is not "an educated or a learned man or a man of high character and repute held in high esteem by his society " his evidence has to be discredited, appears to us to be wholly beside the point. The learned Sessions Judge was factually incorrect in saying that "he (P.W.1) also denies his liaison with Fakirawa and did not admit that she lived in his own house which is otherwise proved satisfactorily." P.W. 1 has denied that he had any connection with one Fakirawa. We asked Sri R. M. Patil, the learned, counsel for the respondents to point out to us any evidence on record showing that he (P.W. 1) had any connection with Fakirawa. All that was pointed out to us; was the self-serving statements of the accused made under section 342, Criminal Procedure Code, which the learned Sessions Judge terms as "otherwise proved satisfactorily". P.W. 1 was examined by the Police on the very next day after the occurrence, though not at the time of the inquest. The learned trial Judge thinks that the mere fact that he was not examined at the inquest makes his evidence unacceptable. Criticism of this nature does not require any consideration and they have only to be brushed aside as irrelevant. The learned trial Judge thinks that the mere fact that he was not examined at the inquest makes his evidence unacceptable. Criticism of this nature does not require any consideration and they have only to be brushed aside as irrelevant. According to the evidence of P.W. 1, after Virayya was injured, he helped the relations of Virayya to carry him to his house and in that process he got his clothes blood-stained. It is rather curious that the learned Sessions Judge should have thought that the blood-stained clothes of a witness which have nothing to do with the crime should have been produced and the witness’s failure to produce the same is a circumstance indicating that he did not witness the occurrence. Why the learned Judge went on doubting about the presence ofP.W. 1 at the time of occurrence, is difficult to comprehend. Even according to the accused, he was one of the persons present at the scene. Obviously the learned Judge had no grasp over the facts of the case. The learned trial Judge was also not right when he puts; into the mouth of P.W. 1 that he was present when P.W. 7 questioned Somayya and . Somayya refused to give a statement. In fact this question was never put to P.W. 1. No doubt, P.W. 1 speaks of P.W. 7 visiting the house of Virayya. But there is nothing in his evidence or in the evidence of P.W. 7 to show that P.W. 1 was present when Somayya was questioned by P.W. 7, if Somayya was questioned at all by him. In the instant case, it is clear that P.W. 7 was trying to sabotage the prosecution case. P.W. 7 is an experienced Village Patil. He should have known that it was his duty to record a First Information from any available person who could give useful information about the occurrence. He was no novice to the job. Admittedly, he went to the scence of the occurrence immediately after the occurrence. He says that he got the necessary facts from P.W. 2. If that statement is true there is no explanation as to why he did not record the statement of P.W. 2. His failure to record a complaint from P.W. 2 is a very serious emission. Incidentally we may mention that P.W. 2 was not questioned about this aspect. He says that he got the necessary facts from P.W. 2. If that statement is true there is no explanation as to why he did not record the statement of P.W. 2. His failure to record a complaint from P.W. 2 is a very serious emission. Incidentally we may mention that P.W. 2 was not questioned about this aspect. We are inclined to think that P.W. 7 is a wholly unreliable witness. We do not think that he had questioned any one connected with the deceased. Had he questioned any one of them, he would not have certainly recorded the statement of his informant as required by law. It is not mentioned in Exhibit 23 that either P.W. 2 or Somayya had refused to give a statement. In Exhibit 23, ‘a garbled version was given evidently with a view to help the accused. The learned trial Judge allowed the Public Prosecutor to cross-examine P.W. 7. Yet P.W. 7’s evidence is relied on by him to discredit the eye-witnesses in this case. Barring making certain suggestions of enmity to P.W. 1, nothing substantial was either elicited from him or from any other witnesses in this case to show that P.W. 1 had any animus against any one of the accused. His evidence appears to be a natural one. There are no good reasons to reject the same. The reasons given by the learned trial Judge to reject his evidence are either factually incorrect or wholly irrelevant. On equally untenable grounds the evidence of P.W. 3 Virawa has been rejected by the Court below. Her evidence, as mentioned earlier, is to the effect that she followed deceased Virayya and deceased Udayasingh with a view to see that they did not quarrel with the accused. There is nothing surprising in her conduct . Her evidence as to how the incident commenced is corroborated by P.W. 10 and more or less, admitted by the accused. As we shall see at a later stage, her evidence as regards the incident is corroborated by medical evidence. She had been examined as one of the witnesses at the time of the inquest. No material was brought out from her evidence to show that she had not witnessed the occurrence. The reysons given by the learned trial Judge for opining that she is not proved to have witnessed the occurrence are found in paragraph 45, sub-paragraph (5). She had been examined as one of the witnesses at the time of the inquest. No material was brought out from her evidence to show that she had not witnessed the occurrence. The reysons given by the learned trial Judge for opining that she is not proved to have witnessed the occurrence are found in paragraph 45, sub-paragraph (5). It reads as follows: “The only other eye-witness that remains to be considered is P.W. 3 the mother of Virayya. Even if she is believed, it would be highly difficult to convict the accused persons on her uncorroborated testimony without the least support from any other quarters. (We do not know why it should be so). Her presence at the scene of occurrence becomes highly doubtful on account of her silence when the Police Patel had visited her house before the expiry of Virayya and had asked Somayya as to what had happened, upon which Somayya expressed his inability to throw light as to who had injured his brother. If she was really present she should have been the first source of in formation of Siddangouda and should have narrated the occurrence in all its details and should have really been the author of the F.I.R. But it is not so. Quite contrary to her examination-in-chief where in she has given the details of the injuries sustained by Udayasingh through the hands of A-4, A-2, A- 5, A-1 and A-5 to A-8, she admits in her cross-examination that she did not see as to who was injured and by whom after her son had fallen flat. I should have readily acted even on her uncorroborated testimony had she come out with all the truth giving details of the injuries inflicted either by the deceased persons or by P.Ws. 2 and 4 to the injured accused persons; but on that point her statement is silent. That shows the extent of partiality for the associates of her son; and that fact alone precludes me from acting on her statement.” P.W. 3 was not at all asked as to why she did not give a statement before P.W. 7; nor is there anything in her evidence to show that P.W. 7 had questioned Somayya in her presence. That shows the extent of partiality for the associates of her son; and that fact alone precludes me from acting on her statement.” P.W. 3 was not at all asked as to why she did not give a statement before P.W. 7; nor is there anything in her evidence to show that P.W. 7 had questioned Somayya in her presence. We do not know how the learned Sessions Judge was able to come to the conclusion that P.W. 3 was present when Somayya was questioned by P.W. 7, if he was ever questioned at all. Even without giving an opportunity to P.W. 3 on this point her evidence had been condemned by the trial Court. On the facts proved in this case, there can be little doubt that P.W. 7 was not interested in questioning any one on the side of the deceased. He was merely trying to build up a false case. This aspect was lost sight of by the trial Judge. Evidently he was not conscious of the fact that he had declared that witness as hostitle to the prosecution. The evidence of P.W. 7, without more, could not have been ordinarily considered as sufficient todiscredit the testimony of the eye-witnesses. The learned Sessions Judge was also not correct in saying that P.W. 3 had given inconsistent versions or that she had suppressed any portion of the incident. On the other hand, it appears to us that she had come out with the true version, which unfortunately was not noticed by the learned Sessions Judge. We are left with a feeling that the learned Sessions Judge was not familiar with the evidence in this case. First, we shall deal with the criticism of the learned Sessions Judge that P.W. 3 had gone back during her cross-examination on the version given by her during her chief examination. In the chief examination, she stated as follows: “A-3 incited the other accused persons to bring lathis, axes, etc., from their houses and so saying grappled with Udayasingh. After that, A-6, Hanumanthappa Pujar, beat my son with a stick on his left ankle with the result that my son fell down. As soon as he fell down, I fell upon my son. Then A-2 attacked my son with a knife twice near the neck region, and he started bleeding. After that, A-6, Hanumanthappa Pujar, beat my son with a stick on his left ankle with the result that my son fell down. As soon as he fell down, I fell upon my son. Then A-2 attacked my son with a knife twice near the neck region, and he started bleeding. Udayasingh was attached by Narasingappa (A-2) with a knife and A-4, Venkatappa, attacked him with an axe. Hanumantha Reddi (A-1) also attacked him with an axe. What others did I did not see. Again three persons beat Udaysisngh with sticks. They were A5, A-7, and A-8. Then there was a melee and I could not see what exactly happened as my attention was focussed on the bleeding injury of my son. Yallappa and P.W. 2, Karidasi, lifted my son to my house.” (Italicising is ours). Now coming to the relevant portion of cross-examination it is found in paragraph 9 of her deposition. It is as follows: “I was shocked to see my son so profusely bleeding and I tried to stop the bleeding by putting my thumb and band at the injuries. It can only be imagined what the state of the mind of a mother would be to see her son being injured in that manner. Thus I could not see after that, who others were injured and by whom.” The learned trial Judge has been able to see contraditions when in fact none exists. Evidence of witnesses are not to be weighed in golden scales. The Courts should not indulge in hair-splitting the evidence of any witness much less the evidence of rustic witnesses like P.W. 3. It must also be borne in mind that these witnesses are not familiar with the subtleties of the language employed in Courts. When in Court they are in an artificial surrounding. A Judge of facts must bear all these facts in mind. The last criticism directed against the evidence of P.W. 3 is that she had suppressed the fact that the accused were also injured and that she had given no explanation as regards the injuries found on them. P.W. 3 was never questioned about the injurines found on the deceased. On the other hand, the facts stated by her in the course of her evidence discloses a consistent and complete picture. P.W. 3 was never questioned about the injurines found on the deceased. On the other hand, the facts stated by her in the course of her evidence discloses a consistent and complete picture. In paragraph 8 of her deposition, she stated, “There was a scuffle between Udayasingh, Virayya and the accused Nos. 3, 4 and 5 and Rangappa who has been discharged and each one beat the other, but I did not see Karidasi at that place , in the scuffle. Gurappa witness was present or not, I do not know. It is not true A-1, A-2, A-6, A-7 and A-8 were not there in the melee” (Italicising is ours). The above evidence shows how A-3 to A-5 and Rangappa must have got injured. None of the grounds alleged by the learned Sessions Judge for disbelieving the evidence of P.W. 3 are true to facts and consequently his conclusion is not entitled to any respect at the hands of this Court, which it would otherwise have received. Now we are left with the evidence of P.Ws. 2 and 4. They speak about the attack on Udayasingh only. According to them, they came to the scene after Virayya was injured. Their presence at the scene of occurrence cannot be seriously disputed in view of the stand taken by the defence during the cross-examination of these witnesses. A-3 to A-5 ,as noticed earlier, in their statement under section 342, Criminal Procedure Code, admitted no doubt by implication, the presence of these witnesses at the time of the occurrence as according to them they had also joined in the fight. The learned trial Judge has rejected their evidence with the following observations: “Out of the four eye-witnesses, Karidasi, P.W. 2 and Gurappa, P.W. 4, are admittedly accused persons in the counter-case before the Hubli Magistrate under section, 147, 148, 323 and 324, Indian Penal Code. It has been admitted by the Police Officials examined in this case that that case is an offshoot of the present case and the offences alleged to have been committed in that case were part and parcel of the offence of this case and had taken place at one and the same time. The prosecution cannot be allowed to blow hot and cold in one and the same breath. The prosecution cannot be allowed to blow hot and cold in one and the same breath. When it has cited them as accused in the other case, it cannot colour their evidence in this case with an air of impartiality. Their very statements show that they have not come out with all the truth that was needed in this case. The source of the contents of F.I.R. according to P.W. 7, is P.W. 2 who had not mentioned the names of the last three accused, i.e., A-6, A-7 and A-8 before the Police Patil at that time, but very freely he and P.W. 4 mention the names and actions of these accused persons in this Court. According to them, they reached on the scene of offence at a time when Virayya had fallen flat and had gone there only to see how Udayasingh was injured and by whom. There is not the slightest whisper in their statements as to what part was played by them and how the accused persons were injured. In the absence of any such description in their statements and in view of the decision reported in 1950 T.C. 9, that was cited by the learned defence counsel, I am very much reluctant to believe the statements of P.Ws. 2 and 4 who according to the prosecution itself were active participants in the free fight.” P.W. 2 was never questioned about the information said to have been given by him to P.W. 7. In fact, no cross-examination was directed to P.W. 2 about his having stated any fact to P.W. 7. Yet, the learned trial Judge thinks that his (P.W. 2’s) evidence in Court can be contradicted by the previous statement said to have been made by him to P.W. 7. We have earlier opined that the questioning of P.W. 2 by P.W. 7 is not true. In our opinio, the learned trial Judge was not right in disbelieving the evidence of P.W. 2 on the ground that it is inconsistent with the version given by him to P.W. 7. Another criticism directed against the evidence of P.Ws. 2 and 4 is that they have not given any explanation regarding the injuries on A-3 to A-5. According to their evidence they came to the scene after Virayya had fallen down and when Udayasingh was being attacked. Another criticism directed against the evidence of P.Ws. 2 and 4 is that they have not given any explanation regarding the injuries on A-3 to A-5. According to their evidence they came to the scene after Virayya had fallen down and when Udayasingh was being attacked. It is not clear whether A-3 to A-5 were injured after these witnesses came to the scene or before they came to the scene. It is not proper to think that any stick is good enough to beat down the prosecution witnesses. It is not the law that the evidence of partisan witnesses is prima facie unacceptable or the same cannot be made the basis of a conviction. All that law requires is that the evidence of partisan witnesses has tobe scrutinised with care. In fact, during the cross-examination of P.W. 2 it was suggested to him that he was not at all present at the time of the occurrence and at that time he had gone out selling flowers. The accused did not take any consistent stand. Different theories were suggested at different times, some of which conflict with one another. The last reason given by the learned Sessions Judge for disbelieving the evidence of these witnesses is that: “out of the four eye-witnesses none speak about the presence of the other. Neither P.W. 1, P.W. 3, P.W. 2 and P.W. 4 had seen each other nor P.W. 3 was mentioned by P.Ws. 2 and 4. Had they really been present, they should have necessarily been seen by one another.” This finding again is factually incorrect. P.Ws. 1 and 3 have stated that they went to the scene of occurrence together. P.W. 1 stated that P.W. 2 helped him in carrying the injured. We do not know what the learned trial Judge means by saying that P.W. 2 does not speak about the presence of P.W. 3 and P.W. 3 does not speak about the presence of P.W. 1. P.W. 1 was not specifically asked about the presence of other witnesses at the scene, at the time of the occurrence. P.W. 1 was not questioned about the presence of P.Ws. 2 and 4. It is no doubt true that P.W. 3 stated that she did not notice whether P.W. 2 also participated in the melee. P.W. 1 was not specifically asked about the presence of other witnesses at the scene, at the time of the occurrence. P.W. 1 was not questioned about the presence of P.Ws. 2 and 4. It is no doubt true that P.W. 3 stated that she did not notice whether P.W. 2 also participated in the melee. Here again we are inclined to think that the learned Sessions Judge did not take care to inform him about the evidence on record. He had wholly misdirected himself. Ordinarily, this Court is reluctant to interfere with a verdict of acquittal. We are conscious of the fact that we do not have all the advantages that the learned trial Judge had in assessing the evidence on record. We did not have the advantage of seeing the witnesses in the box and observing their demeanour. In cases like this the presumption of innocence of the accused is further strengthened by their acquittal. These are undoubtedly weighty factors. But if we are satisfied, as we are in this case, that the conclusions of the lower Court are based on irrelevant considerations and on wrong facts and thus there has been a failure of justice then it is our duty to interfere with the verdict of acquittal. We think that the order of acquittal if allowed to stand may hold up justice to ridicule. Sri R.M. Patil, the learned counsel for the respondents has objected to. our relying on any portion of Exhibit 40, or on the statement given by the accused under section 342, Criminal Procedure Code, to find out the veracity of the prosecution witnesses. Relying on the decision of the Supreme Court in Hanumanih Govind Nargundkar and another v. State of Madhya Pradesh1, he contended that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him; an admission must be used either as a whole or not at all. His contention was that in finding out whether P.Ws. 1 to 4 had witnessed the occurrence or not and how far their evidence is true, we should not take into consideration the facts mentioned either in Exhibit 40 or in the statement given by the accused under section 342, Criminal Procedure Code. His contention was that in finding out whether P.Ws. 1 to 4 had witnessed the occurrence or not and how far their evidence is true, we should not take into consideration the facts mentioned either in Exhibit 40 or in the statement given by the accused under section 342, Criminal Procedure Code. According to him, if we choose to place reliance on Exhibit 40 or on the statements of the accused, we have to accept them in full. We are unable to read the decision in Hanumanth Govind Nargundkar’s case1 in the manner Sri R.M. Patil wants us to read. It is a well accepted proposition that if an admission is to be made the basis of conviction, that admission has to be accepted in full; the Court cannot divide that admission into several parts, accept some and reject the portions which are helpful to the accused. But that is not the same thing as saying that for no purpose we can take into consideration portions of the statements made by the accused. Portions of those statements, in our opinion can be relied on for collateral purposes such as to find out, whether an alleged eye-witness in fact had witnessed the occurrence, or whether any particular portion of his evidence can be believed or not. Those are not cases where the portions of admission are made the basis of conviction. They are merely used as touchstones to test the credibility of a particular piece of evidence. Even if a Court thinks that the evidence of a given witness is not whooly true, it is incumbent upon it, to separte as far as possible and if possible, the truth from falsehood, and to see what is the effect of the accepted evidence. In the instant case, P.Ws. 2 and 4 are said to be partisan witnesses. P.W. 3 is the mother of deceased Virayya. So she is necessarily interested in her son’s cause. Persistent allegations are made that P.W. 1 also belonged to the party of the dedeased. Even as the evidence stands we have no doubt about its acceptability. But our conclusions are strengthened by the facrs stated in Exhibit 40 as well as in the statements of the accused. It was next contended by Sri R.M. Patil that on the proved facts in this case, the accused can justifiably take the plea of self-defence. Even as the evidence stands we have no doubt about its acceptability. But our conclusions are strengthened by the facrs stated in Exhibit 40 as well as in the statements of the accused. It was next contended by Sri R.M. Patil that on the proved facts in this case, the accused can justifiably take the plea of self-defence. He contends that the deceased and their supporters were aggressors and that the accused acted in exercise of their right of self-defence. No plea of self-defence had been taken by the accused; that plea was not even whispered in Exhibit 40. Hence we have to see whether the evidence on record justifies the contention raised. The trial Court rejected the plea of self-defence. The material on record is wholly insufficient to come to the conclusion that the accused acted in exercise of their right of self-defence. Barring the facts that deceased Udayasingh was the first to throw a stone at the accused and that A-3 to A-5 were also injured at the time of the occurrence, our attention was not invited to any other fact or circumstance which goes in support of the plea of self-defence. The throwing of a stone by Udayasingh cannot be pressed as a justification for the attack on the deceased persons. One other question remains to be examined. The facts established in the case, indicate that there was a free fight between the party of the accused and that of the deceased. This question was mooted before the triol Court. The finding of the trial Court on this point is not precise. Here and there, in the course of its judgment, it was hinted that there was a free fight; but it did not analyse the evidence bearing on the point nor did it arrive at a firm conclusion on that point. Therefore, we have to consider the relevant evidence anew. It is admitted that on the day in question the accused would not have gathered on the katta of A-4 with the object of attacking the party of the deceased. As mentioned by the trial Court, the earlier differences had been patched up, though may be temporarily. It cannot be said that A-2 dashed against P.W. 10 with the intention of provoking a fight; nor could the accused have expected that a fight would ensue as a result of that incident. As mentioned by the trial Court, the earlier differences had been patched up, though may be temporarily. It cannot be said that A-2 dashed against P.W. 10 with the intention of provoking a fight; nor could the accused have expected that a fight would ensue as a result of that incident. It is seen from the evidence of P.Ws. 1 and 3 that when Virayya and Udayasingh went to the scene they did not go armed. Evidently they did not expect any serious trouble. A-3, Ramappa, very cynically remarked to deceased Virayya that if he was bold enough he could take revenge; at this stage, deceased Udayasingh picked up a stone and threw it at A-3. This was the starting point of the trouble. From the evidence of P.Ws. 1 and 3 it appears to us that the incident developed in a casual manner and that no party had planned to attack the other. P.W. 3 has quite fairly admitted that there was a fight between the two parties; they beat each other. From the abovementioned facts it is not safe to conclude that the party of the accused were members of an unlawful assembly. If from a given set of facts two reasonable conclusions can be drawn, that conclusion which is favourable to the accused should be drawn. Viewed that way, we can properly hold that there was a free fight between the two groups. If that is so, none of the accused can be held constructively responsible for the acts of others. Each one must be held responsible for his own act. In that view, the case against P.Ws. 2, 4 and others in the Court of the Magistrate at Hubli, becomes irrelevant. In the view that we are taking, it becomes necessary to decide as to which of the accused can be held responsible for any of the injuries sustained either by deceased Virayya or by deceased Udayasingh. We shall now proceed to examine the evidence from that angle. We shall first take up the injuries sustained be deceased Virayya. About those injuries, we have only the testimony of P.Ws. 1 and 3. According to the evidence of these witnesses, A.6 Hanumanthappa beat deceased Virayya on his left ankle with a stick. The evidence of P.Ws. 1 and 3 on this point is corroborated by the medical evidence in the case. About those injuries, we have only the testimony of P.Ws. 1 and 3. According to the evidence of these witnesses, A.6 Hanumanthappa beat deceased Virayya on his left ankle with a stick. The evidence of P.Ws. 1 and 3 on this point is corroborated by the medical evidence in the case. But P.W. 3 did not mention the name of A-6 as an assailant of her son, in her statement under section 162, Criminal Procedure Code. Further, according to P.W. 7, when he went to the scene only A-1 to A-5 were present. In these circumstances and particularly in view of the fact that we are considering an appeal against acquittal, we think it safe to give him the benefit of doubt and dismiss the appeal against his acquittal. The evidence of P.Ws. 1 and 3 clearly shows that A-2, Narasappa, stabbed the deceased Virayya twice on his neck. Their evidence is corroborated by the medical evidence (P.W. 6). Injury No. 4 in Exhibit 17, according to P.W. 6, would have been caused by stabbing with a knife. The Doctor opined that this injury was likely to have caused death, but was not sufficient in the ordinary course of nature to cause death. But it must be borne in mind that these injuries were caused in the course of a free fight. Apart from the injuries themselves there is no other material to show that A-2 intended to kill deceased Virayya or that he had knowledge that he will be killed. The knife used in the attack had not been seized. Hence, we do not know how big it was. Taking all aspects of the case into consideration, it cannot be said with any degree of certainty that A-2 intended to stab the deceased on any vital part of the body. In the circumstances above referred to it is reasonable to hold that A-2, Narasappa Marappa Sivalli is guilty of an offence under section 326, Indian Penal Code. Now coming to the injuries found on deceased Udayasingh, the evidence discloses that A-3, Ramappa, caught hold of him and thus aided A-1, A-2 and A-4 in their attack against Udayasingh. In this case A-3 has taken a leading part. We have earlier seen that it is he who provoked the fight. He had a long-standing enmity with Udayasingh. Now coming to the injuries found on deceased Udayasingh, the evidence discloses that A-3, Ramappa, caught hold of him and thus aided A-1, A-2 and A-4 in their attack against Udayasingh. In this case A-3 has taken a leading part. We have earlier seen that it is he who provoked the fight. He had a long-standing enmity with Udayasingh. Hence we conclude that he intentionally aided A-1, A-2 and A-4 while they attacked Udayasingh. The only grievous injury found on the person of Udayasingh was injury No. 3 which was an incised gaping wound on the back. The prosecution evidence is not clear as to who exactly caused that injury. Some of the witnesses attribute it to A-1; some others attribute it to A-2. In those circumstances, it is not possible to hold any particular accused responsible for that injury. Hence we hold A-1 Hanumanthareddy, A-4 Ventakappa and A-1; Narasappa, guilty of an offence under section 324, Indian Penal Code and A-3 Ramappa, guilty of an offence under section 324 read with section 109, Indian Penal Code. The remaining accused are said to have beaten Udayasingh with sticks. But on this point, the evidence is not consistent. According to P.W. 1, A-5 to A-8 beat Udayasingh with sticks. Similarly, P.W. 2 says that A-5 to A-8 beat him with sticks. But, P.W. 3 speaks against A-5, A-7 and A-8 only. P.W. 4 says that A-5 and A-8 beat Udayasingh with sticks. From the evidence of P.W. 7 we gather that when he went to the scene immediately after the occurrence only A-1 to A-5 were there. We do not think that the evidence against A-6 to A-8 is such as to justify an interference in an appeal under section 417, Criminal Procedure Code. In the result, the appeal against the acquittal of A-6, Hanumanthappa Ningappa Poojar, A-7 Ningappa Sivappa Ningareddy and A-8 Fakrusab Gudusab Gubhai is dismissed. But allowing the appeal against the acquittal of other accused A-2 Narasappa Marappa Sivalli is convicted under section 326, Indian Penal Code, for causing grievous hurt to deceased Virayya and for that offence, he is sentenced to suffer rigorous imprisonment for five years.. He is also convicted under section 324, Indian Penal Code, for causing hurt to deceased Udayasingh and for that offence he is sentenced to suffer rigorous imprisonment for two years. The two sentences are ordered to run concurrently. He is also convicted under section 324, Indian Penal Code, for causing hurt to deceased Udayasingh and for that offence he is sentenced to suffer rigorous imprisonment for two years. The two sentences are ordered to run concurrently. A-1 Hanumanthareddy Rangareddy Dasareddi and A-4 Venkatappa Adivappa Ningareddi are convicted under section 324, Indian Penal Code, for causing hurt to deceased Udayasingh and for that offence, each of them is sentenced to suffer rigorous imprisonment for two years. A-3, Ramappa Ningappa Ningareddi is convicted under section 324 read with section 109, Indian. Penal Code and for that offence, he is sentenced to suffer rigorous imprisonment for two years. A-5 Ningappa Adivappa Ningareddi is convicted under section 323, Indian Penal Code, for causing hurt to deceased Udayasingh and sentenced to suffer rigorous imprisonment for one year. The convicted respondents shall surrender before the authorities forthwith and serve the sentences imposed on them. S.V.S. ----- Appeal against acquittal of accused 1 to 5 allowed.