VISHNU SAHAI, J. Eleven persons, namely, Kamta, Bind Basni, Sheetla Prasad, Sankatha Jawahar Lal, Shanker, Ram Sajeewan, Mata Pher, Onkar Nath, Nageshwar and Raj Deo were tried by the Additional Sessions Judge, Rae Bareli in Sessions Trial No. 131 of 1978, for offences punishable under Sections 302/149 IPC. In addition, Kamta was tried for the offence punishable under Section 148 IPC and the remaining persons for that punishable under Section 147 IPC. The learned trial Judge vide judgment and order dated 5-9- 1980 convicted Kamta, Bind Basni, Sheetla Prasad, Sankatha, Jawahar Lal and Shanker for the offence punishable under Section 302 read with Section 149 IPC and sentenced them to imprisonment for life. In addition, he convicted Kamta for the offence punishable under Section 148 IPC and sentenced him to undergo R. I. for two years, and Bind Basni, Sheetla Prasad, Sankatha, Jawahar Lal and Shanker for the offence punishable under Section 147 IPC and sentenced them to undergo one years R. I. The learned Judge, however, acquitted Ram Sajiwan, Mata Pher, Onkar Nath, Nageshwar and Raj Deo. It is pertinent to mention that the State of Uttar Pradesh has not preferred an appeal under Section 378 (1) Cr. P. C. against the acquittal of the said persons. Aggrieved by their convictions and sentences, Kamta, Bind Basni, Sheetla Prasad, Sankatha, Jawahar Lal and Shanker preferred Criminal Appeal No. 526 of 1980 in this Court. During the pendency of the appeal, appellant Kamta died and vide order dated 9-5-2002 passed by a Division Bench of this Court (Honble Virendra Saran and Honble Naseemuddin, JJ.) the appeal preferred by Kamta was ordered to abate. 2. Shortly stated, the prosecution case runs as under : The informant, Durga Prasad, is the son of deceased Deota Din. At the time of incident, he and his father were living in village Pure Pandit hamlet of Pari, Police Station, Jagatpur, District Rae Bareli. Tulsi Ram, father of appellants, Kamta, Bind Basni and Sheetla Prasad, was a Zamindar. The land on which the houses of informant and co-villagers were constructed had been got registered as a grove in the revenue records by Tulsi Ram. In the consolidation proceedings, the informant had filed objections in respect of the land which Tulsi Ram had got registered as a grove. The informant and his father had succeeded in the said litigation from the Court of Settlement Officer Consolidation. In the consolidation proceedings, the informant had filed objections in respect of the land which Tulsi Ram had got registered as a grove. The informant and his father had succeeded in the said litigation from the Court of Settlement Officer Consolidation. Tulsi Ram had filed an appeal before the Deputy Director of Consolidation, but the same was dismissed. On account of this, Tulsi Ram nursed a grudge against the informant, his father, and his family members. Two days before the incident, the informant had kept a chappar at his door. Tulsi Ram and appellant Kamta had asked the informant not to keep the same but the informant and his father did not relent. On 1-7-1976 at about 7. 30 a. m. the informant and his father Deota Din had gone to dig some mud in their land. When Deota Din was digging the land, appellants Kamta, Bind Basni, Sheetla Prasad, Sankatha, Jawahar Lal, Shanker alongwith five acquitted accused, namely, Ram Sajiwan, Mata Pher, Onkar Nath, Nageshwar and Raj Deo came there. Kamta was armed with a gun and the remaining persons with lathies. Those armed with lathies launched an assault on Deota Din. The informant raised cry, hearing which, Shyam Lal, P. W. 2, Ram Bahadur P. W. 3 and some other persons came. Appellant Kamta started threatening them that in case they came near, he would fire upon them. In the meantime, two constables namely, Gangadhar alias Ganga Dayal alias Shukla and Shamshul came. Seeing them, appellants and acquitted accused ran away. The said constables, however, apprehended the five acquitted accused persons after chasing them to a distance of two furlongs. 2-A. The evidence of the informant shows that when appellants and acquitted accused had run away, he found his father in a precariously injured condition and scribed his FIR beneath a Neem tree. Thereafter, alongwith the FIR and his father Deota Din, he proceeded to the Police Station, Jagatpur to lodge his FIR. 3. The evidence of Head Moharrir, Ashfaq Hussain P. W. 4 shows that on 1-7-1976 at 10. 05 a. m. , the informant Durga Prasad came to lodge his FIR (Ext. Ka. 1) and he registered an offence vide Ext. Ka. 3 on the basis of the said FIR. After lodging the FIR the informant was advised to take his father for medical treatment to Primary Health Centre, Jagatpur. 05 a. m. , the informant Durga Prasad came to lodge his FIR (Ext. Ka. 1) and he registered an offence vide Ext. Ka. 3 on the basis of the said FIR. After lodging the FIR the informant was advised to take his father for medical treatment to Primary Health Centre, Jagatpur. The doctor told him that since the condition of his father was critical, he should take him to Rae Bareli. The evidence of the informant shows that his father Deota Din breathed his last at Jagatpur Bus Stand. 4. The evidence shows that after five acquitted accused persons had been apprehended by two constables, they were brought to the Police Station, Jagatpur, where they were arrested. 5. The post-mortem examination of the dead-body of Deota Din was conducted on 2-7-1976 at 2. 30 p. m. by Dr. D. Barat, P. W. 5, who found on it one traumatic swelling, four contusions, one multiple contusion, one abraded contusion and five contusions. It is significant to point-out that the traumatic swelling (ante-mortem Injury No. 1) which was situated on the head, was simple in nature and apart from it and three contusions, which were situated at the back of the chest, the remaining injuries were distributed between hands and legs. On internal examination Dr. Barat found that 4th, 5th, 6th, 7th, 8th and 9th ribs on right side were fractured beneath Injury No. 10, which was a contusion 5 1/2" x 2" along left side back of chest and the aforesaid fractured ribs ruptured left pleura and lacerated left lung and pericardium. In the opinion of the Dr. Barat, the deceased died on account of shock and hemorrhage as a result of ante-mortem injuries sustained by him. 6. The case was investigated in the usual manner by S. O. Matura Prasad Misra P. W. 7, who after completing the investigation, charge-sheeted the appellants and acquitted accused. 7. In the due course, the case was committed to the Court of Sessions, where the appellants and acquitted accused were charged for offences punishable under Sections 302/149 IPC. In addition, appellant Kamta was charged for the offence punishable under Section 148 IPC and the remaining appellants and the acquitted accused for the offence punishable under Section 147 IPC. The appellants and the acquitted accused pleaded not guilty to the charges and claimed to be tried. In addition, appellant Kamta was charged for the offence punishable under Section 148 IPC and the remaining appellants and the acquitted accused for the offence punishable under Section 147 IPC. The appellants and the acquitted accused pleaded not guilty to the charges and claimed to be tried. During trial, the prosecution examined eight witnesses, three of them namely, Durga Prasad, Shyam Lal and Ram Bahadur P. Ws. 1, 2 and 3 respectively were examined as eye-witnesses. The learned trial Judge did not place reliance on the evidence of the eye-witnesses viz. a viz. accused Ram Sajeewan, Mata Pher, Onkar Nath, Nageshwar and Raj Deo and consequently acquitted them. He, however, accepted their evidence viz. a viz. Kamta, Bind Basni, Sheetla Prasad, Sankatha, Jawahar Lal and Shanker (appellants) and convicted and sentenced them in the manner stated in paragraph 1. As mentioned in paragraph, the State of Uttar Pradesh has not impugned their acquittal by preferring an appeal under Section 378 Cr. P. C. and the convicted accused preferred Criminal Appeal No. 526 of 1980 in this Court. As also mentioned earlier since appellant Kamta died during the pendency of the appeal, a Division Bench of this Court, directed his appeal to abate. 8. We have heard learned Counsel for the parties and perused the entire material on record. We are of the judgment that this appeal deserves to succeed. 9. A perusal of the impugned judgment makes it manifest that the learned trial Judge has convicted the appellants on the basis of the ocular account furnished by Durga Prasad, Shyam Lal and Ram Bahadur P. Ws. 1, 2 and 3 respectively. In our judgment, it would not be prudent to accept the said account. 10. We are not inclined to accept the evidence of Shyam Lal and Ram Bahadur P. Ws. 2 and 3 respectively because in their examination-in-chief they have categorically alleged that co- accused Ram Sajeewan, Mata Pher, Nageshwar, Raj Deo and Onkar assaulted the deceased with lathies and the learned trial Judge for reasons stated by him in paragraphs 19, 20, 23, 24 and 25 has acquitted them with the finding in paragraph 25 to the effect that "in view of the discussion made above the participation of these five accused namely, Nageshwar, Onkar Nath, Raj Deo, Ram Sajiwan and Mata Pher has not been established by cogent, convincing and reliable evidence. " Since these witnesses in equal measure have implicated the aforesaid five accused persons as the appellants and the learned trial Judge has not accepted their evidence viz. a viz. the acquitted accused, in our judgment, it would not be safe to accept their evidence viz. a viz. the appellants. In this connection, we would like to extract the observations contained in paragraph 8 of the decision of Supreme Court rendered in the case of Balaka Singh and others v. The State of Punjab, AIR 1975 SC 1962 , which read thus : "it is true that there are as many as eight witnesses who are alleged to have seen the occurrence and they have given a parrot- like version of the entire case regarding the assault on the deceased by the various accused persons. All these witnesses have with one voice and with complete unanimity implicated even the four accused persons, acquitted by the High Court, equally with the appellants making absolutely one distinction between one and the other. A perusal of the evidence of the prosecution witnesses would show that the prosecution case against the appellants and the four accused is to inextricably mixed up that it is not possible to sever one from the other. It is true that as laid down by this Court in Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 : 1954 Cri LJ 230 and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made,then this principle will not apply. We are satisfied that in the facts of the present case, having regard to the partisan and interested evidence of the prosecution witnesses who can implicate the appellants and the four accused equally with regard to the assault on the deceased it is not possible to reject the prosecution case with respect to the four accused and accept it with respect to the other five appellants. If all the witnesses could in one breath implicate the four accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts attributed to Balaka Singh, Joginder Singh, Pritam Singh, Darbara Singh and Jarnail Singh may have been conveniently made to suit the needs of the prosecution case having regard to the animus which the witnesses as also Banta Singh bore against the appellants. " (Emphasis supplied) 11. Since, in our view, it would not be safe to accept the evidence of Shyam Lal P. W. 2 and Ram Bahadur P. W. 3, we are left with the solitary evidence of Durga Prasad P. W. In our view, it would not be safe to accept it. Even according to the prosecution, there was enmity between him and his father on one hand and Tulsi Ram, father of appellants Kamta, Bind Basani and Sheetla Prasad on the other. On account of this, his evidence has to be examined very cautiously. In the first place, we have graved doubts whether his claim that the FIR was lodged on the date of incident at 10. 05 a. m. is credit worthy. We say this because in his cross-examination, he has stated that "thana karib 10 baje pahuch gaye they. Thane par suraj doobne tak rahey 5,6 ka samay tha. " If he had actually lodged the FIR at 10. 05 a. m. as alleged by the prosecution counsel, there no necessity to detain him at Police Station till 5-6 p. m. As a matter of fact, the claim of the prosecution, that the FIR was lodged at 10. 05 a. m. is contradicted by the inquest report, wherein the time of lodging of the FIR has been shown to be 10. 05 a. m. is contradicted by the inquest report, wherein the time of lodging of the FIR has been shown to be 10. 45 a. m. Apart from it, we find that he has stated that blood had fallen on the clothes of his father (deceased Deota Din) but the Investigating Officer did not prepare a recovery memo of blood stained clothes of the deceased. Further, in our view, his claim that the incident took place at 7. 30 a. m. is also doubtful because a perusal of the post-mortem report shows that gas and faecal matter was present in both the intestines and stomach was empty. 11. Finally, in our view, had he been present at the place of incident, he would have made some efforts to save his father and could not have escaped without injuries. 12. In our view, considering the aforesaid infirmities, it would not be safe to accept the evidence of Durga Prasad. 13. Since conviction of the appellants is based on the ocular account furnished by Durga Prasad, Shyam Lal and Ram Bahadur and for the reasons mentioned above, we are not inclined to accept it, and there is no other evidence to connect the appellants with crime, we are left with no option but to give benefit of doubt to them. 14. Inthe result, we allow this appeal; acquit the appellants, Bind Basni, Sheetla Prasad, Sankatha, Jawahar Lal and Shanker for the offences punishable under Sections 302/149 and 147 IPC and set aside their convictions and sentences thereunder; and direct that they need not surrender to their bail and their bail bonds be cancelled and sureties discharged. As mentioned in paragraph 1, since appellant Kamta died during the pendency of his appeal in this Court, his appeal has been directed to abate by a Division Bench of this Court. Appeal allowed. .