Honble SHIV KUMAR SHARMA, J.–The appellants, six in number, were indicted before learned Additional Sessions Judge (Fast Track) No. 2, Bundi in Sessions Case No. 10/2001 for having committed murder of Sukhdev. Learned trial Judge vide judgment dated September 22, 2001 convicted and sentenced the appellants as under:- U/s. 302/149 IPC To suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer three Months Imprisonment. U/s. 147 IPC To suffer One Year Rigorous Imprisonment and fine of Rs. 100/-, in default to further suffer One Month Imprisonment. U/s. 148 IPC To suffer Two Years Rigorous Imprisonment and fine of Rs. 100/-, in default to further suffer Two Months Imprisonment. All sentences were ordered to run concurrently., + (2). Briefly stated the prosecution case is that Hemraj (PW. 6) submitted a written report to the SHO Police Station Dablana (Bundi) on August 2, 1997 with the averments that in the morning at about 7.30 AM on the said day he and his maternal uncle Sukhdev were going from Keshavpura to Bundi on cycles for selling the milk. Sukhdev was just ahead of him. On the route around 8.00 AM when they reached near Bindayka Doongri they found appellants hiding there with deadly weapons. All of them surrounded Sukhdev and started inflicting injuries by raising the voice to kill Sukhdev at the spot. Dayala inflicted gandasi-blow on the head of Sukhdev, as a result of which he fell down, then other persons inflicted injuries indiscriminately with sticks and gandasis. Ramlal also reached at the place of incident and he had witnessed the incident. The informant ran towards his village and narrated the incident to the wife of Sukhdev. Finding Sukhdev injured one Kishan took him to the hospital for treatment. Thereafter the informant also reached at the hospital in tractor trolley and on reaching there he found Sukhdev dead. On the basis of said report the Police Station Dablana registered a case under Sections 147, 148, 302 and 302/149 IPC and the investigation commenced. On completion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bundi, Charges under Sections 302/149, 147 and 148 IPC were framed. The appellants denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 25 witnesses. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2, Bundi, Charges under Sections 302/149, 147 and 148 IPC were framed. The appellants denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 25 witnesses. In their explanation under Section 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. (3). The case primary hinges on the sole testimony of informant Hemraj (PW. 6) which finds corroboration form the statement of Dr. Trilok Chand Mahawar (PW. 21), who performed autopsy on the dead body of Sukhdev. Then comes the evidence of Girraj Singh (PW. 24), who conducted investigation of the case and got recovered the weapons at the instance of the appellants. (4). Mr. Kamlakar Sharma, learned counsel for the appellants, canvassed that it was virtually impossible that while Sukhdev was given beatings his near relative Hemraj stood there as silent spectator. Conduct of Hemraj was highly unnatural and his presence at the time of incident is not established. Ram Lal (PW. 10) another eye witness examined by the prosecution did not corroborate the prosecution story. The manner in which the FIR was registered creates doubt in regard to the truthfulness of the prosecution case. The prosecution has also not been able to prove the site-plan and recovery of weapons allegedly involved in the instant case. It has not been established that the appellants had formed unlawful assembly in furtherance to commit murder of Sukhdev. Reliance is placed on Anil Phunka vs. State of Assam (1), Papaliya @ Om Prakash vs. State of Raj. (2), Sukhwant Singh vs. State of Punjab (3), Surjeet Singh vs. State of Punjab (4), Deen Dayal vs. Raj Kumar @ Raju & Ors. (5), State of U.P. vs. Bhagwant & Ors. (6), Chandan Singh vs. State of Haryana (7), Suresh Chaudhary vs. State of Bihar (8), Joseph vs. State of Kerala (9), Satpal vs. State of Raj. (10), Nathya & Ors. vs. State of Raj. (11), Ramanuj vs. State of Raj. (12), Bharat Singh vs. State (13), and Sevi vs. State of Tamilnadu (14). (5). Per contra, Mr. (6), Chandan Singh vs. State of Haryana (7), Suresh Chaudhary vs. State of Bihar (8), Joseph vs. State of Kerala (9), Satpal vs. State of Raj. (10), Nathya & Ors. vs. State of Raj. (11), Ramanuj vs. State of Raj. (12), Bharat Singh vs. State (13), and Sevi vs. State of Tamilnadu (14). (5). Per contra, Mr. B.M. Sharma, learned Public Prosecutor supported the impugned judgment and canvassed that the testimony of Hemraj is consistent and could not be shattered in the cross examination. The improvements, inconsistencies and embellishments shown in the statement of Hemraj are not material. Hemraj was a boy of 18 years, therefore his conduct in leaving his cycle at the spot and rushing to the wife of deceased to inform her about the incident was quite natural. The guilt against the appellants is established and they have been rightly convicted and sentenced. (6). With the assistance of the learned counsel, we have scrutinised the material on record. Turning to the testimony of Dr. Trilok Chand Mahavar (PW. 21) we find that the death of Sukhdev was homicidal and as per Post Mortem Report (Ex.P-29) Sukhdev sustained following injuries:- 1. Incised wound 4" x 2" x 3" on outer (Radial) side of Rt. hand. Wound become through & through all muscle and tendon are mixed in the same direction. The middle metacorpal bone of thumb cutting present also cutting of Proximal end of Ist metacorpal bone of index finger and small bone of Hand also cut along with Dislocation of wrist joint, blood stained colour present. 2. Incised wound 2, 3/4" x 1/2" x 1/2" on outer surface of Rt. hand, Muscle tendon also cut blood stained present. 3. Incised wound 1, 1/2" x 1/2" x 1/2" on the left upper third of arm. 4. Lacerated wound 1" 1/3" 1/3" on outer surface of left elbow. 5. Incised wound 5" x 1" x 1" on left lower third of forearm wound triangular shaped. 6. Incised wound 3" x 1" x 2" on fronto parietal region of scalp. Scalp bone also cut along the direction of wound and meanings also cut blood oozing present Red colour. 7. Lacerated wound 2" x 3/4" x 1/2" on the middle part of Rt. leg. 8. Lacerated wound 1/2 x 1/2 x bone deep with compound fracture tibia fibula bone on upper third of Rt. leg. 9. Scalp bone also cut along the direction of wound and meanings also cut blood oozing present Red colour. 7. Lacerated wound 2" x 3/4" x 1/2" on the middle part of Rt. leg. 8. Lacerated wound 1/2 x 1/2 x bone deep with compound fracture tibia fibula bone on upper third of Rt. leg. 9. Lacerated wound 1" x 1/2" 1/2" on the upper third of left leg. 10. Lacerated wound 1" x 1/2" x 1/2" on the lower third of Lt. leg. 11. Fracture of middle part of left arm. 12. Fracture of Radiums and ulna bone on junction of lower and middle third part of left fore arm. The cause of death of deceased is haemorrhagic shock and injury to cerebrum. (7). Hemraj (PW. 6) in his deposition stated that Sukhdev was his maternal uncle. On the fateful day he and Sukhdev both were coming on cycles with milk-containers. At Bindayaka doongri Dayala, Bihari Lal, Hazari, Kishna, Dhanraj and Goverdhan along with Ramdev and Jawahra got themselves hiding. Ramdev was armed with axe, Hazari was having lathi whereas Dayala Jawahara, Hazari, Behari, Dhanraj and Goverdhan were having gandasis. Dayala after exhorting others to kill Sukhdev inflicted gandasi- blow on the head of Sukhdev. Bihari then inflicted blow on his rib, Goverdhan and Dhanraj gave blows with gandasi on his hands, Ramdev and Hazari gave blows again on his hands. Hazari also inflicted axe-blow and Kishna gave lathi-blow on his neck. At that time Hemraj was two steps away from the appellants. Ramlal also came there on cycle and saw the incident. Hemraj ran for his life and went straight to the village to inform about the incident to his Mami (maternal aunt) Smt. Nandu. Thereafter he along with Deva, Hardeva, Kunwara and his maternal uncles reached at the place of incident on a tractor trolley but they did not find Sukhdev there. Only on reaching hospital that they came to know about the death of Sukhdev. He then got written the report (Ex. P-1) by Raja Ram at the Hospital. (8). Ram Lal (PW. 10) deposed that he was coming from Keshavpura on cycle and Sukhdev and Hemraj were also accompanying him. He had seen Hazara, Ramdeva and Dayala running. He did not get down from the cycle but saw them, picking the fight. Sukhdev had sustained cut injuries. He (Ramlal) put bandages on the injuries. (8). Ram Lal (PW. 10) deposed that he was coming from Keshavpura on cycle and Sukhdev and Hemraj were also accompanying him. He had seen Hazara, Ramdeva and Dayala running. He did not get down from the cycle but saw them, picking the fight. Sukhdev had sustained cut injuries. He (Ramlal) put bandages on the injuries. Dayala, Hazara and Ramdeva might have possessed axe, lathi and gandasi. When Kishan arrived on motorcycle, they took Sukhdev to the hospital where Sukhdev was declared dead. The quarrel had been picked up on the way near Bindayka Doongri. Sukhdev had sustained injuries on hands and feet. Ramlal was declared hostile. (9). The Apex Court indicated guidelines in regard to reliability of the evidence of hostile witness. In Balu Sonha Shinde vs. State of Maharashtra (15), it was observed that declaration of a witness to be hostile does not ipsofacto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. In the case on hand as already noticed, Ram Lal was named as eye witness in the FIR and we have to analyse his testimony cautiously. (10). While considering the testimony of Hemraj we have to adjudge whether in the circumstances of the case it was possible for Hemraj to be present at the scene and whether there is anything inherently improbable or unreliable. Credibility of Hemraj has to be decided by referring to his evidence and finding out how he has fared in cross examination and what impression is created by his evidence in the context of the case. The settled principles rejecting acceptability of the evidence of sole eye witnesses were laid down in Anil Phukan vs. State of Assam (supra), thus:- ``Indeed, conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye witness is wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. So long as the single eye witness is wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. (11). It is in the light of these settled principles that we shall examine the testimony of Hemraj. Conduct of Hemraj has been painted as highly unnatural by the learned counsel because neither he raised any alarm on seeing assailants inflicting injuries, nor did he make attempt to rescue Sukhdev. Leaving Sukhdev at the mercy of assailants he rushed back to his village to inform about the incident to the wife of the deceased although he was not chased or threatened by any one of the assailants. On the way he did not narrate the incident to anybody. He neither did accompany the deceased to the hospital nor informed the police. While coming back to the place of incident on tractor- trolley when he did not find Sukhdev at the place of incident, he did not care to search him, instead he lifted the milk containers and went to the shop for extricating cream out of the milk. He remained out side the hospital and FIR got written by him through one Raja Raj. On the strength of this learned counsel urged that anti timed FIR got prepared by the Investigating Officer and timings have been interpolated. Learned counsel took us through the evidence of Nandu Bai (PW. 1), Raja Ram (PW. 2) and Girraj Singh (PW. 24) to show that Hemraj was telling lie and was not present at the time of the incident. (12). A bare look at the cross examination of Hemraj reveals that to some extent his testimony has been shaken. He admitted this fact that when he reached at Hospital Bundi, he found police there as somebody already informed the police. 24) to show that Hemraj was telling lie and was not present at the time of the incident. (12). A bare look at the cross examination of Hemraj reveals that to some extent his testimony has been shaken. He admitted this fact that when he reached at Hospital Bundi, he found police there as somebody already informed the police. He also admitted that he put his signatures on the written report (Ex.P-1) at the police station Dablana. It is strange and inexplicable that when the report (Ex.P-1) got written by Hemraj through Raja Ram at the Hospital then why he did not put his signatures over it then and there. In view of the statement of Hemraj that he put his signatures on the report at the Police Station Dablana, the endorsement made over the report by the SHO Girraj Singh (PW. 24) that Hemraj handed over him the report duly signed at the Government Hospital Bundi at 11.30 AM on August 2, 1997 appears to be false. The Investigating Officer Girraj Singh (PW. 24) did not explain as to why the report was forwarded on August 4, 1997 i.e. after two days, to the court of Magistrate. All these facts create doubt about the birth of FIR and in view of this possibility of over implication of the accused can not be ruled out. The Apex Court in Marudanel Augusti vs. State of Kerala (16), while deciding a case which involves a question of delayed despatch of the FIR to the Magistrate cautioned that such delay would throw serious doubt on the prosecution case. In Arjun Marik vs. State of Bihar (17), their Lordships of the Supreme Court indicated as under:- ``The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word forthwith occurring in Section 157 Cr.P.C., which means promptly and without any undue delay. The purpose and object is very obvious which is spelt out from the combined reading of Section 157 and 159 Cr.P.C. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation. (13). (13). Learned counsel for the appellants made attempt to seek rejection of the testimony of Hemraj in view of his unnatural conduct in not rescuing the deceased. We do not find force in the submission. The Apex Court in Rana Pratap vs. State of Haryana (18), observed in para 6 as under:- ``Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct is not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help, others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Everyone, reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. (14). Their Lordships of the Supreme Court in Vijay Pal Singh vs. State NCT of Delhi (19), placing reliance on Rana Prataps case observed in para 14 as under:- ``Lastly, learned counsel contended that the conduct exhibited by PW. 2 and PW. 7 is not natural and their version does not fit in with the natural conduct of the kith and kin of the deceased. He submitted that the mother did not raise a hue and cry when she found that her son was shot at or at least when she found that her son was shot at or at least when she apprehended that the assailant was about to shoot her son. Time and again this court has said that no fixed pattern of natural conduct can be laid down as different witnesses would react in different manner in the same situation vide Rana Pratap vs. State of Haryana. (15). As per the mandate of Section 134 of the Evidence Act the evidence is to be weighed and not counted. Time and again this court has said that no fixed pattern of natural conduct can be laid down as different witnesses would react in different manner in the same situation vide Rana Pratap vs. State of Haryana. (15). As per the mandate of Section 134 of the Evidence Act the evidence is to be weighed and not counted. The credible evidence of a solitary witness can form the basis of conviction (vide Krishna Mochi vs. State of Bihar (20), Vedivelu vs. The State of Madras (21), Badri vs. State of Rajasthan (22), Ramji Surya vs. State of Maharashtra (23). (16). It is now well settled that evidence of a witness is required to be appreciated to find out what part out of the evidence represents the true and correct state of affairs. It is for the court to separate grain from the chaff. In Rizan vs. State of Chhattisgarh (24), the Apex Court propounded as under:- ``Stress was laid by the accused appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence, a prayer is to apply the principle of falsus in uno falsus in omnibus (false in one thing, false in every thing) even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquitted of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not run it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as liars. (17). Conjoint reading of the statements of witnesses Hemraj (PW. 6) and Ramlal (PW. 10) demonstrates that at the time of occurrence they both were present. Both the witnesses categorically deposed that quarrel had been picked up and Sukhdev received various cuts on his person. Ramlal establishes presence of only three assailants viz. (17). Conjoint reading of the statements of witnesses Hemraj (PW. 6) and Ramlal (PW. 10) demonstrates that at the time of occurrence they both were present. Both the witnesses categorically deposed that quarrel had been picked up and Sukhdev received various cuts on his person. Ramlal establishes presence of only three assailants viz. Dayal, Hazara and Ramdeva, whereas according to Hemraj as many as eight assailants (including six appellants and two others viz. Ramdeva and Juwara) made assault on the deceased. Ramdeva died during investigation whereas the prosecution evidence was not found reliable qua Juwara and he stood acquitted at the trial. On a close scrutiny of the testimony of Hemraj, we find it confidence inspiring qua the appellants Dayala and Hazara. As Ramlal did not support the prosecution story so far it relates to the involvement of other co-accused Biharilal, Kishna, Dhanraj and Goverdhan, participation of these persons in the crime becomes doubtful, more particularly in the light of our observation made in the earlier part of this judgment that possibility of over implication of the accused cannot be ruled out in the facts and circumstances of this case. In Bijoy Singh vs. State of Bihar (25), it was held that where a witness has been found to have given unreliable evidence in regard to certain particulars, it is the duty of the court to scrutinise his evidence with care and caution. If the remaining evidence is trustworthy and substratum of the prosecution case remains intact then the court should uphold the prosecution case to that extent. (18). Here the substratum of prosecution case qua the appellants Dayala @ Daya Ram and Hazara @ Hazari Lal remains intact and evidence of Hemraj and Ramlal against these two appellants is found trustworthy. The prosecution has been able to establish that both of them had shared a common intention to kill Sukhdev and they made assault on him. In so far as other appellants Bihari Lal, Kishna, Dhanraj and Goverdhan are concerned we are of the view that the prosecution has failed to prove the guilt against them beyond reasonable doubt. (19). As a result of the above discussions, we allow the appeal of appellants Bihari Lal, Kishna @ Kishan Lal, Dhanraj and Goverdhan and set aside their conviction under Sections 302/149, 147 and 148 IPC. (19). As a result of the above discussions, we allow the appeal of appellants Bihari Lal, Kishna @ Kishan Lal, Dhanraj and Goverdhan and set aside their conviction under Sections 302/149, 147 and 148 IPC. They are in jail and they shall be set at liberty forthwith if not required in any other case. While disposing of the appeal of appellants Dayala @ Daya Ram and Hazara @ Hazari Lal, we set aside their conviction under Sections 147, 148 and 302/149 IPC, instead we convict them under Section 302 read with 34 IPC and sentence each of them to undergo Imprisonment for Life and fine of Rs. 500/-, in default to further suffer Three Months Imprisonment. The impugned judgment of the learned trial Judge stands modified as indicated above.