VISHNU SAHAI, J. Six persons, namely, Bichari Singh, Paras Singh, Mahajan Singh, Addya Singh, Gopal Dubey and Dharmraj Dubey were charged by the III Additional Sessions Judge, Deoria in Sessions Trial No. 186 of 1995, for offences punishable under Sections 147 IPC, 148 IPC, 302/149 IPC and 452/149 IPC. During the pendency of the trial Dharmraj Dubey died. Vide judgment and order dated 11-6-2002, the learned Trial Judge convicted and sentence Addya Singh, Paras Singh, Bichari Singh, Mahajan Singh and Gopal Dubey, in the manner stated hereinafter: Paras Singh and Addya Singh: (i) Under Section 302/149 IPC to death to pay a fine of Rs. 10,000 each, in default, to undergo three years RI, and; (ii) Under Section 148 IPC to one years RI. Bichari Singh, Mahajan Singh and Gopal Dubey: (i) Under Section 302/149 IPC to imprisonment for life and to pay a fine of Rs. 10,000 each, in default, to undergo three years RI and; (ii) Under Section 148 IPC to one years RI. The sentences were directed to run concurrently. 2. Aggrieved by their convictions and sentences Paras Singh preferred, in this Court, Criminal Appeal No. 162 of 2000; Addya Singh Criminal Appeal No. 2540 of 2002; Mahajan Singh and Bichari Singh Criminal Appeal No. 2466 of 2002; and Gopal Dubey Criminal Appeal No. 2336 of 2002. The learned trial Judge made a reference under Section 366 (1) Cr. P. C. to this Court, for confirmation of death sentence of Paras Singh and Addya Singh and Capital Sentence Reference No. 7 of 2002 arises from the said reference. 3. Since all these four appeals and Capital Sentence Reference No. 7 of 2002 arise out of a common factual matrix and impugned judgment, we are disposing them off by one judgment. 4. Shortly stated, the prosecution case runs as under: The informant Sharda Singh PW 1 is the elder brother of the deceased Toofani Singh. At the time of the incident, the informant the deceased, the informants sons Anil PW 2, Surendra Singh PW 3, Ravindra Singh PW 4 and Virendra Singh PW 6, the informants sister-in-law Smt. Durgawati Devi PW 7 (wife of the deceased) and Gorakh PW 5 were living in village Jhanga, within the limits of police station Hata, District Kushinagar. At the time of the incident, the informant the deceased, the informants sons Anil PW 2, Surendra Singh PW 3, Ravindra Singh PW 4 and Virendra Singh PW 6, the informants sister-in-law Smt. Durgawati Devi PW 7 (wife of the deceased) and Gorakh PW 5 were living in village Jhanga, within the limits of police station Hata, District Kushinagar. At the said time, appellants Bichari Singh, Mahajan Singh, Addya Singh and Paras Singh were also living in the said village and appellants Gopal Dubey and Dharmraj Dubey (he died during the pendency of the trial) in village Magurahi within the limits of police station Hata, District Kushinagar. There was enmity between the deceased Toofani Singh on the hand and appellant Bichari Singh on the other. About six years prior to the incident a patta, in respect of pond of the village, had been executed in favour of Toofani Singh, who bred fish in it, This incensed Bichari Singh. Dispute pertaining to land was also pending between Toofani Singh and Bichari Singh at the time of the incident. On 25-6-1994 at about 1. 30 a. m. Virendra Singh PW 6, the deceased Toofani Singh, Durgawati Devi PW 7 (wife of the deceased), Pappu Singh (son of the deceased) and Ravindra Singh (brother of Virendra Singh) were sleeping on the roof of the second floor of the house of Toofani Singh. An electric bulb was burning there. At that time, Paras Singh, Addya Singh, Bichari Singh, Mahajan Singh, Gopal Dubey and Dharmraj Dubey came there. Paras Singh, Addya Singh and Dharmraj Dubey were armed with bombs, Bichari Singh with a farsa, Gopal Dubey with a gun and Mahajan Singh with a country-made pistol. Immediately, they started assaulting Toofani Singh with guns, country-made pistol, bombs and farsa. As a consequence thereof Toofani Singh died. Hearing the sound of bombs and firing from gun and country-made pistol Gorakh PW 5, Sharda Singh PW 1, Surendra Singh PW 3 and Ram Pratap Singh came. They recognised the said persons in the light of torches and electric bulb. Thereafter, the informant Sharda Singh got the FIR scribed by his son Anil and thereafter, proceeded to police station Hata and lodged it. 5. The evidence of Head Constable Prem Shankar Singh PW 8 shows that on 25-6-1994, he was posted as Head Constable at Police Station Hata and at 2. Thereafter, the informant Sharda Singh got the FIR scribed by his son Anil and thereafter, proceeded to police station Hata and lodged it. 5. The evidence of Head Constable Prem Shankar Singh PW 8 shows that on 25-6-1994, he was posted as Head Constable at Police Station Hata and at 2. 10 a. m. Sharda Singh PW 1 came and lodged his FIR on the basis of which, he prepared the Chik FIR. A perusal of the Chik-FIR shows that on its basis offences punishable under Sections 147/148/149/ 452/302 IPC were registered against Bichari Singh, Addya Singh, Paras Singh, Mahajan Singh, Dharmraj Dubey and Gopal Dubey. Its perusal also shows that the distance between the place of the incident and the aforesaid police station was five kilometres. 6. The evidence of SHO Umesh Chandra Mishra, PW 10 shows: On 25- 6-1994 he was posted as Station-House-Officer at police station Hata. In his presence the FIR was lodged and the case was registered. During night itself, he proceeded for the place of the incident where he found the corpse of the deceased Toofani Singh on the roof of the second floor of his house. He recorded the statement of deceased Toofani Singhs wife, Smt. Durgawati Devi. He, thereafter, prepared the inquest on the corpse of the deceased Toofani Singh. He then with Durgawati Devi inspected the place of the incident and prepared the site-plan. From the place of the incident, he seized remnants of bomb, sutali (string), pieces of iron, pieces of blood stained cement, pieces of plain cement blood stained Kathari (sheet on which people sleep) and a woolen bed-sheet. The said seizures were made under a recovery memo. He, thereafter, recorded the statements of Sharda Singh and Virendra Singh and arrested accused Gopal Dubey. On 26-6-1994, he recorded the statement of Ram Pratap Singh, Gorakh and others. On 1-7-1994, after recording the statement of the accused persons, he submitted the charge-sheet against them. 7. Going backwards, the autopsy on the corpse of the deceased Toofani Singh was conducted on 26-6- 1994, at about 1. 10 p. m. by Dr. On 26-6-1994, he recorded the statement of Ram Pratap Singh, Gorakh and others. On 1-7-1994, after recording the statement of the accused persons, he submitted the charge-sheet against them. 7. Going backwards, the autopsy on the corpse of the deceased Toofani Singh was conducted on 26-6- 1994, at about 1. 10 p. m. by Dr. K. Singh PW 9, who found on it, the ante-mortem injuries enumerated hereinafter: (ii) Extensive lacerated wound with inverted margins 30 cm x 22 cm x cavity deep on the front of chest 18 cm above the umbilicus, chest wound and margins blackened colour free and clotted blood present in the wound. Both sides ribs from first to eleventh flown off, fractured. Both lungs extensive lacerated and congested. Heart lacerated and congested. Skin of wound burnt. 14 metallic pellets recovered from chest wound. (iii) Extensive lacerated wound on the (L) palm 7 cm x 6 cm x bone deep, margins inverted and blackened with wound blackened. (iv) Abraded contused black skin on the middle of (R) upper arm with underlying bone broken skin burnt and black in colour. The cause of death spelt out in the post-mortem report was shock and haemorrhage, as a result of ante- mortem burning injuries. It is pertinent to mention that in his examination-in-chief in the trial Court, Dr. Singh reiterated the said cause of death and also stated therein that the deceased could have died, at 1. 30 a. m. on the night of 24/25-6-1994, on account of the ante-mortem injuries suffered by him. He also stated therein that the said injuries were not attributable to a fire-arm and all of them were attributable to the bursting of bomb. 8. The case was committed to the Court of Sessions in the usual manner where the six accused persons, namely, Paras Singh, Addya Singh, Bichari Singh, Mahajan Singh, Dharmraj Dubey and Gopal Dubey were charged, on the counts, mentioned in paragraph 1. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial. During trial, in all, the prosecution examined ten witnesses. Seven of them, namely, Sharda Singh, Anil, Surendra Singh, Ravindra Singh, Gorakh, Virendra Singh and Durgawati Devi PWs. 1, 2, 3, 4, 5, 6 and 7 respectively, were examined as eye-witnesses. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial. During trial, in all, the prosecution examined ten witnesses. Seven of them, namely, Sharda Singh, Anil, Surendra Singh, Ravindra Singh, Gorakh, Virendra Singh and Durgawati Devi PWs. 1, 2, 3, 4, 5, 6 and 7 respectively, were examined as eye-witnesses. Sharda Singh, Anil, Surendra Singh, Ravindra Singh and Gorakh turned hostile and candidly stated that they had not seen the incident and had not given any statement to the Investigating Officer, in terms that they had seen it. However, Virendra Singh and Smt. Durgawati Devi, stood firm as the rock of Gibraltar and gave evidence against the accused persons. It is pertinent to mention that during the pendency of trial Dharmraj Dubey died. The learned trial Judge believed the evidence of Virendra Singh PW 6 and Smt. Durgawati Devi PW 7 vis- a-vis Addya Singh, Paras Singh, Bichari Singh, Mahajan Singh and Gopal Dubey and convicted and sentenced them in the manner stated in paragraph 1. Hence, these appeals and reference. 9. We have heard learned Counsel for the parties and perused: the depositions of the prosecution witnesses, the material exhibits tendered and proved by the prosecution the statements of the appellants recorded under Section 313 Cr. P. C. and the impugned judgment. In our view, Criminal Appeal Nos. 162 of 2002 and 2540 of 2002 deserve to be partly allowed; Criminal Appeals Nos. 2466 of 2002 and 2336 of 2002 deserve to allowed; and Capital Sentence Reference No. 7 of 2002 warrants to be rejected. 10. It would become manifest from the above that the learned trial Judge has based the conviction of the appellant on the ocular account furnished by Virendra Singh PW 6 and Smt. Durgawati Devi PW 7, the real brother and wife respectively of the deceased Toofani Singh. We now propose examining their evidence. 11. We first like to take up the evidence of Virendra Singh PW6. Since in paragraph 4, we have set out the prosecution story on the basis of the recitals contained in his examination-in-chief, we do not want to burden our judgment by reiterating the details. In short, his evidence shows: There was enmity between the deceased Toofani Singh on one hand and appellant Bichari Singh on the other (in paragraph 4 we have referred to it ). In short, his evidence shows: There was enmity between the deceased Toofani Singh on one hand and appellant Bichari Singh on the other (in paragraph 4 we have referred to it ). On account of it on the night of 24/25-6-1994, at about 1. 30 a. m. , when Toofani Singh alongwith his wife Smt. Durgawati Devi PW 7 him, his nephew Ravindra Singh PW 4 and his son Pappu (not examined) was sleeping on the roof of the second floor of his house, Paras Singh, Addya Singh and Dharmraj Dubey (who died during the pendency of the trial) armed with bombs, Bichari Singh with a farsa, Gopal Dubey with a gun and Mahajan Singh with a country-made pistol, came. Immediately, they started assaulting Toofani Singh with guns, country-made pistol, bombs and farsa. As a consequence thereof Toofani Singh died. The incident was seen by him (Virendra Singh), Smt. Durgawati Devi, Ravindra Singh (who turned hostile during trial) and Pappu (not examined) in the light of an electric bulb, which was burning on the roof. Hearing the sound of firing from gun and country-made pistol and that of bombs Sharda Singh PW 1, Surendra Singh PW 3, Gorakh (all turned hostile during trial) and some others came. He informed his father Sharda Singh about the incident, who got the FIR scribed by his son Anil (Sharda Singhs son) and thereafter, proceeded to police station Hata and lodged it. 12. We have none through the evidence of Virendra Singh. We have no reservations in accepting his claim of being present on the place of the incident. When during cross-examination, he was asked why he used to sleep on the roof of his uncle (deceased Toofani Singh), he replied that there was electric light, in which he used to read and teach the children of Toofani Singh. We find his answer to be cogent and convincing. In our judgment, his presence on the place of incident is established. 13. Coming to the credibility of Virendra Singh, we find that the account furnished by him is credible vis- a-vis appellants Paras Singh and Addya Singh. He stated that they alongwith Dharmraj Dubey (who died during the pendency of trial) hurled bombs on the deceased. The evidence of Dr. K. Singh PW 9 (autopsy surgeon) corroborates this. 13. Coming to the credibility of Virendra Singh, we find that the account furnished by him is credible vis- a-vis appellants Paras Singh and Addya Singh. He stated that they alongwith Dharmraj Dubey (who died during the pendency of trial) hurled bombs on the deceased. The evidence of Dr. K. Singh PW 9 (autopsy surgeon) corroborates this. In para 7, we have extracted the ante-mortem injuries found on the person of the deceased by Dr. K. Singh. Its perusal shows that the deceased suffered two extensive lacerated wounds and one abraded contused black skin. We have seen that in his deposition (examination-in-chief) in the trial Court. Dr. Singh categorically stated that the three ante- mortem injuries suffered by the deceased could be caused by hurling of bomb and we find no reason to disbelieve his evidence. In our view, the dimensions of the injuries make it manifest that they were caused by bombs. A perusal of ante-mortem injury No. 1 (extensive lacerated wound) would show that its dimensions are 30 cm x 22 cm x cavity deep and that of injury No. 2 (extensive lacerated wound) would show that its dimensions are 7 cm x 6 cm. It is pertinent to mention that in two of the injuries, Dr. Singh found the skin burnt and in one of them 14 metallic shots. In our judgment the presence of burning of skin and metallic shots also show that they were caused by bombs. For the said reasons, we have no reservations in observing that the ante-mortem injuries suffered by the deceased were attributable to bomb. 14. In our judgment, since the evidence of Dr. Singh shows that the three ante-mortem injuries suffered by the deceased could be caused by bombs and the evidence of Virendra Singh is that appellants Paras Singh, Addya Singh and Dharmraj Dubey (he died during trial) hurled bombs on the deceased it would be reasonable to hold that his evidence fixes the participation of appellants Paras Singh and Addya Singh in the incident. 15. However, in our view, it would be extremely hazardous and unsafe to accept the evidence of Virendra Singh against the appellants Gopal Dubey, Mahajan Singh and Bichari Singh. His evidence shows that Gopal Dubey with a gun, Bichari Singh with a farsa and Mahajan Singh with a country made pistol be laboured the deceased. However, the medical evidence completely falsifies this. His evidence shows that Gopal Dubey with a gun, Bichari Singh with a farsa and Mahajan Singh with a country made pistol be laboured the deceased. However, the medical evidence completely falsifies this. We have seen that the autopsy surgeon Dr. K. Singh only found three ante-mortem injuries on the person of deceased, two of which were extensive lacerated wounds and one was a abraded contused black skin. We have also seen that Dr. K. Singh in his examination-in-chief categorically stated that none of these injuries could be caused by a fire-arm and all of them were attributable to hurling of bombs. It is pertinent to mention that the Investigating Officer SHO Umesh Chandra Misra PW 10 admitted in his cross- examination that he did not find any empty cartridges on the place of the incident. We have earlier mentioned that the dimensions of the injuries make it manifest that they were caused by hurling of bombs. It is pertinent to mention that neither Dr. Singh was declared hostile nor re- examined. In such a situation, prosecution has submitted to the evidence of Dr. K. Singh that none of the ante-mortem injuries suffered by the deceased could be attributable to fire-arms. The said evidence of Dr. Singh also shows that none of the injuries suffered by the deceased were attributable to a farsa. It is common knowledge that farsa would cause incised or incised punctured wounds. Since it is manifest that there are no fire-arm or farsa injuries on the person of the deceased and Virendra Singh being the nephew of deceased Toofani Singh is an extremely interested witness, in our view, it would not be prudent to accept his testimony vis-a-vis appellants Gopal Dubey, Mahajan Singh and Bichari Singh. It is true that Bichari Singh nursed enmity and ill-will against the deceased Toofani Singh but in our view, it can cut both ways. To us it appears that on account of it Virendra Singh who is the real nephew of the deceased Toofani Singh has falsely implicated Bichari Singh. 16. For the aforesaid reasons, the evidence of Virendra Singh inspires confidence against the appellants Paras Singh and Addya Singh, but it would be hazardous to accept it against appellants Gopal Dubey, Mahajan Singh and Bichari Singh. 17. We now taken up the evidence of Smt. Durgawati Devi, wife of the deceased. 16. For the aforesaid reasons, the evidence of Virendra Singh inspires confidence against the appellants Paras Singh and Addya Singh, but it would be hazardous to accept it against appellants Gopal Dubey, Mahajan Singh and Bichari Singh. 17. We now taken up the evidence of Smt. Durgawati Devi, wife of the deceased. Since in para 4 we have set out the prosecution story primarily on the basis of the recitals contained in her examination-in- chief, we do not want to burden our judgment by reiterating the details. In short her evidence shows: At about 1. 30 a. m. on the night of 24/25-6-1994, when she alongwith her husband Toofani Singh, her son Pappu and her nephews Virendra Singh PW 6 and Ravindra Singh PW 4 was sleeping on the roof of the second floor of her house, the five appellants and Dharmraj Dubey (who died during pendency of the trial) came on the roof. Paras Singh, Addya Singh and Dharamraj Dubey were armed with bombs, Gopal Dubey with a gun, Mahajan Singh with a country made pistol, and Bichari Singh with a farsa. They started assaulting Toofani Singh with bombs, country made pistol and gun. In her cross-examination she stated that they also assault him with farsa. As a consequence of the assault, Toofani Singh died. On hearing her cries Sharda Singh PW 1, Surendra Singh PW 3, Gorakh PW 5 and some others came, who also saw the incident. She and the witnesses saw the incident in the light of a electric bulb, which was burning on the roof. 18. We have gone through the evidence of Durgawati Devi and have no reservations in observing that she was present on the place of the incident. It should be borne in mind that being the wife of the deceased Toofani, it was natural for her to sleep alongwith him on the roof of the house on the fateful night. It should be borne in mind that the incident took place on the night of 24/25- 6-1994. It is common knowledge that 24th and 25th June is the hottest time of the year in the State of U. P. and people in villages who have no coolers and air-conditioners sleep on the roof, so that they can at least get the benefit of fresh air. 19. It is common knowledge that 24th and 25th June is the hottest time of the year in the State of U. P. and people in villages who have no coolers and air-conditioners sleep on the roof, so that they can at least get the benefit of fresh air. 19. Coming to the question of veracity of Smt. Durgawati Devi, it would become manifest from the above that her evidence in respect of assault on the deceased is identical to that furnished by Virendra Singh. While dealing with Virendra Singhs evidence, we have conclude that it fixes the participation of appellants Paras Singh and Addya Singh in the incident but not that of appellants Bichari Singh, Gopal Dubey and Mahajan Singh. Applying the maxim "what is good for the goose is also good for the gander", we hold to the said effect. 20. For the said reasons, in our view, the evidence of Smt. Durgawati Devi fixes the participation of appellants Paras Singh and Addya Singh in the incident but not that of appellants Gopal Dubey, Mahajan Singh and Bichari Singh. 21. For the aforesaid reasons we are of the view that prosecution has proved the involvement of appellants Paras Singh and Addya Singh in the incident beyond reasonable doubt, but not that of appellants Gopal Dubey, Mahajan Singh and Bichari Singh. 22. Since in the instant case including accused Dharamraj Dubey (who died during pendency of the trial), six persons participated and we are going to acquit three of them, namely, Gopal Dubey, Mahajan Singh and Bichari Singh, the number of those who participated in the incident will come down to three. Once it comes down to three neither Section 149 IPC nor Section 148 IPC would have application. The essential pre-requisite for the application of Section 149 IPC is the existence of an unlawful assembly and as is manifest from Section 141 IPC for an unlawful assembly there should be membership of minimum five persons. If Section 149 IPC would have no application, then it is manifest that conviction of Addya Singh and Paras Singh under Section 302/149 IPC would not stand in law. If Section 149 IPC would have no application, then it is manifest that conviction of Addya Singh and Paras Singh under Section 302/149 IPC would not stand in law. Similarly, their conviction for the offence punishable under Section 148 IPC would not be legally sustainable because for the commission of an offence thereunder a person should commit the offence of rioting being armed with a deadly weapon and Section 146 IPC makes it manifest that an essential pre-requisite for the offence of rioting is existence of an unlawful assembly. 23. But having said that the conviction of Paras Singh and Addya Singh cannot be sustained for the offence punishable under Section 302/149 IPC, we wish to make it plain that there would be no impediment in our way in convicting them for the offence punishable under Section 302/34 IPC despite the fact that they were not charged for the said offence. Way back in the year 1956, in the oft-quoted case of Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116 , the Supreme Court has laid down in paragraph 44 that an error or omission to frame a charge would only be material if prejudice is caused. In the instant case, in our judgment, even in the absence of a charge for the offence punishable under Section 302/34 IPC no prejudice would be caused to Addya Singh and Paras Singh if they are convicted thereunder because even after acquittal of appellants Gopal Dubey, Mahajan Singh and Bichari Singh the residual evidence of Virendra Singh PW 6 and Smt. Durgawati Devi PW 7 shows that appellants Paras Singh, Addya Singh and Dharamaj Singh in furtherance of their common intention committed the murder of the deceased. In this connection, it would be apposite to refer to the ratio laid down in paragraph 10 of the oft-quoted case of B. N. Srikantiah v. Mysore State, AIR 1958 SC 672 , wherein in paragraph 9 in a similar situation the Supreme Court observed thus: "the omission to mention Section 34 of the Indian Penal Code in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof. The charge was that the appellant and others were members of an unlawful assembly, the common object of which was to murder the deceased. The charge was that the appellant and others were members of an unlawful assembly, the common object of which was to murder the deceased. Although there is a different in common object and common intention, they both deal "with combination of persons who become punishable as sharers in an offence" and a charge under Section 149 Indian Penal Code is no impediment to a conviction by the application of Section 34 if the evidence discloses the commission of the offence in furtherance of the common intention of all. " (Emphasis supplied) 24. This leaves us with only one question namely whether appellants Paras Singh and Addya Singh deserves the extreme penalty of death. Our answer to it is in the negative. We have seen that they alongwith Dharamaj Dubey, who died during pendency of the trial hurled bombs on the person of the deceased. In para 7, we have extracted the ante-mortem injuries suffered by the deceased. Their perusal would make it manifest that the fatal injury was ante-mortem injury No. 1, which was an extensive lacerated wound 30 cm x 22 cm x cavity deep accompanied by laceration of heart. It is pertinent to mention that so far as other two ante-mortem injuries suffered by the deceased are concerned, one of them was situated on the left palm and the other on the right arm. It is manifest from a bare perusal of these injuries that there was no nexus between them and the death of the deceased. In other words, the situation which emerges is that including appellants Paras Singh and Addya Singh three persons hurled bombs on the deceased, who suffered only one fatal injury i. e. ante-mortem injury No. 1. Since the prosecution has not been able to specify as to which of these three persons was responsible for the fatal extensive lacerated wound (ante-mortem injury No. 1) suffered by the deceased and the conviction of appellants Paras Singh and Addya Singh which was originally under Section 302/149 IPC is going to be altered by us to one under Section 302/34 IPC the said appellants do not deserve a sentence of death. There is another reason why death sentence is not warranted. A perusal of the judgment of the trial Court would show that they were sentenced to death on 11-6-2002. There is another reason why death sentence is not warranted. A perusal of the judgment of the trial Court would show that they were sentenced to death on 11-6-2002. In other words, the sword of Democles has been hanging on their head for an excruciatingly long time of over sixteen months. 25. For the aforesaid reasons, in our view, appellants Paras Singh and Addya Singh do not deserve a sentence of death and one of imprisonment for life would meet the ends of justice. 26. We would be failing in our fairness if before proceeding to the operative part of the judgment we do not refer to the three main submissions canvassed by Mr. P. N. Mishra, learned Counsel for appellants, who has argued these appeals with consummate skill. Mr. Mishra first urged that the incident took place on a small roof. He invited our attention to the evidence of Virendra Singh PW 6 who stated in his cross-examination that the dimensions of the roof were 15 nele uecyeef& cew Deewj 10 nele eew[ef& cew (in English it would mean about 22- 1/2 feet in length and 15 feet in width ). Mr. Mishra contended that it was in this small area that the four eye- witnesses, namely, Virendra Singh, Durgawati Devi, Pappu and Ravindra Singh were standing and the deceased was sleeping. He contend that the evidence is that appellants Paras Singh and Addya Singh alongwith Dharamraj Dubey hurled bombs on the deceased. In Mr. Mishras contention, bearing this in mind, the small area in which the four eye-witnesses and the deceased were present the splinters of bombs would have struck some of the witnesses, had they been present. We have reflected over Mr. Mishras submission and are constrained to observe that we do not find any merit in it. In this connection, we would like to advert to the cross-examination of Smt. Durgawati Devi PW 7. She stated that length and width of the roof was 15 x 20 nele (in English this would mean 22 feet x 30 feet ). She also stated therein that at the time when the deceased was being assaulted she, Virendra Singh, Ravindra Singh and Pappu were standing at a distance of 6-7 paces from him 6-7 paces would mean about 15-20 feet. She also stated therein that at the time when the deceased was being assaulted she, Virendra Singh, Ravindra Singh and Pappu were standing at a distance of 6-7 paces from him 6-7 paces would mean about 15-20 feet. Since the witnesses were standing at a distance of 15 to 20 feet from the place where deceased was being assaulted, we do not find anything improbable if the hand grenades hurled by Addya Singh, Paras Singh and Dharamaj Dubey did not strike any of the witnesses. Hence, this submission fails. 27. Secondly Mr. Misra vehemently contended that since Gopal Dubey and Mahajan Singh are said to have belaboured the deceased with fire arms and Bichari Singh is said to have assaulted him with a farsa and the autopsy surgeon did not find any fire-arm or farsa injury on the person of the deceased and we are going to acquit the said appellants, 50% of the credibility of the two eye-witnesses, namely, Virendra Singh and Durgawati Devi PWs 6 and 7, who are real nephew and wife of the deceased Toofani Singh, respectively, stands eroded Mr. Misra urged that bearing in mind that they are highly interested witnesses, it would be hazardous to accept their evidence vis-a-vis appellants Paras Singh and Addya Singh. Mr. Misra contended that since we are going to reject an integral part of their evidence by acquitting appellants Gopal Dubey, Mahajan Singh and Bichari Singh prudence demands that we should not accept their evidence against appellants Addya Singh and Paras Singh. We have bestowed our anxious consideration to the submission of Mr. Misra and do not find any merit in it. The apex Court times out of number, has held that the principle falsus uno falsus amnibus is not a rule applicable to our country and Courts have a duty to separate the grain from chaff. In this connection Mr. V. C. Tewari, learned Counsel for the complainant, placed before us the majority decision of the apex Court, rendered in the case of Krishna Mochi and others v. State of Bihar, 2002 SCC (Crl.) 1220, where in para 51, it has been laid down that even if an integral part of the evidence of a witness is false, if the residue inspires confidence, it can be accepted. In this case, in our view, the grain can be separated from chaff. What is the chaff? In this case, in our view, the grain can be separated from chaff. What is the chaff? The chaff, in our view, is the participation of appellants Gopal Dubey, Mahajan Singh and Bichari Singh, which is belied by medical evidence. And what is the grain? The grain, in our judgment, is the participation of Paras Singh, Addya Singh and Dharam Raj Singh, (who died during pendency of the trial) which is corroborated by medical evidence. In our view, since the grain and chaff can be separated in the instant case, appellants Addya Singh and Paras Singh can be convicted. 28. Thirdly, Mr. Misra urged that the instant case does not warrant that appellants Addya Singh and Paras Singh should be sentenced to death and a sentence of imprisonment for life, instead would meet the ends of justice. We have already dealt with this aspect in paragraphs 24 and 25 and are of the view that their sentence deserves to be reduced from death to imprisonment for life. Hence, we do not propose dealing with this submission. 29. In the result: (A) Criminal Appeal No. 162 of 2002 Appeal is partly allowed. Although we acquit appellant Paras Singh for the offence punishable under Section 148 IPC and set aside his conviction and sentence thereunder, we alter his conviction for the offence punishable under Section 302/149 IPC to Section 302/34 IPC but set aside his sentence of death and sentence him to imprisonment for life. We, however, maintain the sentence of fine of Rs. 10,000 imposed on him and the sentence in its default. He is in jail and shall serve out his sentence. (B) Criminal Appeal No. 2540 of 2002: Appeal is partly allowed. Although we acquit appellant Addya Singh for the offence punishable under Section 148 IPC and set aside his conviction and sentence thereunder, we alter his conviction for the offence punishable under Section 302/149 IPC to Section 302/34 IPC and set aside his sentence of death and sentence him to imprisonment for life. We, however, maintain the sentence of fine of Rs. 10,000 imposed on him and the sentence in its default. He is in jail and shall serve out his sentence. (C) Criminal Appeal No. 2466 of 2002: Appeal is allowed. We, however, maintain the sentence of fine of Rs. 10,000 imposed on him and the sentence in its default. He is in jail and shall serve out his sentence. (C) Criminal Appeal No. 2466 of 2002: Appeal is allowed. Convictions and sentences of appellants Mahajan Singh and Bichari Singh on both the counts i. e. for offences punishable under Sections 148 IPC and 302/149 IPC are set aside. They are acquitted thereunder. In case they have paid the fine, it shall stand refunded to them. They are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged. (D) Criminal Appeal No. 2336 of 2002: Appeal is allowed. Convictions and sentences of appellant Gopal Dubey on both the counts i. e. for offences punishable under Sections 148 IPC and 302/149 IPC are set aside. He is acquitted thereunder. In case he has paid the fine, it shall stand refunded to him. He is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged. (E) Capital Sentence Reference No. 7 of 2003: The reference is rejected. Appeal partly allowed and reference rejected. .