Judgment Mridula Mishra, J. 1. Appellants Shyamanand Mishra, Sachidanand Mishra and Ashok Kamti have been convicted u/s. 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellants Shyamanand Mishra and Ashok Kamti have further been convicted u/s. 323 of the Indian Penal Code and they have been awarded sentence of R.I. for six months. Appellant Bindeshwari Kamti has been convicted u/s. 302 of the Indian Penal Code and awarded sentence of rigorous imprisonment for life. He has further been convicted u/s. 323 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for six months. 2. Criminal Appeal No. 374 of 2001 and Criminal Appeal No. 429 of 2001 arise out of judgment of conviction passed by the 3rd Additional Sessions Judge, Madhepura in Sessions Trial No. 208 of 1994. Since both the appeals arise out of same judgment and order of conviction dated 26.7.2001/27.7.2001 as such both the appeals have been heard together and are being disposed of by this common judgment. 3. A written report dated 31.12.1992 filed by Bimal Krishna Jha (P.W. 9) is the basis for instituting F.I.R. of Uda-Kishunganj P.S. Case No.181 of 1992. The prosecution story in brief is that Sunil Kumar Mishra the nephew of Bimal Krishna Jha was cutting dried fallen black berry (Jamun) tree on his land at 9 O clock in the morning of 31.12.1992. At that time Sitaram Mishra Shyamanand Mishra, Bindeshwari Kamti, Sachidanand Mishra alias Babua Mishra and Ashok Kamti along with three unknown persons came there armed with firearm and other lethal weapons. Sitaram Mishra as soon as reached near the black berry tree, he ordered all those persons to kill Sunil Kumar Mishra. On his order Bindeshwari Kamti assaulted with Bhala on the head of Sunil Kumar Mishra and other accused persons have also assaulted and caused him injury with lathi. Sunil Kumar Mishra fell down on the ground and alarm was raised. Bimal Krishna Jha after hearing the alarm came at the place of occurrence. He tried to restrain the accused persons from committing such offence on which of Sitaram Mishra, Shyamanand Mishra hurled Bhala on him which hit at his head. Bindeshwari Kamti and Ashok Kamti started assaulting him with lathi. On receiving injury he also fell down on the ground. The accused persons thereafter carried his nephew to potato field and again assaulted him there. Bindeshwari Kamti and Ashok Kamti started assaulting him with lathi. On receiving injury he also fell down on the ground. The accused persons thereafter carried his nephew to potato field and again assaulted him there. Bimal Krishna Jha become unconscious and regained consciousness when he was being taken on rikshaw for his treatment. After regaining consciousness he gave his written statement for instituting the case. The occurrence has been witnessed by Ashok Kumar Jha (P.W. 6), Mahakant Jha (P.W. 2), Krishnadeo Kamti (P.W. 3). The accused persons committed the offence because of old enmity. 4. On the basis of written report Uda-Kishunganj P.S. Case No. 181 of 1992 was registered for the alleged offence under Ss. 147, 148, 149, 323, 324, 326 and 307 of the Indian Penal Code and 27 of the Arms Act. During investigation Sunil Kumar Mishra died and Sec. 302 of the Indian Penal Code was also added. After investigation chargesheet was submitted u/s. 302/149, 307, 323 and 109 of the Indian Penal Code. Cognizance was taken against all named accused persons. The case was committed to the court of sessions for trial and all five accused persons were charged u/s. 302/149 and 323 of the Indian Penal Code. Sitaram Mishra was charged u/s. 307 of the Indian Penal Code also. No chargesheet u/s. 27 of the Arms Act was submitted as the allegation of carrying firearm was not found to be correct. On conclusion of the trial one of the accused Sitaram Mishra who was charged u/s. 302/149 and 307 of the Indian Penal Code was acquitted of the charge, but other accused persons were convicted and sentenced as stated above. 5. The prosecution examined 16 witnesses. Out of them P.W. 1 Sikandar Yadav is a formal witness who has proved the formal F.I.R. Ext. 1. P.W. 4 Sanjay Kumar is also a formal witness. He has proved the signature of Binod Kumar Jha on protest petition Ext. 2. P.W. 13 Suresh Prasad Singh is another formal witness who proved his own signature on inquest report Ext.2/3. P.W. 14 Mithilesh Kumar Singh has proved his signature on seizure list Ext. 2/4. P.W. 7 Sunil Kumar Jha was examined as an eye witness, but he was declared hostile as he did not support the prosecution story. P.W. 10 Dr. J.B. Singh has conducted the post-mortem on the dead body of the deceased and P.W. 11 Dr. P.W. 14 Mithilesh Kumar Singh has proved his signature on seizure list Ext. 2/4. P.W. 7 Sunil Kumar Jha was examined as an eye witness, but he was declared hostile as he did not support the prosecution story. P.W. 10 Dr. J.B. Singh has conducted the post-mortem on the dead body of the deceased and P.W. 11 Dr. Binod had treated the injuries on the person of P.W. 9, the informant and the deceased Sunil Kumar Mishra P.W 1,2 Ram Jhulan Bhagat is the Investigating Officer of the case. P.W. 15 Md. Manir Khan had proved prescription of doctor V.N. Sinha. P.W. 16 Ramotar Yadav had proved two rent receipts Ext.15/1. P.W. 2, Mahakant Jha, P.W. 3 Krishnadeo Kamti, P.W. 5 Brahmdeo Kamti, P.W. 6 Ashok Jha and P.W. 9 Bimal Krishna Jha (informant) have been examined as eye witnesses. 6. The defence of the appellants was that they have falsely been implicated in the case due to previous enmity and land dispute. The defence has filed certified copy of order of Case No. 2700 of 1969 (Ext.) to prove that since 1969 till the date when trial was going on there has been several cases in between the family of Sitaram Mishra and Hare Krishna Mishra, father of the deceased. 7. Regarding all these eye witnesses the argument of the appellants is that the witnesses are all interested and partisan. P.W. 3 Krishnadeo Kamti and P.W. 5 Brahmdeo Kamti are full brothers and they are Bataidar of Hare Krishna Mishra the father of the deceased Sunil Kumar Mishra. P.W. 2 Mahakant Jha is the cousin of P.W. 6 Ashok Jha who is brother-in-law of the deceased. P.W. 2 Mahakant Jha has personal grudge against Sitaram Mishra, who was elected Mukhia after defeating the father of P.W. 2. P.W. 2 apart from being interested, has admitted in his evidence that he was never examined by the police and for the first time on 18.3.1997 after five years of the occurrence he deposed in the court. He admitted in his evidence that though he met the Investigating Officer on the date of occurrence itself still he did not make any statement before him. P.W. 9 is the maternal uncle of the deceased. He admitted in his evidence that though he met the Investigating Officer on the date of occurrence itself still he did not make any statement before him. P.W. 9 is the maternal uncle of the deceased. It has come in the evidence that several independent witnesses had assembled at the place of occurrence even then not a single independent witness has been examined in this case which totally goes against the prosecution. In cases of admitted enemity, no reliance can be placed on interested witnesses, unless it is corroborated by independent and trustworthy witnesses. Since, the evidence of interested, enmical witnesses have not been corroborated by independent and trustworthy witnesses, the evidence on record is not sufficient for conviction of the appellants. Counsel for the appellants has argued that there is a peculiar and surprising aspect of this case which creates doubt about the reliability of the prosecution story. The evidence on records show that the place of occurrence is at a distance of 30-40 ft. from the house of the deceased. In fact the house of the deceased is adjacent to the place of occurrence. P.W 2, P.W. 3, P.W. 5 and P.W. 6 all have admitted in their evidence that Sunil Kumar Mishra was assaulted thereafter his mother and other family members came at the place of occurrence. His mother sprinkled water in order to bring back his consciousness. P.W. 5 has stated in his evidence that mother, brother, sister and wife of the deceased went alongwith him to Bihariganj, where he was taken for treatment in the clinic of Dr. Binod. P.W. 6 has also deposed that the family members came at the place of occurrence and they also accompanied Sunil Kumar Mishra up to Bihariganj and thereafter to Purnea. The most surprising aspect is that non of the family members has been examined as witness. P.W. 12 the Investigating Officer has specifically stated that he did not record statement of any family members of the deceased. RW. 8 Susheel Kumar Mishra, full brother of deceased was examined as formal witness and not on facts relating to occurrence although he accompanied the deceased on rikshaw upto Bihariganj and remained with him till his death. P.W. 9 had filed protest petition in the case. In the protest petition, mother of the deceased Nirmala Devi has been named as witness even then she was not examined by the prosecution. P.W. 9 had filed protest petition in the case. In the protest petition, mother of the deceased Nirmala Devi has been named as witness even then she was not examined by the prosecution. RW. 9 was cross examined on the point and he simply stated that he did not want to examine them as witness. This is very surprising that the natural witnesses and the family members who were present at the place of occurrence, they have not been allowed to depose in this case by the informant. This is fatal for the prosecution making it doubtful. It is not necessary that a number of witness should come and depose for proving the case of prosecution. An evidence of single reliable and trustworthy witness is sufficient to prove the case of prosecution for conviction. But the desirability is of trustworthy and reliable witness. In the present case, where informant and witnesses have admitted long drawn enemity in between prosecution party and accused, in such cases, if natural witnesses like family members are restrained from deposing in court and witnesses like Bataidars, and others are examined as eye witnesses, then naturally a question mark is raised against the correctness and genuineness of the prosecution case and benefit must go in favour of the accused. 8. The appellants counsel has argued that the prosecution has not been able to prove the place of occurrence, the manner of occurrence as well as the genesis of occurrence as such conviction of the appellants is not sustainable in the eye of law. The genesis of occurrence is that Sunil Kumar Mishra was cutting and making small pieces of black berry tree at 9.0 A.M. The black berry tree is admittedly in his land bearing Old Khata No. 160, New 305, Old Plot No. 1232, New Plot No. 2325 measuring 10 decimals. This land is said to have been purchased in the year 1929 by the father of Hari Krishna Mishra. The witnesses have deposed that non of the accused persons ever claimed this land and also that prior to the occurrence there had been occasion when other black berry trees had fallen and cut by the family of Hare Krishna Mishra but non of the accused claimed any share in those trees. The witnesses have deposed that non of the accused persons ever claimed this land and also that prior to the occurrence there had been occasion when other black berry trees had fallen and cut by the family of Hare Krishna Mishra but non of the accused claimed any share in those trees. It has also come in the evidence that there had never been any dispute in between Sitaram Mishra and family of Hare Krishna Mishra for the 1st P.O. land or for the tree or for the crops. In such circumstances suddenly on the date of occurrence raising dispute by the accused persons for cutting of the black berry trees is something which is unbelievable. The story of the prosecution that the occurrence took place because of the cutting of the black berry tree is without any substance specially when the part of the genesis of the occurrence regarding the involvement of Sitaram Mishra in the offence has been disbelieved by the trial court. The prosecution story starts with the objection raised by Sitaram Mishra on cutting of tree and order given by him to assault and kill Sunil Kumar Mishra. If this part of the prosecution story has been disbelieved by the trial court and if Sitaram Mishra is out of the scene disbelieving his presence at the place of occurrence, the entire prosecution story is demolished and conviction of other appellants is also fit to be set aside. 9. The argument advanced by the appellants counsel is that place of occurrence has also not been proved by the prosecution. There are two places of occurrence in this case. First place of occurrence is the field of Hare Krishna Mishra where Sunil Kumar Mishra was cutting and making small pieces of black berry tree and the second place of occurrence is the field of Sitaram Mishra which has been given an identification as Aloo Haldi field by the witnesses. The prosecution story is that while Sunil Kumar Mishra was cutting small pieces of black berry tree he was restrained by Sitaram Mishra who came alongwith five named and three unnamed persons armed with firearm and other lethal weapons. Since Sunil Kumar Mishra was not ready to stop the cutting of the black berry tree Sitaram Mishra ordered to kill him. Bindeshwari Kamti assaulted him with Bhala on his head and other accused persons assaulted him with lathi. Since Sunil Kumar Mishra was not ready to stop the cutting of the black berry tree Sitaram Mishra ordered to kill him. Bindeshwari Kamti assaulted him with Bhala on his head and other accused persons assaulted him with lathi. Sitaram Mishra pierced the arrow on his face near the eyes and Shyamanand Mishra also assaulted with Bhala Sunil Kumar Mishra foil down and he started bleeding from his injuries. Bimal Krishna Jha came there on hearing alarm. He tried to restrain them and Sitaram Mishra ordered to kill him also and on his orders Shyamanand Mishra gave a Bhala blow and other accused also assaulted with lathi. He also fell down on the ground and he also started bleeding from the injuries. The accused persons thereafter carried Sunil Kumar Mishra to their Aloo Haldi field which is at a distance of 400 yards or 30-40 ft. from the first place of occurrence. Some of the witnesses have stated that he was dragged upto the second place of occurrence and some of the witnesses have stated that he was filed and carried up to the second place of occurrence. Sunil Kumar Mishra was again assaulted by all the accused and blood started oozing out of his injury at the second place of occurrence as well. P.W. 2, P.W. 3, P.W. 5, P.W. 6 and P.W. 9 all have stated about the assault made on the first place of occurrence and assault on the second place of occurrence. The investigating officer P.W. 12 has stated that he did not find any piece of Jamun tree or any sign of cutting or making small pieces of wood at the first place of occurrence. He did not even find any scalp of Jamun tree or small pieces of wood at the 1st place of occurrence. No axe was produced before him. He did not find any blood at the first place of occurrence, as well as on second place of occurrence, though the prosecution witnesses have specifically stated that blood was there on the mustard plants at 1st place of occurrence and on the Aloo Haldi leaves on the second place of occurrence. No axe was produced before him. He did not find any blood at the first place of occurrence, as well as on second place of occurrence, though the prosecution witnesses have specifically stated that blood was there on the mustard plants at 1st place of occurrence and on the Aloo Haldi leaves on the second place of occurrence. Investigating officer did not find any trampling marks of the standing mustard and potato plants though in the evidence it has come that in the field, in between both the place of occurrence the mustard crops, wheat crops and potato plants were standing over there. If evidences of the witnesses are to be believed that 8-10 persons walked with an injured body either dragging or carrying it from the first place to second place of occurrence, then trampling marks must have been there, but the Investigating officer did not find any such trampling mark, he specifically has stated that he did not find any trampling of the crops. Investigating Officer did not find any blood stains on any place of occurrence. Considering the evidence of other P.Ws. and contradictions by P.W. 12 regarding the place of occurrence conclusion can be drawn that the place of occurrence is not the same as described by the prosecution witnesses. The occurrence must have taken place at some other places, and a false story has been concocted by the prosecution, describing the field of the accused and the field of the deceased as the place of occurrence. 10. Regarding the manner of occurrence, the argument advanced by the counsel for the appellants is that the injuries which were found on the person of the deceased as well as on the person of the injured (RW. 9) indicate that occurrence took place in some different manner, then as deposed by witnesses. The prosecution witnesses have not witnessed the occurrence and they have falsely deposed in this case as eye witnesses. Two doctors have been examined in this case. P.W. 11 Dr. Binod examined Sunil Kumar Mishra on 31.12.1992 at ten hours. He found following injuries over his person. Lacerated wound over the left parietal region of size 2 1/2" x 1/2" x upto scalp bone and two other injuries on other part of body. The injuries according to him were caused by lathi or lathi portion of Bhala. P.W. 10 Dr. Binod examined Sunil Kumar Mishra on 31.12.1992 at ten hours. He found following injuries over his person. Lacerated wound over the left parietal region of size 2 1/2" x 1/2" x upto scalp bone and two other injuries on other part of body. The injuries according to him were caused by lathi or lathi portion of Bhala. P.W. 10 Dr. J.B. Singh held postmortem over the dead body of Sunil Kr. Mishra on 2.1.1993. He found following ante-mortem injuries. (i) Stitched wound 2 1/2" long. On opening the wound it was found 1/2" wide x scalp deep on the left side of parietal region of the head. On opening the scalp 4"x4" haemetoma was found present under the scalp. On opening the cranial cavity subdural and extradural haemetoma was found present on both of uranial cavity. (ii) Ecomosis was present on both upper and lower eyelids of both eyes. (iii) Ecomosis present with swelling of left cheek. (iv) Two punctured wound 1/4" x 1/ 4" x skin deep were found on left mandible and 1/2" x 1/4" x 1/2" deep on the left inadible area. (v) Fracture of mandible with 1-3 left moler upper teeth were found uprooted and broken. As per the opinion of the doctor P.W. 10 the cause of death was due to shock and haemmorhage. Injury no. 1 was sufficient to cause death in the ordinary course of events. Injury no. 1 may be caused by hard and blunt weapon like lathi portion of Bhala. According to the opinion of P.W. 10 and P.W. 11 non of the injuries on the person of the deceased was caused by pointed portion of Bhala or by the arrow. P.W. 3, P.W. 5 and P.W. 6 have specifically stated in their evidence that the accused Shyamnand Mishra hack pierced Bhala on the cheek of the deceased and accused Sitaram pierced arrow near the eye of the deceased. The evidence of the witnesses regarding injury caused by Bhala and arrow on the cheek of the deceased has not been supported by the medical evidence as no injury was found either by P.W. 10 or P.W. 11 caused by Bhala and arrow on the person of the deceased. This goes to show that the witnesses have not actually scene the occurrence. This goes to show that the witnesses have not actually scene the occurrence. 11 Another varacity of the prosecution evidences is that in the written report P.W. 9 has stated that the accused persons armed with firearm and other lethal weapons came at the place of occurrence. Bindeshwari gave Bhala blow on the hand of deceased and other accused assaulted with lathi. P.W. 9 himself was assaulted with Bhala by Shyamanand Mishra and Bindeshwar Kamti and Ashok Kamto assaulted him with lathi. In the F.I.R. the offence alleged were under other sections as well as u/s. 27 of the Arms Act. Since no firearm injury was found either on the person of the deceased and informant, Chargesheet was not submitted u/s. 27 of the Arms Act. In course of investigation in their statement u/s. 161 of the Code of Criminal Procedure all the witnesses including the informant P.W. 9 stated that the accused persons had assaulted the deceased as well as, P.W. 9 with Bhala. The informant had filed protest petition, Ext. 6 on 30.1.1993, in which also, so far allegation of assault on Sunil Kumar Mishra, by Bindeshwari Kamti and assault by Shyamanand Mishra on P.W. 9 was that they assaulted with Bhala on the head of deceased and P.W. 9. P.W. 12 in paragraph, 49 to 55 has stated that non of the witnesses have stated before him that on the order of Sitaram Mishra, Bindeshwari Kamti had assaulted Sunil Kumar Mishra by lathi portion of Bhala over his head and Shyamanand Mishra had assaulted P.W. 9 by lathi portion of Bhala. The witnesses when came to know about the post-mortem report and the injury report of P.W. 10 and P.W. 11 in which non of the injuries found on the person of the deceased or injured was caused by Bhala then all the witnesses have changed their evidence in court except P.W. 9. P.W. 9 did not change his version regarding causing injury by Bhala as he is the maker of F.I.R. and being an advocate he knew the repercussion of changing his version as stated in the F.I.R. He consistently stated that injury was caused by Bhala but all other witnesses changed their version as made u/s. 161 of the Code of Criminal Procedure. P.W. 3, P.W. 5 and P.W. 6 stated that Bindeshwar Kamti assaulted deceased and Shyamanand Mishra assaulted P.W. 9 with lathi portion of Bhala. This change in the statement of the witnesses in order to suit the medical evidence also goes to show that the witnesses had actually not seen the occurrence, but after being tutored and in order to make their statement consistent with the medical evidence they have contradicted their own statement as made u/s. 161 of the Code of Criminal Procedure. This is also indicative of the fact that the occurrence took place in a different manner. No one has seen the occurrence and a false case has been instituted by the prosecution implicating the accused persons. 12. It has also been submitted that the witnesses are all enimical to the accused persons and they have been falsely implicated in this case due to previous enmity and land dispute. The dispute between the parties has been admitted by P.W. 8 Sushil Kumar Mishra. He has admitted that there has been Miscellaneous Case No. 373 of 1990 u/s. 145 of the Code of Criminal Procedure between the family of the accused and the family of Sunil Kumar Mishra the deceased. He also admitted that there was 107 Cr.P.C. proceeding in between the prosecution party and the accused. Shymanand Mishra had filed a case with regard to assault and looting vide Case No. 56C/1990 against family members of the deceased. P.W. 9 has also admitted that proceeding u/s. 144 and 145 of the Code of Criminal Procedure was still continuing in between the parties. Some documentary evidence was also filed by the accused in order to prove that since the year 1969 till the date when the trial was going on, several cases civil and criminal are being contested in between the family of the accused and the family of the deceased. P.W. 2 and P.W. 6 have admitted in their evidence regarding their enmity with Sitaram Mishra on account of the election of Mukhia in which Sitaram Mishra was elected and father of P.W. 2 was defeated. P.W. 6 has also admitted that the criminal case as well as case u/s. 103 of the Bihar Tenancy Act vide objection Case no. 263 was being contested by the accused persons. P.W. 6 has also admitted that the criminal case as well as case u/s. 103 of the Bihar Tenancy Act vide objection Case no. 263 was being contested by the accused persons. In the background of such enmity it has been submitted by the counsel for the appellants that the witnesses being enmical are adamant to see that the accused persons are convicted in any manner. Considering this admitted enemity it is not expected that the witnesses could have deposed in reliable and trustworthy manner, as such the case conviction of the appellants, is fit to be set aside. 13. P.W. 9 is the informant and an injured witness. Dr. Binod P.W. 11 had examined him at 10 A.M. on 31.12.1992 at his clinic. He found lacerated wound over right parital bone 2" long, 1/2" breadth and depth upto scalp bone and swelling over the right arm, left arm and right leg. All the injuries in his opinion was caused by hard and blunt substance such as lathi or lathi portion of Bhala. P.W. 11 also advised for x-ray and on submission of x-ray report he further gave his opinion with respect to nature of injury. According to x-ray report no boney deformity was there and the nature of injury was simple. P.W. 9 in the F.I.R. stated that he was assaulted by Shyamanand Mishra with Bhala on his head and Bindeshwari Kamti, Ashok Kamti assaulted him with lathi. In his evidence also he stated that he was assaulted with Bhala on his head by Shyamanand Mishra. The injury report and the deposition of P.W. 11 indicates that no Bhala injury was there on his person. The injuries which were found were simple in nature, though other witnesses in order to suit the medical evidence stated that Shyamanand Mishra assaulted with lathi portion of Bhala on the head of P.W. 9, there is contradiction in the statement of P.W. 9 and other P.Ws. Normally the evidence of injured witnesses is not doubted considering the injuries on his person and believing that his presence cannot be doubted at the place of occurrence. In the present case the evidence of injured witnesses is also unreliable as he is not truthfull and he has come out with concocted version of the prosecution story. The character of this witness is apparent from his deposition. He has contradicted his own statement at different places. In the present case the evidence of injured witnesses is also unreliable as he is not truthfull and he has come out with concocted version of the prosecution story. The character of this witness is apparent from his deposition. He has contradicted his own statement at different places. P.W. 9 has stated that after being assaulted he became unconscious and fell on the ground and he regained consciousness while he was being taken for his treatment on rikshaw. If this evidence is to be believed then it is most unlikely that he witnessed assault made on the deceased at the second place of occurrence. Realising this fact he made change in his deposition and stated that after witnessing the occurrence at the second place of occurrence he became unconscious and thereafter regained consciousness while being taken for his treatment. Even this evidence, if believed, it is impossible that he witnessed the incident at the second place of occurrence. The evidence of P.W. 2, P.W 3, P.W. 5, P.W 6 and P.W. 12 Indicate that in between the first place of occurrence and second place of occurrence there is distance of 300-400 yards. The first place of occurrence is intervened by field from the second place of occurrence. In between first place of occurrence and second place of occurrence they were standing crops of 4 ft. and 5 ft height. P.W. 9 after receiving assault fell on the ground in that case as there were standing crops 4-5 ft height in between the first place of occurrence and second place of occurrence he could not have seen the occurrence. After analysing the entire evidence the conclusion can be drawn that P.W 9 is not an eye witness of assault made on the deceased at the first place of occurrence and he is also not an eye witness of assault made on deceased at the second place of occurrence. At the first place of occurrence he reached on hearing alarm and by that time Sunil had already been assaulted. He has not witnessed the occurrence which is proved from the medical evidence which contradicts the F.I.R. as well as the deposition of RW. 9 that the Sunil was assaulted with Bhala by Bindeshwari Kamti. As per medical evidence Sunil received injuries with hard and blunt substance. This goes to show that first part of the incident was not witnessed by P.W. 9. 9 that the Sunil was assaulted with Bhala by Bindeshwari Kamti. As per medical evidence Sunil received injuries with hard and blunt substance. This goes to show that first part of the incident was not witnessed by P.W. 9. Second part of the incident he could not witness because of his unconsciousness as well as on account of standing crops 4-5 ft. in between first place of occurrence as well as second place of occurrence. It has been argued that the evidence of P.W. 9 as an eye witness cannot be believed and relied for the purpose of conviction. 14. Argument has been advanced that conviction of other appellants u/s. 302/149 of the Indian Penal Code, besides Bindeshwari Kamti, is illegal as the appellants were not questioned by the Sessions Judge, regarding their involvement as member of unlawful assembly in causing death of Sunil Kumar Mishra. Only circumstance which was put before them was regarding assault made on P.W. 9. It was the duty of the court to put specific circumstances of incriminating nature, upon which the prosecution relied for conviction of the appellants. Section 313 of the Code of Criminal Procedure embodies fundamental principle of Audi-alteram-partem. The provision of section are mandatory and cast a duty on the court to afford an opportunity to the accused. It is not mere formality. Since, circumstances which were not put before the appellants must be completely excluded from consideration because the appellants did not have any chance to explain them. The reliance has been placed in the case of Sharad Birdhichand Sarda V/s. State of Maharastra, AIR 1984 SC 1622 . The Apex Court has consistently held that any circumstance in respect of which an accused was not examined u/s. 313 of the Indian Penal Code cannot be used against him. The fact that the only question was put to the accused appellant with regard assault made by them on the injured and no question was put to them regarding their participation in the assualt made on the deceased, they cannot be convicted u/s. 302/149 of the Indian Penal Code. On perusal of the statement recorded u/s. 313 of the Code of Criminal Procedure, we find that the only question which was put to the appellants were with regard to assault made on P.W. 9, as such the appellant cannot be convicted u/s. 302/149 of the Indian Panel Code. 15. On perusal of the statement recorded u/s. 313 of the Code of Criminal Procedure, we find that the only question which was put to the appellants were with regard to assault made on P.W. 9, as such the appellant cannot be convicted u/s. 302/149 of the Indian Panel Code. 15. Regarding the conviction of Bindeshwari Kamti Under Sec. 302 of the Indian Panel Code the argument advanced by the appellants counsel is that Bindeshwari Kamti has been convicted by the court below for assaulting Sunil Kumar Mishra with Bhala. RW. 9 in the F.I.R stated that on the order of Sitaram Mishra, Bindeshwari Kamti assaulted on the head of Sunil Kumar Mishra with Bhala. P.W. 9 in his evidence in court also stated that Bindeshwari Kamti assaulted with Bhala on the head of Sunil Kumar Mishra. The Medical evidence as well as the Post-Mortem report totally contradicted the evidence of RW. 9 regarding assault made by Bhala on the head of the deceased. Other prosecution witness contradicted P.W. 9 stating that the assault was made with Lathi Portion of Bhala on the head of the deceased by Bindeshwari Kamti, other prosecution witnesses have changed their version from their earlier statement recorded u/s. 161 of the Code of Criminal Procedure in order to suit the Medical Evidence. On analysis of evidence of P.W. 9 as well as other prosecution witness the picture which emerges is that the witnesses are not reliable, consistent and trustworthy. The evidence of P.W. 9 is contradicted by the Medical evidence in totality as well as by evidence of other prosecution witnesses. The prosecution failed to prove that it was the assault made by Bindeshwari Kamti which caused death of the deceased Sunil Kumar Mishra. Since the prosecution has tried to conceal the real story and admittedly there is enmity in between the parties in this circumstance the contradictions made by the witnesses in their evidence in court from their earlier statement u/s. 161 of the Code of Criminal Procdure, and the contradiction in between the evidence of P.W. 9 and other witness raises question on the reliability of the prosecution witnesses. Once the evidence is doubtful it is not sufficient for conviction for appellant Bindeshwari Under Sec. 302 of the Indian Penal Code. 16. Once the evidence is doubtful it is not sufficient for conviction for appellant Bindeshwari Under Sec. 302 of the Indian Penal Code. 16. Counsel appearing for the appellants has also submitted that the appellants are entitled for acquittal on account of acquittal of Sita Ram Mishra. As per prosecution story it was Sitaram Mishra who objected cutting of Black Berry tree and on refusal by Sunil Kumar Mishra, Sitaram Mishra ordered to assault and kill Sunil Kumar Mishra. On the basis of the order of Sitaram Mishra, Bindeshwari Kamti assaulted the deceased with Bhala and other accused persons with Lathi. P.W. 9 was also assaulted by Shyamanand Mishra and other accused persons on the order and direction of Sitaram Mishra. If Sitaram Mishra is ousted from the scene the prosecution story has no legs to stand. 17. Though mere acquittal of co-accused does not per se entitle others to acquittal, the court has a duty in such cases to separate the grain from the chaff. If after sieving the untruth from unacceptable portion of the evidence residue is sufficient to prove the guilt of the accused, there is no legal bar in convicting a person on the evidence which has been primarily disbelieved vis-a-vis others, but where they are inseparable and any attempt to separate them would destroy the substratum on which the prosecution version is founded, then the court would be within its legal limits to discard the evidence in toto. In the aforesaid background the evidence of P.W. 2, P.W. 3, P.W. 5, P.W. 6 and P.W. 9 who are said to be the eye witnesses is to be analysed. P.W. 2, P.W. 3, P.W. 5, P.W. 6 and P.W. 9 all have stated that Sitaram Mishra came at the place of occurrence alongwith other accused persons. He tried to restrain the deceased from cutting Black Berry tree and he ordered the accused persons to kill the deceased as deceased refused to obey the direction of Sitaram Mihsra. The informant was also assaulted by Shyamanand Mishra on the direction of Sitaram Mishra. Further there is evidence that the deceased was carried to the field of Sitaram Mishra where he was again assaulted by the accused persons and finally it was Sitaram Mishra, who pierced arrow and Shyamanand Bhala on the face of the deceased so, entire prosecution story revolves around Sitaram Mishra. Further there is evidence that the deceased was carried to the field of Sitaram Mishra where he was again assaulted by the accused persons and finally it was Sitaram Mishra, who pierced arrow and Shyamanand Bhala on the face of the deceased so, entire prosecution story revolves around Sitaram Mishra. Enemity of prosecution party and deceased is with Sitaram Mishra. If Sitaram Mishra is excluded from the scene the prosecution story cannot be same as it is. Presence of Sitaram Mishra in the prosecution story is inseperable and any attempt to separate him from the prosecution story would destory the very basis on which the prosecution version is founded. Since the presence of Sitaram Mishra at the place of occurrence and his participation in the offence has been disbelieved by the trial court then the prosecution evidence can be discarded in toto and same relief as advanced in case of Sitaram Mishra can be accorded to the other accused persons. Similar view has been taken by the Apex Court in the case of Gorle S. Naidu V/s. The State of Andhra Pradesh and Others, 2004 0 AIR(SCW) 52. 18. On consideration of entire evidence, its quality, interested and partisan nature of witness in the admitted background of enmity as well as acquittal of Sitaram Mishra, we are of the opinion that prosecution has not been able to prove the charge against Bindeshwari Kamti u/s. 302 and 323 of the Indian Penal Code, Shyamanand Mishra, Sachidanand Mishra and Ashok Kamti u/s. 302/149 and 323 of the Indian Penal code beyond reasonable doubt. Appellants are acquitted of the charges framed against them. Judgment of conviction and order of sentence passed by the trial court is set aside. Criminal Appeal No. 374 of 2001 and Criminal Appeal No. 429 of 2001 are allowed. Bindeshwar Kamti, appellant in Criminal Appeal No. 429 of 2001 is in jail he is directed to be released forthwith, if not wanted in any other case. All the appellants of Criminal Appeal No. 374 of 2001 are on bail they are discharged from liability of their bail bonds. P.N.Yadav, J. 19 I agree.