Judgment K.C. Sharma, J.-This criminal appeal under Section 374, Cr. P.C. by appellant Bhoj Rajand Hem Rajarises out of the Judgment and order dated 27-1-2003 by which the learned trial Court has convicted the appellants for offence under Section 302, IPC and sentenced each of them to undergo life imprisonment with a fine of Rs. 1000/-each, in default thereof , each of the appellant was to undergo imprisonment for one year. 2. Succinctly stated the facts of the case are that on 17-5-1999 P.W. 16 Mohammed Umar submitted a written report Ex. P. 11 at Police Station Kethun alleging therein that at about 5.00 p.m. when Ashgar and Shahid were sitting on Sangod Nahar, the accused appellants along with co-accused came there on motor cycle and soon their reaching, they opened attack on Ashgar with their respective weapons. Shahid got frightened and ran away and went to the village, Salim and Usman have been stated to be present near the canal. The villagers removed the injured in precarious condition to Kethun Hospital, where the injured last breathed and passed away. 3. On the above written report, police registered a case vide FIR, Ex. P56 and proceeded with the investigation. In the course of investigation, the police got conducted post mortem and collected post mortem report, Ex. P16, seized the motor cycles used in the commission of offence, arrested the accused, recovered the weapons of offence on their information, prepared site plan and seized the blood stained clothes of the deceased as also the blood stained soil and control soil from the place of incident. 4. After usual investigation, the police submitted a charge-sheet against the appellants and 15 others in the Court of Judicial Magistrate No. 1 (north), Kota, who in turn committed the case to the Court of Sessions. 5. The learned trial Court on the basis of evidence and material collected during investigation and placed before it, framed charges against the accused. The accused denied the charges and claimed trial. 6. In order to prove its case, the prosecution examined as many as 27 witnesses and produced some documents. The accused were examined under Section 313, Cr. P.C. In their defence, they examined D.W. 1 Chauthmal and D.W. 2 Satya Narayan. 7. The accused denied the charges and claimed trial. 6. In order to prove its case, the prosecution examined as many as 27 witnesses and produced some documents. The accused were examined under Section 313, Cr. P.C. In their defence, they examined D.W. 1 Chauthmal and D.W. 2 Satya Narayan. 7. Asthe conclusion of trial, the learned trial Court did not find the charges established against co-accused and accordingly acquitted them of the charges under Sections 148, 120-B and 302/149, IPC. The learned trial Court also did not find the charges under Sections 148 and 120-B, IPC proved against the appellants and acquitted them of the said charges. However, the learned Judge held the appellants guilty of having committed offence under Section 302, IPC and accordingly convicted and sentenced them in the manner stated above. Hence the present appeal against conviction. 8. We have heard learned counsel for the parties and gone through the impugned Judgment and the evidence and material on record. 9. In assailing the conviction, Mr. Bhanwar Lal Sharma, learned counsel for the appellants has, inter-alia contended that in all 17 persons faced trial. The learned trial Judge did not believe the prosecution evidence reliable and worthy of credence so far as participation of other 15 co-accused are concerned and accordingly acquitted them of the offence charged. In this back-ground learned counsel vehemently contended that the trial Court has committed grave error in recording a tinding of guilt against the present appellants on the basis of same set of evidence which has been discarded and disbelieved in respect of co-accused persons. .10. We have given our anxious and thoughtful consideration to the above argument. We are not convinced with the above argument that the evidence of witnesses if disbelieved as regards some accused, it would not be safe to rely the same set of evidence as regards participation of some other accused in the commission of crime. It is true that evidence of witnesses has been disbelieved in respect of the role played by co-accused persons, but that does not mean that the evidence as regards the participation of the appellant must also be rejected. It is true that evidence of witnesses has been disbelieved in respect of the role played by co-accused persons, but that does not mean that the evidence as regards the participation of the appellant must also be rejected. We are fortified in my view by a decision of the Apex Court in Jagdip Singh vs. State of Haryana, AIR 1974 SC 1978 (1974 Cri U 1378), wherein their Lordships while dealing with the arguments on similar fact situation have held as under .“Learned counsel appearing on behalf of the appellants urges that the evidence of these two witnesses was not believed by either Court in regard to Han Singh and Jit Singh who were acquitted and, therefore, the evidence must be discarded as against the appellants also. Han Singh and Jit Singh had no motive against the deceased Gurbachan Singh and the Sessions Court held that the case was not proved against them beyond a reasonable doubt because there were material contradictions in the evidence of the two witnesses as regards the part played by them. That does not mean that the evidence as regards the participation of the appellants must also be rejected”. .11. Recently in Rizan vs. State of Chhatisgarh, (2003) 2 SCC 661 : (2003 Cri U 1226), their Lordships of the Apex Court after considering the law laid down in series reported in AIR 1957 SC 366 , AIR 1956 SC 460 , (1972) 3 SCC 751 , AIR 1965 SC 227, AIR 1954 SC 15 , (1975) 4 SCC 511 , (1981)2SCC 752, (2002)6SCC 61 and (2002)8 SCC 381 have held asunder: .“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 everything). Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons his conviction can be maintained. In essence, a prayer is to apply the principle of falsus in uno falsus in omnibus (false in one thing, false in everything). Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal 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. The maxim falsus in uno falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of a rule of law”. .12. Very recently, the Apex Court in Vidhya Devi vs. State of Haryana, (2004) 9 SCC 476 ; ( AIR 2004 SC 1757 ), while dealing with similar controversy have held as under: .In our view, the acquittal of other accused except the appellants, on the ground of absence of any direct and substantial evidence against them cannot be relied upon as basis for a claim to project the case for acquittal of the appellants against whom and as to the role played by them there were ample materials as noticed, analysed and ultimately finding the appellants guilty. The strained relationship between parties and also the harassment of the deceased for not bringing further dowry and not complying with the demands made on the deceased, stood sufficiently substantiated on the basis of the indisputable material in the shape of complaint before the police therefor as well as the compromise which came to be signed also by Puran Mal, Bimla (the in-laws of deceased) Krishna, Vidhya Devi as well as by Om Prakash, Jagdamba, Raghbir Singh, Pawan Kumar, Bhupeinder Kumar and attested by the Police Officer also. So far as challenge made to the dying declaration recorded, though no doubt by the police officer concerned, the evidence of P.W. 3 Dr. So far as challenge made to the dying declaration recorded, though no doubt by the police officer concerned, the evidence of P.W. 3 Dr. Krishan Kumar, who not only opined that the deceased was in a fit state of mind to make the statement but present when the statement was recorded and that the said statement was signed by the deceased Satyawati in token of its correctness adds credibility to the same and consequently involvement of the accused appellants and the respective roles played by them in having the deceased killed, remains firmly established by concrete and sufficient material and the finding in this regard concurrently arrived at by both the Courts below are not shown to suffer from any infirmity whatsoever to call for our interference.” 13. Thus, on the basis of law laid down by the Apex Court in the cases referred to above, the argument of the learned counsel is untenable as the principle of falsus in uno falsus in omnibus has not received general acceptance nor this maxim has come to occupy the status of a rule of law. Therefore, the mere fact that the prosecution evidence has not been believed by the trial Court as regards participation of other co-accused, does not mean that their evidence as regards appellants must also be rejected. The finding arrived at by the trial Court, in our view does not suffer from any infirmity whatsoever so as to call for our interference. 14. Now we advert to the merits of the case. As per the written report Ex. P11, P.W. 2 Saeed, P.W. 5 Usman, P.W. 4 Saleem have been introduced as eye-witnesses of the incident. As per the statements of P.Ws. 2 and 5, Shivraj (P.W. 11) is also an eye-witness of the incident. However, P.W. 4 Saleem and P.W. 11 Shiv Raj have not supported the prosecution case and have been declared hostile, out of these 4 eye-witness, P.W. 2 Saeed has categorically deposed that appellant Hemraj inflicted sword blow on the thigh of deceased, while Bhojraj inflicted sword blow on the buttock of deceased. P.W. 5 Usman has also deposed that Hemraj and Bhojraj both inflicted sword blows on the person of deceased, but he could not state as to on which parts ot the body, the appellants struck blows. P.W. 21 Dr. Achal Kumar Mebrishi and P.W. 22 Dr. P.W. 5 Usman has also deposed that Hemraj and Bhojraj both inflicted sword blows on the person of deceased, but he could not state as to on which parts ot the body, the appellants struck blows. P.W. 21 Dr. Achal Kumar Mebrishi and P.W. 22 Dr. Anil Kumar Chaudhary, members of the Medical Board, who conducted autopsy on the dead body noticed two injuries, injury No. 1 on the thigh and injury No. 2 on the buttock. According to them, the cause of death was excessive bleeding from injuries Nos. 1 and 2. For the reasons therefore, we do not find anything adverse so as to disbelieve the testimony of two eye-witnesses, namely P.W. 2 Saeed and P.W. 4 Saleem, which stands in corroboration with the evidence of two doctors and the trial Court, in our considered view has correctly believed the testimony of these two eye-witnesses as regards to participation and role played by appellants Bhojraj and Hemraj. 15. The second limb of argument advanced by Mr. Sharma, learned counsel for the appellant is that P.W. 2 Saeed and P.W. 5 Usman are not the eye-witnesses of the incident. Referring the statement of D.W. 2 Satya Narayan Saini, learned counsel argued that according to the statement of this defence witness, P.W. 5 Usman and P.W. 16 Umar had gone to the shop of Satya Narayan to collect the money and that Satya Narayan had given him money at 7.15 p.m. on 17-5-1999. Therefore, witness Usman could not have been present at both the places at one time and that he is a cooked up witness. As regards another eye-witness Saeed (P.W. 2), learned counsel argued that he could not have seen the incident in the manner and under the circumstances he has narrated in his statement. 16. I have considered the above argument. D.W. 1 Satya Narayan in his statement has deposed that on 17-5-1999 Usman and Umar had come to his shop to collect money. They had come at about 7.00 p.m. and he gave them money at 7.15 p.m. Cash book, Ex. D7 has also been produced in defence. In cross-examination, the defence witness has deposed that Usman had sold goods to him on 22-4-1999 and he had paid Rs. 15800/-to Usman as against the goods purchased. He admitted that time of payment was not written in the cash book. D7 has also been produced in defence. In cross-examination, the defence witness has deposed that Usman had sold goods to him on 22-4-1999 and he had paid Rs. 15800/-to Usman as against the goods purchased. He admitted that time of payment was not written in the cash book. Affidavit of Satya Narayan, D.W. 2 has also been produced on record as Ex. D8, which shows that witness Usman was present at his shop at Kota at about 6.3 0-6.45 p.m. As per the report, Ex. P. lithe incident took place at about 7.00 p.m. in Kethun. The distance between Kethun and Kota is hardly 15 kms. Thus, if the evidence of D.W. 2 Satya Narayan is taken to be true that witness Usman was present at his shop in Kota in between 6-30-6-45p.m., then also his presence at the place of incident cannot be doubted, inasmuch as one can easily cover the distance of 15-16 kms. within 15 to 30 minutes. Therefore, the defence theory that Usman was not present at the time and place of incident is of no significance. 17. We have also scanned the evidence of P.W. 2 Saeed. He has deposed that a day prior to the incident i.e. on 16-5-1999 at 3.00 p.m. he along with his brother Usman, Saleem, Sabir, Saukat and Umar were sitting at a tea stall situated at the bridge of Sangod road canal. Hemraj, Bhojraj, Mahavir and Omprakash in drunken state were quarrelling with the driver of a Matadore as the driver of the said Matadore refused to accommodate them because there was no space and for that reason these persons assaulted the driver, as a result of which blood oozed out from his mouth. The witness stated that when they tried to intervene, the accused also belaboured them and caused injuries. According to this witness, on 17-5-1999 while he and Asgar were sitting at the sewer (Mohri) of canal, four motor cycles came from the side of Kethun. Appellants Bhojraj and Hemraj duly armed with naked sword were riding on a motor cycle. Co-accused Prahlad and Mahavir were on another motor cycle. Prahlad had a sword in his hand. Co-accused Bharat Bhushan and Mukesh had separate motor cycles. According to this witness, there were four motor cycles, out of which two stopped at the Kachha road and two stopped near them. They ran away, but the accused chased them. Co-accused Prahlad and Mahavir were on another motor cycle. Prahlad had a sword in his hand. Co-accused Bharat Bhushan and Mukesh had separate motor cycles. According to this witness, there were four motor cycles, out of which two stopped at the Kachha road and two stopped near them. They ran away, but the accused chased them. He ran towards Kachhi Pal (protector), while Asgar ran towards Kethun. All the accused encircled Asgar, who came down in a pit of water, where appellant Hemraj struck a sword blow, as a result of which his right thigh was cut. Then Bhojraj inflicted a sword blow, which hit on his right buttock. In cross-examination, the witnesses stated that Asgar was his cousin. He stated that Asgar was not present at the time when there was quarrel with the driver of Matadore. According to him, earlier to the incident, there was no dispute between Asgar and the accused. The witness stated that Asgar had no endanger from the side of accused. Accused first chased him and Asgar thought that accused would beat him and, therefore, Asgar followed him. He stated that there was a distance of 200-300 feet in between him and Asgar. The accused while chasing them, jumped into the canal. With a view to save himself , Asgar ran towards Kethun through the canal. The canal was dry and only a pit was filled with water. There was soil in the canal and there was no sludge except the pit. The witness stated that after he was struck on his thigh, he fell at the corner of the pit. According to him, he had shown the place from where he had witnessed the incident and that his brother Umar had submitted the report as per his saying. Lastly, the witness denied any relationship between him, Umar and Ishaq Mohd., Investigating Officer. He made it clear that at the time when Ishaq Mohd. was SHO and Investigating Officer, there was no relation with Umar. However, he admitted that Ishaq Mohd. is the grand father-in-law of Mohd. Umar. On a careful scrutiny of evidence of P.W. 2 Saeed, it is evident that he was very much present at the time and place of incident and has categorically stated every event of the incident right from beginning and we see no reason to doubt his testimony. However, he admitted that Ishaq Mohd. is the grand father-in-law of Mohd. Umar. On a careful scrutiny of evidence of P.W. 2 Saeed, it is evident that he was very much present at the time and place of incident and has categorically stated every event of the incident right from beginning and we see no reason to doubt his testimony. The trial Judge has correctly believed the evidence of these two eye-witnesses as regards participation of the present appellants in the commission of crime. 18. The third argument advanced by Mr. Sharma is that P.W. 27 Ishaq Mohd., who at the relevant time was posted as Sub-Inspector at Police Station. Kethun and registered the case and investigated into the matter, is a relative of Mohd. Umar and, therefore, possibility of concoction of a false case cannot be ruled out. He further argued the report of the incident was lodged after due deliberations. According to the learned counsel, the report was lodged by P.W. 16 Mohd. Umar, who had not seen the happening of incident, and that too only after number of persons from the complainant side including P.W. 1 Bahadur Ali, Ex-Sarpanch of the village, P.W. 2 Saeed and P.W. 5 Usman, alleged eye-witnesses had collected at the Police Station and for this reason also, the false implication of the appellants cannot be ruled out. 19. We have considered the above argument and we do not find any substance in it. P.W. 1 Bahadur Ali is only a witness to the recovery/seizure of some articles. On perusal of his statement, nothing could be elicited so as to suggest that he got the report drafted in the presence of number of persons. Undisputedly, Mohd. Umar has not witnessed the incident, but he was present nearby the place of incident as is evident from his cross-examination. It has also come in his cross-examination, that at the time of lodging the report, P.W. 5 Usman and P.W. 2 Saeed were also present and he submitted the report in terms of what P.W. 5 Usman stated. Therefore, the report lodged by Mohd. Umar cannot be said to have an adverse effect on the prosecution case. That apart, mere presence of few persons from the side of complainant at the Police Station at the time of lodging the report of an incident cannot be said to be fatal to the prosecution case. Therefore, the report lodged by Mohd. Umar cannot be said to have an adverse effect on the prosecution case. That apart, mere presence of few persons from the side of complainant at the Police Station at the time of lodging the report of an incident cannot be said to be fatal to the prosecution case. So far as relationship between the Investigating Officer and witness Umar is concerned, we have already discussed above that there was no relationship between the two at the time of incident and during the course of investigation. P.W. 2 Saeed has made it clear in his cross-examination that he and Ishaq Mohd. belong to the same community but he had no relationship with him at the time of incident. P.W. 27 Ishaq Mohd. was also cross-examined at considerable length and it has come in his evidence that he investigated the matter on 17-5-1999 and handed over investigation to Dharamveer Singh, Dy. Superintendent of Police on the very next day i.e. on 18-5-1999. From the crocs-examination of this witness, we do not find anything to suggest that Ishaq Mohd. in any manner acted with all intention. 20. A perusal of the Judgment under appeal shows that the learned trial Court has recorded a finding of guilt on the basis of testimony of eye-witness, which was found to be reliable, trustworthy and worthy of credence, being in corroboration with medical evidence. In our considered view the learned trial Judge has appreciated the evidence of eye-witnesses in true perspective and has correctly held the appellants guilty of causing injuries to the deceased. 21. Lastly, Mr. Sharma contended with vehemence that looking to the facts and circumstances of the case and the injuries sustained by the deceased, the case does not travel beyond Section 304, Part II, I.P.C. Referring the statements of P.W. 2 Saeed and P.W. 5 Usman, learned counsel argued that there was no previous emmity between the appellant and the deceased. Referring the medical evidence, learned counsel submitted that cause of death of deceased was excessive bleeding and none of the injuries either individually or collectively was sufficient in the ordinary course of nature to cause death. 22. We have pondered over the above argument. Referring the medical evidence, learned counsel submitted that cause of death of deceased was excessive bleeding and none of the injuries either individually or collectively was sufficient in the ordinary course of nature to cause death. 22. We have pondered over the above argument. To bring the offence within the purview of Section 304, Part II, I.P.C. what is required to be established is that the act of the accused was with the knowledge that it was likely to cause death but without intention to cause death or to cause such bodily injury as was likely to cause death. In the case at hand, appellant-Bhojraj inflicted a sword blow on the thigh of the deceased and appellant-Hemraj struck a sword blow on the buttock of the deceased. Had there been intention of the appellants to cause death of the deceased, they would have chosen vital parts of the body of deceased. Therefore, it can be said that appellants hit the deceased with the knowledge that it was likely to cause death or to cause such bodily injury as was likely to cause death, but in any case, intention to cause death cannot be inferred. In Kunhayippu vs. State of Kerala, (2000) 10 SCC 307 , the accused and deceased were in friendly mood when one asked for a glass of juice for the other. Shortly thereafter while the deceased had left the shop of P.W. 1, the accused went behind and gave the blow in question on the abdomen and further, the blow in question had been given from the back side and only a single blow had been given. In these circumstances, their Lordships were of the view that it is difficult for us to hold that the accused can be said to have the necessary intention of causing the murder of deceased while giving the blow in question, though ultimately the blow had become fatal. In Camilo Vaz vs. State of Goa, (2000) 9 SCC 1 = (2000 Cri LJ 1816), the accused hit a danda on the head of deceased with such force that deceased fell down and later succumbed to his injury. The Apex Court found that there was no evidence to show that appellant was bent upon killing the deceased. In Camilo Vaz vs. State of Goa, (2000) 9 SCC 1 = (2000 Cri LJ 1816), the accused hit a danda on the head of deceased with such force that deceased fell down and later succumbed to his injury. The Apex Court found that there was no evidence to show that appellant was bent upon killing the deceased. In these circumstances their Lordships held that the act of the appellant in hitting the deceased was done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. Again in Bhora vs. State of Rajasthan, (2000) 10 SCC 225 , the accused while quarrelling suddenly brought out a knife in anger and struck a knife blow on the chest of the deceased, which resulted in death of the deceased. Their Lordships, in these circumstances, held that it cannot be said that the accused gave knife blow with the requisite intention of causing murder of deceased and accordingly the accused was convicted under Section 304, Part II. I.P.C. 23. In the present case, the doctors who conducted autopsy were of the opinion that death was due to excessive bleeding. The post-mortem report indicates number of ante-mortem injuries but all the internal organs and skull of the deceased were found to be normal. It is further evident that none of the injuries, either individually or collectively was sufficient in the ordinary course of nature to cause death of the deceased. In these circumstances, we are of the firm view that the case does not fall under any one of the four clauses of Section 300, I.P.C. It rather fall within the range of culpable homicide not amounting to murder. Therefore, we hold the appellants guilty for offence under Section 304. Part II, I.P.C. 4.24. On the question of sentence, learned counsel for the appellant contended t hat in the facts and circumstances of the case, and the manner in which the incident took place, some leniency may be extended to the appellants and they may be sentenced to the period already undergone by them. 25. We have considered the above argument. On the question of sentence, learned counsel for the appellant contended t hat in the facts and circumstances of the case, and the manner in which the incident took place, some leniency may be extended to the appellants and they may be sentenced to the period already undergone by them. 25. We have considered the above argument. Keeping in view the facts and circumstances of the case, the manner in which the incident took place, the fact that appellant never wanted to kill the deceased, as also the fact that both the appellants inflicted one blow each on the thigh and buttock of deceased and did not repeat the blows, we deem that ends of justice would be met if the appellants are sentenced to the term of five years. 26. In the result, the appeal is partly allowed. The conviction of the appellants under Section 302, I.P.C. and the sentence awarded thereunder are set aside. Instead both the appellants are convicted for offence under Section 304, Part II, I.P.C. and each of them is sentenced to rigorous imprisonment for five years. It is made clear that the appellants or any one of them, if already under gone the sentence passed by this Court, hel they, as the case may be, be released forthwith if not required in any other case.