A. K. SHRIVASTAVA, J. ( 1 ) THE two appeals have been preferred by Mithilesh and rakesh Kumar who were tried and convicted by trial Court. Appellant Mithilesh of Criminal Appeal No. 1069/1990 was held guilty of offence under Section 302 of Indian Penal Code (hereinafter referred to as the IPC')and appellant Rakesh Kumar of Criminal appeal No. 903 of 1990 was found guilty under Section 302 read with Section 34 of ipc. Both the appellants have been directed to suffer rigorous imprisonment of life. ( 2 ) IN brief the case of prosecution is that on 1 -11 -1989 at 9. 30 a. m. one Govind Singh and his cousin brother Mukesh (hereinafter referred to as the deceased') were going to their fields, on the way accused persons met them. Govind Singh made a demand to return Rs. 100/- from accused Rakesh, which he borrowed from him a month earlier to the incident, as a result of which accused persons hurled abuses to said Govind Singh as well as to deceased. Govind Singh refrained the accused persons and asked to re-pay the loan amount as soon as possible. Thereafter, Govind Singh and deceased went to their fields. It be seen that in the township of Kareli, the house of Govind Singh and deceased are in front to each other. On the same day in the night at 10-10. 30 p. m. accused persons arrived in front of the house of deceased and hurled the abuses and on being refrained by Govind and deceased they went away. Thereafter, accused persons again arrived after half an hour and again started showering the filthy abuses, at that juncture the main door of Govind Singh was open. The locality was enlighted by tubelight installed by Municipality. At that juncture, deceased was going to evacuaie. it. is said that appellant Rakesh was canying a ballam. On seeing the deceased, accused mithilesh snatched Ballam from Rakesh and inflicted its blow on the neck region of deceased and the Ballam was penetrated to go such deep as it could not be taken out from the neck. On hearing hue and cry, several persons including Ravi Raghuvanshi, prahlad Raghuvanshi, Santosh Raghuvanshi and Sunder Raghuvanshi arrived at the spot. These persons saw the incident. Thereafter accused persons fled from the spot. On hearing hue and cry, several persons including Ravi Raghuvanshi, prahlad Raghuvanshi, Santosh Raghuvanshi and Sunder Raghuvanshi arrived at the spot. These persons saw the incident. Thereafter accused persons fled from the spot. Govind Singh, thereafter went to lodge report in police station Kareli, on the way santosh came and informed that the deceased was being brought in a bullock-cart but on the way he passed away. Thereafter, first information report was lodged on 1-11-1989 at 11. 55 in the night by Govind Singh. ( 3 ) ON lodging of First Information report, the criminal law set in motion. The police party arrived on the spot on 2-11-1989 at 9 in the morning and at the instance of Govind Singh prepared the spot map. The Panchayatnama of dead body was prepared and the dead body was sent for post-mortem in Government Hospital, Barman because facility of post-mortem was not available in Kareli hospital. Since no doctor was available on that day, Dr. Ishwari Prasad varma was called from Primary Health Centre, Chawarpatha who conducted the postmortem at Barman hospital on 2-10-1989 at 11. 30 a. m. The doctor found one penetrating wound in the neck of deceased. During post mortem, Dr. Ishwari Prasad varma took out the blade of Ballam from neck and after sealing it handed it over to the constable along with the dead body. ( 4 ) IN furtherance to his investigation, the investigating officer seized ordinary and blood stained earth from the spot; seized undergarments of the deceased which were received from hospital in a packet and the ballam used as weapon in commission of offence; arrested accused persons on 9-11-1989 and sent the seized articles for chemical examination. ( 5 ) AFTER completing the investigation, a charge sheet was submitted in competent court which committed the case to the Court of Session where appellants were tried. ( 6 ) APPELLANT Mithilesh was charged under Section 302 IPC and appellant Rakesh was charged under Section 302/34 IPC. Both the accused persons abjured their guilt. ( 7 ) IN order to prove the charges, the prosecution examined as many as 5 witnesses and placed Exs. P-l to P-12 the documents on record. ( 6 ) APPELLANT Mithilesh was charged under Section 302 IPC and appellant Rakesh was charged under Section 302/34 IPC. Both the accused persons abjured their guilt. ( 7 ) IN order to prove the charges, the prosecution examined as many as 5 witnesses and placed Exs. P-l to P-12 the documents on record. ( 8 ) THE learned trial Judge after appreciating and marshalling the evidence came to hold that appellants did commit the offences for which they were charged and eventually passed the sentence to suffer rigorous imprisonment for life. Hence this appeal. ( 9 ) WE have heard Shri S. C. Datt, learned senior counsel with Shri Siddharlha Datt for appellants and Shri R. S. Patel, learned public prosecutor for respondent. ( 10 ) THE star witness of prosecution are pw-1 Govind Singh and PW-3, Ravi Singh raghuvanshi. Since they are eye-witnesses, their evidentiary value is on higher footing. ( 11 ) PW-1, Govind Singh is not only an eye-witness but is also author of first Information Report (Ex. P/1 ). In his evidence, he has proved FIR. In his deposition, he has categorically stated that on the fateful day in the morning when he and deceased were going to the fields, nearby river, both the appellants met, they were showering filthy abuses because accused Rakesh did not return the loan amount Rs. 100/- which he borrowed from him. Deceased refrained them to hurl the abuses thereafter this witness along with deceased went to his filed in the night when this witness was in his house, accused persons came nearby the house of deceased and again started showering the filthy abuses and thereafter they went back. At that juncture also, deceased pacified them. However, again after 25-30 minutes accused persons arrived at the spot, at that juncture appellant Rakesh was carrying a Ballam and accused Mithilesh was bare handed. At that time, deceased was going to evacuate, at that time Rakesh hurled the abuse of mother and asked mithilesh to kill him. Thereafter appellant rakesh gave Ballam to Mithilesh and directed to kill the deceased and ultimately accused Mithilesh penetrated the Ballam on his neck, as a result of which deceased shrieked and fell down. Thereafter accused persons fled from the spot. ( 12 ) THIS witness has categorically stated that the incident was witnessed by Sunder singh, Ravi Singh, Prahlad Singh and santosh Singh. Thereafter accused persons fled from the spot. ( 12 ) THIS witness has categorically stated that the incident was witnessed by Sunder singh, Ravi Singh, Prahlad Singh and santosh Singh. The source of light was also told by this witness since a tube light of the pole was on. This witness was going to lodge the report and when he was on way, Ravi and Santosh after keeping the deceased in a bullock cart were also going to hospital. However, deceased could not survive and he died. San tosh informed him that deceased is now no more in the world. Thereafter he went to lodge the report. He has proved the first Information Report Ex. P-1. Though in earlier part of his statement, this witness has said that appellant Rakesh by handing over the Ballam to Mithilesh directed him to kill the deceased but in cross-examination, he specifically admitted that this version does not find" place in FIR (Ex. P/1 ). This fact did not find place in his police statement Ex. D-1. The police statement of the witness was confronted to him and he expressed his inability that why this fact has not been mentioned in it. Except this infirmity, there is nothing in the statement of this witness in order to hold that this witness is not reliable. In very specific words, pw-1, Govind Singh has said that Mithilesh inflicted Ballam blow on the neck of the deceased, as a result of which he fell down and soon thereafter he passed away. After carefully X-raying the evidence of this witness, we could not find this witness to be worth not reliable. The evidence of this witness so far as it relates to appellant Mithilesh is clear, cogent and trustworthy. From any angle this witness cannot be held to be unreliable. ( 13 ) THE evidence of PW-1, Govind Singh is corroborated by the evidence of Ravi Singh (PW-3 ). This witnesss has said that in the tube light he saw accused Rakesh carrying a Ballam without handle and accused mithilesh was standing bare handed. These persons were showering the filthy abuses to deceased. Appellant Rakesh passed on ballam to Mithilesh, who later on stabbed it in the neck of deceased, as a result of which mukesh screamed and fell down. Sunder and Prahlad also arrived at the spot, thereafter appellants fled from the spot. These persons were showering the filthy abuses to deceased. Appellant Rakesh passed on ballam to Mithilesh, who later on stabbed it in the neck of deceased, as a result of which mukesh screamed and fell down. Sunder and Prahlad also arrived at the spot, thereafter appellants fled from the spot. ( 14 ) THIS witness has further stated that deceased was being carried in a bullock cart to the hospital, however, on the way he died. This witness has stated that before Ballam blow was dealt by Mithilesh, appellant rakesh hurled the abuse of mother and said mithilesh to kill the deceased. It be seen that in his police statement, there is a complete omission of this important fact that appellant Rakesh passed on the Ballam to mithilesh and directed him to kill the deceased. On being confronted by his police statement Ex. D/2, this witness said that though he told the said version but he cannot say why the same is not written by the police. Apart from the aforesaid material omission, there is nothing in his testimony in order to disbelieve him so far as the implication of accused Mithilesh is concerned. This witness was cross-examined from different angles but he remained vivid in his cross-examination and firmly stated that appellant Mithilesh caused injury by Ballam on neck region of the deceased, as a result of which he died. ( 15 ) THE evidence of abovesaid two eyewitnesses has been further corroborated by medical evidence. Autopsy Surgeon, PW-2, dr. Ishwari Prasad Varma, conducted the postmortem of deceased and found the blade inside the neck. His post-mortem report is ex. P. 3. According to autopsy surgeon, the deceased died on account of Asphyxia due to collapse of right lung caused by penetrating wound by sharp edged (double edged weapon) like Ballam. ( 16 ) ON scanning the evidence of eye-witnesses and the evidence of autopsy surgeon, a clear picture has been formed that appellant Mithilesh dealt a blow of Ballam on the neck region of the deceased which made a cause of his death. According to our considered view, learned Trial Judge did not err in holding that on account of Ballam blow which was dealt by Mithilesh, deceased breathed his last. According to our considered view, learned Trial Judge did not err in holding that on account of Ballam blow which was dealt by Mithilesh, deceased breathed his last. ( 17 ) IT has been contended by Shri Datt, learned senior counsel that appellant rakesh has been wrongly implicated under section 302/34 IPC and learned Trial Judge contrary to evidence has convicted him under the said offence. It be seen that In the fir (Ex. P-1) the only role assigned to appellant Rakesh is that he was showering filthy abuses to deceased. True he was holding ballam at that juncture but he did not used it. Merely carrying a Ballam and showering filthy abuses would not be sufficient to include Rakesh in the offence under Section 302/34 IPC. On going through the FIR as well as the police statement of the abovesaid eye-witnesses, it is crystal clear that appellant Rakesh was carrying Ballam which was snatched by accused Mithilesh from his hand and thereafter he inflicted its blow to the deceased. Neither in the police statement nor in the FIR, there is a whisper that appellant Rakesh insisted appellant Mithilesh to kill the deceased. True appellant Rakesh was showering filthy abuses half an hour prior to incident but later on he went back to his home and again arrived at the spot along with the appellant Mithilesh. Though rakesh again hurled the abuses but nowhere in the FIR or in the police statement of eye-witnesses, it has come that he insisted mithilesh to kill the deceased. Mere presence and showering filthy abuses to the deceased is not sufficient to implicate him under Section 302/34 IPC. The evidence of pw-1. Govind Singh and PW-3, Ravi implicating appellant Rakesh, according to us is plantation of evidence. Since on the material point there is a complete omission implicating Rakesh. ( 18 ) IF the evidence of author of FIR govind Singh as well as other eye-witness ravi is scrutinized on the anvil of FIR and their statements recorded under Section 161 cr P. C,. it would reveal that there are material Improvements in their evidence in order to implicate Rakesh in the crime. In FIR and in the police statement, there is no iota of evidence that Rakesh firstly passed over the Ballam to Mithilesh and then directed him to kill the deceased. it would reveal that there are material Improvements in their evidence in order to implicate Rakesh in the crime. In FIR and in the police statement, there is no iota of evidence that Rakesh firstly passed over the Ballam to Mithilesh and then directed him to kill the deceased. Though when these witnesses appeared and examined before the court, in singular voice they have implicated accused Rakesh by saying that Rakesh handed over Ballam to Mithilesh and directed him to kill the deceased. According to us, this amounts to material improvement in the evidence and therefore that part of the testimony of these two witnesses could not be placed reliance, in order to convict appellant Rakesh. If a witness not stating a material and important particular fact to the police in the course of investigation and if the prosecution has tried to prove the said fact through the said witness, according to us. evidence of that witness regarding the said fact is to be ignored as it has no significance. ( 19 ) THE important infirmities and material omission which we have highlighted herein above give rise to serious doubts as to the prosecution case and involvement of appellant Rakesh in the commission of the offence. in the case of State of Haryana v. Jai Parkash, (2002) 9 SCC 663 : (2000 Cri l. J 4995) the Supreme Court while considering the material discrepancy came in the evidence of two star prosecution witnesses came to hold that there have been so many material improvements in their testimony and it was difficult to place reliance on their testimony. In the present case also, we have noticed hereinabove the material improvement and omission in the evidence of Govind singh and Ravi Singh and therefore we are unable to hold that appellant Rakesh is guilty on the basis of the abovcsaid two eyewitnesses. In the present case also, we have noticed hereinabove the material improvement and omission in the evidence of Govind singh and Ravi Singh and therefore we are unable to hold that appellant Rakesh is guilty on the basis of the abovcsaid two eyewitnesses. In the case of Kalyan v. State of u. P. , (2001) 9 SCC 632 : (2001 Cri LJ 4677), the Apex Court while dealing with the situation that on account of variance between the FIR and the deposition made in the court, the trial Court acquitted the accused persons, but High Court in appeal being preferred by the State convicted the accused persons by setting aside the judgment of acquittal passed by the trial Court, held that if there is variance between the FIR and the deposition made in the Court, High Court erred in setting aside the acquittal of appellants merely on possibility of alternative view. In the present case also, there is complete omission of implication of appellant rakesh in the FIR as well as in the statement of Govind Singh. Similarly in the police statement of Ravi this important and material fact has been completely omitted and therefore according to our considered view so far as the testimony of these two witnesses implicating appellant Rakesh should not be given any credence. According to us, learned Trial Judge erred in law in convicting the appellant under Section 302/34 IPC and therefore his conviction is liable to and is hereby set-aside. ( 20 ) THE question which would now arise for consideration is that if a part of the testimony of abovesaid two witnesses is disbelieved by us whether we are bound to hold that the entire evidence of abovesaid two witnesses should be discarded. It be seen that the maxim of Falsus in uno falsus in omnibus is not at all applicable in the criminology prevailing in India. Merely because one portion of evidence of eye-witness is disbelieved would not mean that Court is bound to reject his entire evidence. Thus, the nonacceptance of the testimony of abovesaid two eye-witnessess" on the count regarding involvement of the accused Rakesh in the offence would not render their evidence in respect of involvement of accused Mithilesh can be suspected. Merely because one portion of evidence of eye-witness is disbelieved would not mean that Court is bound to reject his entire evidence. Thus, the nonacceptance of the testimony of abovesaid two eye-witnessess" on the count regarding involvement of the accused Rakesh in the offence would not render their evidence in respect of involvement of accused Mithilesh can be suspected. In this regard, we may profitably rely the decision of Apex Court in the case of Swaran Singh v. State of Punjab, (2000) 5 SCC 668 : (2000 Cri LJ 2780 ). On the basis of this decision, we can safely say that merely we have disbelieved that part of evidence of the abovesaid two star witnesses implicating appellant Rakesh, it would not mean that appellant Mithilesh would be benefited or he should also be treated in like manner. ( 21 ) SO far as the case of appellant mithilesh is concerned, it has been vehemently argued by Shri S. C. Datt, learned senior counsel that according to prosecution's own case only a single blow was dealt by the accused Mithilesh and therefore the case would not rest under Section 302 IPC and would come under the ambit and sweep of Section 304 Part-I IPC. The contention at the first blush, though appears to be quite attractive but on deeper scrutiny found to be devoid of any substance. True there is only a single blow which has been dealt by appellant Mithilesh but this fact cannot be marginalized and blinked away that the blow was fatal and was inflicted with a great force on the neck region which is a vital part of the body. We can admire the force of the blow that since the blade of the Ballam was fully penetrated inside the neck and could not be taken out. The autopsy surgeon while dissecting the dead body took out the blade and sealed it and handed it over to the investigating agency. ( 22 ) THOUGH, it is a case of single blow, but if we scan the post-mortem report (Ex. P/3) it would reveal that by applying a great force the blow was dealt and the blade in its entirety was inserted inside the neck and it was not taken out. ( 22 ) THOUGH, it is a case of single blow, but if we scan the post-mortem report (Ex. P/3) it would reveal that by applying a great force the blow was dealt and the blade in its entirety was inserted inside the neck and it was not taken out. For better understanding, it would be condign to re-write that passage of post-mortem report which reads thus:-"a iron weapon (Ballam) is found penetrating in throat obliquely from left to Rt. Side. Almost whole length of the blade is penetrated except the handle (Iron) of the weapon. Wounds - (1) Penetrating wound over throat obliquely from left to Rt. Side. Spindle shaped clean cut margins 2. 5" x 11/4 x (Full length of blade) 7". Situated 3" below the chin almost at middle of throat. No other External Injury seen over the body. Rigor mortis present over both upper and lower limbs and passed off from Head and Neck. Eyes-cornea hazy pupils dilated and fixed. Injury :- (1) Penetrating Injury -- Over throat 3" below chin at middle of throat obliquely situated from left to Rt. Side size - 2. 5" x 11/4 deep. Spindle shaped clean cut margins. It has reached up to upper portion of Rt. Lung 2" x and cut of lung up to back between 1st and 2nd rib and has reached up to back 1/4 deep from inside. Rt. Lung - Upper portion - congested. Dark purple clots of blood collected over it. Collapse of Rt. Lung has occurred due to the injury. On the basis of P. M. findings, in my opinion the cause of death is Asphyxia due to collapse of Rt. Lung caused by penetrating wound by sharp edged (double edged)weapon (Ballam ). Death might have taken place about 12-24 hours prior to p. m. Exam. Injury is Antemortem in nature. " ( 23 ) IN the case of State of U. P. v. Premi, (2003) 9 SCC 12 : (2003 Cri LJ 1554), the supreme Court while dealing a case of single blow held that merely because there was a single blow, it is not possible to accept the contention that the accused had no intention to kill and, therefore, the conviction deserves to be altered to be one falling under Section 304 IPC. As we have already given our bestowed consideration that the ballam was dealt with a great force and one can infer the gravity of the force that the blade of the Ballam was inserted in its entirety in the neck region of the deceased and it could not be taken out from the neck. Thus, merely there was a single blow which was inflicted on the neck region by itself is not enough to hold that appellant has not committed the offence under Section 302 ipc and it should be altered to 304 Part I ipc. We may also profitably rely another decision of the Supreme Court in the same volume Hari Prasad v. State of U. P. , (2003)9 SCC 60 wherein there was single gun shot injury and the Supreme Court was not impressed that merely there was a single gun shot injury, the case would not rest under section 302 IPC and would come under the ambit and sweep of Section 304 Part I IPC. It be seen that elements of mens rea and intention must accompany the culpable act or conduct of the accused. Mere intention is not punishable except when it is accompanied by an act or conduct or commission on the part of the accused. In the present case, the intention is coupled with the culpable act and conduct of the accused and, therefore, we are not impressed by the argument advanced by learned senior counsel that since a single blow was dealt, the case would rest under Section 304 Part I ipc. ( 24 ) AFTER giving our bestowed consideration to the post-mortem report, though it is a case of single blow but looking to the injury sustained to the deceased coupled with the fact that the blade of Ballam remained inside the neck, it can safely be said that it is a cold blooded murder and the appellant Mithllesh has been rightly held to be guilty of culpable homicide amounting to murder and according to us a case under section 302 IPC has been made out. We have given our anxious consideration to the reasoning assigned by learned trial Judge and we find them to be cogent. The reasonings so assigned are based on oral and documentary evidence placed on record and by this judgment, we hereby give our stamp of approval to the said reasonings. We have given our anxious consideration to the reasoning assigned by learned trial Judge and we find them to be cogent. The reasonings so assigned are based on oral and documentary evidence placed on record and by this judgment, we hereby give our stamp of approval to the said reasonings. ( 25 ) IN the result, Criminal Appeal No. 903/1990 filed by accused/appellant rakesh Kumar is allowed, his conviction under Section 302/34 IPC is set aside. He is on bail, his bail bonds are discharged. ( 26 ) CRIMINAL Appeal No. 1069/1990 filed by appellant Mithilesh is hereby dismissed. Order accordingly. .