JUDGMENT Hon’ble R.P. Vadav, J.—This criminal appeal has been filed under Section 374 (2) of Code of Criminal Procedure against the judgment and order dated 22.12.95 passed by the Special/Additional Sessions Judge, Faizabad in Session Trial No. 130 of 1992 convicting the appellants Ram Charitra, Pradeep Kumar, Ram Dular and Jai Prakash under Sections 452, 323 and 325/34 l.P.C. and sentencing each of them to undergo six months rigorous imprisonment under Section 452 l.P.C, three months rigorous imprisonment under Section 323 l.P.C. and one year rigorous imprisonment and fine of Rs. 200/- under Section 325/34 l.P.C. and further convicting appellant Ram Dular under Section 436 l.P.C. and sentencing him to undergo rigorous imprisonment for a period of three years and fine of Rs. 1000/-. Various sentences of imprisonment have been awarded to the appellants in default of payment of fine. 2. It appears from the material on record that appellant Pradeep Kumar and Jai Prakash are real brothers They are sons’ of appellant Ram Dular. Appellant Ram Charitra is the nephew of Ram Dular, whereas complainant Chandra Bhan PW-1, Santram PW-2 and Maniram PW-3 (injured) are the real brothers and Ram Ajor (injured) is step brother of Chandra Bhan. Their houses lay adjoining to each other. 3. The occurrence is said to have taken place on 15.03 90 at 8:30 p.m. It is alleged by the prosecution that appellant Ram Charitra alongwith Pradeep Kumar and Jai Prakash went to the house of Sant ram PW-2 and asked for a pump for filing the air in the cycle and on denial of Santram PW-2 that he was not possessed of any pump, the aforesaid trio are said to have assaulted him with kicks and fists. On the hue and cry of Santram PW-2, Chandrabhan complainant PW-1 reached there and tried to close the door of the house from outside, but appellants Pradeep Kumar and Jai Prakash succeeded in running away, whereas appellant Ram Charitra continued to assault Santram PW-2 inside the house. Shortly thereafter, appellant Pradeep Kumar armed with lathi and appellant Jai Prakash armed with Pharsa alongwith his father Ram Dular appellant appeared on the scene and assaulted Santram PW-2, Maniram PW-3 and Ram Ajor. Appellant Ram Dular is said to have set fire to thatched OSARA of Santram P.W.2. Shortly thereafter, appellant Pradeep Kumar armed with lathi and appellant Jai Prakash armed with Pharsa alongwith his father Ram Dular appellant appeared on the scene and assaulted Santram PW-2, Maniram PW-3 and Ram Ajor. Appellant Ram Dular is said to have set fire to thatched OSARA of Santram P.W.2. On the alarm raised by Chandrabhan complainant P.W. 1 and Santram P.W. 2, some persons of village reached the spot, where after appellants are said to have escaped away. 4. Complainant Chandrabhan PW-1 alongwith Maniram P.W. 3 went to the Police Station, where he lodged report (Exhibit Ka-1). Formal FIR was drawn at 21.45 hours and, thereafter, Maniram P.W. 3 was sent for medical examination to Primary Health Centre, Tarun, District Faizabad on 16.3.90. Dr. DP. Prasad P.W-4 medically examined Maniram P.W.3 in the same night at 1.15 A.M. and found the following injuries on his person : (1) L.W. of 5 cm X 0.5 cm X muscle deep on scalp Rt. side 10 cm above the upper border of Rt. pinna, direction is longitudinal. (2) Traumatic swelling of 12 cm X 12 cm on back of Lt Palm, Deformity in the proximal Phalanx of middle finger presents. (3) Reddish contusion of 10 cm X 2 cm back Lt. side 8 cm above the lower angle of left scapular. (4) Reddish contusion of 5cm X 1 cm back. 10 cm. medial to the injury No. 3. (5) Reddish contusion of 15 cm X 2 cm on back Lt side 20 cm below lower angle of Lt. scapular. (6) Reddish contusion of 10 cm X 2 cm in back Rt. side 12 cm. below lower angle of Rt scapular. 5. The doctor prepared report (Exhibit Ka-2). Injuries No. 1 & 2 were kept under observation and also referred to District Hospital, Faizabad for X-ray skull and for X-ray of injury No. 2. In the opinion of the doctor, blunt object except injuries No. 1 and 2 caused all injuries and other injuries were simple in nature Duration was about fresh. On X-ray, which was done in the District Hospital, Faizabad on 16.03.90, fracture of third metacarpal bone and proximal phallynx of middle finger of left hand was seen. 6. Injured Ramajor was medically examined by Dr. R.P. Pandey, P.W. 6 on 16.3.1990 at 1.30 p.m., who found the following injuries on his person : (1) Traumatic swelling 10 cm.X 6 cm. 6. Injured Ramajor was medically examined by Dr. R.P. Pandey, P.W. 6 on 16.3.1990 at 1.30 p.m., who found the following injuries on his person : (1) Traumatic swelling 10 cm.X 6 cm. On left hand outer side and interior side. (2) Abrasion with soft scale 9 cm. X 1cm. On middle side of right elbow. (3) Abrasion 1 cm. XI cm. on left shoulder. (4) Loss of lower lateral incisor on left side. Doctor advised X-ray of injury No. 1 and injury No. 4 be referred to Dental Surgeon. Rest of injuries were simple caused by blunt object. Injury report prepared by Dr. Pandey is Exhibit Ka-4. 7. Shri Sudama LAL S.I, who submitted charge sheet against all the appellants, investigated the case. 8. Appellants denied the prosecution allegations and pleaded not guilty. 9. Besides formal evidence of the Medical Officer and the Investigating Officer, the prosecution examined P.W. 1 complainant Chandrabhan, P.W.1 Santram P.W. 2 and P.W. 3 Maniram. Ram Ajor and Maniram P.W. 3 are said to have sustained injuries in this occurrence, which were allegedly inflicted by appellants Ram Charitra, Pradeep Kumar, Ram Dular and Jai Prakash. According to their evidence, Ram Dular appellant participated in the Marpit and also set fire to thatched OSARA of Sant Ram P.W. 2. S.I. Sudama Lal P.W 7. who inspected the spot on 16.03.90, prepared site plan and found burnt ashes on the spot and took sample of the burnt Osara in the Police custody and prepared memo Exhibit Ka-8 thereof. 10. The appellants adduced no evidence oral or documentary. 11. The learned Additional Sessions Judge on appraisal of evidence found the charges established against the appellants beyond reasonable doubt. Therefore, he convicted and sentenced all the appellants in the manner stated above. It is against this order of conviction and sentence that the present appeal has been filed. 12. It is submitted by the learned Counsel for the appellants that according to the prosecution case appellant Jai Prakash was carrying Pharsa and he gave blow with the same on the head of Maniram P.W.3, but the medical evidence does not show any injury of Pharsa or any injury caused by any sharp edged weapon on the person of Maniram P.W. 3, therefore, the possibility of false implication of appellant Jai Prakash could not be ruled out. The learned A.G.A. while supporting the judgment of learned trial Court, has urged that according to the evidence of appellant Santram P.W.2, appellant Jai Prakash had used Pharsa from the blunt side and, so, the injury found on the skull of Maniram P.W. 3 was lacerated wound. However, it is proved from the record that there is no injury of sharp edged weapon on the person of injured Ram Ajor. This part of the prosecution case, therefore, not being corroborated by the medical evidence cannot be accepted use of Pharsa from blunt side is an after thought version and cannot be swallowed without demur. In the FIR, it was specifically stated that appellant Jai Prakash hit Maniram P.W. 3 with Pharsa and rest of the appellants assaulted with lathi and danda. In the conspectus of the matter, the participation of appellant Jai Prakash in the incident in question cannot be said to be proved beyond reasonable ray of doubt and he was entitled to acquittal. 13. It is next contended that appellants Ram Charitra, Pradeep Kumar and Jai Prakash are said to have gone together and asked for air pump from Santram PW-2. When he refused to give the same, as he was not having any pump, all the three appellants entered his house and assaulted him. It is also prosecution case that complainant Chandrabhan PW-1 had closed the door from outside, but there was no mention that appellants Pradeep Kumar and Jai Prakash had escaped away before complainant Chandrnbhan. P.W. 1 could close the door from outside. It is, therefore, suggested that from the circumstances, it appears that it was only appellant Ram Charitra with whom first part of the incident took place and it was he, who had demanded the pump from Santram P.W. 2 and probably on account of some altercation appellant Ram Charitra entered his house and while appellant Ram Chantra and Santram P.W. 2 were inside the house, complainant Chandrabhan PW-1 closed the door from the outside. It is argued that in the evidence an effort has been made by the prosecution to advance an after thought version that while complainant Chandrabhan P.W. 1 was closing the door from outside, appellants Pradeep Kumar and Jai Prakash succeeded in getting away, but looking to the version given in the FIR this argument of the learned Counsel for the appellants cannot be said to be without any substance. Perusal of the FIR shows that all the three appellants were inside the house assaulting Santram P.W. 2 while complainant Chandrabhan P.W. 1 had closed the door. The Development was made in the evidence and an after thought version was given by the witnesses that two appellants went away when complainant Chandrabhan P.W. 1 was trying to close the door from outside. It is clearly an embellishment and after thought version, which cannot be, reasonable accepted. In this way participation of Pradeep Kumar and Jai Prakash appellants in the occurrence, which took place inside the house is not proved beyond reasonable doubt. 14. It is further submitted by the learned Counsel that according to the prosecution case itself all the three appellants were unarmed when they allegedly entered the house of Santram PW-2 and on account of some altercation, they allegedly assaulted him. It is argued that when they were unarmed, there was no preparation for causing hurt and so. It cannot be a case under Section 452 IPC. 15. The phraseology of Section 452 IPC, according to the learned Counsel is, eloquent enough to show that not only mere house trespass, but it should be preceded by preparation for causing hurt to any person or for assaulting any person etc., that brings the offender to the fold of Section 452 IPC. 16. In the present case, there was no preparation for causing hurt when the appellants allegedly went to the house of P.W.2 Santram for taking pump, so, the case cannot be said to be falling under Section 452 IPC. Remaining part of the incident had taken place outside the house, so the conviction of appellants under Section 452 IPC is not legal and it has to be set aside. 17. Remaining part of the incident had taken place outside the house, so the conviction of appellants under Section 452 IPC is not legal and it has to be set aside. 17. Learned Counsel has further urged that when the part of the prosecution case is not substantiated by the evidence on record or has been found to be conflicting with the medical evidence, there is no guarantee that the remaining part of the prosecution case is correct. Submission of the learned Counsel is that when participation of appellant Jai Prakash is not proved and assault by the appellants Pradeep Kumar and Jai Prakash inside the house is also doubtful, then it is a fit case where the benefit of doubt should be extended the all accused appellants. Learned Counsel has also submitted that PW-2 Santram is said to have been assaulted inside the house and complainant Chandrabhan outside the house and record shows that they did not sustain any injury in the incident in question and no medical examination of PW 2 Santram and PW 1 complainant Chandraban was got done, therefore, it cannot be said that they had actually sustained any injury. So far as PW. 2 Santram is concerned, he is said to have been beaten with kicks and fists inside the house. Only appellant Ram Charitra was inside the house who had assaulted him with kicks and fists, so it was possible that he might not have sustained any external injury and this might be the reason that his medical examination was not got done. Complainant Chandrabhan PW. 1 was also not subjected to any medical examination although he says to have sustained injury in the incident in question. It was he who took Maniram PW. 3 to the police station and from there to Primary Health Center. This fact is corroborated from GD entry of the Police Station. Therefore, his presence on the spot cannot be doubted. It has already been found that he had no external injury or the injury was so negligible that he did not get himself medically examined. 3 to the police station and from there to Primary Health Center. This fact is corroborated from GD entry of the Police Station. Therefore, his presence on the spot cannot be doubted. It has already been found that he had no external injury or the injury was so negligible that he did not get himself medically examined. But there is absolutely no reason for lodging a false report’ by him at police station, although the appellants have pleaded that Ram Dular was Pradhan of the village and he had given evidence in some case against one brother of Chandrabhan complainant P.W. 1 and that there was also some dispute with regard to payment of wages to PWs, but no documentary evidence was produced to substantiate the complainant had no animus or axe of his own to grind by falsely implicating these appellants Therefore, their evidence cannot be rejected in toto. However, upholding the conviction, it would be prudent and lawful to seek corroboration of the ocular evidence from the medical evidence and other circumstances. So far as the participation of appellant Jai Prakash is concerned, same is not corroborated by the medical evidence and theory of assault by appellants Pradeep Kumar and Jai Prakash inside the house is belied by the circumstances. Therefore, despite the fact that the version of the prosecution to this extent is not being accepted, it would not be legally justified to reject whole of the prosecution story. The function of the Court is to separate the grain from the chaff in order to arrive at the truth and in case any part of prosecution case is not proved beyond reasonable doubt, that can not warrant the rejection of the whole case. Even after rejecting one part, remaining part of the prosecution case can be accepted. Falsus in uno, falsus in omnibus is not the sound principle of law. It would be justified to give benefit of doubt to accused appellant Jai Prakash on account of the fact that part of the prosecution case has been held to be not proved beyond reasonable doubt. 18. Lastly, it was submitted that appellant Ram Dular is aged about 90 years and deserves leniency in the matter of punishment. On 26.10.92, when appellant Ram Dular was examined under Section 313 Cr.PC, he was aged about 73 years. 18. Lastly, it was submitted that appellant Ram Dular is aged about 90 years and deserves leniency in the matter of punishment. On 26.10.92, when appellant Ram Dular was examined under Section 313 Cr.PC, he was aged about 73 years. This point was argued before the learned additional Sessions Judge also and considering his age, he awarded only 3 years rigorous imprisonment to the appellant Ram Dular for the offence punishable under Section 436 IPC Learned Counsel has relied on the case of Ram Das Singh and others v. State of Bihar, 2000 (2) JIC, 935 (SC) where the appellant aged about 80 years was convicted under Section 436 l.P.C. for having set fire to a house worth Rs. 500/- and was convicted for 3 years R.I the Hon’ble Apex Court reduced the sentence to already undergone and fine of Rs. 1000/-. 19. Learned Counsel has submitted that it was not physically possible for appellant Ram Dular to have participated in the marpit or set fire to the house of Sant Ram P.W. 2, but the learned Additional Sessions judge after discussion of entire evidence has concluded that he participated in the marpit. He was also responsible for causing injury to Ram Ajor and PW 3 Maniram. Therefore, he was also liable for the offence punishable under Section 323 IPC and since he was alone who set fire to Osara (thatch) of complainant Chandrabhan P.W. 1, therefore, he was liable for conviction under Section 436 IPC also. No illegality could be shown by the learned Counsel for the appellant in the appreciation of this part of evidence by the Court below. On perusal of the evidence 1 find that all the three witnesses have consistently deposed that it was appellant Ram Dular, who participated in the marpit and set fire to the OSARA. There was no infirmity in this part of evidence and therefore, the learned Addl. Sessions Judge has rightly accepted their evidence and convicted appellant Ram Dular under Sections 323 and 436 IPC also. 20. It is further submitted by the learned Counsel that appellants Pradeep Kumar and Jai Prakash did not enter the house of Santram P.W. 2 and they participated in the occurrence which took place outside the house, in which Mani Ram P.W. 3 and Ram Ajor sustained injuries. 20. It is further submitted by the learned Counsel that appellants Pradeep Kumar and Jai Prakash did not enter the house of Santram P.W. 2 and they participated in the occurrence which took place outside the house, in which Mani Ram P.W. 3 and Ram Ajor sustained injuries. Appellant Ram Charitra, who was locked inside the house of Santram came out only after the door was opened from outside, after arrival of three other appellants. Appellant Ram Charitra was having no arm and so his participation in the occurrence, which took place outside the house, was not probable because some of the appellants had assaulted with lathi and Danda. I find force in this argument because the prosecution witnesses have no where stated that appellant Ram Charitra picked up any arm and participated in the latter part of the incident. He therefore, cannot be convicted for having assaulted Mani Ram P.W. 3 and Ram Ajor and his conviction on that count will have to be set aside. 21. The incident had taken place in front of the house of Santram, but it has come in the evidence that the house of complainant Chandrabhan P.W. 1 and Santram P.W. 2 are adjoining to each other and the thatched OSARA which was said to have been set to fire belonged to complainant Chandrabhan. P.W. 1. The appellants Counsel has contended that thatch OSARA is not a dwelling house. So, the conviction could not have been recorded under Section 436 IPC because Section 436 IPC is attracted only when the mischief caused results in destruction of a building which may either be brick or mud built or building of some such other durable material. A thatched roof enclosed on all sides with wall of any kind meant for the custody of property and human dwelling would be building within the meaning of Section 436 IPC. The word “building” cannotes something which is exclusively used for human habitation of a person or group of persons. Witnesses have stated that it was Rehaishi (residential) OSARA. So, it was part of building within the meaning of Section 436 I.P.C. 22. It is a matter of common knowledge that generally Osara is outside the house and sometime it is built only for protecting from the rain and it is also used for sitting and sleeping purposes and also keeping property. So, it was part of building within the meaning of Section 436 I.P.C. 22. It is a matter of common knowledge that generally Osara is outside the house and sometime it is built only for protecting from the rain and it is also used for sitting and sleeping purposes and also keeping property. But in the present case, evidence has been adduced to show that the Osara was being used as a place for human dwelling or for protection of property. In the circumstances, it has to be held that destruction of this OSARA by fire was an offence punishable under Section 436 IPC. 23. It is not proved as to whose blow had caused the grievous injury to Maniram (P.W.3), nor there is any evidence to show that this grievous injury was caused in furtherance of common intention. So, it is not possible to uphold the conviction of any of the appellants for the charge of 325 or 325/34 IPC. 24. In view of forgoing discussion and conclusion, the appeal of appellants Jai Prakash deserves to be allowed, whereas the conviction and sentence of appellant Ram Dular under Sections 323 and 436 IPC is maintained. The conviction and sentence of appellant Ram Charitra under Section 323 IPC for having assaulted Santram P. W. 2 is upheld, but his conviction for other offences is liable to be set aside. 25. In the result, the appeal is partly allowed. The conviction and sentence of appellant Jai Prakash for the offences punishable under Sections 323,325/34 and 452 IPC are set aside. He is acquitted of the charges levelled against him. His bail bonds are cancelled and sureties are discharged. 26. Appellant Ram Charita is acquitted under Sections 323 (two counts for causing injuries to Maniram and Ram Ajor), 452 and 325/34 IPC, but his conviction and sentence under Section 323 IPC for causing injury to Santram P.W. 2 is upheld. 27. The conviction and sentence imposed on appellant Ram Dular under Sections 323 and 436 IPC are maintained. His conviction and sentence for the offence punishable under Section 325/34/is set aside. However, his sentences are modified and he is punished with the sentence of imprisonment already undergone and the fine of Rs. 1000/-. In default of payment of fine, he will undergo simple imprisonment for a period of three months. 28. His conviction and sentence for the offence punishable under Section 325/34/is set aside. However, his sentences are modified and he is punished with the sentence of imprisonment already undergone and the fine of Rs. 1000/-. In default of payment of fine, he will undergo simple imprisonment for a period of three months. 28. The conviction and sentence of appellant Pradeep Kumar under Section 323 I.P.C. (two counts for assaulting Mani Ram and Ram Ajor) is confirmed but his conviction and sentence under Section 323 IPC for having assaulted Santram P.W. 2 and under Sections 325/34 and 452 I.P.C. are set aside. His sentence under Section 323 I.P.C. for the period of three months with fine of Rs. 200/- and in default of payment of fine to undergo sentence of imprisonment as awarded by the Court below is confirmed. 29. Sentences awarded to the said appellants shall run concurrently. 30. Let a copy of this judgment be sent to Sessions Judge, Faizabad, who will ensure compliance of this judgment and submit a compliance report within three months. Appeal partly Allowed. ———