JUDGMENT (Oral) Kochar, J. -- 1. The appellants have directed this appeal against the judgment and finding dated 9th September, 1996 passed by Third Additional Sessions Judge, Dewas in Sessions Trial No. 40/1989, whereby convicted the appellants under section 302 read with section 149 of the Indian Penal Code and sentenced to RI for life and fine of Rs. 500/- each; under section 148 of the Indian Penal Code RI for 2 years; and under section 25/27 of the Arms Act RI for one year. In default of payment of fine, further RI for one year. All the sentences ordered to be run concurrently. 2. In nutshell the prosecution case as unfolded before the trial Court is that on 22.3.1988 in the noon at 1:30 p.m. there was auction of Nagar Palika Barriers of Village Hatpipaliya. In this auction, the owner of Free Indian Bus Service resident of Dewas also came to participate. There was some sort of dispute on the issue of droping the passengers. At that moment, accused persons reached over there in a green colour Matador CIU 475 which was being driven by Shiv. In that Matador accused Salim was sitting. Thereafter, all the appellants conjointly having Dhariya, Farsi, loaded gun and Lathis came out of Nagar Palika and started asking about 'SETH' of Free India and they came to know that 'SETH' had already gone towards Bagli. Thereafter, accused persons entered inside the tea hotel of Vijay Singh and assaulted Wilson, the deceased. Appellant Kallu Pathan dealt a knife injury on the chest. Thereafter, all the appellants made a deadly assault upon the deceased and caused him injuries. After assaulting the deceased, accused persons ran away with their respective weapons in Matador. Deceased Wilson was lying in pool of blood in the hotel of Vijay Singh. Complainant Goverdhan went to Police Station Hatpipaliya and lodged the report Ex. P-15 on the basis of which Crime No. 67/1988 was registered by the police. Police took the dead body from the place of incident, prepared inquest, spot map and sent the dead body for postmortem examination. Post-mortem was performed by PW-5 Dr. Avtar Singh Saluja. His report is Ex. P-10. After arrest of the accused persons and necessary investigation appellants along with acquitted co-accused Shivnarayan charge-sheeted for the abovementioned offences. 3. The appellants and acquitted co-accused Shivnarayan denied the charges, therefore, put on trial. Post-mortem was performed by PW-5 Dr. Avtar Singh Saluja. His report is Ex. P-10. After arrest of the accused persons and necessary investigation appellants along with acquitted co-accused Shivnarayan charge-sheeted for the abovementioned offences. 3. The appellants and acquitted co-accused Shivnarayan denied the charges, therefore, put on trial. The learned trial Court after examining the prosecution and defence witnesses and hearing both the parties convicted the appellants while acquitting co-accused Shivnarayan from the charges as mentioned hereinabove. One of the co-accused Abbas s/o Amjad Khan Pathan died during the course of trial. 4. The learned counsel for the appellants has submitted that the statement of both the eye witnesses named PW 6 Poonamchand and PW 7 Goverdhan have been contradicted by the medical evidence of PW 5 Dr. Avtar Singh Saluja. According to both the eye witnesses all the accused persons assaulted the deceased by their respective weapon but the evidence of PW 5 Dr. Avtar Singh Saluja, deceased suffered only two injuries on left side of chest. Out of these two injuries, one injury proved fatal and another was superficial skin cut and that second injury was situated just by the side of injury No. 1. The learned counsel has also submitted that PW 6 Poonamchand is a chance witness. He was not resident of Hatpipaliya where the incident occurred. He was resident of Bag Ii. The learned counsel has also pointed out contradiction about the statement of prosecution witnesses about lifting of the dead body in the Matador or in "HAATH THELA". It has also been submitted that the eye witnesses have falsely implicated the appellants at the instance of owner of Free India Bus Service. 5. On the other hand, the learned counsel for the State has supported the judgment and finding of the trial Court and submitted that since all the appellants came together and also left the scene of occurrence together, they have rightly been convicted with the help of section 149 of the Indian Penal Code. 6. 5. On the other hand, the learned counsel for the State has supported the judgment and finding of the trial Court and submitted that since all the appellants came together and also left the scene of occurrence together, they have rightly been convicted with the help of section 149 of the Indian Penal Code. 6. Having heard the learned counsel for the parties and after perusing the entire record, we are of the firm view that except appellant No. 1 Kallu @ Ismail Khan no case is made out against other 6 appellants because according to both the eye witnesses PW 6 Poonamchand and PW 7 Goverdhan blow on the left side of chest by knife was caused by Kallu @ Ismail Khan and his overt act is fully corroborated by the evidence of PW 5 Dr. Avtar Singh Saluja who found one external injury wound situated in left 4th Intercostal space 6 cm. left to Mldsternal line and 2 1/2 cm. below the left nipple, horizontally placed. Size of wound -- length 3.1 cm. and width 2 cm. Depth of wound was penetrating in chest. Direction of the wound was slightly upward, medially and backward. Margins were clean cut with sharp edges at the two extremities and margins were slightly curved. Clotted blood was present around the wound. Another wound was present 2 cm below the first wound size 2 cm. x 1 cm. subcutaneous deep horizontally placed. Clotted blood was present around the wound, margins were clean cut and slightly curved with sharp edges at the two extremities. On internal examination he found underneath the injury No. 1 damage to the Pericardium and right ventricle caused by sharp object and duration was within 6 hours. In his opinion, the cause of death was excessive haemorrhage and shock in the result of penetrating wound to chest. Time lapsed after death was about 6 hours. 7. In view of the aforesaid positive evidence of the medical expert that there was only one fatal injury found on the chest which could be caused by sharp and penetrating object like knife and just below the fatal injury, there was another wound only skin deep below 2 cm. This injury could be because of slip of knife only by one blow. This injury could be because of slip of knife only by one blow. The overt act ascribed by both the eye witnesses against other accused persons that they were having spade, Axe, Lathi and loaded gun has not been corroborated by the medical evidence. If any of the appellant was present with loaded gun and they had intention to commit murder of deceased Wilson, they would have not taken such a lengthy course for finishing him instead of using gun, using other weapons. Therefore, presence and participation of other appellants, except appellant No.1 Kallu @ Ismail, is not established by the prosecution beyond all reasonable doubt in view of the medical evidence and the eye witnesses account. 8. The learned counsel for the appellants has vehemently argued that PW 6 Poonamchand was a chance witness but we are not impressed by this argument because PW 6 Poonamchand has specifically stated in paragraph 1 that he was working as Agent at Hatpipaliya bus stand and everyday coming Hatpipaliya from Bagli. Therefore, his presence on or near place of incident could not be termed as a by chance. In examination-in-chief as well as in cross-examination of PW 6 Poonamchand and PW 7 Goverdhan, we are finding consistency only against appellant No.1 Kallu @ Ismail regarding having knife and causing knife injury on the left side of chest of the deceased. 9. The learned counsel for the appellants has submitted that eye witnesses account of PW 6 Poonamchand and PW 7 Goverdhan should not be relied upon only against appellant No.1 Kallu @ Ismail especially when their version is not dependable for other appellants. We have considered this argument. Supreme Court in case of Gorle S. Naidu v. State of A.P. [ AIR 2004 SC 1169 ] held in paragraph 13 as under: "Though mere acquittal of large number of co-accused persons 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 or 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. If after sieving the untruth or 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 so inseparable that 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." 10. In view of the aforesaid legal position and non-application of legal maxim i.e. 'falsus in uno falsus in omnibus' meaning thereby, if witness is not reliable on one point, his testimony cannot be brushed aside in the case at hand witnesses have specifically attributed causing of fatal injury by appellant No.1 Kallu @ Ismail and the same is fully corroborated by medical evidence. 11. Therefore, this appeal is allowed in part. The conviction and sentence of all the appellants under section 302 read with section 149 of the Indian Penal Code and section 25/27 of the Arms Act as well as under section 148 of the Indian Penal Code are hereby set aside. Instead thereof, appellant No. 1 Kallu @ Ismail is convicted under section 302 of the Indian Penal Code and sentenced to RI for life. We may hastened to add that in view of the evidence as adduced there is absolutely no reason to sustain the charge as stated above under the provisions of the Arms Act. The appellants No.2 to 7 are on bail. Their bail bond and surety bond are hereby discharged. Appellant No. 1 Kallu @ Ismail Khan is also on bail. He is directed to surrender his bail bond before the trial Court on 27th September, 2006 and the trial Court upon his surrender is directed to send him to jail custody for serving out the remainder part of the sentence, under intimation to this Court.