JUDGMENT 1. - Despite the fact that allegations made against the main accused were found false by the Investigating Officer and he was not even charge sheeted, learned trial Judge did not take into consideration this aspect while appreciating the evidence. The question, therefore, that emerges in these appeals is - "Can there be a canon for weighing evidence and drawing inference from it?" 2. Since both the appeals relate to the incident that occurred on August 26, 1999 we proceed to decide them by a common judgment. In Appeal No. 1349/2003 challenge is made to the judgment dated September 18, 2003 of the Sessions Judge Sawai Madhopur, whereas judgment dated August 31, 2005 by Additional Sessions Judge (Fast Track) Sawai Madhopur has been called in question in Appeal No. 837/2005. 3. Nine appellants who were convicted and sentenced as under, have preferred Appeal No. 1349/2003: U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer rigorous imprisonment for four months. U/s. 324/149 IPC: Each to suffer rigorous imprisonment for one year. U/s. 323/149 IPC: Each to suffer rigorous imprisonment for six months. U/s. 148 IPC: Each to suffer rigorous imprisonment for two years. Budhram and Shanker: U/s. 324 IPC: Each to suffer rigorous imprisonment for one year. Girraj, Hanuman, Shanker and Kailash: U/s. 323 IPC: Each to suffer rigorous imprisonment for six months. 4. Appeal No. 837/2005 has been made by sole appellant Santosh who was convicted and sentenced thus: U/s. 302 IPC: To suffer imprisonment for life and fine of Rs. 5000/-, in default to further suffer rigorous imprisonment for four months. U/s. 324/149 IPC: To suffer rigorous imprisonment for one year. U/s. 323/149 IPC: To suffer rigorous imprisonment for six months. U/s. 148 IPC: To suffer rigorous imprisonment for two years. In both the judgments the substantive sentences were ordered to run concurrently. 5. It is the prosecution case that informant Hemraj (Pw. 1) on August 26, 1999 submitted a written report (Ex. P-1) at the Police Station Man Town Sawai Madhopur to the effect that on the said day around 6 AM his brother Kamlesh went to keep a watch on his field of Guava and Millet (Bajra) in village Soorwal where he found that boundary wall of his field was cut by Vishram. In protest Kamlesh also cut the boundary wall of Vishram's field. In protest Kamlesh also cut the boundary wall of Vishram's field. Vishram then hurled abuses. Kamlesh and Vishram grappled together. Finding them fighting Usman and Moti Lal came from the adjacent field and intervened. Usman thereafter went to the house of Vishram and informed that Hemraj and Kamlesh killed Vishram and hanged him in a well. After some time Chatru Lal (now deceased) father of Hemraj and Kamlesh came to the field and asked Hemraj and Kamlesh to go back to the house. When they were coming back, Santosh, Govardhan Meena, Budhram, Shanker, Girraj, Kailash, Sheodas @ Shiv Dass, Hanuman, Kamlesh and Kalu belaboured them on the way. Goverdhan Meena inflicted sword-blow on the head of Chatru as a result of which he fell down. Santosh, Shanker and Budhram thereafter gave Gandasi-blows on the head, temple, nose, eyes and face. Shankar inflicted Gandasi blow from reverse side on the right elbow of Kamlesh. Santosh and Govardhan Meena inflicted Gandasi-blows from reverse side on the left foot, back and face of Hemraj. Meanwhile Kastura, Kishna, Prahiad, Sanwli, Badami came to save but they were also beaten up. Chatru Lal and injured persons were removed to the hospital where Chatru Lal died. On that report a case under sections 147, 148, 149, 341, 323, 324, 307, 107 and 302 IPC was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial. Charges under sections 148, 302/149, 323/149, 324/149 and 323 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 32 witnesses. In the explanation under Section 313 Cr.PC., the appellants claimed innocence. No witness in defence was however examined. In the supplementary charge sheet filed against appellant Santosh, charges under sections 148, 302, 302/149, 323, 323/149, 324 and 324/149 IPC were framed. After the charges were denied the prosecution in support of its case examined as many as 25 witnesses. In the explanation under Section 313 Cr.P.C., the appellant Santosh claimed innocence. Two witnesses in defence were examined, learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 6. We have given our anxious consideration to the rival submissions and with the assistance of learned counsel we have gone through the evidence on record. 7. Two witnesses in defence were examined, learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. 6. We have given our anxious consideration to the rival submissions and with the assistance of learned counsel we have gone through the evidence on record. 7. Death of Chatru was undeniably homicidal in nature. As per post mortem report (Ex.P-28) following ante mortem injuries were found on the dead body: 1. Incised wound 1" x 1/2" x bone deep on anter (sic.) of forehead transversely placed. 2. Incised wound 3" x 1" x cavity deep on left side of forehead just above the eye brow transversely placed. 3. Incised wound 1" x 1/4" x bone deep on right cheek transversely placed on dissection there is fracture. 4. Lacerated wound 2" x 1/4" x bone deep on left side of body of mandible on dissection there is fracture. 5. Abrasion 1/4" x 4" on dorsum of nose, there is fracture of nasal bone. 6. Abrasion 1" x 1/2" on back of left elbow. 7. Abrasion 1/2" x 1/4" on left leg. According to Dr. R.P. Gupta (Pw. 15) the cause of death was coma resultantly from injury No. 1 & 2. 8. A look at the material on record goes to show that Hemraj (Pw. 1) and Kamlesh (PW. 8) are the star witnesses of the prosecution. As per the FIR they were with the deceased when he was belaboured by the accused. Supporting the facts incorporated in the FIR Hemraj deposed that after scuffle between Kamlesh and Vishram, his father Chatru asked him and Kamlesh to go back to the house. When they were coming back they were encircled by the accused. Gordhan inflicted sword blow on the head of his father as a result of which he fell down. Santosh then gave a blow with Gandasi on his forehead. Budhram caused injury on his cheek. Shankar gave Gandasi blow on the face, Kailash gave lathi blow on his nose. Vishram inflicted lathi blow on his right elbow and Hanuman gave lathi blow on his left foot. All the accused then gave lathi blows and finding his father dead they left him. Gordhan then gave sword blow near the right eye of informant. Shankar gave Gandasi blow on the face, Kailash gave lathi blow on his nose. Vishram inflicted lathi blow on his right elbow and Hanuman gave lathi blow on his left foot. All the accused then gave lathi blows and finding his father dead they left him. Gordhan then gave sword blow near the right eye of informant. Santosh caused injury with reverse side of Gandasi on his left shoulder, Gordhan gave sword blow on the left foot, Kamlesh was also beaten up by them. In his cross examination Hem Raj however deposed as under: "(i) I did not state in the FIR and in the police statement (Ex.D-1) that Santosh inflicted Gandasi blow on the forehead of Chatru. (ii) I did not state in the FIR and in the police statement that Budhram gave gandasi blow on the cheek, Shankar gave Gandasi blow on the face, Kailash gave lathi blow on the nose and Vishram caused injury on the right elbow of Chatru. (iii) I did not know as to why this fact was not mentioned in the FIR and in my police statement that Gordhan gave sword blow near my right eye, Santosh gave gandasi blow from the reverse side of gandasi on my shoulder and Gordhan gave sword blow on my foot." 9. Kamlesh (Pw. 8) deposed that on the date of Rakhi festival when he had gone to his field to keep a watch on Bajra crop he found Vishram digging boundary wall of his field, when he protested Vishram hurled abuses at him. After intervention of Moti and Pakodya he went back to his well and proceeded to his house alongwith his father Chatru and brother Hemraj. On the way Gordhan etc. encircled them. Gordhan was armed with sword. Budhiram, Santosh, Kalu and Shankar had Gandasi, whereas Girraj, Vishram, Kamlesh, Kailash, Hanuman and Sheodas had lathis. Seeing them he became frightened and ran away. 10. Factual position that emerges from the material on record may be summarised thus: (i) During investigation it was revealed that Gordhan Meena, the main accused was falsely implicated. He was a Government servant and not present at the time of occurrence. No charge sheet, therefore, was filed against Gordhan Meena. (ii) Appellant Santosh was also in the Government service and his defence was that on the date of incident he was on Government duty and away from the village. He was a Government servant and not present at the time of occurrence. No charge sheet, therefore, was filed against Gordhan Meena. (ii) Appellant Santosh was also in the Government service and his defence was that on the date of incident he was on Government duty and away from the village. (iii) Kamlesh (Pw. 8) did not see accused inflicting injuries. (iv) Informant Hemraj disowned his police statement and made material improvements in his evidence. (v) Hearing that Vishram had been killed and hanged in the well, the villagers rushed to the well. The incident occurred all of a sudden. Neither there was unlawful assembly nor Pre-Arranged plan to kill Chatru. 11. From the scheme of Indian Evidence Act we notice that it does not lay down any law governing the question as to which statement of a witness should be believed or should not be believed. The question as to which statement of a witness should be believed or not, depends upon so many circumstances and it is impossible to lay down hard and fast rules. The law has left it to the court to decide whether the evidence should be believed or not and, if believed, what weight should be attached to it or what effect should be given to it. No satisfactory system can be devised for weighing evidence and drawing conclusions. The evidence which is contrary to all reasonable probabilities and on which no reasonable man can believe, may be discarded. In Bourda v. Jones, 110 Wis 52, 85 NW 671 (Am) Marshall J., observed as under: "It is not infrequently supposed that a sworn statement is necessarily proof, and that, if uncontradicted, it establishes the fact involved. Such is by no means the law. Testimony, regardless of the amount of it, which is contrary to all reasonable probabilities or conceded facts - testimony which no sensible man can believe - goes for nothing, while the evidence of a single witness to a fact, there being nothing to throw discredit thereon, cannot be disregarded." 12. In Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 , their Lordships of Supreme Court indicated that the court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. In Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 , their Lordships of Supreme Court indicated that the court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. 13. Bearing these principles in mind when we scan the testimony of Hemraj we find that he made material improvements at several stages. He categorically stated that Gordhan initiated the occurrence by inflicting sword blow on the head of his father, but his version was found false by the investigating officer as Gordhan was a Government official and not present at the time of occurrence. No charge sheet was filed against Gordhan and even cognizance under section 319 Cr.PC. was not taken by learned trial judge against Gordhan. Informant Hemraj appears to have attributed the fatal injuries sustained by the deceased to those accused who were in Government service. Appellant Santosh, a Government servant, is also alleged to have caused injury on forehead of the deceased with gandasi, whereas in the FIR and in the statement under section 161 Cr.P.C., Hemraj did not say so. As we have already noticed, Hemraj made material improvements in his testimony at the trial. According to him, Kamlesh had sustained injuries in the incident whereas Kamlesh did not receive any injury and he did not see the incident. The evidence of Hemraj as a whole appears to be untrue and does not inspire confidence. This evidence is unacceptable and appears to be tainted. We have made efforts to separate grain from the chaff, but could not find even a particle of grain in the testimony of Hemraj. Having marshalled and analysed the entire material on record we are unable to record the verdict of conviction against the appellants. The material infirmities noticed by us in the prosecution case, escaped the attention of learned trial judge. The prosecution in our opinion has failed to establish the charges against the appellants beyond reasonable doubt. 14. Having marshalled and analysed the entire material on record we are unable to record the verdict of conviction against the appellants. The material infirmities noticed by us in the prosecution case, escaped the attention of learned trial judge. The prosecution in our opinion has failed to establish the charges against the appellants beyond reasonable doubt. 14. For these reasons, we dispose of the instant appeals in the following terms: (i) We allow the appeal No. 1349/2003 of appellants Budhram, Shanker, Kamlesh, Vashu Ram @ Vishram, Girraj, Kalu, Hanuman, Sheodas @Shiv Dass and Kailash Chand and set aside their conviction and sentence under sections 302/149, 324/149, 323/149, 148, 324 and 323 IPC. They stand acquitted of the said charges. The appellants Kamlesh, Vashu Ram @ Vishram, Girraj, Kalu, Hanuman, Sheodas @ Shiv Dass and Kailash Chand are on bail, they need not surrender and their bail bonds stand discharged. Appellants Budhram and Shanker who are in jail shall be set at liberty forthwith if not required to be detained in any other case. (ii) We allow the appeal No. 837/2005 of appellant Santosh and set aside his conviction and sentence under sections 148, 302, 324/149 and 323/149 IPC. He stands acquitted of the said charges. Appellant Santosh is on bail, he need not surrender, his bail bonds stand discharged. (iii) The impugned judgment of learned trial Judge stands modified as indicated above. Both Appeals allowed - Conviction set aside - Judgment of trial court modified accordingly. *******