JUDGMENT Per Dhirendra Mishra, J. 1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure is directed against the judgment of conviction and order of sentence dated 27th April, 1989 passed in S.T.No.209/86, whereby learned 3rd Additional Sessions Judge, Bilaspur has convicted the appellants under Section 302 read with Section 34 of the IPC and sentenced each of them to undergo life imprisonment. Appellants Pyarilal and Pilidas have also been convicted under Section 323 of the IPC and sentenced to undergo RI for six months. Both the sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, as projected in the impugned judgment, are that deceased Dhondhal had encroached on 6.50 acres of grass land of Village- Barapeepar and was cultivating upon the same after developing it. He had sown paddy crop in the year 1985. Accused persons Nankun and Motichand were trying to grab that land after obtaining patta. There was quarrel between them with respect to the same piece of land. On 9.9.1985 appellant Nankun and other 39 persons harvested the paddy crop sown by Dhondhal Satnami. Dhondhal Satnami, his son Babulal, Bedram, Smt. Chamelibai-wife of Babulal, Setmati-wife of Bedram and Smt. Dudhmati-mother of Dhondhal, went there and stopped them. However, they forcefully harvested and carried 20 head load paddy and in the process, they beat Dudhmati, Setmati and Chameli and caused them injury. They also destroyed kabelu (tiles) of their house. While Dhondhal, accompanied by his brother Dauram, was going to Police Station-Dabhra, the accused persons followed them and beat him near Chaitrai Bhata. Babulal (PW-1) and Bedram tried to intervene and they were also beaten. The accused persons assaulted Dhondhal by club and murdered him by throttling. 3. Report of the incident was lodged by Baburam in Police Station-Dabhra on 9.9.1985 at 15:00 hours vide Ex.P/1. On the basis of this information, morgue intimation of Ex.P/17 was registered on the same day. The police proceeded for the scene of occurrence. Inquest over the body of the deceased was prepared in the presence of witnesses vide Ex.P/6. The dead body was sent for autopsy to Civil Hospital, Kharsia vide Ex.P/7A, where Dr. B.S. Chandel (PW-7) conducted postmortem over the person of deceased Dhondhal and gave his report of Ex.P/7. The police proceeded for the scene of occurrence. Inquest over the body of the deceased was prepared in the presence of witnesses vide Ex.P/6. The dead body was sent for autopsy to Civil Hospital, Kharsia vide Ex.P/7A, where Dr. B.S. Chandel (PW-7) conducted postmortem over the person of deceased Dhondhal and gave his report of Ex.P/7. Babulal (PW-1), Bedram (PW-2), Smt. Chameli (PW- 3), Smt. Setmati and Dudhmati were sent for medical examination vide Exs.P/9A, P/10A, P/11A, P/12A and P/13A and their medico legal examination reports are Exs.P/9 to P/13 respectively. Spot map of the place of incident was got prepared by Halka Patwari Shantiram (PW-9) vide Ex.P/14. Sealed packet containing wearing apparels of the deceased was taken into possession on being received from hospital vide Ex.P/16. Khasra Panchshala of the disputed land of Ex.P/18 and order of the Tehsildar of Ex.P/19 were also filed along with the charge sheet and proved by the Investigating Officer Bahadur Singh Chanchal (PW-11). Apart from the above documents, the documents of Ex.P/20, P/21 and P/22 being application of Dhondhal for settlement, report of the Halka Patwari to the Tehsildar and No Objection given by Sarpanch and Panchas of the Panchayat, were also filed with the charge sheet and proved by the Investigating Officer. PW-13 Sewadas, Head Constable of Police Station-Dabhra, has proved the Rojnamchasanha dated 11.7.1985 of Ex.P/24, Rojnamchasanha dated 26.8.1985 of Ex.P/25 and Rojnamchasanha dated 6.9.1985 of Ex.P/26. 04. After completing investigation, charge sheet was filed against the appellants and 36 other accused persons under Sections 302, 147, 148, 379, 447, 427 and 323 of the IPC in the Court of Additional Chief Judicial Magistrate, Bilaspur, who, in turn, committed the case to the Court of Sessions Judge and the same was received on transfer for trial by the learned Additional Sessions Judge. 5. Learned trial Court framed charges under Sections 147, 379, 427, 302 and in the alternative 302/149, 323 and in the alternative 323/149 of the IPC against all the accused persons, who abjured their guilt. 6. The prosecution in order to establish charges against the accused persons examined 13 witnesses in all. Thereafter, statements of the accused persons were recorded under Section 313 of Cr.P.C., in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. 6. The prosecution in order to establish charges against the accused persons examined 13 witnesses in all. Thereafter, statements of the accused persons were recorded under Section 313 of Cr.P.C., in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. Appellant Nankun, in his statement, in reply to Question No.1, has stated that he has also cultivated the field after encroachment on the government land and had harvested the crop sown by him and no one stopped him. Similarly, appellant Motilal has also stated that he had encroached upon 4.45 acres of government land and cultivated the same. All the witnesses are of the same caste and they have falsely implicated them. 7. Learned trial Court, after hearing counsel for the respective parties, convicted and sentenced the appellants as mentioned in para-1 of this judgment. 8. Homicidal death of deceased Dhondhal Satnami is not in dispute. Even otherwise, from the evidence of Baburam (PW-1) and Bedram (PW-2), who are eyewitnesses of the incident, and further from the evidence of Dr. B.S. Chandel (PW-7), who conducted postmortem and proved his report dated 10.9.1985 of Ex.P/7, in which he found following injuries on the person of the deceased and opined that Dhondhal died due to asphyxia as a result of throttling and his death was homicidal in nature, homicidal death of Dhondhal is established. Injuries: (1) four marks of bruises on the right side of the neck, brown coloured, lying parallel to each other obliquely, (2) three marks of bruises on the left side of neck, one is broad lying parallel to each other; (3) one mark of bruise on left arm on lateral aspect lying longitudinally 8" x 2" size; (4) one mark of bruise with soft tissue swelling black coloured on left forearm just below elbow joint; (5) one mark of bruise on the left side of the back over left scapula of size 5" x 2"; and (6) one mark of bruise just below injury No.5 lying transversely 8" x 2" size. All the injuries are antemortem in nature. Trachea congested, right and left lung markedly congested and showing hemorrhagic patches. 9. Learned trial Court after appreciation of the evidence available on record has held thus: (i) That, the prosecution has examined four witnesses to establish the charge of theft against the accused persons. All the injuries are antemortem in nature. Trachea congested, right and left lung markedly congested and showing hemorrhagic patches. 9. Learned trial Court after appreciation of the evidence available on record has held thus: (i) That, the prosecution has examined four witnesses to establish the charge of theft against the accused persons. However, there is contradiction in their statements and therefore, no definite conclusion as to who harvested the paddy crop can be drawn. Even otherwise, from the evidence of the witnesses, it is evident that there was ensuing dispute between Nankun, Motilal and the deceased with respect to possession of the land for the last two years. Both were claiming the paddy crop. Prohibitory proceedings under Section 107 of Cr.P.C. were initiated against both the parties as they were claiming possession on the basis of encroachment over the land and in these circumstances, no offence under Section 379 of IPC is made out against the accused persons, including appellants Nankun and Motilal. (ii) That, the evidence of Babulal (PW-1), Bedram (PW-2) and Chameli (PW-3), regarding accused persons taking their cattle and grazing the standing crop of paddy, is unreliable and untrustworthy. There is inter se contradiction in their evidence. Similarly, the evidence of aforesaid witnesses regarding breaking of tiles of their roof by all the accused persons, is also unreliable, and charge under Section 427 of IPC framed against them is not proved. (iii) That, the evidence of Chameli, Babulal, Bedram that all the accused persons beat Chameli, Setmati and Dudhmati and caused them injury has also been disbelieved on the ground of contradiction present in their depositions as also for non-examination of injured Setmati and Dudhmati. (iv) Relying upon the evidence of Dr. B.S. Chandel (PW- 7), who has proved the postmortem report (Ex.P/7A) of deceased Dhondhal, it has been held that injuries No. 3 to 6 present over the person of deceased Dhondhal were caused by hard and blunt object whereas the deceased died homicidal death due to asphyxia as a result of throttling. Injuries No. 1 & 2 present over neck were sufficient to cause his death. The person, who pressed his neck, pressed it with such a force for such time till deceased Dhondhal died and thus, the person, who was responsible for pressing the neck, did so with an intention to cause his death. (v) Referring to the evidence of Dr. Injuries No. 1 & 2 present over neck were sufficient to cause his death. The person, who pressed his neck, pressed it with such a force for such time till deceased Dhondhal died and thus, the person, who was responsible for pressing the neck, did so with an intention to cause his death. (v) Referring to the evidence of Dr. Anil Gupta (PW-8), who has proved the injury report of Babulal and Bedram, it has been held that the aforesaid injuries were sustained by them on the date and time of incident and the same were caused by hard and blunt object within three days of examination and were simple in nature. (vi) Positively relying upon the evidence of PW-1 Babulal and PW-2 Bedram, it has been held that their presence on the spot is undisputed as they also sustained injuries in the same incident. Though both of them have deposed that all the accused persons, 40 in number, assaulted the deceased, however, looking to the limited number of injuries on the person of the deceased observed by Dr. B.S. Chandel (PW-7), their version with respect to the accused persons, except the appellants, has been disbelieved. However, considering that appellants Pyarilal assaulted Babulal and appellant Pilidas assaulted Bedram while they were trying to save their father, and appellants Nankun and Motilal had inimical relationship with the deceased and as such, they had motive to assault the deceased, an inference has been drawn that the appellants actively participated in the commission of crime and caused death of Dhondhal. On the basis of evidence of Babulal and Bedram, appellants Pyarilal and Pilidas have also been convicted under Section 323 of IPC for causing simple hurt to them. 10. Sushree Sharmila Singhai, learned counsel for the appellants, argued that on the same set of evidence, other accused persons have been extended benefit of doubt by the trial Court by disbelieving the version of prosecution witnesses Babulal and Bedram. However, their evidence has been relied upon, on the basis of conjectures and surmises. As per postmortem report, the deceased died due to asphyxia as a result of strangulation, however, there is no evidence available on record that the appellants assaulted the deceased or strangulated him as both the witnesses have made general allegations against all the accused persons that they assaulted the deceased. As per postmortem report, the deceased died due to asphyxia as a result of strangulation, however, there is no evidence available on record that the appellants assaulted the deceased or strangulated him as both the witnesses have made general allegations against all the accused persons that they assaulted the deceased. The accused persons also assaulted them while they were trying to save their father, whereupon they fled from the place of incident. The appellants could not be convicted for the commission of murder of Dhondhal, particularly when on the same evidence, other accused persons have been given benefit of doubt. 11. Reliance is placed on the judgments in the matters of Hatti Singh Vs. State of Haryana1 and Ram Swaroop and others Vs. State of Rajasthan2. 12. It is further argued that appellants Nankun and Motilal have been convicted only on the ground that they had motive for commission of the offence. However, the aforesaid appellants could not be convicted solely on the ground that they had motive for committing the crime. 13. Reliance is placed on the judgments in the matters of Keshav Vs. State of Maharashtra3, Ramreddy Rajesh Khanna Reddy and another Vs. State of A.P.4 and State of M.P. and others Vs. Paltan Mallah and others5. 14. On the other hand, learned counsel for the State supported the impugned judgment. 15. We have heard learned counsel for the respective parties and perused the material available on record as also the impugned judgment. 16. Conviction of the appellants is based on the evidence of PW-1 Babulal and PW-2 Bedram. 17. From perusal of the evidence of the aforesaid witnesses, it would be evident that they have not attributed any specific overt act in assaulting the deceased. Both these witnesses have categorically deposed that all the accused persons started harvesting their paddy. They along with Sarpanch and Panchas of the village went there and stopped the accused persons, but they did not agree. The accused persons entered their cattle in their field and when the womenfolk were trying to drive away the cattle, they were also assaulted by Motilal and Pyarilal. While their father and uncle were waiting for bus to go to police station to lodge the report, all the accused persons encircled them and started assaulting their father. The accused persons entered their cattle in their field and when the womenfolk were trying to drive away the cattle, they were also assaulted by Motilal and Pyarilal. While their father and uncle were waiting for bus to go to police station to lodge the report, all the accused persons encircled them and started assaulting their father. Babulal has lodged the First Information Report (Ex.P/1) on 9.9.1985 naming 31 accused persons, including the appellants as perpetrators of the offence. In his court statement, he named all the accused persons, except accused Doulatram Rawat. Similarly, PW-2 Bedram has named all the 40 accused persons and stated that all of them assaulted his father. In their cross-examination, they admitted that they cannot say as to who, on what part of the body and how many time assaulted their father. 18. The trial Court disbelieved their version with respect to other 36 accused persons and acquitted them by extending them benefit of doubt on the ground that the deceased sustained limited number of injuries, whereas if their version is to be believed, the deceased ought to have sustained at least 40 injuries on his person. However, relying upon the judgments in the matters of Soma Bhai Vs. State of Gujarat6 and Milkiyat Singh and others Vs. The State of Rajasthan7, it has been held that merely because a portion of testimony of a witness is unreliable, his entire testimony cannot be brushed aside. Further considering that these two witnesses were assaulted by appellants Pyarilal and Pilidas and their injuries have been proved by Dr. Anil Gupta, their version with respect to the above two appellants that they assaulted the deceased, has been accepted. Similarly, their version with respect to other two appellants namely Nankun and Motilal, has been accepted on the ground that they had inimical relationship with the deceased with respect to possession of government land and thus, they had motive for committing murder of the deceased. 19. In the matter of Soma Bhai6, Sariat Soma was eyewitness of the incident. He was also a witness of the alleged dying declaration made by deceased Chhania Dhana. 19. In the matter of Soma Bhai6, Sariat Soma was eyewitness of the incident. He was also a witness of the alleged dying declaration made by deceased Chhania Dhana. The version of Sariat Soma regarding the alleged dying declaration made by the deceased was held to be unreliable on the ground that the same was not mentioned in the First Information Report and also on the basis of evidence of the doctor that having regard to the injuries received by the deceased, he would have died instantaneously within 3-4 minutes. However, the Hon'ble Supreme Court held that it is well settled that merely because a portion of the testimony of a witness is not reliable, it is no ground to brush aside his entire evidence. 20. In Milkiyat Singh7 also, the Hon'ble Supreme Court held that if a part of the prosecution story as told by the alleged eyewitness is doubtful, the same would not falsify the whole account of the eyewitness. However, in that case, the rest of the story told by the alleged eyewitness must then be examined carefully before it is relied on. 21. In Hatti Singh1, the appellant and his three associates were prosecuted for the offence punishable under Sections 364, 302 and 201 read with Section 34 of the IPC. The appellant was convicted under Sections 364, 302, 201 of the IPC and Section 25 of the Arms Act on the basis of circumstantial evidence, whereas his associates were given benefit of doubt. The Hon'ble Supreme Court held that the appellant could not have been convicted for commission of murder, particularly when on the same evidence, other accused persons have been given benefit of doubt. 22. In Ram Swaroop2, wife of the deceased namely Ram Kanwari was examined as an eyewitness. Her version and version of other eyewitnesses was disbelieved by the High Court with respect to remaining accused persons, who were acquitted, on the ground that if their version is to be believed, there should have been many more injuries on the person of the deceased and on different parts of the body, which is not the case. However, her version was accepted in the case of appellant. In these circumstances, her testimony was held to be unreliable, particularly when the trial Court after careful consideration of her evidence, disbelieved her. 23. However, her version was accepted in the case of appellant. In these circumstances, her testimony was held to be unreliable, particularly when the trial Court after careful consideration of her evidence, disbelieved her. 23. In the instant case, as we have already observed that PW-1 Babulal and PW-2 Bedram have made common allegations against almost all the accused persons that they encircled deceased Dhondhal and started assaulting him; when Babulal and Bedram tried to save him, appellants Pilidas and Pyarilal assaulted them also, whereupon they fled from the place of incident and when they returned, they found their father dead. They have not made any specific allegation against the appellants regarding assault by them to their father or that they were responsible for strangulating their father. The trial Court has already held in the impugned judgment that the accused persons did not form an unlawful assembly with a common object of committing murder of the deceased as mere presence of the accused persons on the spot cannot be considered as common object of all the accused persons to commit the offence. Version of the aforesaid eyewitnesses with respect to assault by all the accused persons, except the appellants, has been disbelieved on the ground that the same is not corroborated by the version of the doctor performing autopsy. 24. The above finding of the trial Court has already attained finality as it was not brought to our notice that the State has preferred any appeal against the aforesaid finding. 25. Thus, in the absence of any overt act attributed to appellants Pyarilal and Pilidas in assaulting the deceased or strangulating him, they alone could not have been convicted on the same set of evidence. The principles of law laid down in Soma Bhai6 and Milkiyat Singh7 by the Hon'ble Supreme Court are entirely in different factual circumstances and the same cannot be applied on the facts of the present case. 26. Appellants Nankun and Motilal have been convicted on the basis of evidence of Babulal and Bedram solely on the ground that they had inimical relationship with the deceased as there was ongoing dispute between them with respect to possession of the government land and harvesting of paddy crop and as such, they had motive for commission of the aforesaid crime. 27. 27. In the matters of Keshav3, Ramreddy4 and Paltan Mallah5 it has been held that motive by itself is not sufficient to prove the guilt of the accused. Therefore, in our considered opinion, the trial Court was not justified in convicting appellants Nankun and Motilal by relying upon the evidence of PW-1 Babulal and PW-2 Bedram for commission of murder of deceased Dhondhal, particularly when the same evidence of the above two witnesses has been disbelieved with respect to other accused persons and they have been acquitted of the charges, and the trial Court ought to have extended benefit of doubt to these appellants also. 28. In the result: O The appeal at the instance of appellants Nankun and Motilal is allowed. Their conviction under Section 302 read with Section 34 of IPC and sentence imposed thereon, are set aside. They are acquitted of the aforesaid charge. They are on bail, therefore, their bail bonds stand discharged and they need not surrender. O The appeal at the instance of appellants Pyarilal and Pilidas is partly allowed. While setting aside their conviction and sentence under Section 302 read with Section 34 of IPC, we maintain their conviction under Section 323 of IPC and sentence imposed thereon. They have already undergone more than six months' RI and they are on bail, therefore, their bail bonds stand discharged and they need not surrender.