JUDGMENT 1. - This appeal is directed against the judgment dated 31/05/2004 passed by learned Additional District and Sessions Judge (Fast Track) Kama in Sessions Case No.13/2003 whereby, accused-appellant has been convicted for offence under Section 302 IPC and has been sentenced to life imprisonment with fine of Rs. 500/- and in default of paying fine, he was required to further undergo simple imprisonment of one moth. 2. Brief facts of the case are that a written report was submitted by one Islam vide Exb.P/1 on 15/03/2003 to SHO Police Station Kama alleging that at 2.30 p.m. on that day, his father was smoking hukka on 'chabutara' outside their house. Niyajuddin S/o Barkat Mev Dhana came there with revolver. While his father was filling tobacco in hukka, he fired at Himmat Singh from behind. Majlis S/o Barkat and Ansar S/o Jormal were also there with the accused. His father died on the spot. His brother Rajjak, who was giving 'bath' to his buffalo, came there after hearing sound of fire. Wahid, Shahid S/o Jormal, Mormal S/o Sirdar and accused-appellant ran from the place of incident. Some of the villagers also witnessed the incident. 3. On the basis of the said written report, a regular first information report was chalked out vide FIR No.710/2003 for offence u/Ss.147, 148 and 302 IPC and the police started investigation. During the course of investigation, accused-appellant was arrested. The police filed challan only against the accused-appellant for the aforesaid offence. After commital of the case, the trial court framed the charge against the accused-appellant for the aforesaid offence, which he denied and claimed to be tried. Prosecution produced eleven witnesses and exhibited thirteen documents. Defence produced two witnesses and exhibited five documents. Trial court convicted and sentenced the accused-appellant in the manner indicated above. Hence, the appeal. 4. We have heard Shri Jainendra Jain, learned counsel for accused-appellant and Shri Javed Choudhary, learned Public Prosecutor for the State. 5. Shri Jainendra Jain, learned counsel for the accused-appellant argued that the trial court has erred in law in convicting the accused-appellant relying on the testimony of the witnesses especially Islam (PW1), Aasin (PW3) and Sharifan (PW6), whose statements are full of contradictions and discrepancies. 5. Shri Jainendra Jain, learned counsel for the accused-appellant argued that the trial court has erred in law in convicting the accused-appellant relying on the testimony of the witnesses especially Islam (PW1), Aasin (PW3) and Sharifan (PW6), whose statements are full of contradictions and discrepancies. As per the originally set up case by the prosecution, and especially as per those witnesses, there were number of accused but the police filed challan only against the present accused-appellant and not against the remaining accused. These witnesses were also confronted with their statements recorded by the police u/S.161 Cr.P.C., where they alleged the role of number of accused. They failed to satisfactory explain for false implication of number of accused. In the FIR also, the informant named Wahid, Shahid and Jormal those, who accompanied the accused-appellant at the time of incident. In court statement, Islam (PW1) also alleged the presence of Ansar and Majlis, apart from Wahid, Shahid and Jormal. The informant (PW1) stated that Ansar exhorted the accused-appellant to kill deceased because he (deceased) was not allowing the wife of the accused to come to him. He stated that when accused fired at deceased, Jamalu and Ashraf also came there but neither Jamalu nor Ashraf has been produced, who were the only independent witnesses. Adverse inference should therefore be drawn against the prosecution for not producing them. All those witnesses produced by prosecution are highly interested witnesses, being relatives of the deceased. 6. Shri Jainendra Jain, learned counsel for the accused-appellant referred to the statement of Aasin (PW3) and submitted that he also cannot be an eye-witness because his name has not been mentioned in the FIR. Yet, he alleged that on exhortation by Ansar, accused-appellant fired at the back of the deceased. He has stated that Rajjak was giving 'bath' to his buffalo nearby and hearing sound of the fire, he came there. In cross-examination, he denied the suggestion that his mother and brother Islam came only after hearing the sound of the fire. In cross-examination, he stated that Sharifan had seen the accused firing at the deceased and she made hue and cry because she was standing very close to the deceased. Learned counsel referred to the statement of Rajjak (PW11) and has stated that he also could not be an eye-witness as per the version disclosed in the FIR. In cross-examination, he stated that Sharifan had seen the accused firing at the deceased and she made hue and cry because she was standing very close to the deceased. Learned counsel referred to the statement of Rajjak (PW11) and has stated that he also could not be an eye-witness as per the version disclosed in the FIR. Because Islam has alleged that Rajjak was giving 'bath' to his buffalo, he reached the place of incident only after hearing the sound of fire. In the court statement however, he stated that Majlis, Wahid, Shahid, Jormal and accused-appellant Niyaju came there. Niyaju was armed with 'katta'. They started abusing the deceased. He (Rajjak) slowly started moving towards them. Then, suddenly Ansar started exhorting the appellant to kill his father Himmat and appellant opened fired at him. Learned counsel submitted that Sharifan (PW6) has also been cited as eye-witness though her name has not been mentioned in the first information report. Sharifan (PW6) has also stated that Majlis, Ansar, Shahid, Wahid, Jormal and the accused-appellant Niyaju came there. Niyaju was armed with 'katta'. Ansar exhorted him to kill deceased saying that deceased-Himmat Singh was not allowing accused's wife to come to the accused-appellant. Niyaju opened fire with 'katta', which hit the back of the deceased. Niyaju was present in the court. Learned counsel submitted that this is improvement on the original version given to the police u/S.161 Cr.P.C. by these witnesses. In cross-examination, Sharifan (PW6) when confronted with her earlier statement given to the police u/S.161 Cr.P.C. (Exb.D/3), failed to give any explanation why fact about exhortation on the premise that deceased was not allowing the accused's wife to come to him, was not mentioned therein. In court statement, this witness has also stated that at the time of incident when she was standing close to the deceased, other accused were also present at the place of incident however, when she was confronted with her earlier statement given to the police u/S.161 Cr.P.C. why she did not mention the name of those accused, she failed to give any explanation. 7. Shri Jainendra Jain, learned counsel for the accused-appellant has submitted that so-called motive of the accused of annoyance with the deceased, who happened to be the husband of his wife's aunt (phupha), for not allowing his wife to come to him, has not been substantiated as the motive of the incident. 7. Shri Jainendra Jain, learned counsel for the accused-appellant has submitted that so-called motive of the accused of annoyance with the deceased, who happened to be the husband of his wife's aunt (phupha), for not allowing his wife to come to him, has not been substantiated as the motive of the incident. The investigation officer has not made any investigation from the neighbours and other relatives of his wife. Learned counsel then criticized the statement of Mahtap Singh (PW10) and submitted that when specific query was put to him as to whether he investigated the fact that deceased was mediator in getting marriage of the accused-appellant fixed and that it was he, who was not allowing accused's wife to come to the accused-appellant, he specifically stated that neither he recorded the statement of the appellant's wife nor he examined any members of his in-laws family. This is a serious lacuna in the investigation conducted by the investigation officer. Learned counsel argued that apart from Sharifan (PW6), Hasina W/o Mubyal was also shown to be present at the scene of occurrence. Learned trial court has in para 17 of the judgment referred to their statements recorded u/S.161 Cr.P.C. vide Exb.D/4. Hasina has not been produced as a witness during trial. Therefore, an adverse inference should have been drawn against the prosecution for its failure to produce Hasina that if she was one of the eye-witnesses, she would have deposed against the prosecution. 8. Shri Jainendra Jain, learned counsel for the accused-appellant argued that accused-appellant was actually not present at the scene of occurrence. In his examination u/S.313 Cr.P.C., he categorically stated that he had gone to Iliyas in village Somka for purchase of buffalo. Iliyas is maternal uncle of Niyaju's brother-in-law. Learned counsel referred to the statement of accused-appellant Niyaju @Niyajuddin, who appeared as DW1 besides the statement of Iliyas, who appeared as DW2, to prove this plea. Learned trial court ought not to have therefore rejected this plea of the accused-appellant. It is therefore prayed that appeal be allowed, the judgment be set-aside and the accused-appellant be acquitted of all the charge. 9. Shri Javed Choudhary, learned Public Prosecutor has opposed the appeal and submitted that guilt of the accused-appellant has been proved beyond all reasonable doubt on the basis of the overwhelming evidence came on record. It is therefore prayed that appeal be allowed, the judgment be set-aside and the accused-appellant be acquitted of all the charge. 9. Shri Javed Choudhary, learned Public Prosecutor has opposed the appeal and submitted that guilt of the accused-appellant has been proved beyond all reasonable doubt on the basis of the overwhelming evidence came on record. Evidence proved that accused-appellant Niyaju @Niyajuddin opened fire at the deceased and committed his murder. Learned Public Prosecutor argued that though admittedly there is over implication on the part of the complainant-party in making allegation against some persons, who were not even present at the place of occurrence but the investigating agency after thorough investigation found the allegations substantiated only against the present accused-appellant and filed challan only against him. Since the allegations were not found substantiated against other accused, it did not file challan against them. Argument of false allegation therefore cannot be accepted. Learned Public Prosecutor submitted that right from the stage of lodging of FIR and recording of the statements of the witnesses by the police u/S.161 Cr.P.C., one fact has been consistently canvassed against the accused-appellant that it was he and none-else, who opened fire at the deceased from behind. Learned Public Prosecutor in this connection referred to the statements of Islam (PW1), Sharifan (PW6) and Rajjak (PW11). Learned Public Prosecutor referring to the site plan (Exb.P/3) has argued that the fire was opened at the deceased when he was sitting on the 'chabutara' outside his house at place "xa". Dr.B.S. Soni (PW7) has proved the post-mortem report of the deceased vide Exb.P/6. It is therefore prayed that the appeal be dismissed. 10. We have given our anxious consideration to the rival submissions and perused the material available on record. 11. It is no doubt true that in the first information report, Islam (PW1) did not claim to be an eye-witness and has rather stated that Rajjak also came to the place of incident after hearing sound of the fire and that both of them had seen the accused Wahid, Shahid and Jormal fleeing from the place of incident. Islam has appeared as PW1. He has named total six accused but then stated that Ansar exhorted the accused-appellant to fire at the deceased as he (deceased) was not allowing his wife to come to him. He has stated that accused-appellant opened fire, which hit his back and he died. Islam has appeared as PW1. He has named total six accused but then stated that Ansar exhorted the accused-appellant to fire at the deceased as he (deceased) was not allowing his wife to come to him. He has stated that accused-appellant opened fire, which hit his back and he died. When he was confronted with his statement given to the police u/S.161 Cr.P.C. (Exb.D/2), he has stated that on hearing the sound of fire, he and his brother Rajjak came there but stated that this was incorrectly mentioned by the police. Aasin (PW3) has also alleged that Ansar has exhorted the accused-appellant to open fire at the deceased, who was not allowing his wife to come to him; thereupon, accused-appellant opened fire at him and he died. In cross-examination, he denied the suggestion that he could not have witnessed the incident from the place he was standing. He has denied the suggestion that he, his mother and brother Islam came out of the room upon hearing sound of the fire; rather asserted that his mother was also present on the 'chabutara' when the fire was opened. In cross-examination, he has stated that Sharifan (PW6) was present at the scene of occurrence when the accused was firing at the deceased and she was crying because she was very close to him. She would be very near to the place of occurrence where offence is committed. Rajjak (PW11) has although stated that when his father was smoking hukka on chabutara, all the accused came there and accused-appellant was armed with 'katta'. They started abusing his father and therefore he moved towards them. He saw the accused-appellant opening fire at his father. Sharifan (PW6) is most reliable witness. She has stated that she at that time was giving fodder to the cattle. She saw all the accused coming there. Accused-appellant was armed with 'katta'; at that time, deceased was smoking hukka on the chabutara outside his room. Ansar exhorted the accused- appellant for firing at the deceased because the deceased was not allowing the appellant's wife to come to him. Accused-appellant then opened fire, which hit his back. She saw all the accused coming there. Accused-appellant was armed with 'katta'; at that time, deceased was smoking hukka on the chabutara outside his room. Ansar exhorted the accused- appellant for firing at the deceased because the deceased was not allowing the appellant's wife to come to him. Accused-appellant then opened fire, which hit his back. This witness was confronted with the earlier statement u/S.161 Cr.P.C. (Exb.D/3), where he alleged that Ansar exhorted the accused-appellant to open fire at the deceased and that it was he, who was not allowing his wife to come to him, why he did not give such statement to the police u/S.161 Cr.P.C., she failed to give any explanation. However, there was no contradiction in the statement before the court and before the police in so far as the allegation against the accused-appellant of opening fire at the deceased is concerned. To that extent, statement of this witness will have to be believed. 12. Even if therefore Rajjak (PW11), Islam (PW1) and Aasin (PW3) are not accepted as eye-witnesses, nonetheless, their testimony to the effect that they saw the accused-appellant fleeing from the place of incident, has to be accepted as relevant in view of Section 6 of the Evidence Act because their presence in the house was quite natural and their evidence to the extent they saw the accused fleeing from the place of incident immediately after they heard the sound of the fire, would be relevant. Though Hasina has not been produced in evidence but Sharifan (PW6) has remained consistent throughout, during investigation as also during trial before the court alleging that it was the accused-appellant, who was armed with 'katta' and opened fire at the deceased at his back. The recovery of 'katta' (country made pistole) with cartridge of 315 bore has been made at the instance of the accused-appellant on 15/03/2003 vide Exb.P/8 pursuant to the information given by the accused under Section 27 of the Evidence Act vide Exb.P/11 from his 'chappar' of his house in the presence of Hamid (PW9). He has proved the recovery of 'katta' vide Exb.P/8. Mahtap Singh (PW10), the investigation officer has also proved recovery of 'katta' vide Exb.P/9. Mahtap Singh (PW10) has proved the site plan (Exb.P/3). He has stated that deceased was sitting on the 'chaburara' at place "xa" in the site plan. He has proved the recovery of 'katta' vide Exb.P/8. Mahtap Singh (PW10), the investigation officer has also proved recovery of 'katta' vide Exb.P/9. Mahtap Singh (PW10) has proved the site plan (Exb.P/3). He has stated that deceased was sitting on the 'chaburara' at place "xa" in the site plan. Buffaloes were kept at place "2" near the 'chappar', which is just opposite the 'chabutara'. A gali between the two divides them. Dr.B.S. Soni (PW7) has proved the post-mortem report of the deceased vide Exb.P/6, who opined the cause of death to be hemorrhage from heart crushed by bullet injury. According to post-mortem report (Exb.P/6), deceased sustained the following injuries:- "There was an incised wound at 5th thoracic vertebra at the back side near the spinal cord surrounded by tattooing marks. There was also an incised wound on the thorax wall. One bullet was found into the thoracic cavity. Left side pillura was found to be punctured. Left side lung was found to be punctured due to the injury by bullet. The pericardium of the heart was also found torn. One hole was found in one part of the heart (atrium) due to piercing of bullet. The cause of death was opined to be hemorrhage from heart crushed by bullet injury." 13. In view of the aforesaid discussion, failure of the prosecution in not making enquired from the neighbours, wife of the appellant and his in-laws and not producing Hasina in court, would not be a valid reason to justify rejection of the testimony of the eye-witnesses especially Sharifan (PW6), whose testimony finds corroborated in the recovery of the fire arm at the instance of the accused-appellant. 14. Though the evidence shows that there has been a tendency on the part of the prosecution witnesses to over implicate the accused but the fact is that the investigating agency itself has excluded those accused, who were found to be falsely implicated and found the allegations substantiated only against the present accused-appellant and filed challan only against him and since the allegations were not found substantiated against other accused, did not file challan there against. 15. It is trite that part of the statement of even a hostile witness can be relied for conviction if it finds corroboration from other evidence. Statements of Islam (PW1), Aasin (PW3) and Rajjak (PW11) can thus be relied in part. 15. It is trite that part of the statement of even a hostile witness can be relied for conviction if it finds corroboration from other evidence. Statements of Islam (PW1), Aasin (PW3) and Rajjak (PW11) can thus be relied in part. The Supreme court in Ganesh v. State of Karnataka : (2008) 17 SCC 152 , held that it cannot be said as a rule of universal application that when a portion of prosecution evidence is discarded as unworthy of credence, there cannot be any conviction. It is always open to the court to differentiate between an accused, who has been convicted, and those, who have been acquitted. The maxim falsus in uno, falsus in omnibus, is merely a rule of caution. An attempt has to be made to separate the grain from the chaff, truth from falsehood. When prosecution is able to establish its case by acceptable evidence, though in part, accused can be convicted even if co-accused have been acquitted on the ground that evidence led was not sufficient to fasten guilt on them. But where position is such that evidence is totally unreliable, and it will be impossible to separate the truth from falsehood to an extent that they are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by prosecution completely from the context and background against which they are made, conviction cannot be recorded. 16. In view of the aforesaid discussion, the guilt of the accused-appellant has rightly been held to have been proved beyond all reasonable doubt. 17. We do not therefore find any error in the judgment of the learned trial court convicting and sentencing the accused-appellant for offence u/S.302 IPC. 18. The appeal is therefore dismissed. The record be sent back to the trial court.Appeal Dismissed. *******