JUDGMENT 1. - Criminal Appeal No. 1366/2003 on behalf of eight accused-appellants, namely, Sultan Khan S/o Dhundhe Khan, Majid Khan s/o Rustam Khan, Razak Khan S/o Umrao Khan, Kamru Khan S/o Majid Khan, Shafi Khan S/o Kalandar Khan, Babu Khan S/o Kallu Khan, Amin Khan S/o Umrao Khan and Taiyab Khan S/o Sarjit Khan, is directed against the judgment and order dated 08.08.2003 of learned Additional Sessions Judge (Fast) Track) No. 4, Jhalawar, Camp Aklera, in Sessions Case No. 33/2003, whereby they have been convicted and sentenced as follows:- Name of accused-appellants Conviction for offence u/S. Sentenced All accused-appellants 147 IPC For one year imprisonment - do - 148 IPC For two years rigorous imprisonment - do - 302/149 IPC Life Imprisonment with fine of Rs. 1000/- each; in default, each to further undergo one year's rigorous imprisonment - do - 307 or 307/149 IPC For five years rigorous imprisonment with fine of Rs. 500/- each; in default, each to further undergo six months rigorous imprisonment Accused-appellant Taiyab Khan 3/25 of the Arms Act One year's rigorous imprisonment with fine of Rs. 500/-; in default, to further undergo one month's rigorous imprisonment All the sentences were ordered to run concurrently. 2. Criminal Appeal No. 648/2008 on behalf of accused-appellant Sultan Khan S/o Umrao Khan, is directed against the judgment and order dated 29.03.2008 of learned Additional Sessions Judge, Aklera, District Jhalawar, in Sessions Case No. 35/2005. He was tried separately because he remained absconding and was arrested much later. Charges were framed against him separately on 04.07.2006 for offence under Sections 147, 148, 302/149, 307/149 of the IPC. The learned trial Court convicted him for offence under Sections 147, 148, 302/149 and 307/149 and sentenced under Section 147 IPC to undergo one year's rigorous imprisonment, under Section 148 IPC to undergo two years rigorous imprisonment, under Section 307/149 IPC to undergo five years rigorous imprisonment with fine of Rs. 500/-; in default, to further undergo one month's simple imprisonment, under Section 302/149 IPC to undergo life imprisonment and fine of Rs. 1,000/-; in default, to further undergo one month's simple imprisonment. All the sentences were ordered to run concurrently. 3. 500/-; in default, to further undergo one month's simple imprisonment, under Section 302/149 IPC to undergo life imprisonment and fine of Rs. 1,000/-; in default, to further undergo one month's simple imprisonment. All the sentences were ordered to run concurrently. 3. Both the appeals arise out of First Information Report No. 88/1999 (Exhibit P-26) registered with Police Station Javar, District Jhalawar, for offence under Sections 147, 148, 149, 307 and 302 IPC, on the basis of 'parcha bayan' of Nannhe Khan S/o Ismile Khan (Exhibit P-25 in Sessions Case No. 33/2003 and Exhibit P-8 in Sessions Case No. 35/2005) alleging therein that on 05.05.1999 at about 2-2.30 pm he, his father Ismile Khan S/o Ranjit Khan, Ishala S/o Ishan Khan, Fakir Khan S/o Ismile Khan, Shafi Mohammad S/o Babul Khan and Irshad S/o Mamur Khan, residents of Barkhera, were loading sand into the tractor trolley. Tractor Driver Jahid Khan S/o Aziz Khan was also sitting there. Informant's bhabhi Kanija (sister-in-law) was also loading the sand. Suddenly Sultan Khan S/o Umrao Khan, Taiyab Khan S/o Sarjit, Shafi S/o Kallu Khan, Kamru S/o Majid Khan, Majid Khan S/o Rustam Khan, Rajjaq S/o Umrao Khan and Amin Khan S/o Umrao Khan came there from two different sides of the river. They were armed with loaded guns. They encircled the members of the complainant party. Sultan Khan opened fire at his brother Fakir Khan by double barrel gun. Taiyab fired at the informant and Ishala. When informant ran away to save his life, Taiyab Khan followed him till their agriculture field. Others kept firing at informant's brother and father. Ishan Khan S/o Ranjit khan also rushed from there and came to RAC post. Sultan Khan and his companions deliberately came there fully armed with weapons with intention to kill members of the complainant party. Informant's brother Fakir Khan and father Ismile Khan both died on the spot due to the gun shots. His brother Ishala and Shafi S/o Babul Khan were yet not traceable. Sultan Khan S/o Dhundhe Khan Mewati, Resident of Hanotia, was also having a gun. He opened fire at the informant. Informant received pellet injuries on his thigh and buttock of right side. 4. The police, after investigation, filed challan against ten accused. Nine accused were tried together in Sessions Case No. 33/2003. Whereas, accused Sultan Khan S/o Umrao Khan was absconding and therefore he was arrested later. He opened fire at the informant. Informant received pellet injuries on his thigh and buttock of right side. 4. The police, after investigation, filed challan against ten accused. Nine accused were tried together in Sessions Case No. 33/2003. Whereas, accused Sultan Khan S/o Umrao Khan was absconding and therefore he was arrested later. Charges were framed against them. They denied the charges and claimed to be tried. The prosecution examined as many as 23 witnesses and got 42 documents exhibited, whereas defence examined only two witnesses. Accused Sultan Khan S/o Umrao Khan was separately tried in Sessions Case No. 35/2005. The accused denied the charges and claimed to be tried. The prosecution examined 13 witnesses and got 24 documents exhibited (the prosecution witnesses and documents, though lesser in number and marked as different exhibits in Sessions Case No. 35/2005, but are same in both the Sessions Cases). Present appeals are however being decided on the basis of record of Sessions Case No. 33/2003 in Criminal Appeal No. 1366/2003. 5. Out of nine accused in Sessions Case No. 33/2003, learned trial court acquitted one accused Sharif Khan and, convicted and sentenced remaining eight accused as indicated above. Accused-appellant Sultan Khan S/o Umrao Khan in Sessions No. 35/2005 was also convicted and sentenced as indicated above. 6. We have heard Shri S.S. Hasan, B.L. Bundel and Gajendra Singh Chauhan, learned counsel for the appellants and Shri Javed Choudhary, learned Public Prosecutor as well as Shri Rinesh Gupta, learned counsel for the complainant, and perused the material on record. 7. Shri S.S. Hasan, learned counsel for the appellants, has argued that the accused-appellants have been falsely implicated due to previous enmity between the parties. The members of the complainant party had earlier murdered one Shakir Khan S/o Sajit Khan, brother of accused-appellant Taiyab Khan on 29.09.1995. Two members of the complainant-party have been convicted under Section 302/34 IPC for his murder. It is owing to that enmity that the complainant party has indiscriminately implicated large number of persons of the accused-party in the present case. In that case, accused-appellant Amin Khan and Asraf Khan were acquitted. It is explicit that out of seven eye witnesses produced by the prosecution, there are only two independent eye witnesses, namely, Jahid (PW-5) and Irshad (PW-6). All other eye witnesses are closely related to deceased Ismile and Fakir. In that case, accused-appellant Amin Khan and Asraf Khan were acquitted. It is explicit that out of seven eye witnesses produced by the prosecution, there are only two independent eye witnesses, namely, Jahid (PW-5) and Irshad (PW-6). All other eye witnesses are closely related to deceased Ismile and Fakir. Isan Khan (PW-10) happens to be brother of deceased Ismile, Shafi Khan (PW-11) is cousin nephew of deceased Ismile, Kanija (PW-16) is wife of deceased Fakir Khan, Nannhe Khan (PW-17) is brother of deceased Fakir Khan, and Isala (PW-23) is brother (being the member of same community) of deceased Ismile and Fakir. They have exaggerated their version and made false and over implications. They have not narrated the true story. Learned trial court has, therefore, in the absence of any convincing corroboration, convicted and sentenced the accused appellants. Their conviction cannot be sustained on their testimony alone. Learned counsel submitted that while the deceased died due to gun shot injuries, recovery of 'lakdi' has been shown at the instance of accused-appellants Majid Khan S/o Aslam Khan, Sultan Khan S/o Dhundhe Khan and Babu Khan S/o Kallu Khan. Only one gun has been recovered at the instance of accused-appellant Taiyab Khan three years after the date of incident. As per the statement of Manna Lal (PW-18), Reserve Inspector, Jhalawar Police Lines, he examined one ML country-made double barrel gun without number, which was not in working condition and its trigger was missing. It could be made operational after installation of trigger. It is alleged against accused-appellants Majid Khan S/o Rustam Khan, Sultan Khan S/o Dhundhe Khan and Babu Khan S/o Kallu Khan that they inflicted injuries by sharp edged weapons, whereas neither deceased Fakir nor informant Nannhe Khan received any injury by sharp edged weapon. Babu Khan was not even named in the FIR and was on bail pending trial and his sentence was also suspended in the appeal by this court. One Sharif Khan was also charge-sheeted but neither was he named in the FIR nor was named by any witness and, therefore, learned trial court rightly acquitted him of the charges. 8. Learned counsel for the appellants have taken the court through the statement of eye witness Nannhe Khan (PW-17), and argued that this witness has made lot of improvements upon his original version in the 'parcha bayan'. 8. Learned counsel for the appellants have taken the court through the statement of eye witness Nannhe Khan (PW-17), and argued that this witness has made lot of improvements upon his original version in the 'parcha bayan'. His allegations that Taiyab Khan fired at the back of deceased Fakir Khan, has not been corroborated from the postmortem-report because no such corresponding injury was present at the back of deceased Fakir Khan. Further allegation that Razak opened fire at Fakir Khan, which hit him below right armpit and made exit from opposite side, is also not medically corroborated. Allegation that Sultan Khan S/o Dhundhe Khan fractured the leg of deceased Ismile Khan, is also palpably false because no such fracture has been found in his leg. Further allegation that Majid Khan S/o Rustam Khan hit deceased Ismile Khan on his hand leading to fracture of its bone, has also not been corroborated because there is no such corresponding fracture or injury on the hand of deceased Ismile Khan. On the similar pattern, other witnesses also toed the same line as was said by Nannhe Khan (PW-17). In this connection, learned counsel referred to statements of Isan Khan (PW-10), Shafi Khan (PW-11), Kanija (PW-16) and Ishala (PW-23), which shall be discussed at the appropriate place hereinafter. 9. It was argued that no cartridges or pellets were recovered from the place of incident. Conduct of the witnesses was highly unnatural. They have not explained why they did not come forward to save deceased when they were attacked. Neither the tractor nor trolley has been recovered. Accused-appellant Babu Khan was not named in the FIR but in the court statements of the prosecution witnesses, it is alleged that he inflicted 'falsi' (sharp edged lakdi) blow on the right eye of deceased Ismile but in the postmortem-report no corresponding injury was found on his eye. Nannhe Khan (PW-17) in the statement before the court, has not named accused-appellant Babu Khan. It was argued that accused-appellant Sultan Khan S/o Dhundhe Khan was not named in the first set of seven accused, who were initially named in the 'parcha bayan', but only named in the concluding part of the 'parcha bayan'. It is alleged that accused-appellant Sultan Khan by use of 'falsi' has broken the leg of deceased Ismile, which is not corresponded. It is alleged that accused-appellant Sultan Khan by use of 'falsi' has broken the leg of deceased Ismile, which is not corresponded. Isan Khan (PW-10) has stated that Sultan S/o Dhundhe Khan was caught on the spot by the police, which has not been found proved. Shafi Khan (PW-11) has alleged that Sultan S/o Dhundhe Khan has broken the hand of deceased Ismile by use of 'falsi', whereas there is no corresponding injury. Kanija (PW-16) has stated that Sultan Khan S/o Dhundhe Khan had inflicted a 'falsi' blow on the right hand of deceased Ismile Khan and thereby broken the same, whereas there is no such corresponding injury. She further alleged that Sultan S/o Dhundhe Khan even inflicted a 'falsi' blow on her hand, whereas no such injury was found on her own hand. Ishala (PW-23) has also alleged that Sultan S/o Dhundhe Khan has by use of 'falsi' broken the leg of Ismile Khan, which has not been medically corroborated. It is argued that the prosecution witnesses have made substantial improvement over the version given by them to the police in their statements under Section 161 Cr.P.C. 10. In this connection, learned counsel for accused-appellants referred to the case of accused-appellant Majid Khan S/o Rustam Khan. The prosecution witnesses have not assigned any role to accused Majid in their statements under Section 161 Cr.P.C., but they have assigned specific role to him in their court statements. Similarly, in regard to accused-appellant Razak Khan S/o Umrao Khan, it is submitted that he is named in the FIR but he has not been assigned any weapon. In the like way, accused-appellant Kamru Khan S/o Majid Khan has also not been assigned any weapon. However, all of them have been assigned weapons with specific role in the court statement by the prosecution witnesses. 11. It was argued that learned trial court has failed to correctly appreciate the statement of Nijamuddin (DW-1), who has proved the fact that on the date of incident i.e. 05.05.1999 accused Amin Khan S/o Umrao Khan had remained with him in the office of the Electricity Department at Aklera from 10.00 in the morning till 2.30 in the after-noon. 11. It was argued that learned trial court has failed to correctly appreciate the statement of Nijamuddin (DW-1), who has proved the fact that on the date of incident i.e. 05.05.1999 accused Amin Khan S/o Umrao Khan had remained with him in the office of the Electricity Department at Aklera from 10.00 in the morning till 2.30 in the after-noon. Accused-appellant Amin himself has appeared as DW-2 under Section 315 of the Cr.P.C. and has proved the fact that he had gone to the office of Electricity Department at Aklera on the date of incident i.e. 05.05.1999 with Roshan and his name has been wrongly impleaded. He has taken defence of alibi in his examination under Section 313 Cr.P.C. also. 12. Learned counsel for the appellants, therefore, argued that it is a case of false as well as over implication. The evidence relied on by the learned trial court, ought to be carefully scrutinized. It was argued that the learned trial court has failed to carefully scrutinise evidence of the witnesses and has mechanically convicted and sentenced the accused-appellants. The impugned judgments should therefore be set aside. 13. Per contra, Shri Javed Choudhary, learned Public Prosecutor appearing on behalf of the respondent-State, opposed the appeals and submitted that the judgments of the learned trial court does not suffer from any infirmity or illegality. The learned trial court has carefully marshalled the evidence and correctly reached to the conclusion as to the guilt of the accused-appellants. It was argued that the 'parcha bayan' was recorded within three hours of the incident and therefore at that stage it cannot be visualised that the informant would have, after due deliberation, made false/over implication. The 'parcha bayan' has been proved by informant Nannhe Khan (PW-17). When he appeared in the court, he has substantially corroborated what he has stated in the 'parcha bayan'. It was alleged by him in the 'parcha-bayan' that Sultan Khan S/o Umrao Khan opened fire at his brother Fakir Khan, whereas Taiyab Khan opened fire at informant Nannhe Khan and Ishala. When he ran from the place of incident, Taiyab followed him, and remaining accused continued to fire at his brother Fakir Khan and father Ismile Khan. It was alleged by him in the 'parcha-bayan' that Sultan Khan S/o Umrao Khan opened fire at his brother Fakir Khan, whereas Taiyab Khan opened fire at informant Nannhe Khan and Ishala. When he ran from the place of incident, Taiyab followed him, and remaining accused continued to fire at his brother Fakir Khan and father Ismile Khan. It is argued that this witness (Nannhe Khan - PW-17) has, in the court statement, merely clarified what he meant to convey in his 'parcha bayan', but it is certainly not a case of false/over implication. Isan Khan (PW-10) has proved that he as well as Fakir Khan, Ismile Khan, Nannhe Khan, Isala, Shafi and Kanija were loading sand into the tractor trolley. Accused Sultan S/o Umrao, Shafi S/o Kallu Khan, Kamru S/o Majid, Majid S/o Umrao Khan, Taiyab S/o Sarjit Khan, Amin Khan S/o Umrao Khan, Razak Khan S/o Umrao Khan, Sharif Khan S/o Jagmal Khan, Sultan S/o Dhundhe Khan, came there. Majid S/o Rustam Khan was also with them. Sultan Khan S/o Umrao Khan opened fire at the back of Fakir Khan. Razak also opened fire at Fakir Khan, which hit his waist. Accused Amin caused fire which hit above the jaw of deceased Ismile. Accused Shafi also opened fire which hit above the waist of deceased Ismile. Accused Kamru Khan opened fire at deceased Ismile, which made exit through his waist. Though this witness also stated that accused Sultan S/o Dhundhe amputated the hand of deceased Ismile, accused Babu Khan inflicted injury by 'falsi' on the eye of Ismile, accused Majid and Sharif had fractured both the legs of deceased Ismile by 'lakdi' and 'falsi'. Accused Taiyab opened fire at informant Nannhe Khan, which hit his right buttock. Shafi Khan S/o Babul Khan (PW-11) and Kanija W/o deceased Fakir Khan (PW-16) have also substantially corroborated the statement of Isan Khan (PW-10). Ishala (PW-23) has also corroborated the fact about aforementioned members of the complainant party loading the sand into the trolley attached with the tractor and that Isan Khan was taking bath at the river at that time and Sultan Khan S/o Umrao opened fire at Fakir Khan, which hit his chin. Taiyab S/o Sarjit Khan opened fire at the back of deceased Fakir, which made exit from his chest. Taiyab S/o Sarjit Khan opened fire at the back of deceased Fakir, which made exit from his chest. Razak S/o Umrao Khan opened fire at Fakir Khan, which hit his right side waist and made exit from opposite side. Amin Khan opened fire, which hit the face of deceased Ismile Khan. Shafi caused injury on the head of deceased Ismile by gun. Accused Kamru also fired at deceased Ismile. Majid Khan S/o Rustam Khan has broken the right hand of deceased Ismile by use of 'Kulhari'. Babu Khan S/o Kallu Khan, by use of 'falsi' injured the eye of deceased Ismile. Accused Sharif Khan broke the leg of deceased Ismile. Sultan Khan S/o Dhundhe Khan has broken another leg of deceased Ismile. Amin Khan opened fire at this witness Ishala (PW-23). 14. Shri Javed Choudhary, learned Public Prosecutor, further submitted that Dr. Dwarka Lal (PW-1) has proved the postmortem-reports of deceased Ismile and Fakir Khan (Exhibits P-1 and P-3) and injury-report (Exhibit P-5) of informant Nannhe Khan (PW-17). Dr. R.D. Verma (PW-2) has proved the X-ray Report (Exhibit P-7) of injured Nannhe Khan. Gappu Khan (PW-7) and Kallu Khan (PW-8) have proved the 'panch-nama' of dead bodies of deceased Fakir Khan and Ismile Khan, respectively, vide Exhibits P-12 and P-13. Babul Khan (PW-9) has also proved the panch-nama of dead-bodies of deceased. The site-plans of the incident (Exhibits P-16 and P-17) have been proved by Chetanya Kumar (PW-21), the S.H.O. of Police Station Javar. Shankar Lal (PW-19) has proved the recovery of gun at the instance of accused-appellant Taiyab vide Exhibit P-36. Though, Raghuveer (PW-20) has stated that Taiyab did not get the gun recovered before him and, therefore, he has been declared hostile. Praveen Gupta (PW-22), District Collector, Jhalawar, has proved the sanction of prosecution against accused-appellant Taiyab for offence under Section 3/25 of the Arms Act. 15. Learned Public Prosecutor also made reference to the statements of prosecution witnesses recorded during trial in Sessions Case No. 35/2005 against accused Sultan Khan S/o Umrao Khan. Shafi Khan (PW-3) has stated that Sultan opened fire at Fakir Khan, which hit his face. It was Sultan who initially started firing the gun. Nannhe Khan (PW-5) has stated that Sultan Khan opened fire at Fakir Khan. Isan Khan (PW-9) has deposed that Sultan Khan opened fire which hit the chin of Fakir Khan, and made exit from opposite side. It was Sultan who initially started firing the gun. Nannhe Khan (PW-5) has stated that Sultan Khan opened fire at Fakir Khan. Isan Khan (PW-9) has deposed that Sultan Khan opened fire which hit the chin of Fakir Khan, and made exit from opposite side. Kanija W/o Fakir Khan (PW-10) stated that Sultan Khan S/o Umrao Khan opened fire at her husband Fakir Khan, which hit his face and made exit from oppoiste side. Dr. Dwawrka Lal (PW-7), who conducted the postmortem of deceased Fakir Khan, has proved the same. 16. It is argued that statements of prosecution witnesses, in both the cases, have been corroborated not only from 'parcha bayan' but also from each other and, therefore, only because prosecution witnesses happen to be relatives of deceased, their testimony cannot be discarded. Learned Public Prosecutor, therefore, submitted that the charges against accused-appellants have been proved beyond reasonable doubt. The appeals filed by the accused-appellants therefore deserve dismissal. 17. We have given our anxious consideration to rival submissions and perused the material on record. 18. The prosecution story as initially unfolded from the 'parcha bayan' has given names of accused-appellants Sultan Khan S/o Umrao Khan, Taiyab Khan S/o Sarjit, Shafi S/o Kallu Khan, Kamru S/o Majid Khan, Majid Khan S/o Rustam Khan, Razak S/o Umrao Khan and Amin Khan S/o Umrao Khan in the first part and in the concluding part the name of Sultan S/o Dhundhe Khan has been mentioned. It is alleged that Sultan Khan S/o Umrao Khan had opened fire at Fakir by his gun and Taiyab opened fire at the informant Nannhe Khan and Ishala. It was alleged therein that Fakir Khan and Ismile Khan were shot dead at the place of incident but this 'parcha bayan' appears to have been recorded at 5.00 pm, whereas approximate time of the incident given therein is at about 2.30 pm, which means that the 'parcha-bayan' was recorded in less than 2.30 hours of the incident. In the 'parcha bayan', it is also alleged that Ishala, brother of complainant, and Shafi S/o Babul Khan were not still traceable, thus showing that members of complainant party were still in the state of intimidation. In the 'parcha bayan', apart from deceased Ismile and Fakir Khan, not only Ishala and Shafi were said to be present but Irshad, Kanija and Jahid Khan were also shown present. In the 'parcha bayan', apart from deceased Ismile and Fakir Khan, not only Ishala and Shafi were said to be present but Irshad, Kanija and Jahid Khan were also shown present. Therefore, their version as eye witnesses by the prosecution cannot be disbelieved. Testimony of these witnesses cannot be rejected only because they are related to the deceased. Though it is true that the court would be required to subject the testimony of these witnesses to the greatest amount of scrutiny so as ensure that no innocent gets punished though at the same time it is also to be borne in mind that no guilty should escape. 19. It is against this backdrop that we have to scan the statements of the prosecution witnesses when they assigned specific role to the accused, to find out whether at all there are corresponding injuries on the persons of deceased and the injured. In order therefore to appreciate the statements of the prosecution witnesses, it is necessary to examine the injuries received by deceased and the injured. 20. The postmortem-report of deceased Ismile (Exhibit P-1) shows following ten injuries found on his person:- S.No. Injury Shape Size Part Nature Margins 1 Wound of entry Circular Diameter ½ " In front of left ear Gun shot Inverted 2 Wound of exit Lacerated 1 x 1/2"x bone deep Left frontal region Gun shot Evented 3 Wound of Entry Circular Diameter ¾ " Pinna of left ear Gun shot Inverted 4 Wound of Exit Lacerated Lacerated ¾" x ½"x bone deep Left frontal region Gun shot Evented 5 Wound of Entry Circular Diameter ¾" Left side of nose Gun shot Inverted 6 Wound of Exit Lacerated 1"x ½"x bone deep Left frontal region Gun shot Evented 7 Wound of Entry Circular Diameter ½" Left cheek Gun shot Inverted 8 Wound of Exit Lacerated ¾"x ½"x bone deep Left parietal region Gun shot Evented 9 Wound of Entry Circular Diameter ¾" In front of right anterior, superior Alice spine Gun shot Inverted 10 Lacerated wound 1" x ¼"x ⅛" Lateral armpit of right forearm Simple blunt 21. Similarly, postmortem-report of deceased Fakir Khan (Exhibit P-3) indicates following three injuries on his person:- S.No. Injury Shape Size Part Nature Margins 1 Wound of entry Circular Diameter ¾" Right scapular region Gun shot Inverted 2 Wound of Exit Lacerated 1 ½ "x1" x bone deep Below mouth on right side Gun shot Evented 3 Abrasion 1"x ½" Posterior aspect of temporal region of right side Simple Blunt 22. The Injuries received by informant Nannhe Khan (PW-17) have been mentioned in injury-report (Exhibit P-5), which are as follows:- 1 Wound of entry ¾"x ¾"x? Right Gluteal region Opinion after X Ray and Report of Surgeon 2 Wound of entry ¾"x ½"x? Anterior aspect of right thigh Opinion after X Ray and Report of Surgeon 3 Wound of entry 1¼"x ⅜"x? Posterior and Upper aspect of right thigh Opinion after X Ray and Report of Surgeon 4 Wound of entry ½ " x ¼ " x? Upper and lateral aspect of right thigh Opinion after X Ray and Report of Surgeon 23. Dr. Dwarka Lal (PW-1) has proved the aforesaid postmortem-reports (Exhibits P-1 and P-3) of deceased Ismile and Fakir Khan, and also the injury report (Exhibit P-5) of injured Nannhe Khan. A perusal of the postmortem-reports as well as the injury report in the light of the statement of Dr. Dwarka Lal (PW-1) reveals that deceased Ismile Khan received total ten injuries and out of which nine were gun shot injuries and one was lacerated wound on right forearm. Injuries no. 1, 3, 5, 7 and 9 are entry wounds, whereas injuries no. 2, 4, 6 and 8 are exit wounds. Thus, it is evident that these were firearms injuries. While they are five entry wounds, there are four exit wounds. In fact, therefore, deceased Ismile Khan received five gun shot injuries and one lacerated wound on the right forearm, total six injuries. Dr. Dwarka Lal (PW-1), has not proved any other injury on the person of deceased Ismile Khan whether the fracture of hands or legs or the injury on the right eye. Similarly, Dr. Dwarka Lal (PW-1) has also proved the postmortem-report of deceased Fakir Khan, referred to supra. Deceased Fakir Khan received two firearm injuries, of which one was entry wound and another exit wound, being injuries no. 1 and 2 above. Similarly, Dr. Dwarka Lal (PW-1) has also proved the postmortem-report of deceased Fakir Khan, referred to supra. Deceased Fakir Khan received two firearm injuries, of which one was entry wound and another exit wound, being injuries no. 1 and 2 above. Third injury that he received was abrasion on temporal region, which has been opined to be simple caused by blunt weapon. He thus received only two injuries. Injured informant Nannhe Khan received total four injuries, all of which are entry wounds indicating that all are gunshot injuries resulting into entry of pallets into his body. 24. In the light of position of the injuries noted above, if we analyze the statements of prosecution witnesses, we find that these witnesses have made lot of exaggeration over the original version given in the 'parcha bayan' as also in the police statements. Isan Khan (PW-10) has stated that Sultan S/o Umrao opened fire at Fakir Khan at his back, which made exit from his chest. These injuries found corroboration from the postmortem-report (Exhibit P-3), though with small change of location but approximately in the same direction. Then, he has further stated that Razak opened fire at the back of deceased Fakir Khan, whereas there are no such corresponding injury on the person of deceased Fakir Khan. He has then further stated that Amin Khan opened fire on the jaw of deceased Ismile, which is substantially corroborated. He then alleges that Shafi opened fire, which hit above the waist of deceased Ismile Khan, which is also substantially corroborated. Further allegation that Kamru Khan opened fire at the waist of deceased Ismile Khan, where for also corresponding injury is found on the person of deceased. But the subsequent part of his statement alleging that Sultan Khan S/o Dhundhe Khan amputated the hands of deceased Ismile Khan, Babu Khan inflicted 'falsi' blow on the right eye of deceased Ismile Khan, Majid and Sharif had broken his both legs by use of 'lakdi' and 'falsi', is not corroborated. In the cross-examination also, this witness has struck to his statement initially alleging that both the hands and then said that one hand of deceased Ismile was amputated. The right hand from below the ankle was amputated and that right hand of Ismile was injured and further that both the legs of deceased Ismile were fractured from below the knee. In the cross-examination also, this witness has struck to his statement initially alleging that both the hands and then said that one hand of deceased Ismile was amputated. The right hand from below the ankle was amputated and that right hand of Ismile was injured and further that both the legs of deceased Ismile were fractured from below the knee. However, the allegation in particular that Taiyab Khan opened fire at Nannhe Khan, which hit at his right buttock, is fully corroborated. 25. On the same pattern, Shafi Khan (PW-11) has alleged that Sultan Khan (S/o Umrao Khan) opened fire on the jaw of Fakir Khan, which made exit from the opposite side. Taiyab Khan opened fire at Fakir Khan at his back, which also made exit from opposite side. Razak opened fire at the waist of Fakir Khan, which also made exit from opposite side. Amin Khan opened fire at the face of Ismile Khan. Shafi Khan opened fire at the head of Ismile Khan. Kamru Khan had fired at the back of deceased Ismile, then Babu inflicted a 'falsi' blow on his eye. Sultan Khan S/o Dhundhe Khan had broken his hands. Then allegation that Razak opened fire at Fakir Khan and Majid had broken his one leg, and further allegations regarding fractures/amputation do not find any corroboration from the medical evidence. Sharif Khan and Majid had broken his one leg each of Ismile, is also not corroborated from the postmortem-report and also the statement of Dr. Dwarka Lal (PW-1). Kanija (PW-16) W/o deceased Fakir Khan has also stated that Sultan Khan opened fire at her husband and Taiyab also opened fire at her husband Fakir Khan, which he received at his back and which made exit from the opposite side. Razak opened fire at Fakir Khan, which his right side, whereas there is no corresponding injury on his armpit. Amin opened fire at the face of deceased Ismile, which injury is substantially corroborated. Kamru opened fire at the right armpit of deceased Ismile, which is also substantially corroborated. But then there is exaggeration that Sharif inflicted a 'falsi' blow at the back of her husband Fakir Khan, which statement is not corroborated from the medical evidence, which is why the learned trial court has rightly acquitted Sharif, who was not even named in the FIR. But then there is exaggeration that Sharif inflicted a 'falsi' blow at the back of her husband Fakir Khan, which statement is not corroborated from the medical evidence, which is why the learned trial court has rightly acquitted Sharif, who was not even named in the FIR. Then there is the allegation that Babu had inflicted a 'falsi' blow on the right eye of deceased, but no such corresponding injury has been proved by Dr. Dwarka Lal (PW-1). Further allegation that Sultan Khan S/o Dhundhe Khan inflicted the 'falsi' blow leading to fracture of right hand of Ismile Khan, has not been proved because there is no such corresponding injury. When Nannhe Khan ran away from the place of incident, Taiyab followed him and opened fire at him, which has been proved. But then, the allegation that Sultan Khan S/o Dhundhe Khan inflicted a 'falsi' blow on the hand of Kanija (PW-16), has not been proved. 26. Ishala (PW-23), who is also an eye witness, has stated that Sultan Khan S/o Umrao Khan opened fire at the deceased Fakir Khan, which hit him on his chin. Another fire injury was caused by Taiyab on the person of deceased Fakir Khan, which hit below his neck at the back and made exit from opposite side. Accused Razak opened fire also at deceased Fakir Khan, which hit below his right side waist and made exit from opposite side, but this injury has not been corroborated. Then there is further allegation that Amin Khan opened fire at the face of the deceased Ismile. Then Shafi also opened fire at Ismile, which hit on his head. Kamru Khan also fired at him, leading to entry and exit wound. Then Amin Khan told that no one should be allowed to remain alive, otherwise in future they will trouble us. But then, the allegations beyond this stage that Majid Khan amputated right hand of deceased Ismile, Babu Khan injured his right eye, Sharif Khan fractured his leg and Sultan Khan S/o Dhundhe Khan fractured another leg, are not corroborated from the medical evidence. 27. Similarly the eye witnesses, produced by the prosecution in support of its case, in their statements recorded during trial in Sessions Case No. 35/2005 against accused Sultan Khan S/o Umrao Khan, have more or less deposed in the same way against appellant Sultan Khan. 27. Similarly the eye witnesses, produced by the prosecution in support of its case, in their statements recorded during trial in Sessions Case No. 35/2005 against accused Sultan Khan S/o Umrao Khan, have more or less deposed in the same way against appellant Sultan Khan. Shafi Khan (PW-3) has stated that Sultan opened fire at Fakir Khan, which hit his face. It was Sultan, who initially opened fire by gun. Nannhe Khan (PW-5) has deposed that Sultan Khan opened fire at Fakir Khan. Isan Khan (PW-9) has deposed that Sultan Khan opened fire, which hit the chin of Fakir Khan, and made exit from opposite side. Kanija W/o Fakir Khan (PW-10) stated that Sultan Khan S/o Umrao Khan opened fire at her husband Fakir Khan, which hit his face and made exit from opposite side. Dr. Dwarka Lal (PW-7), who conducted the postmortem of deceased Fakir Khan, has proved the same. 28. Analysis of the evidence, thus clearly shows that evidence of the prosecution witnesses though clearly and consistently proves the role of accused-appellants, Sultan Khan S/o Umrao Khan (Appeal No. 648/2008), Amin Khan S/o Umrao Khan, Shafi Khan S/o Kalandar Khan, Kamru Khan S/o Majid Khan and Taiyab Khan S/o Sarjit Khan (Appeal No. 1366/2003), but so far as other accused-appellants no. 1, 2, 3 and 6 in Appeal No. 1366/2003, namely, Sultan Khan S/o Dhundhe Khan, Majid Khan S/o Rustam Khan, Razak Khan S/o Umrao Khan and Babu Khan S/o Kallu Khan, are concerned, specific role that has been attributed to them in the statement of various prosecution witnesses, has not been proved for want of corroboration of the injuries present on the person of deceased and injured, as per the injuries shown in the postmortem-report (Exhibits no. 1 and 3) and injury-report (Exhibit No. 5). The accused-appellant Babu Khan has been assigned injury on the right eye of deceased Ismile, but Dr. Dwarka Lal (PW-1) has proved only ten injuries on the person of deceased and has not made any specific mention of the injury on eye of the deceased, which fact he has admitted in the cross-examination that he has not made any specific mention of the injury on the right eye of deceased in the postmortem-report. Dwarka Lal (PW-1) has proved only ten injuries on the person of deceased and has not made any specific mention of the injury on eye of the deceased, which fact he has admitted in the cross-examination that he has not made any specific mention of the injury on the right eye of deceased in the postmortem-report. Accused-appellant Sultan Khan S/o Dhundhe Khan has been assigned the injury allegedly leading to amputation/fracture of the hand of deceased Ismile, whereas neither is there any such fracture nor amputation of any of the hands of the deceased. Accused-appellant Majid Khan has been assigned the role of causing fracture of one of the legs of deceased Ismile, whereas there is no such fracture on any of his legs. Another accused Sharif, who was assigned the role of causing fracture of another leg of deceased, has already been acquitted by the learned trial court of the charges. With regard to accused-appellant Razak, it has been alleged by the prosecution witnesses that he opened fire at deceased Fakir Khan thereby causing an injury on the right side near waist, which made exit from the opposite side, there is no such corresponding injury on the person of deceased Fakir Khan. The charges against accused-appellants no. 1, 2, 3 and 6 in Appeal No. 1366/2003, namely, Sultan Khan S/o Dhundhe Khan, Majid Khan S/o Rustam Khan, Razak Khan S/o Umrao Khan and Babu Khan S/o Kallu Khan, have thus not been proved beyond reasonable doubt entitling them to benefit of doubt. To that extent, the learned trial court, in our considered view, was not justified in convicting and sentencing them. 29. 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. 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. 30. In so far as the plea of alibi set up by accused-appellant Amin Khan S/o Umrao Khan is concerned, the same has rightly been not accepted by learned trial court because it did not inspire confidence inasmuch as the appellant could not substantiate that he had actually gone to the Electricity Department and if at all he had gone there, how and why he continuously stayed there for as long as four-and-a-half hour. Moreover, while his examination under Section 313 Cr.P.C., he has set up the plea in different manner that earlier a criminal case was lodged against the complainant herein and others on the basis of a report filed by this appellant and he also gave evidence against them and, as such, this case is in retaliation of that and he has been falsely implicated. Appellant Amin Khan, while appearing as defence witness under Section 315 Cr.P.C., has stated that he had gone to the office of the Electricity Department on the fateful day and remained there for the period from 10.00 am to 2.30 pm. Such a plea of alibi set up by the appellant is, therefore, liable to be rejected and is accordingly rejected. 31. In view of above discussion, we are inclined to hold that conviction of only five accused-appellants, namely, accused-appellants no. Such a plea of alibi set up by the appellant is, therefore, liable to be rejected and is accordingly rejected. 31. In view of above discussion, we are inclined to hold that conviction of only five accused-appellants, namely, accused-appellants no. 4, 5, 7 and 8, namely, Kamru Khan S/o Majid Khan, Shafi Khan S/o Kalandar Khan, Amin Khan S/o Umrao Khan and Taiyab Khan S/o Sarjit Khan in Appeal No. 1366/2003, and accused-appellant Sultan Khan S/o Umrao Khan in Appeal No. 648/2008, who formed unlawful assembly, can be sustained. Ordered accordingly. Whereas, remaining four accused-appellants no. 1, 2, 3 and 6 in Appeal No. 1366/2003, namely, Sultan Khan S/o Dhundhe Khan, Majid Khan S/o Rustam Khan, Razak Khan S/o Umrao Khan and Babu Khan S/o Kallu Khan, are held entitled to benefit of doubt. 32. In the result, Appeal No. 1366/2003 filed by accused-appellants no. 1, 2, 3 and 6, namely, Sultan Khan S/o Dhundhe Khan, Majid Khan S/o Rustam Khan, Razak Khan S/o Umrao Khan and Babu Khan S/o Kallu Khan, is allowed. Their conviction and sentence are set-aside. They are acquitted of the charges levelled against them. If these four accused-appellants are in jail, they be set at liberty forthwith, if not needed in any other case. Appeal No. 1366/2003 filed by accused-appellants no. 4, 5, 7 and 8, namely, Kamru Khan s/o Majid Khan, Shafi Khan S/o Kalandar Khan, Amin Khan S/o Umrao Khan and Taiyab Khan S/o Sarjit Khan is dismissed. Appeal No. 648/2008 of accused-appellant Sultan Khan S/o Umrao Khan is also dismissed. Their conviction and sentence are maintained. They are in jail and have to serve out remaining sentence. 33. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, appellants no. 1, 2, 3 and 6, namely, Sultan Khan S/o Dhundhe Khan, Majid Khan S/o Rustam Khan, Razak Khan S/o Umrao Khan and Babu Khan S/o Kallu Khan in Appeal No. 1366/2003, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, these appellants, on receipt of notice thereof, shall appear before the Supreme Court.Appeal No. 648/2008 dismissed. *******