JUDGMENT P.V. Hardas, J. 1. Criminal Appeal 502 of 1993 is filed by original accused No.1, while Criminal Appeal 472 of 1993 is filed by original accused Nos.2, 3 and 4. The Appellants who stand convicted for offence punishable under Sections 302 and 307 read with 34 of the Indian Penal Code and accused Nos. 2 to 4 who are sentenced to imprisonment for life and each accused to pay fine of Rs.500/-, in default of which to undergo rigorous imprisonment for two months and rigorous imprisonment for three years and each accused to pay fine of Rs.500/-in default of which to undergo further rigorous imprisonment for two months, by the Additional Sessions Judge, Kolhapur by judgment dated 12 August 1993, by these Appeals challenge the conviction and sentence. Since original accused No.1 was not sentenced, a reference is made by the Trial Court under Section 318 of the Code of Criminal Procedure for passing sentence against him. The Appeals and the Reference are being accordingly decided by this common judgment. 2. Facts in brief as are necessary for the decision of these Appeals may briefly be stated thus: P.W.4 – Parashu Ishwar Devudkar, a Police Head Constable who on 26 September 1988 was attached to Police Station Gadhinglaj and was on bandobast duty at village Kaulage, was informed by Deputy Sarpanch and one Nagu Konkeri of village Jarali at 3.00 p.m. about the likelihood of some untoward incident. P.W.4 Head Constable Devudkar accordingly informed the Deputy Sarpanch and Nagu to go to the police station and lodge a complaint. P.W.4 Head Constable Devudkar thereafter returned to Police Station Gadhinglaj and along with two police constables proceeded to village Jarali in a jeep. On reaching near the village, he noticed accused Nos.1 and 2 coming by road and appeared to be frightened. Accused Nos.1 and 2 were therefore taken into custody and P.W.4 Head Constable Devudkar proceeded to the field of one Rayappa. He noticed two persons whose hands and legs were tied. He noticed Rama who was lying injured. P.W.4 Head Constable Devudkar therefore untied P.W.1 - Rama and referred Rama to the hospital for treatment. Deceased Birappa was found to have died. On the next day, he had pointed out the scene of incident. 3. He noticed two persons whose hands and legs were tied. He noticed Rama who was lying injured. P.W.4 Head Constable Devudkar therefore untied P.W.1 - Rama and referred Rama to the hospital for treatment. Deceased Birappa was found to have died. On the next day, he had pointed out the scene of incident. 3. P.W. 7 – P.S.I. Shivprasad Galimath, who was also attached to Police Station Gadhinglaj was informed about the incident by the P.S.O. He accordingly proceeded to the hospital at Gadhinglaj and enquired with the Medical Officer if the injured was in a fit condition to give his statement. The Medical Officer informed P.W.7 – P.S.I. Galimath that the injured was in a fit condition to give his statement and accordingly recorded the statement of the injured at Exhibit 25. On the basis of the said report of P.W. 1 – Rama, an offence vide Crime No.219 of 1988 was registered under Sections 302, 307 and 342 read with 34 of the Indian Penal Code. Accused Nos.1 and 2 were arrested under arrest panchanama at Exhibit 13. The clothes on the person of accused Nos.1 and 2 were accordingly seized. On 27 September 1988 he visited the scene of incident at about 6.00 p.m. and noticed the dead body of deceased Birappa. An inquest panchanama of the dead body was drawn at Exhibit 25 in the presence of panchas. The dead body was referred for postmortem examination. From the scene of incident, axe, sticks and one string were seized under the scene of incident panchanama at Exhibit 26. Statements of witnesses were recorded. The clothes of deceased Birappa were seized. The seized property was thereafter referred to the Chemical Analyzer under requisition at Exhibit 28. Further to the completion of investigation, a charge-sheet against the accused was submitted. 4. Postmortem on the dead body of deceased Birappa was conducted by P.W.5 – Dr. Rao. P.W.5 – Dr. Rao noticed the following external injuries: “1. An incised and cutting wound of 3” x ½ “ x ¼ “ on the right parietal bone in middle (transverse). Bleeding was present. 2. An incised and cutting wound of 1” x ½ “ x ¼ “ on the right eyebrow oblique, bleeding was present. 3. An incised and cutting wound of 1” x ¼ “ x ¼ “ on the middle of the right lower leg, bleeding present. 4. Bleeding was present. 2. An incised and cutting wound of 1” x ½ “ x ¼ “ on the right eyebrow oblique, bleeding was present. 3. An incised and cutting wound of 1” x ¼ “ x ¼ “ on the middle of the right lower leg, bleeding present. 4. The right humorous was fractured in the middle. 5. Right lower end of femur is fractured.” 5. On internal examination, he noticed that the right parietal bone was fractured in the middle and the fracture was transverse in length about 1 inch. Large blood clots were found on the brain beneath the fracture. He therefore opined that the probable cause of death was due to fracture of the skull, hemorrhage and shock. The postmortem report is at Exhibit 22. 6. On 26 September 1988, P.W. 5 – Dr. Rao had examined P.W.1 – Rama and had noted the following external injuries : “1. An incised and cutting would of 8” x scalp deep x ¼ on its right temporal bone, starting from middle of the skull upto right ear, vertical, Margins are clean and even severally bleeding. 2. An incised and cutting wound of 3” x skull deep x ¼ 1” below the injury No.1 severally bleeding. 3. An incised and cutting wound of 2” x skull deep x ¼ on the left temporary bone severally bleeding. 4. An incised and cutting wound of 1 ½ “ skull deep x ¼ ” above the right ear. Bleeding was present. 5. An incised and cutting wound of 3” x skull deep x ¼ “ on the center of the skull. Bleeding was present. 6. A contusion on the right elbow joint, the joint is swollen. 7. An incised and cutting wound of 3” x ½ “ x ¼ “ on the left shoulder joint. Bleeding was present. 8. A contusion on the right palm dorsal aspect. The palm is swollen and painful. 9. A contusion on the left palm, dorsal aspect. The palm is swollen and painful. 10. A contusion of 6” x 1” on the right infra scapular region. Echgomosispresent. Sticu maru is present.” 7. According to him injuries 1 to 5 and 7 were caused by sharp and cutting instruments, while injuries 6, 8, 9 and 10 could be caused by sticks. The medical certificate of of P.W. 1 – Rama is at Exhibit 21. 8. A contusion of 6” x 1” on the right infra scapular region. Echgomosispresent. Sticu maru is present.” 7. According to him injuries 1 to 5 and 7 were caused by sharp and cutting instruments, while injuries 6, 8, 9 and 10 could be caused by sticks. The medical certificate of of P.W. 1 – Rama is at Exhibit 21. 8. On committal of the case to the Court of Sessions, the Trial Court vide Exhibit 3 framed charge against the accused for offence punishable under Sections 302, 307 read with Section 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined seven witnesses. P.W.6 - Shobha Dhangar, an eyewitness to the incident did not support to the prosecution and was declared hostile. The entire prosecution case therefore revolved round P.W.1 – Rama, who was the sole eyewitness to the incident. 9. In order to effectively deal with the submissions advanced before us by Ms. Varsha Palav, learned counsel for the Appellants and the learned Additional Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. 10. P.W.1 – Rama Banne, brother of deceased Birappa deposes that accused No.1- Maruti was his cousin, while accused Nos.2 to 4 were the friends of accused No.1 – Maruti. There was a dispute about the agricultural land between the family members of accused No.1 and deceased Birappa and P.W.1 – Rama. According to P.W.1 – Rama on the day of the incident at about 12 to 12.30 a.m. he had learnt that the accused had gone in the field which was the joint family property for uprooting the groundnut crop. Accordingly P.W.1 – Rama went to the agricultural field and requested the accused not to uproot the groundnut crop. All the accused thereafter rushed towards P.W.1 – Rama and deceased Birappa questioning them as to why they had come in the field. Accused No.1 – Maruti was armed with a stick and dealt blows to deceased Birappa on his head and on the other parts of the body. Accused No.2 – Pandurang dealt with blows of axe on the head, waist, legs and hands of Birappa. Accused Nos.3 and 4 also assaulted Birappa with sticks. When P.W.1 – Rama went to the rescue of Birappa, Rama was also assaulted by all the accused. Accused No.2 – Pandurang dealt with blows of axe on the head, waist, legs and hands of Birappa. Accused Nos.3 and 4 also assaulted Birappa with sticks. When P.W.1 – Rama went to the rescue of Birappa, Rama was also assaulted by all the accused. Accused No.2 – Pandurang assaulted Rama with an axe on head, left shoulder and right leg. Accused Nos.1, 3 and 4 also assaulted Rama with sticks. Due to the assault, Birappa had fallen on the ground. Accused Nos.2 and 3 thereafter had tied the hands and legs of Birappa. Accused Nos.1 and 3 had also tied the hands and legs of P.W.1 – Rama. The accused thereafter fled from the scene of incident. Rama further deposes that he was taken to the hospital where he lodged his report at Exhibit 12. 11. In the cross examination he has admitted that the agricultural field is recorded in the name of his paternal uncle Rayappa. He has further admitted that the agricultural field where the incident had occurred belongs to Rayappa. He has admitted that they had animosity towards accused No.1 – Maruti and his family members as a share in the agricultural land had not been given to P.W.1 – Rama and others. He has further admitted that accused Nos. 2 to 4 were cultivating the field with the consent of accused No.1 – Maruti. He has admitted that he had not met Nagu while he was going towards the agricultural field. He has admitted that there was a commotion during the incident, but the neighbouring agriculturist had not rushed to their rescue. 12. Prosecution has examined P.W. 6 – Shobha as an eyewitness to the incident, but P.W. 6 – Shobha did not support the prosecution and was declared hostile. Nothing of substance has been elicited in the cross examination of P.W.6 – Shobha. 13. In respect of the injuries sustained by deceased Birappa, it is apparent that injuries 1 to 3 were incised wounds which could be caused due to axe. Injuries 4 and 5 are the fractures of the humorous bone and the lower end of femur. The evidence of P.W.1 – Rama indicates that accused No.2 had assaulted deceased with an axe on his hands as well as on his legs. The injuries sustained at Sr. Injuries 4 and 5 are the fractures of the humorous bone and the lower end of femur. The evidence of P.W.1 – Rama indicates that accused No.2 had assaulted deceased with an axe on his hands as well as on his legs. The injuries sustained at Sr. Nos.4 and 5 could also be caused by axe and would not necessarily be due to sticks. In respect of the injuries sustained by P.W. 1 – Rama, it is apparent that injuries 1 to 5 and 7 were caused by axe. Injuries 6, 8, 9 and 10, it is admitted by P.W.5 – Dr. Rao, could be possible due to fall on hard and blunt substance. The assault on P.W.1 – Rama was in the agricultural field. Injuries 6, 8, 9 and 10 which are contusions on the right elbow joint, right palm, left palm and on the right infra scapular region, could be caused due to fall on account of assault by sticks. We thus find that deceased Birappa and P.W.1 – Rama were assaulted by accused No.2 and were not assaulted by the other accused i.e. accused Nos.1, 3 and 4. 14. The evidence of the prosecution therefore clearly indicates that it was accused No.2 – Pandurang who had alone assaulted deceased Birappa and P.W.1 – Rama. The evidence does not conclusively establish that accused No.1 – Maruti and accused Nos.3 and 4 had also assaulted either P.W.1 – Rama or deceased Birappa with sticks. Thus, accused No.1 – Maruti and accused Nos.3 and 4 would be entitled to be given the benefit of doubt. 15. A reference is made by the Trial Court under Section 318 of the Criminal Procedure Code for passing appropriate sentence against accused No.1 – Maruti as he was deaf and dumb and could not understand the proceedings. Statement of accused No.1 – Maruti under Section 313 of the Code of Criminal Procedure was also not recorded though a charge was framed against him and the charge was explained to him. Accused No.1 – Maruti had denied his guilt and claimed to be tried. However, since are are inclined to allow the Appeal filed by accused No.1 – Maruti, the reference would no longer survive for consideration as according to us accused No.1 – Maruti would be entitled to be given the benefit of doubt. 16. Accused No.1 – Maruti had denied his guilt and claimed to be tried. However, since are are inclined to allow the Appeal filed by accused No.1 – Maruti, the reference would no longer survive for consideration as according to us accused No.1 – Maruti would be entitled to be given the benefit of doubt. 16. Learned counsel for the Appellants has urged before us that implicit reliance ought not to be placed on the testimony of P.W.1 – Rama as firstly Rama is an interested witness and the evidence indicates that there was some enmity between P.W.1 – Rama and accused No.1. The learned Additional Public Prosecutor has supported the findings arrived at by the Trial Court. 17. It is true that P.W.1 – Rama is the brother of deceased Birappa. However, P.W.1 – Rama is an injured witness whose report came to be lodged promptly. Merely because P.W.1 – Rama falsely implicated accused No.1 and accused Nos.3 and 4 would be no ground for rejecting his testimony as against accused No.2. If the testimony of a witness is a mixture of truth and falsehood, the Court has to perform the exercise of separating the grain from the chaff i.e. truth from the falsehood. Upon performing that exercise, according to us, implicit reliance can be placed on the testimony of P.W.1 – Rama regarding the assault on him as well as regarding the assault on deceased Birappa by an axe. We do not find any ground whatsoever for rejecting the testimony of P.W.1 – Rama. Prosecution had examined P.W.6 – Shobha as an eyewitness to the incident. But P.W.6 – Shobha did not support the prosecution and was declared hostile. However, according to us absence of corroboration to the testimony of P.W.1 – Rama, would not in any way affect his credibility. Implicit reliance therefore can be placed on the testimony of P.W.1 – Rama as against accused No.2. We, however, find that no reliance can be placed on the testimony of P.W.1 – Rama regarding the assault by accused No.1 – Maruti and accused Nos.3 and 4. Since we are acquitting accused No.1 – Maruti, the Reference would not survive for consideration and would have to be answered in the negative. 18. Accordingly Criminal Appeal 472 of 1993 is partly allowed. Since we are acquitting accused No.1 – Maruti, the Reference would not survive for consideration and would have to be answered in the negative. 18. Accordingly Criminal Appeal 472 of 1993 is partly allowed. The conviction and sentence of Appellant No.2 – Laxman Babu Konkeri and Appellant No.3 – Bhima Sidda Mang / original accused Nos.3 and 4 is hereby quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Their bail bonds stand cancelled. This Appeal is dismissed insofar as it challenges the conviction of Appellant No.1 / original accused No.2 – Pandurang Babu Konkeri. We, therefore, confirm the conviction and sentence of Appellant No.1 / original accused No.2 – Pandurang Babu Konkeri. His bail bond stands cancelled. Eight weeks' time is granted to Appellant No.1 / original accused No.2 – Pandurang Babu Konkeri to surrender to his bail. 19. Criminal Appeal 502 of 1993 is allowed and the conviction of the Appellant / original accused No.1 – Maruti Rayappa Dhangar is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. His bail bond stands cancelled. 20. Criminal Reference 3 of 1993 is accordingly answered in the negative and is dismissed as it does not survive for consideration.