JUDGMENT Hon’ble Servesh Kumar Gupta, J. The impregnability of the judgment and order of conviction dated 19.03.2002 rendered by learned Sessions Judge, Uttarakashi is in question. The said judgment was delivered in Sessions Trial No.17 of 1997, State Vs. Bhajan Singh and eleven others. The trial pertains to police station Barkot, District Uttarkashi wherein 12 accused persons were tried for the offences u/s 147, 304/149 and 323/149 IPC. Out of these 12 accused, Bhajan Singh (A1), Jagmohan Singh (A2), Shailendra Singh (A3) and Bhagat Singh (A4) were convicted for the offence of section 304 (Part II) r/w section 34 IPC, and at the same time, they were acquitted for the offences u/s 147 and 323/149 IPC. Rest eight accused persons were acquitted from all the charges. A1 to A4 were appropriately sentenced. 2. Having heard the pros and cons, it transpires that all accused persons as well as injured/deceased Phulak Singh (an old man of 73 years) resided in a close vicinity of the same village. They are either neighbours or to some extent, relatives to each other. Even though, they were fraction ridden on the basis of village Panchayat election. So their groups were rival to each other. On the intervening night of 9/10.1.1997 at about 10 PM, the quarrel commenced beginning from some altercations and abusing to each other. The same escalated quickly into a sudden fight and it is alleged that the appellants armed with Lathi, baton and stone in their hands, inflicted injuries upon informant Dharam Singh Rawat, his father Phulak Singh Rawat nay his brothers Narendra Singh, Yudhvir Singh and Khajan Singh. In the first information report (Ex.Ka-1) only four appellants were named. The investigation culminated into submission of chargesheet against as many as 12 accused persons including two ladies. Charges were accordingly levelled by learned Judge and the accused persons were put to trial, which resulted into the conviction of only these four appellants, as afore-mentioned. 3. Learned counsel on behalf of appellants has argued that a cross non-cognizable report (NCR) no.3/97 was lodged by Shailendra Singh (A3) in the same intervening night at about 1:15 AM which is Ex.Kha-4 while the NCR no.4/97 against the appellants for the offence u/s 323/504 IPC was lodged after lodging of NCR by appellants against the complainant. 3. Learned counsel on behalf of appellants has argued that a cross non-cognizable report (NCR) no.3/97 was lodged by Shailendra Singh (A3) in the same intervening night at about 1:15 AM which is Ex.Kha-4 while the NCR no.4/97 against the appellants for the offence u/s 323/504 IPC was lodged after lodging of NCR by appellants against the complainant. So, it is amply clear that it was the cross fight between two rival groups of the same village and the assailants as well as the complainant were interknitted together. Phulak Singh, having been shifted from one center to another during the course of his treatment, breathed his last on 18.1.1997 and it was disclosed that he died on account of a blow of some hard object on his temporal region. So the assumption was drawn that this injury had been caused during the course of impugned fight between the parties and the learned Judge was of the view that the assailants had the intention to cause such bodily injury which was sufficient in the course of nature to cause death of Phulak Singh and, accordingly, he found all the four appellants guilty for the offence u/s 304 (Part II) r/w section 34 IPC. Even if assuming that deceased Phulak Singh, a septuagenarian, died because of the injuries inflicted in the questioned fight, but looking to the glaring contradictions in the oral testimony of occular witnesses, it is difficult for this Court to ascribe the guilt upon all these four appellants. In the first information report, only four appellants have been named but in the deposition of PW1, he has named as many as 11 assailants including two ladies. Although in his statement he has explained the absence of name of rest of appellants in the report that police was not ready to write all the names of culprits but this explanation is not believable for the reason that Ex.Ka-1 the first information report is in the hand-script of PW1. So he had full opportunity to mention the names of all the four assailants in the report which was written by him only. Even if the statement of PW1 is believed for a moment that police did not permit him to write the names of all assailants, then his statement is palpably opposite to that of PW2 Yudhvir Singh. So he had full opportunity to mention the names of all the four assailants in the report which was written by him only. Even if the statement of PW1 is believed for a moment that police did not permit him to write the names of all assailants, then his statement is palpably opposite to that of PW2 Yudhvir Singh. PW2 was also the occular witness and he has named only five assailants while PW3 has named 10 assailants whereas PW4 as named as many as 12 perpetrators. So in these circumstances, it is difficult to understand that on what basis, only the appellants have been separated from rest of accused persons. I have looked into the impugned judgment passed by the court below and find no reason for separation of grains from the chaff. 4. Learned counsel has relied upon two precedents of Hon’ble Apex Court (1) Joginder Singh and others v. State of Punjab reported in 1994 SCC (Cri) 46 and (2) Anil s/o Shamrao Sute and antoher v. State of Maharashtra reported in (2014) 1 SCC (Cri) 692. In those cases, it was held that if some of the accused have been acquitted on the basis of same set of evidence while some have been convicted, then the convicting Judge should have mentioned some cogent reasons for separating grain from the chaff. In absence of that reason, it is difficult to rely on the same set of evidence making it the basis for conviction of some of the accused while acquitting others on the same evidence. 5. That apart, it was further argued that during the course of fight, injuries were also caused to Janak Singh and Ranvir Singh (since acquitted) as well as to Shailendra Singh (A3) but all the prosecution witnesses have denied the injuries on the part of these accused persons while the suggestion was thrown by the defence counsel during the course of such examination. In such state of affairs, the Apex Court, in the case of Babu Ram and others v. State of Punjab reported in (2008) 2 SCC (Cri) 727, has held in paragraph no.18 which reads as under: - “18. In such state of affairs, the Apex Court, in the case of Babu Ram and others v. State of Punjab reported in (2008) 2 SCC (Cri) 727, has held in paragraph no.18 which reads as under: - “18. It is a well-settled law that in a murder case, the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: 1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; 3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” 6. Fortiori, it was also argued and the Court appreciates this argument that no specific role has been assigned to any of the assailants either in the first information report or in the oral testimony of any of the occular witnesses. So, it is quite uncertain that who had caused the fatal blow on the occipital region of deceased. It also deserves appreciation that when Phulak Singh was produced for his treatment before the medical officer, his condition was not critical at all, as he was fully conscious with no visible serious injury, either on occipital region or in any other part of his body. 7. So, looking to these factors and the legal position, the Court feels that the impugned judgment and order cannot sustain in the eyes of law. It is, accordingly, set aside. The appeal is resultantly, allowed. Appellants are already on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. 8. Let the lower court record be sent to the court concerned.