JUDGMENT Hon’ble Om Prakash-VII, J.—The present criminal appeal is directed against the judgement and order dated 24.1.1983 passed by learned III Additional District and Sessions Judge, Budaun in Sessions Trial No. 460 of 1980 pertaining to Case Crime No. 177 of 1979 whereby appellant-Sardar was convicted and sentenced under Section 302 I.P.C. read with Section 149 Indian Penal Code (hereinafter referred to as I.P.C.) to suffer imprisonment for life and one and a half year rigorous imprisonment for the charge under Section 148 I.P.C. By the same judgement appellant-Lakkhi was also convicted and sentenced under Section 302 I.P.C. read with Section 149 I.P.C. to suffer imprisonment for life and one year rigorous imprisonment for the charge under Section 147 I.PC. The trial Court after scanning the evidence and material available on record had acquitted the co-accused Raghubir, Harpal and Sohan Pal under Section 148 and 302 read with Section 149 I.P.C. but no appeal has been filed against acquittal. 2. The prosecution story in nutshell is as follows : A written report dated 22.9.1979 was submitted by the informant Hardwari Singh S/o Shyam Lal, resident of village Bichola Bhoor P.S. Gunnaur, District Budaun to the concerned Station House Officer (hereinafter referred to as the S.H.O.) mentioning therein that on 22.9.1979 at about 5.00 p.m. his son-Hari Singh was digging earth from his plot situated near the pond of the village in order to construct the ridge of the said plot. At that time informant and his another son-Banwari were also digging ‘Ghuiya’ in the same field. In the meantime, Khushi Ram S/o Ranjeet armed with a country-made pistol, Bhagwan Singh s/o Khushi Ram armed with a gun, Lakkhi son of Ganesi armed with a lathi, Sardar son of Naubat armed with a country-made pistol, all residents of village Bichola Bhoor and Raghubir (Mukhiya) son of Harnam Singh resident of village Pataria armed with a single barrel gun, Harpal son-in-law of Khushi Ram armed with a country-made pistol and Sohan Lal, father of Harpal armed with a double barrel gun (both residence of village Saitua under police station Rajpura) arrived at the place of occurrence from north-east side and Khushi Ram exhorted that Hari Singh who is the leader in his family be killed. Hari Singh tried to escape away but the accused persons opened fire at him with their respective weapons. Hardwari Singh (P.W.-1) raised hue and cry. Hari Singh tried to escape away but the accused persons opened fire at him with their respective weapons. Hardwari Singh (P.W.-1) raised hue and cry. Upon hearing the cries, witnesses, namely, Karroo (P.W.-2), Rohan (P.W.-3) and one Ram Charan all residents of village Bichola Bhoor arrived there and challenged the accused persons, upon which accused threatened the witnesses with their fire-arms. Hari Singh received fire-arm injuries caused by the accused, as a result of which, Hari Singh fell down on the spot and died instantaneously. Accused persons ran away from the place of occurrence towards the southern direction. The informant claimed himself as an eye-witness and had stated that he knows all the accused persons. 3. According to the prosecution, the accused persons committed murder of Hari Singh due to hostility because one Kehar, a cousin of Khushi Ram, was murdered prior to this occurrence and Hari Singh (deceased), his father Hardwari Singh (informant) and one Satya Ram were facing trial in above murder case in the Sessions Court at Budaun and due to that enmity, the accused persons killed Hari Singh. The informant alongwith village-chaukidar went to the police station Gunnaur subsequent to the occurrence and got the report of the incident Ext. Ka. 1 written by one -Maheshi Lal (C.W.-1) and the F.I.R. was lodged in the same night on 22.9.1979 at 10.15 p.m. at police station, Gunnaur. 4. On the basis of report, F.I.R. (Exbt. Ka-3) was registered by constable Ram Singh. At the same time, he also made an entry in the G.D. at serial No. 33, copy of which was marked as Exbt. Ka.-4. 5. According to the prosecution, Sri Dinesh Chandra Sharma (P.W.-5), the then in-charge of the said police station, was present in Police station at the time of registration of F.I.R. of this case. He also put his signature on the F.I.R. and himself took up the investigation of the case and recorded the statement of complainant-Hardwari at the police station itself. He alongwith sub-inspector Kushi Ram reached the spot in the night between 22/23.9.1979, but he could not start the proceedings for preparing the inquest report for want of sufficient arrangement of light. In the morning, he got the inquest report of the dead body of Hari Singh Exbt. Ka-5 prepared through Sub-inspector Khushi Ram. He also prepared Photo-lash, Exbt. Ka.-6 and Chalan-lash, Exbt. Ka. In the morning, he got the inquest report of the dead body of Hari Singh Exbt. Ka-5 prepared through Sub-inspector Khushi Ram. He also prepared Photo-lash, Exbt. Ka.-6 and Chalan-lash, Exbt. Ka. 7 and duly sealed the dead body of Hari Singh prepareing the sample seal Exbt. Ka.8. He also sent the dead body of Hari Singh to Budaun mortuary for post-mortem examination through constable Narain Das and Bhawan Prasad. He also recorded the statements of witnesses Karroo, Rohan and others on the spot and prepared site-plan Exbt., Ka. 9. Investigating Officer also took blood stained earth and plain earth from the spot by preparing Memo Exbt. Ka. 10 in this respect. Dr. K. R. Khan, Medical Officer, District Hospital Budaun performed autopsy on the dead body of Hari Singh on 24.9.1979 at 11.15 a.m. After collecting the evidence, interrogating the witnesses, charge-sheet Exbt. Ka. 11 was submitted by the I.O. against the accused persons. 6. As per post-mortem report deceased Hari Singhl was aged about 24 years and was said to be average built and muscular. Following ante-mortem injuries were found on the body of Hari Singh : I. Gun shot wound of entry 3 x 2 cm. on left lower jaw 3 cms. from angle of mouth with blackening around. II. Multiple Gun shot wounds on outer side and inner side of right upper limb from shoulder and up to 2/3 of front aspect, each .25 x .25 cms. and abrasion with blackening in the area of 18 x 5 cm. below elbow left. (Front and inner side). III. Multiple gun shot wounds on right chest in the area of 17 x 15 cms. below the clavicle and upto mid line. IV. Gun shot wounds 0.25 x 0.25 cm., 1 cm. below and middle third of left clavicle. V. Abrasion 1 x 1 cm. on front of left shoulder 3 cm. above anterior axillary fold. VI. Multiple gun shot wounds in an area of .15x 8 cm. on back of left elbow joint. VII. Gun shot wound 2 x 1 cm. with blackening around at the back of left wrist near tip of ulna. VIII. Gun shot wound of exit 1 x 0.5 cm. on inner back of front of left fore-arm 2 cm. above tip of ulna. IX. Gun shot wound of entry with blackening around and inside wound 7 x 5.5 cm. Gun shot wound 2 x 1 cm. with blackening around at the back of left wrist near tip of ulna. VIII. Gun shot wound of exit 1 x 0.5 cm. on inner back of front of left fore-arm 2 cm. above tip of ulna. IX. Gun shot wound of entry with blackening around and inside wound 7 x 5.5 cm. on left side of trunk 17 cms. below axillary pit. X. (Gun shot wounds 9 in number) each 1 x 1 cm. in the area of 10 x 12 cms. with blackening around each on back of left buttock. XI. Gun shot wound of exit in the area of 9 x 7 cms. (9 in number) each 1.5 x 1.5 cm. On right side of perineum 2cm. from mid-line between scrotum. XII. Gun shot wound of exit 0.75 x 0.75 cm. on front of right thigh 10cm. below miding point. 7. Following post-mortem injury was also found on the body of the deceased-Hari Singh. 1. Multiple gun shot wounds in the area of 15 x 17 cm. on outer side of left thigh 9.5 cm. above knee joint, each 0.25 x 0.25 cm. and few elevated. 8. Cognizance was taken in the matter and the case was committed to the Court of Sessions. Charges under Sections 148 and 302 read with Section 149 I.P.C. were framed against accused-Sardar and the charges under Section 147 and 302 read with Section 149 I.P.C. were framed against accused-Lakkhi. Both the appellants pleaded not guilty and claimed to be tried. charges against rest of the accused under Section 148 and 302 read with Section 149 I.P.C. Were also framed, they had also denied from the charges and had claimed their trial. 9. In order to prove its case, the prosecution examined five witnesses. Hardwari Singh-P.W.-1, the informant of the case, alleged eye-witness of the occurrence, who has proved the report Exbt. Ka. 1 written by Maheshi Lal C.W.-1 on his dictation, Karroo­-P.W.-2 and Rohan­-P.W.-3 are also alleged to be eye-witnesses to the occurrence, Dr. K.R. Khan, P.W.-4, who proved post-mortem report. Dinesh Chandra Sharma, Investigating Officer (hereinafter referred to as the I.O.)-P.W.-5, who proved the chick F.I.R. written by a constable clerk-Ram Singh (as constable clerk Ram Singh had died), Panchayatnama, Photo-lash, Chalan-lash, sample seal, site plan and memo of blood stained earth and plain earth and charge-sheet. 10. K.R. Khan, P.W.-4, who proved post-mortem report. Dinesh Chandra Sharma, Investigating Officer (hereinafter referred to as the I.O.)-P.W.-5, who proved the chick F.I.R. written by a constable clerk-Ram Singh (as constable clerk Ram Singh had died), Panchayatnama, Photo-lash, Chalan-lash, sample seal, site plan and memo of blood stained earth and plain earth and charge-sheet. 10. After completing the prosecution evidence, the statements of all the accused persons including present appellants were recorded under Sections 313 Code of Criminal Procedure (herein after referred to as Cr.P.C.). Appellant-Sardar in his statement under Section 313 Cr.P.C. has admitted that accused-Khushiram and Raghuveer were relatives and another appellant-Lakkhi was the cousin of his family. One Kehar had been murdered and in that murder case appellant-Sardar was a witness. He did not feel any enmity with the informant- Hardwari. He has also denied the occurrence of such incident as has been mentioned in the written report. As per this appellant First Information Report was lodged on the basis of false facts. It was also stated that the I.O. has made false investigation and thereby prepared a false charge-sheet. Witnesses are relatives therefore, they have supported the prosecution case. Since he was one of the witness in the earlier murder case of Kehar, therefore, he was falsely implicated in the present case. It was also expressed that he came to know about the death of Hari Singh in the night of 22.9.1979. On 10.1.1983, additional statement of appellant-Sardar under Section 313 Cr.P.C. was recorded. He has not made any statement about recovery of articles made by the doctor from the body of the deceased. Nothing was also stated about the investigation made by the police concerned. 11. Appellant Lakkhi in his statement recorded under Section 313 Cr.P.C. stated that accused Raghuveer is not a relative and friend of Khushiram, however, admitted that appellant-Sardar was his “Khandani Bhatiza”. This appellant has also stated the same facts as has been stated by appellant-Sardar. Acquitted accused, namely, Raghuvir, Harpal and Sohan Lal were also examined under Section 313 Cr.P.C. 12. Trial Court, after hearing the parties, vide impugned judgment and order dated 24.1.1983 convicted and sentenced the appellants, hence the present appeal. 13. Before we proceed further, we prefer to note the gist of the statement of P.W. 4 Dr. K. R. Khan. He has stated that on 24.9.1979, he was posted as Medical Officer, Sadar Hospital, Budaun. Trial Court, after hearing the parties, vide impugned judgment and order dated 24.1.1983 convicted and sentenced the appellants, hence the present appeal. 13. Before we proceed further, we prefer to note the gist of the statement of P.W. 4 Dr. K. R. Khan. He has stated that on 24.9.1979, he was posted as Medical Officer, Sadar Hospital, Budaun. On the same day, at about 11.15 AM., he conducted autopsy on the dead body of the deceased-Hari Singh, brought by constables Bhawan Prasad and Narayan Das of the police station Gunnaur. Mark of seal of the dead body on comparing with the sample seal was found intact. The dead body was identified by constables who had brought the same. The deceased was aged about 24 years healthy and muscular. Rigor mortis was passed off in the upper extremities but the same was present in the lower extremities. Stomach of the deceased was bloated. Clotted blood was found in the right ear and the blood mixed with food were coming out from the mouth and nose of the deceased. Ante-mortem and post-mortem injuries were found on the body of the deceased as we have noted earlier. On internal examination, right radius elbow, left jaw and three ribs, i.e., seventh, eighth and twelth of left side, were found fractured. Marks of small pellets in the septum of the left lung, holes in left lung and in the mediastinum were present. Half pint clotted blood was also found in the left chest of the deceased. 15 small size pellets and a wad and two pieces of cork were also recovered by this witness from the clotted blood. There were holes in septums of the stomach in back direction. Two ounce clotted blood was also found in the pelvis. Clotted blood, broken pieces of jaw were found in the mouth of the deceased. Seven teeth were also found broken. Oesophagus (food pipe) was punctured and intestines was empty. Urinary bladder was also found punctured. In the opinion of this witness, cause of death of deceased was due to bleeding and shock as a result of ante-mortem injuries. 14. Death of the deceased would have occurred two days before the day of post-mortem. Seven teeth were also found broken. Oesophagus (food pipe) was punctured and intestines was empty. Urinary bladder was also found punctured. In the opinion of this witness, cause of death of deceased was due to bleeding and shock as a result of ante-mortem injuries. 14. Death of the deceased would have occurred two days before the day of post-mortem. As per this witness there was possibility that the deceased died due to the injuries found on his body on 22.9.1979 at about 5.00 p.m. This witness has recovered 5 big size pellets, 26 small size pellets, two cork, two wads, one underwear and one banyan, one shirt taken off by cutting it from the body of the deceased. He has kept the pellets, wads, cork and clothes in a sealed bundle. Injury No. 11 and injury No. 9 were corresponding to each other. This witness do not remember whether he had recovered any pellet from the post-mortem injuries found on the body of deceased or not as this fact has not been mentioned in the post-mortem report. In the opinion of this witness, distinction between ante-mortem and post-mortem injuries are that post-mortem injuries would have appeared after death of half an hour of the deceased. If post-mortem injury would have appeared near-about half an hour of his death then only it could be recognized where the duration of the post-mortem injuries is less than half an hour then it creates problem to distinguish between ante-mortem and post-mortem injuries. This witness in his examination has admitted that he has not recorded attending circumstances of the post-mortem injuries in his report and has mentioned post-mortem injuries on the basis of his experience. Depth of the post-mortem injury was also not recorded by this witness but it was expressed by him that post-mortem injuries found on the body of the deceased in no case could be termed as ante-mortem injuries. Bleeding in the post-mortem injury could not be possible, similarly there could also be no gap in the skin of the post-mortem injury. Inflammation also did not present in such injury. He had proved the post-mortem report as Exbt. Ka.-2. This witness has been cross-examined by the defence at length. In the cross-examination, he has stated that he did not note-down the depth of ante-mortem injuries. Inflammation also did not present in such injury. He had proved the post-mortem report as Exbt. Ka.-2. This witness has been cross-examined by the defence at length. In the cross-examination, he has stated that he did not note-down the depth of ante-mortem injuries. Food material was coming out from the mouth and nose of the deceased because some food material was present in the stomach of the deceased. Whether the material coming out from the mouth and nose were semi-digestive or digestive, this fact was not noted down by this witness in the report. On the question when put by the defence to him he opined that death of the deceased might have occurred in the night between 8.00 to 8.30 p.m. hours. 15. The prosecution recalled this witness for re-examination to prove the materials and cloths found on the dead body of the deceased and the same have been proved by him as material Exbt. 2 to 4. This witness in the cross-examination admitted that the shirt (material Exbt. 4) was in torn condition and there were several pellets marks of firing on it. While taking off the blood stained shirt, it was cut into pieces. 16. We have heard Sri Rahul Misra holding brief of Sri Apul Misra learned counsel for the appellant and Sri Rajiv Sharma, the learned A.G.A. 17. Sri Misra has submitted that the prosecution was unable to prove the guilt of the appellant beyond reasonable doubt. The whole prosecution story is improbable and unnatural. Time of incident is about 8-00 to 9-00 p.m. No one had seen the occurrence. A reference at this stage was made to inquest report, form No. 13 and the circumstances under which the First Information Report came into existence. It was further argued that Form No. 13 itself indicates that the First Information Report was not in existence in the night of 22.9.1979 as has been mentioned in the chick report but it was prepared on 23.9.1979. It was further argued while referring to the statements of the prosecution witnesses that it is improbable that the present incident would have taken place in a broad-daylight near the village and accused persons would have stayed there for half an hour. It was further argued while referring to the statements of the prosecution witnesses that it is improbable that the present incident would have taken place in a broad-daylight near the village and accused persons would have stayed there for half an hour. It was further submitted that the informant Hardwari and his other son were alleged to be present on the spot but the accused person had not caused any injury or harm to them. If the witnesses were present on the spot and had seen the incident, then why they had falsely implicated Bhagwan Singh and others. It was next argued that in the year 1979, there was no system of communication. How Mahesi Lal was communicated to remain present at Gunnaur in the night is not clear. Prosecution witnesses have themselves admitted the animosity between the informant and the accused persons. In the F.I.R. nothing has been mentioned about the post-mortem injuries. Oral evidence itself make the prosecution story improbable. Submission was made that it is a blind murder case and no one had seen the occurrence. First information report was lodged on the next date of the incident on the basis of false fact. Assailing the findings recorded by the trial Court, it was also argued that on the same level of animosity, some of the accused persons have been acquitted by giving the benefit of doubt but the present appellants have not been extended the benefit of doubt. 18. On the other hand Sri Rajiv Sharma, learned A.G.A has argued that merely on the ground that witnesses are relatives of the deceased, their testimony cannot be thrown out or discarded. Only requirement under the law is that the Court dealing with the matter has to scrutinize the evidence of such witnesses carefully and cautiously. Non seizure of Ghuiya from the spot or latches on the part of the investigating officer in preparing the police papers, would not be fatal to the prosecution case. Only requirement under the law is that the Court dealing with the matter has to scrutinize the evidence of such witnesses carefully and cautiously. Non seizure of Ghuiya from the spot or latches on the part of the investigating officer in preparing the police papers, would not be fatal to the prosecution case. Witnesses have seen the occurrence and have categorically stated that appellant Sardar and Lakkhi were the members of the unlawful assembly and were involved in committing the offence of murder, therefore the learned trial Court has rightly convicted both the appellants, namely, Sardar under Sections 148 and 302 read with Section 149 I.P.C. and Lakkhi under Section 147 and 302 read with Section 149 I.P.C. The First Information Report is not an encyclopaedia therefore the facts which do not find mention in the F.I.R. have been stated by the witnesses during the course of examination and on this basis prosecution case cannot be doubted. Animosity has been admitted by the accused-appellants which indicates that the motive against appellants is sufficient to commit the present offence. Thus, referring to the findings recorded by the trial Court, it was also argued that no infirmity or illegality has occasioned in the impugned judgement and order. 19. Sri Rahul Misra, learned counsel for the appellants has placed reliance on the following case law: 1. State of U.P. v. Moti Ram and another, 1990 CAR 257 (SC). 2. State of U.P. v. Babu Singh and others, 1998 (37) ACC 711. 20. Learned A.G.A. has placed reliance upon the case law of Nadodi Jayaraman v. State of Tamil Nadu, AIR 1993 SC 777 . 21. We have carefully gone through the entire records of the case and also considered the arguments advanced by the learned counsel for the parties. 22. The trial Court while passing the impugned judgement and order has observed that: I. Prosecution was not able to establish the participation of the acquitted accused Sohan Lal and Har Pal. They were present on the day and time of offence in their village and participated in the auction proceedings till 6.30 p.m. II. Benefit of doubt has been extended to the accused Raghuveer also on the ground that he was one of the pairokar of the murder case of one Kehar. Mahesi Lal and one Suraj Pal Singh belongs to the same party. Thus, Maheshi Lal bears grudge against accused Raghuveer. III. Benefit of doubt has been extended to the accused Raghuveer also on the ground that he was one of the pairokar of the murder case of one Kehar. Mahesi Lal and one Suraj Pal Singh belongs to the same party. Thus, Maheshi Lal bears grudge against accused Raghuveer. III. Presence and participation of both the appellants and one Khushi Ram (Since died) have been found to be established with the prosecution evidence beyond reasonable doubt because they are belonging to the same village and there would have been no problem in recognizing them. IV. P.W.-1 Hardwari, P.W.-2 Karroo and P.W.-3 Rohan are the eye-witness account and they have seen the occurrence. V. In-action and omission on the part of I.O. is not fatal to the prosecution case. VI. Medical evidence supports the prosecution case. VII. First Information report is not the ante-time document. VII. Motive attributed to the appellants is sufficient to commit the present offence. VII. Unlawful assembly has been formed and in furtherance of common object of an unlawful assembly appellants alongwith other co-accused has committed the present offence. 23. In the case of State of U.P. v. Moti Ram (supra), the Hon’ble Supreme Court has upheld the judgement and order of the High Court whereby the High Court has allowed the appeal and acquitted some of the accused on the basis that they have been falsely implicated in the case. The relevant portion of paragraph 36 is quoted hereinafter: “36. We went through the available records placed before us and examined them scrupulously and meticulously with all seriousness and onerous responsibility cast upon us in getting at the truth but we regret so say that the entire evidence is nothing but a coloured version with concocted story and exaggerated account mixed with falsehood and that the prosecution has miserably failed to make out the charges against all or any of the accused beyond all reasonable doubt except Rambali (A.36) who himself admitted his presence at the scene. In this connection, we would like to cite a decision of this Court in Balaka Singh and others v. State of Punjab, 1975 (4) SCC 511 , wherein the following observation is made “... the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and chaff are so in-extricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply. “ 24. In the case of State of U.P. v. Babu Singh and another (Supra), this Court in paragraph 24 has held as under: “24 Coming to the facts of the present case, it is true that two persons have been killed, but since Sheo Narain Singh and Arjun Singh have been falsely implicated, the evidence of the prosecution loses its credit and becomes unworthy of acceptance. Again to emphasise that looking to the bio-data of the case, the occurrence being of broad day light, two murders, presence of the eye-witnesses allegedly one injured witness and believable eye-witnesses, no body on erth would have save accused Sheo Narain Singh and Arjun Singh had they not been in Jail custody on the relevant date and time. Likewise, the other accused persons, even if they were not a party to the crime, then also no body can have any ground to save the remaining accused persons in the teeth of the evidence available on the record. The facet of the case shows that it is doubt who are the actual participants in the crime and who were innocent and when grain cannot be separated from the chaff, the cardinal principle of law will still hold good in India that one innocent person should not be convicted even if nine persons have to be acquitted. Innocent persons like Shio Narain Singh and Arjun Singh have been falsely implicated in this case. There may be other innocent persons as well. The evidence of the witnesses is not decipherable against any of the accused persons.” 25. In the Case of Nadodi Jayaraman (supra), Honble Supreme Court In the paragraph Nos. 14 and 16 has held as follows : “14. There may be other innocent persons as well. The evidence of the witnesses is not decipherable against any of the accused persons.” 25. In the Case of Nadodi Jayaraman (supra), Honble Supreme Court In the paragraph Nos. 14 and 16 has held as follows : “14. That Prathab Chandran died on account of the injuries received by him in the occurrence on 15th June 1972, is not in dispute. It also is not a matter of conjecture to say that the prosecution witnesses are partisan in character. As a matter of fact, both the learned Sessions Judge as well as the Division Bench of the High Court were conscious of the fact that the eye-witnesses were partisan in character and it was for that reason that both the Courts had scrutinised their evidence closely and in great details in order to satisfy themselves with regard to the truth or otherwise of their evidence in so far as the involvement of A-2 and A-3 is concerned. We are in agreement with the appraisal of evidence by the High Court. This Court, in an appeal by special leave, when the two Courts below have concurred in their conclusions does not ordinarily reassess the evidence and we, therefore, had to decline the invitation of the learned counsel for the appellants to reappraise the entire evidence the third time. We, however, with a view to satisfy ourselves about the nature of the offence, in the facts and circumstances of the case, scrutinised those parts of the deposition of the prosecution witnesses which dealt with the assault on Prathab Chandran deceased. After going through the relevant evidence and hearing learned counsel for the parties, we are of the view that the conclusion, with 809 regard to the assault on the deceased by A-2 and A-3, as recorded by the learned Sessions Judge and confirmed by the learned Division Bench is based on proper appraisal of the evidence and is sound. The High Court took pains and made conscientious efforts to scrutinise the evidence relating to the complicity of A-2 and A-3 and rightly rejected the argument that since some of the co-accused had been acquitted, against whose acquittal no appeal had been preferred by the State, the evidence of the prosecution witnesses so disbelieved could not be relied upon to sustain the conviction of A-2 and A-3 either. This Court has time out of number pointed out that the Maxim falsus in uno falsus in omnibus cannot be mechanically applied and the mere fact that the evidence of some of the prosecution witnesses was found unsafe for convicting the co-accused, is by itself no ground for rejecting the whole body of their testimony. It only puts the Court on its guard to carefully scrutinise their evidence. As already notice, we are satisfied with the appraisal of evidence by the Courts below and find no reason to doubt the involvement of A-2 and A-3 is so far as the assualt on Prathab Chandran deceased is concerned. 16. In cases, where large number of persons are involved and in the commotion injuries are caused to the prosecution witnesses and others, it becomes the duty of the Court to determine the common intention which could be attributed to those accused who stand convicted, where some of 810 their co-accused stand acquitted and the State chooses not to file any appeal against their acquittal. With a view to determine the common intention, the nature of injuries, the background of the incident and the nature of the weapons used to cause the injuries besides other factors are required to be properly considered and appreciated.” 26. Now the Court proceed to take up the First Information Report. The incident in this matter is said to have occurred on 22.9.1979 at about 5.00 p.m. The F.I.R. was lodged by the father of the deceased Hardwari Singh on the same day at 22.15 p.m. Distance between the place of occurrence and concerned police station is about 16 kms. Initially seven persons were implicated in this case but charge-sheet was submitted against six persons excluding the Bhagwan Singh as the Investigating Officer during investigation found that Bhagwan Singh was behind the bar at the time of incident. Written report Exbt. Ka.-1 was scribed by C.W.-1, Maheshi Lal. Admittedly he is said to be present on the day of incident at the time of scribing the written report at town Gunnaur. It is also admitted fact that P.W.-1 Hardwari alongwith village chaukidar after on hour of the incident proceeded to police station Gunnaur on foot and reached Gunnaur at about 9.00 p.m. in the night itself. The written report Exbt. Ka.-1 is said to have been prepared at the house of one Jyoti by C.W.-1 Maheshi Lal. It is also admitted fact that P.W.-1 Hardwari alongwith village chaukidar after on hour of the incident proceeded to police station Gunnaur on foot and reached Gunnaur at about 9.00 p.m. in the night itself. The written report Exbt. Ka.-1 is said to have been prepared at the house of one Jyoti by C.W.-1 Maheshi Lal. Although he has admitted that he has no residential house at Gunnaur and he was not residing there but on the day of incident he stayed there in connection with his business. 27. As is evident in the First Information Report there is no indication as to how much time the accused persons stayed at the place of occurrence after committing the offence. It is also not mentioned in the written report that at the time of leaving the place of occurrence, culprits again opened fire on the deceased. The doctor, who conducted the post-mortem, has found one post-mortem injury on the body of the deceased. 28. Prosecution case is that the first information was registered at 10.15 p.m. on the day of incident on the basis of written report submitted by P.W.-1 Hardwari. To scrutinise the submission of the learned counsel for the appellant that the First Information Report was not in existence at the time mentioned in it, we have closely gone through the police papers. 29. In the chick F.I.R. (in column No. 1) the date and time at which the report was registered is shown as 22.9.1979 at 22.12 hours. There is overwriting in the date. This question has been put by the defence to P.W.-5, the Investigating Officer but he denied this fact. From bare perusal of the record it is clear that some overwriting have been done in the Ex. Ka.-3. Case crime number and section appears to have been mentioned in different ink in the photo lash and form No. 13. In the form No. 13 it had been clearly mentioned that the information regarding incident has been given to the police station on 23.9.1979. This document was proved by the prosecution witness as Ex. Ka.-6. In the first column of the inquest report there is overwriting in the date of information. In the form No. 13 it had been clearly mentioned that the information regarding incident has been given to the police station on 23.9.1979. This document was proved by the prosecution witness as Ex. Ka.-6. In the first column of the inquest report there is overwriting in the date of information. Learned counsel for the appellant referring these documents has urged that it is improbable and un- believable that the informant would have covered a distance of 16 kilometres in the night by foot within a period of three hours. It has also been argued that it was very improbable that after the murder of his son informant would have proceeded to lodge the first information in the night itself without ensuring his security and safety. 30. We have minutely perused the papers referred to by the learned counsel for the appellants. Certainly date of information to the police station has been shown in the from No. 13 as 23.9.1979 and there is overwriting in the chick report as also in the inquest report. Although P.W.-5 has denied to these things but argument advanced by learned counsel for the appellant have substance and appears to be true. Overwriting has been made in the chick report, inquest report. Crime number and details of offence has been mentioned later on in the memo of blood stained earth and simple earth therefore other evidence adduced by the prosecution has to be closely analysed particularly when the prosecution rest its case on the strength of eye-witnesses account. 31. The I.O., Dinesh Chandra Sharma has admitted that when he inspected the spot, he did not find Ghuiya at the place of occurrence. Although other prosecution witnesses have stated that Ghuiya and spade both were lying on the spot at the time of inspection. Police is said to have reached the spot in the night itself at 11.15 p.m. but the inquest report and spot inspection etc. could not be completed by him due to non-availability of sufficient light. Learned counsel for the appellant connecting this fact with the manipulation and the fact mentioned in Form No. 13 submitted that the First Information Report was registered on 23.9.1979 with the advise of C.W.-1, Maheshi Lal. In order to appreciate this argument, we have to analyse all the statements of prosecution witnesses. 32. Learned counsel for the appellant connecting this fact with the manipulation and the fact mentioned in Form No. 13 submitted that the First Information Report was registered on 23.9.1979 with the advise of C.W.-1, Maheshi Lal. In order to appreciate this argument, we have to analyse all the statements of prosecution witnesses. 32. Before analysing the statement of eye-witness account the Court proceed to discuss the medical evidence to ascertain the date and time of the death of the deceased. Multiple gun shots ante-mortem injuries and one post-mortem injury were found on the body of the deceased. From the perusal of the statement of doctor who conducted the post-mortem, it is clear that a number of fire have been made upon the deceased. Whole body of the deceased was found badly damaged due to gun shot injuries. Organs, like, ribs, intestines etc. were found fractured due to fire-arm injuries. There is one exit wound injury. A number of pellets have been found in the body of the deceased by Doctor. This shows that culprits had made a number of fire to cause the death of the deceased. It is not disputed that the deceased was done to death by the culprits causing fire-arm injuries. Only dispute was raised on the part of the appellant that the incident had not happened at 5.00 p.m. On 22.9.1979 and F.I.R. was not lodged by the prosecution on that date. The incident took place at between 8 and 9 p.m. in the night and no one had seen the occurrence. The appellants have been falsely implicated in this case. 33. Certainly, P.W.-4 Dr. K.R. Khan has admitted that the death of the deceased may have occurred between 8 and 9 p.m. but in his examination in chief he has also stated that the death of the deceased might have occurred at 5.00 p.m. The trial Court has come to the conclusion that the prosecution story is probable and believable. It is noteworthy here that for the first time before the Court, prosecution witnesses deposed that accused persons remain present for half an hour at the place of occurrence. Before leaving the place of occurrence they had again opened fire on the deceased and thereby causing post-mortem injuries on the body of the deceased. It is noteworthy here that for the first time before the Court, prosecution witnesses deposed that accused persons remain present for half an hour at the place of occurrence. Before leaving the place of occurrence they had again opened fire on the deceased and thereby causing post-mortem injuries on the body of the deceased. This fact that culprits remained present on the spot for half an hour had not been mentioned in the First Information Report nor it is mentioned that the culprits have also opened fire again after half an hour at the time of leaving the place of occurrence. This fact was put to the P.W.-5 Dinesh Chandra Sharma, who had clearly denied in his cross-examination by stating that this fact was never made to him. If the statement of P.W.-5, P.W.-1, P.W.2 and P.W.-3 are taken into consideration on this point, it is clear that the witnesses had disclosed this fact for the first time before the Court. This fact was also put to the P.W.-1 by the defence and he had stated that he had mentioned this fact in the First Information Report. If it is not found in the written report he could not explain it. P.W.-2, in his cross-examination had stated that the firing would have been made continuously for 15 minutes. Thus, from the evidence of the eye-witnesses account and the contents of the First Information Report, it is clear that neither any of the witnesses had narrated to the Investigating Officer about actual time taken by the culprits in committing the offence nor this fact was mentioned in the First Information Report. The fact that the accused persons had also stayed at the place of occurrence in the course of committing the crime for half an hour and they had again opened fire upon the body of deceased while leaving the place of occurrence is an improvement in the matter to meet out the post-mortem injuries found on the body of the deceased. 34. Learned counsel for the appellant has urged that this fact clearly goes to show that the witnesses claimed themselves to be the eye-witnesses but in fact they were not present on the spot and they had not seen the incident. If they would have seen the incident, the relevant facts would have come in the First Information Report itself. 35. Learned counsel for the appellant has urged that this fact clearly goes to show that the witnesses claimed themselves to be the eye-witnesses but in fact they were not present on the spot and they had not seen the incident. If they would have seen the incident, the relevant facts would have come in the First Information Report itself. 35. P.W.2, Karru, P.W.3-Rohan had also reached on the spot just after hearing the shots of firing. It is improbable and unbelievable that assailants would have been firing continuously for half an hour in the broad- day-light without hiding their identities, particularly when there was no resistance. The plea of appellant also found support from the fact that P.W.-1 Hardwari had mentioned in the First Information Report that he had recognized all the culprits including Bhagwan Singh but during investigation, the Investigating Officer found that Bhagwan Singh was not among the assailants. No charge-sheet was filed against him. Apart from this, the prosecution story as discussed does not inspire confidence particularly in the light of the fact that two accused persons, namely, Sohan and Harpal have been acquitted by the trial Court on the ground that they were not present on the spot at the time of occurrence. Similarly one of the accused, namely, Raghuvir was acquitted on the ground that he has been falsely implicated in this case on the ground of enmity. Arguments raised by learned A.G.A. that Maxim, “falsus in uno falsus in omnibus” is not applicable in Indian perspective. It is true that in our criminal jurisprudence the statement of witnesses cannot be thrown out on the ground that he was telling lie on some points. If the statement of witnesses on some fact is true and on other fact is untrue; true fact can be taken into consideration. The prosecution case has no stamp of credibility. 36. In the case of Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 , the Hon’ble Supreme Court has observed that generally speaking, oral testimony may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 37. The prosecution case has no stamp of credibility. 36. In the case of Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 , the Hon’ble Supreme Court has observed that generally speaking, oral testimony may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 37. In the case of State of Punjab v. Tarlok Singh, AIR 1971 SC 1221 , the Hon’ble Supreme has held that in the first category of proof, the Court should have no difficulty in coming to its conclusion either way; it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion. In the second category, the Court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and to look for corroboration in material particulars by reliable testimony, direct or circumstantial. 38. In the case of State of U.P. v. Shankar, 1981 Cri LJ 23, the Apex Court has held that : In this country it is rare to come across the testimony of a witness which does not have a fringe or embroidery of untruth, Court should separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of witness is tainted to the core, the falsehood and the truth inextricably intertwined that the Court should discard his evidence in toto. 39. In the case of State v. Murli and others, 1957 Cri LJ 32, the Hon’ble Supreme Court has also held that there are four ways by which a trial can hold a witness unworthy of belief : 1. The witness statement is inherently improbable or contrary to the course of nature e.g. he says that he identified the accused by face in pitch darkness, or that he recognized his voice from a mile away or that he saw the accused killing the deceased with a lathi whereas medical evidence proves he died of a bullet wound. 2. The witness deposition contains mutually contradictory or inconsistent passage e.g. at one place he says “A” was the murderer but at another that it was “B” 3. 2. The witness deposition contains mutually contradictory or inconsistent passage e.g. at one place he says “A” was the murderer but at another that it was “B” 3. The witness is found to be a bitter enemy of the opposite party and, therefore, possesses ample motive for wishing him harm. 4. The witness demeanour whilst under examination is found abnormal or unsatisfactory. 40. On the analysis of above fact, it clearly indicates that P.W.-1 Hardwari, P.W.-2 Karru, P.W.-3 Rohan cannot be termed as fully reliable witnesses because on some points, they have made false statement. The improvement detailed above have been made for the first time before the Court which are fatal to the prosecution case. Therefore, the statement of these witnesses create suspicion on the point of their presence on the spot at the time of incident. There are two versions of the doctor conducting post-mortem regarding time of death of the deceased. There is improvement in the statement of the witnesses regarding manner of incident. Thus presence of witnesses on the spot at the time of occurrence creates suspicion. Mentioning in the Form No. 13, the date of information as 23.9.1979 and manipulation in the chick F.I.R. and inquest report regarding date of information also support the appellant’s argument that death of the deceased had occurred between 8 and 9 p.m. None was present on the spot, therefore, such improvement was made to justify the post-mortem injuries found on the person of the deceased. The facts and circumstances of the case clearly goes to show that general diary remained open in the night and the First Information Report was only registered on 23.9.1979 with the consultation of someone. This observation also found support from the fact that Bhagwan Singh was named in the First Information Report, although he was found not to be actually present on the spot. Similarly, Sohan Lal, Harpal and Raghuvir falsely implicated in this case and were consequently acquitted. No appeal had been filed against their acquittal by the State. 41. The plea taken by the appellant that incident had taken place between 8 and 9 p.m. in the night appears to be more probable because the culprits had committed the incident and remained present on the spot for more than half an hour then only ante-mortem and post-mortem injuries both could have been caused. 41. The plea taken by the appellant that incident had taken place between 8 and 9 p.m. in the night appears to be more probable because the culprits had committed the incident and remained present on the spot for more than half an hour then only ante-mortem and post-mortem injuries both could have been caused. P.W.-1 Hardwari, P.W.-2 Karru and P.W.-3 Rohan all are related to each other as has been admitted by witnesses themselves therefore, it cannot be ruled out that they were interested in getting the appellants convicted in the present matter. Therefore, they had given false statement before the Court below. Prosecution story also appears improbable and unbelievable on the point that a number of fire were made by a number of culprits but no empty cartridges were found on the spot. Presence of P.W.-1, P.W.-2 and P.W.-3 on the spot also appears to be doubtful on this point that half an hour time was said to have taken by the accused in committing the offence, surprisingly witnesses remained present on the spot during the course of commission of offence but the accused did not cause any harm to them and the accused only aimed their weapons towards witnesses. No effective resistance was put by the witnesses, they only made a hue and cry. Apart from this role assigned to the present appellants was also not rightly appreciated by the trial Court in this matter. The conviction of appellant Lakkhi was made only on the ground that he was the member of an unlawful assembly and was present on the spot and the witnesses would not have mistaken in recognizing him as he was the resident of same village. If the findings recorded by the trial Court is compared with the statement of P.W.-1, P.W.-2 and P.W.-3, it is clear that accused Lakkhi was armed with lathi only but no blunt object injury was found on the body of the deceased. No overt-act has been assigned to this appellant. Only this much has been stated that while the witnesses were making a hue and cry for help, this appellant (Lakkhi) aimed his Lathi towards them. 42. As far as the role of appellant Sardar is concerned, no specific role has been assigned to this appellant also, although he is stated to be armed with fire-arm. Only this much has been stated that while the witnesses were making a hue and cry for help, this appellant (Lakkhi) aimed his Lathi towards them. 42. As far as the role of appellant Sardar is concerned, no specific role has been assigned to this appellant also, although he is stated to be armed with fire-arm. It is admitted fact that there was enmity between the appellants and the informant side. This appellant was also a witness in murder case of Kehar Singh. 43. First Information Report was lodged after consultation on the next date of incident. Prosecution witnesses said to be present on the spot were not actually present there and had not seen the incident. The prosecution completely failed to establish the guilt of the appellants beyond reasonable doubt. Presence and participation of the appellant in committing the present offence, forming an unlawful assembly on the ground of foregoing discussion appears to be doubtful. Time of death suggested by the defence to the prosecution witnesses and to the medical witness appears to be probable. Animosity between appellants and informant is an admitted fact. 44. Findings recorded by the trial Court regarding the participation of appellants is not based on the correct approach and appreciation of the evidence. Although, the Maxim, “falsus in uno falsus in omnibus” is not applicable in Indian perspective but the testimony of P.W.-1 Hardwari, P.W.-2 Karru and P.W.-3 Rohan do not find support from the post-mortem injury and time of death. Manipulation, omission, laches on the part of the concerned police goes to the root of the case and throw doubt on the existence of F.I.R. on the time and date mentioned in chick F.I.R. Ext. Ka-3. 45. Sri Mishra, learned counsel appearing for the appellants has rightly submitted that said eye-witnesses were not present on the spot at the time of occurrence and they had not seen the incident, therefore, contradiction in oral and medical evidence have occurred. Post-mortem injury found on the body of deceased clearly indicates that P.W.-1, P.W.-2 and P.W.-3 were not present on the spot. Improvements have been made during the course of deposition to meet out the post-mortem injuries. Impugned judgment and order suffers from inherent infirmity, illegality and is not sustainable. Appellants Sardar and Lakkhi are also liable to be acquitted from the charges levelled against them on the ground of foregoing discussion. Improvements have been made during the course of deposition to meet out the post-mortem injuries. Impugned judgment and order suffers from inherent infirmity, illegality and is not sustainable. Appellants Sardar and Lakkhi are also liable to be acquitted from the charges levelled against them on the ground of foregoing discussion. Appeal having merit is liable to be allowed. 46. The appeal is hereby allowed. 47. Impugned judgment and order dated 24.1.1983 is hereby set aside. Appellants Sardar and Lakkhi convicted and sentenced for the offence under Sections 147, 148, 302 read with Section 149 IPC are acquitted. They are on bail. They need not to surrender. Their bail bonds and sureties bonds are hereby cancelled and sureties are hereby discharged from their liabilities. 48. Copy of this judgment alongwith lower Court record be sent to the lower Court for compliance. ———————