JUDGMENT : 1. Heard learned counsel for the applicant and Sri Amit Sinha, learned AGA for the State. 2. Upon an incident having taken place on 16.03.1980 at around 7:00 pm, a first information report was lodged by one Amiruddin S/o Mohd. Chand at 7:45 p.m. alleging that on 16.03.1980 at around 7:00 pm Qamre Alam and Shamsey Alam were going past the house of Nisarullah and because of old enmity Rafiq & Habib the sons of Sagir Ahmad, Riazuddin S/o Sakaidi, Bhola S/o Tahir Mohd and Sarfarz S/o Barkat Mohd assailed the two, namely, Qamre Alam and Shamsey Alam by lathis and had also fired upon them. He has stated that the incident was witnessed by Gabbu Lal Gupta, Ataullah and Shakil. Apart from these three, it has been stated in the first information report itself that many others had witnessed the incident. It has been stated in the FIR that Qamre Alam because of an injury on his head and Shamsey Alam because of injuries of lathi on his body had suffered physical injuries. They were therefore taken to the hospital and thereafter the first informant had gone to the police station to lodge the first information report. Upon lodging the first information report, the police conducted the investigation and collected the plain soil along with blood stained soil and a memo in this regard was prepared as Ex.Ka-20. In investigation, various medical reports which were got prepared vis-a-vis Shamsey Alam were exhibited as Ex.Ka-12 and vis-a-vis Habib an accused in the case the reports were exhibited as Ex.Ka-22. Thereafter the panchayatnama was prepared and the body of Qamre Alam was sent for postmortem. Upon the completion of the investigation, the police submitted its report and, thereafter, the court took cognizance on the report. On 11.12.1980, the court framed charges against the accused Habib, Bhola, Riazudding and Sarfaraj under sections 147, 302 read with section 149. Vis-a-vis the accused Rafiq, the charge was framed on 11.12.1980 under section 148, 302 and 307 read with section 149 of IPC. When the accused denied their charges, the trial commenced. 3. P.W.-1 is the first informant namely Amiruddin. Vis-a-vis the accused Rafiq, the charge was framed on 11.12.1980 under section 148, 302 and 307 read with section 149 of IPC. When the accused denied their charges, the trial commenced. 3. P.W.-1 is the first informant namely Amiruddin. In his statement in chief he has narrated the incident as was given out in the first information report and has also stated the cause for the incident, which according to him, was enmity between the accused persons and the deceased and the injured Shamsey Alam. It has been stated that Shamsey Alam had filed a complaint against one Alisher who was the tenant of the aunt (chachi) of the first informant who was known by the name of Shakil. Alisher had a friend by the name of Sartaz and Sartaz was the brother of Sarfaraj. It has been stated in the statement in chief that because of the fact that Shamsey Alam had filed a complaint against Alisher and Sarfraz, the latter was inimical to the deceased Qamre Alam and the injured Shamsey Alam and, therefore, the accused persons who were friends had, in a planned manner, tried to do away with the deceased Qamre Alam and his brother Shamsey Alam. It has further been stated in his examination in chief that apart from a complaint which Shamsey Alam had filed another incident was responsible for triggering off the attack on the deceased Qamre Alam and the injured Shamsey Alam. It has been stated that on the date of incident in the mohalla where they were staying, a barat had gone to Mohalla Terapur and in that barat the injured Qamre Alam and the deceased Shamsey Alam had also gone. When a ceremony of the distribution of Chohara was going on, there was a tussle between Qamre Alam and Riazuddin. Thereafter Qamre Alam and Shamsey Alam had come back to their residence but Riazuddin and the other co-accused persons had not forgotten the incident and they in a very planned manner on that very evening attacked on the deceased Qamre Alam and the injured Shamsey Alam. In the cross-examination, P.W.-1 had stood firm with what he had stated in the statement in chief. In the cross-examination, P.W.-1 had stood firm with what he had stated in the statement in chief. Upon being question as to whether there was light, in which the incident was seen, he had stated that the eye witness had seen the incident in the light of a lamp which was in the south west corner of the lane which was situate in the north of the house of Nazaarullah. With regard to himself, he has stated that he had neither gone to the barat nor was present at the place of incident. However, he has stated that when he had reached the place of incident, there were around 25 to 30 people already there. He has thereafter stated that before he had gone to report the incident to the police, he had taken the help of one Rajendra for taking the injured to the hospital. He has very categorically th stated that on 17 of March 1980 Qamre Alam had died. He has further stated that he was not informed about the names of the accused by either Gabbu Lal or Ram Saran who had seen the incident but it was his brother Shamsey Alam who had informed him about the incident and also about the names of accused. 4. P.W.-2 is the alleged eye witness called by the name of Gabbu Lal. He has stated he had witnessed the incident from a distance and that he recognized the accused. He has also stated that he could recognize the accused who were present in the court. Apart from himself, he has stated that, Ram Saran, Deep Narayan, Shakeel and Ataullah were also present. He has given a graphic description as to how the lathies were wielded and thereafter has also stated that Rafiq had fired on Qamre Alam from a very close distance i.e. to say from around 4 to 5 fingers away. He has very categorically stated that all the accused had given blows of lathis on both Qamre Alam and Shamsey Alam. He has also stated that around a minute after the incident had occurred P.W. Amiruddin and Rajendra had reached the place of incident. It has also stated that the accused were not known to the first informant. 5. P.W.-3 is the injured eye witness Shamsey Alam. He has also stated that around a minute after the incident had occurred P.W. Amiruddin and Rajendra had reached the place of incident. It has also stated that the accused were not known to the first informant. 5. P.W.-3 is the injured eye witness Shamsey Alam. He has also narrated the story as was told by the P.W.-1 and has given out the sequence of events as were narrated by Amiruddin. He has also stated that at the time of incident there were other persons present namely Gabbu, Deep Narayan, Ramsaran Shakeel and Ataullah. He has stated that the complaint he had filed earlier against Alisher was again repeated on 29.04.1981. He has stated that he was coming back after having played football at the DB College. He however did not remember the names of the persons with whom he had played football in that evening. He has stated that the day on which the incident had occurred at around 12 to 12:30 pm, he had gone to a barat to the Mohalla Piyarapur. In that Barat, Sarfaraj was also present till about 12:30 pm to 3:00 pm. Upon being asked as to how far was Gorakhpur where the incident had occurred from Ballia where there was a suggestion that Sarfaraj had gone to meet someone in jail, he had stated that he did not know the distance. He has also stated that Qamre Alam was given blows by lathis by all the five accused persons. 6. P.W.-4 is the witness Gulam Rasul who had appeared in the witness box to inform the court that he had met Sarfaraj at the marriage which had taken place in the after noon on 16.03.1980. 7. P.W.-5 Dr. Dilshad Alam is the doctor who had conducted the postmortem of the dead body of Qamre Alam. Apart from giving out all the details of the injuries, he has given his clear opinion that the injury which had occurred on the body of Qamre Alam could come if there was a firing done from a distance of around 20 paces. 8. P.W.-6 is the sub-Inspector who was present at the time of conducting of the Panchayatnama. 9. P.W.-7 is the constable Madan Kumar who had upon coming to know that Qamre Alam had died on 17.03.1980 had added section 302 IPC as an offence to be investigated into. 10. 8. P.W.-6 is the sub-Inspector who was present at the time of conducting of the Panchayatnama. 9. P.W.-7 is the constable Madan Kumar who had upon coming to know that Qamre Alam had died on 17.03.1980 had added section 302 IPC as an offence to be investigated into. 10. P.W.-8 is the doctor N.S. Sukla who had examined the injured Shamsey Alam. 11. P.W.-9 is the police personnel who had taken the various articles from the malkhana to the office of the C.M.O. 12. P.W.-10 is the clerk in the medical college who had received the various articles which were brought by P.W.-9. 13. P.W.11 is the Investigating Officer, S.I.- Ram Awadh Yadav who had investigated the crime. 14. P.W.-12 is again Dr. Upendra Nath Panday who had examined Qamre Alam at the time when he had been taken as an injured. 15. From the side of the defence, the jailer of the jail at Ballia had appeared in the witness box and he had, by his oral and documentary evidence, stated that Sarfraj was at Ballia at the time of the incident. 16. The statements of the five accused, namely, Sarfraj, Habib, Bhola, Riazuddin and Rafiq were thereafter recorded under Section 313 Cr.P.C. They had denied the charges. 17. Upon completion of the trial, on 7.11.1981, the IInd Additional Sessions Judge, Gorakhpur, convicted Rafiq under Section 302 IPC for life imprisonment and for 4 years of Rigorous Imprisonment for the offence under Section 307 IPC read with Section 34 IPC. The accused Bhola, Habib and Riazuddin were convicted for life imprisonment for the offence under Section 302 IPC read with Section 34 IPC. They were also punished with 4 years of Rigorous Imprisonment for the offence under Section 307 IPC read with Section 34 IPC. However Sarfraj was acquitted of the charges. Upon passing of the judgement dated 7.11.1981, two appeals were filed. One being Criminal Appeal No. 2652 of 1981 against the order of conviction of Rafiq son of Saghir Ahmad, Habib son of Saghir Ahmad, Bhola son of Tahir and Riazuddin son of Safedi and another being Government Appeal No. 493 of 1982 against the acquittal of Sarfraj. Both the appeals were connected and heard together. 18. During the pendency of the Appeal, the Appellant No. 2 Habib and the appellant no. 4 have died and, therefore, the appeal vis-a-vis the appellant no. Both the appeals were connected and heard together. 18. During the pendency of the Appeal, the Appellant No. 2 Habib and the appellant no. 4 have died and, therefore, the appeal vis-a-vis the appellant no. 2 Habib has abated on 1.6.2023 and the appeal vis-a-vis the appellant no. 4 Riazuddin has also abated on 22.2.2024. 19. Despite the notice to the alive appellants, when no one appeared to argue their cases, we appointed Sri Swayamanand Sisodiya as Amicus Curiae for the appellant no. 1 and no. 3 to argue the Criminal Appeal No. 2652 of 1981. The respondent in the Government Appeal No. 493 of 1982 was represented by Sri Bakhtiyar Yusuf and Sri Hemant Kumar. Learned AGA argued for the State in the Government Appeal. 20. Learned counsel for the appellant in the Criminal Appeal No. 2652 of 1981 argued that the appellants Rafiq and Bhola were innocent and that they had been falsely implicated in the case. While making arguments, he submitted as follows: (i). The P.W.-1, the P.W. - 2 and the P.W. - 3 have consistently stated that there were many other eye- witnesses who were present at the place of incident apart from Gabbu, but none of them appeared in the witness box for the prosecution. He has submitted that P.W.-1 had, in the first information report, itself stated that Ataullah and Shaqeel apart from Gabbu were present. In the statement- in-chief, he had stated that when he had reached the spot he was given the information about the incident by Gabbu and Ram Saran. Thereafter, in the statement-in-chief, he had stated that while he had gone to the police station, two injured i.e. Qamre Alam and Samsey Alam were taken to the hospital by one Rajendra. Similarly, the P.W. 2, Gabbu Lal had also stated that apart from himself the incident had been seen by Ram Saran, Deep Narayan, Shaqeel and Ataullah. Similarly, the P.W. -3, the injured witness, had stated that the incident was seen by Gabbu, Deep Narayan, Ram Saran, Shaqeel and Ataullah. Learned counsel for the appellants states that apart from just Gabbu no other witness had appeared in the witness box to prove the guilt of the accused persons. Learned counsel for the appellants, therefore, states that even Gabbu was a brought up witness and he was, in fact, never at the place of incident. Learned counsel for the appellants states that apart from just Gabbu no other witness had appeared in the witness box to prove the guilt of the accused persons. Learned counsel for the appellants, therefore, states that even Gabbu was a brought up witness and he was, in fact, never at the place of incident. (ii) Learned counsel for the appellants states that if the evidence of Gabbu is seen, he has stated that he neither knew the accused persons nor the injured persons but no effort has been made to make him recognize the accused persons. No test identification parade was conducted. How, he has for the first time recognized the accused persons in the Court remained a mystery. (iii) Learned counsel for the appellants has stated that the case of the prosecution was that five accused persons had ruthlessly wielded lathi blows on the two injured, namely, Qamre Alam and Samsey Alam but the injury report does not indicate that there were injuries commensurate to the allegations made against the five accused persons. Learned counsel for the appellants has submitted that the P.W.-1 while was not an eye-witness, the P.W.-3 also, though was an injured eye-witness, could not be relied upon for convicting the accused persons. He has made the Court go through the evidence of P.W.-3 elaborately and has submitted that the P.W.-3, to begin with, had stated that he had reached the place of incident after having played football but he did not remember with whom exactly he had played football on that day. He further submitted that the P.W.-3 had stated that the accused Rafiq had fired upon Qamre Alam point blank but he states that there was no blackening or tattooing etc. around the place where the bullet had entered the injured and also he submits that the Doctor i.e. the P.W.-5 had stated that the firing was done from around 20 paces away from where Qamre Alam was stationed. Still further, learned counsel for the appellant states that the testimony of P.W.-3 becomes unbelievable because he was throughout stating that on the date of the incident i.e. 16.3.1980 at around 12:00 Noon to 12:30PM, he was throughout there along with Sarfaraz. Some misunderstanding had also taken place between the injured and the accused Sarfaraz with regard to the ceremony of the distribution of Chhuara. Some misunderstanding had also taken place between the injured and the accused Sarfaraz with regard to the ceremony of the distribution of Chhuara. But learned counsel for the appellants submits that from the evidence of D.W.-1 it is clear that Sarfaraz was, in fact, at that point of time, in Ballia and this fact, he submits, could not be, by any stretch of imagination be said to be a wrong fact as the documentary evidence as also the oral evidence of D.W.-1 had gone absolutely unrebutted. 21. Learned AGA Sri Amit Sinha , however, has submitted that it mattered little if not all the eye-witnesses which were present on the spot appeared in the witness box. He submits that the testimony of Gabbu and the P.W.-3 Samsey Alam were enough to convict the accused persons. Learned counsel for the State submits that the P.W.-2 was an eye-witness while the P.W.-3 was an injured eye-witness and testimonies of both these eye- witnesses could not be brushed aside lightly. Learned counsel for the State has submitted that even if the case of P.W.-3 with regard to the presence of Sarfraz is disbelieved the other portion of evidence which was led by him could not be discarded. He relied upon certain judgements of Supreme Court and submitted that if a part of the evidence was disbelieved it did not mean that the entire evidence of that witness was to be thrown out. He further submitted that maxim falsus in uno, falsus in omnibus was not to be applied in the instant case. For this purpose, he relied upon a judgement of the Supreme Court in Nisar Ali vs. State of U.P. reported in AIR 1957 SC 366 and since he has specifically relied upon paragraph no. 9 and 10, they are being reproduced here as under: 9. It was next contended that the witnesses had falsely implicated Qudrat Ullah and because of that the Court should have rejected the testimony of these witnesses as against the appellant also. The well known maxim falsus in uno falsus in omnibus was relied upon by the appellant. 9 and 10, they are being reproduced here as under: 9. It was next contended that the witnesses had falsely implicated Qudrat Ullah and because of that the Court should have rejected the testimony of these witnesses as against the appellant also. The well known maxim falsus in uno falsus in omnibus was relied upon by the appellant. The argument raised was that because the witnesses who had also deposed against Qudrat Ullah by saying that he had handed over the knife to the appellant had not been believed by the Court below as against him, the High Court should not have accepted the evidence of these witnesses to convict the appellant. This maxim has not received general acceptance in different jurisdictions in India; nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be discharged. One American author has stated : "........... the maxim is in itself worthless; fire in point of validity........... and secondly, in point of utility because it merely tells the jury what they may do in any event, not what they must do or must not do and therefore, it is a superfluous form of words. It is also in practice pernicious............ (Wigmore on Evidence, Vol. III, para 1008).” 10. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not what may be called" a mandatory rule of evidence". 22. Similarly he relied upon Sucha Singh and another vs. State of Punjab reported in AIR 2003 SC 3617 and since he relied upon paragraph no. 18, the same are being reproduced here as under: 18. To the same effect is the decision in State of Punjab v. Jagir Singh ( AIR 1973 SC 2407 ) and Lehna v. State of Haryana ( 2002 (3) SCC 76 ). Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence.' (See Nisar Ali v. State of Uttar Pradesh ( AIR 1957 SC 366 ). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and another v. State of Punjab ( AIR 1956 SC 460 ). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and another v. State of Madhya Pradesh, 1972 3 SCC 751 ) and Ugar Ahir and others v. State of Bihar ( AIR 1965 SC 277 ). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh ( AIR 1954 SC 15 ) and Balaka Singh and others v. State of Punjab ( AIR 1975 SC 1962 ). As observed by this Court in State of Rajasthan v. Smt. Kalki and another ( AIR 1981 SC 1390 ), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc. (2002 (4) JT (SC) 186). Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned. 23. Still further he relied upon Menoka Malik and Others vs State of West Bengal and others reported in AIR 2018 SC 4011 and since he relied upon paragraphs no. 14 to 17, they are being reproduced here as under: “14. It is a well-settled position of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments or exaggerations. The doctrine of falsus in uno, falsus in omnibus, which means "false in one thing, false in everything" has been held to be inapplicable in the Indian scenario, where the tendency to exaggerate is common. This Court has endorsed the inapplicability of the doctrine in several decisions, such as Nisar Ali v. State of Uttar Pradesh, AIR 1957 SC 366 , Ugar Ahir v. State of Bihar, AIR 1965 SC 277 , Sucha Singh v. State of Punjab, (2003) 7 SCC 643 : ( AIR 2003 SC 3617 ), Narain v. State of Madhya Pradesh, (2004) 2 SCC 455 : ( AIR 2004 SC 2751 ) and Kameshwar Singh v. State of Bihar, (2018) 6 SCC 433 : ( AIR 2018 SC 1916 ). In Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 : ( AIR 2002 SC 1965 ), this Court highlighted the dangers of applying the doctrine in the Indian scenario: "51. ...The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is, that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P. [ AIR 1957 SC 366 : 1957 Cri LJ 550] )... The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. [ (1972) 3 SCC 751 : 1972 SCC (Cri) 819] : ( AIR 1972 SC 2020 ) and Ugar Ahir v. State of Bihar [ AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood." 15. It is not uncommon for witnesses to make exaggerations during the course of evidence. But merely because there are certain exaggerations, improvements and embellishments, the entire prosecution story should not be doubted. It is not uncommon for witnesses to make exaggerations during the course of evidence. But merely because there are certain exaggerations, improvements and embellishments, the entire prosecution story should not be doubted. In Ranjit Singh v. State of Punjab, (1974) 4 SCC 552 (Sic(2013 AIR SCW 6515 (Para 25)), this Court observed: "26. It is trite that even when exaggerations and embellishments are galore the courts can and indeed are expected to undertake a forensic exercise aimed at discovering the truth. The very fact that a large number of people were implicated in the incident in question who now stand acquitted by the High Court need not have deterred the High Court from appreciating the evidence on record and discarding what was not credible while accepting and relying upon what inspired confidence. That exercise was legitimate for otherwise the Court would be seen as abdicating and surrendering to distortions and/or embellishments whether made out of bitterness or any other reason including shoddy investigation by the agencies concerned. The ultimate quest for the court at all times remains "discovery of the truth" and unless the court is so disappointed with the difficulty besetting that exercise in a given case, as to make it impossible for it to pursue that object, it must make an endeavour in that direction." This Court in State of Punjab v. Hari Singh (1974) 4 SCC 552 : ( AIR 1974 SC 1168 ), observed as follows: "16. As human testimony, resulting from widely different powers of observation and description, is necessarily faulty and even truthful witnesses not infrequently exaggerate or imagine or tell half truths, the Courts must try to extract and separate the hard core of truth from the whole evidence. This is what is meant by the proverbial saying that Courts must separate "the chaff from the grain". If, after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt the Courts are bound to give effect to the result flowing from it and not throw it overboard on purely hypothetical and conjectural grounds." 16. Thus, it cannot be doubted that it is the duty of the Court to separate the chaff from the grain. Thus, it cannot be doubted that it is the duty of the Court to separate the chaff from the grain. Moreover, minor variations in the evidence will not affect the root of the matter, inasmuch as such minor variations need not be given major importance, inasmuch as they would not materially alter the evidence/credibility of the eye witnesses as a whole. 17. In light of the above discussion, prima facie, we find from the records that the versions of the eye witnesses cannot be said to be untrustworthy, especially in light of the observation of this Court in Masalti's case ( AIR 1965 SC 202 ) (supra). There are as many as 24 injured eye witnesses in the case and their presence cannot be doubted. In this situation, we find that the High Court has not applied its judicial mind in determining whether the judgment of the trial court was perverse inasmuch as the entire body of evidence was discarded, simply on the basis that some of the witnesses had deposed for the first time before the Court. 24. For similar purpose, he relied upon also a judgement of Supreme Court reported in Ramabora @ Ramaboraiah and Another vs State of Karnataka , AIR Online 2022 SC 1242 and 2023 LawSuit 671. 25. Having heard the learned Amicus Curiae Sri Swayamanand Sisodiya and learned AGA for the State, the Court finds that the testimony of Gabbu, the P.W.-2, though he was an eye-witness could not be relied upon because in his statement, he has specifically stated that the P.W.-2 was not knowing either the accused person or the injured persons or even the first informant and therefore it was imperative that before his testimony was relied upon, a test identification parade should have been undergone and the dock identification in the Court was not sufficient. Still further the court finds that the lathi injuries which ought to have been there as per the allegations that five persons had wielded lathi on the two injured Samsey Alam and Qamre Alam mercilessly could not be believed. The injury reports do not indicate such injuries which would indicate that five young able bodied persons had wielded lathies on the two injured persons. The injury report if are perused would show that definitely they were not a result of lathi being wielded by five young able bodied person. The injury reports do not indicate such injuries which would indicate that five young able bodied persons had wielded lathies on the two injured persons. The injury report if are perused would show that definitely they were not a result of lathi being wielded by five young able bodied person. The injury reports of Samsey Alam and Qamre Alam are being reproduced here as under:- 1. Samsay Alam: Examined Sri Samsay Alam aged about 20 years s/o Md. Chand. R/o Mohalla Alinagar P.S. Kotwali Distt. Gorakhpur on 16.3.1980 at 8 P.M. B/B Sri Rajendra Prasad S/o Sri Hira Lal Gupta Same Address. M.I. - Black mole on the front of left Arm. Injury:- 1. L.W. 3cm x ½ cm x muscle deep on the middle of front of hand. 2. L.W. ½ cm x ¼ cm x muscle deep on the upper & inner aspect of Left ear. 3. Tromatic swelling 3cm x 2 cm on the back of head middle part. 4. Contusion of pain on the middle of left thigh. Opinion :- Simple Blunt object. Duration: - Fresh 2. Qamre Alam:- Examined Qamre Alam 25 years male R/o Alinagar (P.T.) and Shoe Material stores Ali Nagar North (P.T.) Gorakhpur came in Emergency ward at 8.30 (P.T.) 16.3.80 P/S Kotwali Gorakhpur. Brought Bys: Amirudding (Brother) Address same. M.I.:- one black mole present just at the left stenoclavicular joint. Record of Injury:- 1. A badly lacerated wound around 5 inch x 2 ½ ” extending from Rt. Angle of supraorbital margin to the mid line of the Head 4 ½ ” (Inch) away from root of nose. Wound of entry is one. Skin margins one badly lacerated. 2. Scalp bone fracture. 3. Pulsatile grey tissue visible. 4. Black eye in left side. 5. Rt. Side upper eye lid black. All injuries, fresh, Margins bleeding Pt. Admitted in E.W. dying declaration recorded. Remarks:-1 All injuries kept under observation. 2. Pt. Unconcious, both pupil dialated not reacting to light. 3. Both plamber are extender. Note:- 1. Police has been informed. 2. Injury No.1 is serious. 3. Other injury are simple and need to be kept under observation. 4. R.S.O. surgon call has been informed. Nature:- inj.1 serious and kept u.o. Duration: - Approx 2 ½ hr. old. Nature of Weapon:- Fire arm. Adv. X. Ray skull – A.P./Lateral. 26. 3. Both plamber are extender. Note:- 1. Police has been informed. 2. Injury No.1 is serious. 3. Other injury are simple and need to be kept under observation. 4. R.S.O. surgon call has been informed. Nature:- inj.1 serious and kept u.o. Duration: - Approx 2 ½ hr. old. Nature of Weapon:- Fire arm. Adv. X. Ray skull – A.P./Lateral. 26. Further, we are of the view that even the injury which was the injury of a firearm was not definitely from a point blank range. The statement of the Doctor, P.W.-5 that " ?" shows that injury even from the firearm was not from point blank range and the statements made by the P.W.-2 and the P.W.-3, therefore, become doubtful and they cannot be relied upon for the conviction of the five accused persons. 27. Further, the Court finds that there was no reason for doubting the statement of D.W.-1 Mahaveer Pal who was a Deputy Jailer of District Jail Ballia and he had come with all the registers etc. to show that Sarfraz was visiting the district jail ballia at the time when it is alleged that Sarfraj was present at Gorakhpur attending the marriage in Mohalla - Piyarapur and also at the time when the incident had occurred. So far as the argument of learned AGA is concerned that the evidence of P.W.- 3 to the extent it did not deal with Sarfraj be taken into account, the Court is of the view that the evidence of P.W.-3, Samsey Alam, who was though an injured witness could not be believed because he has to begin with stated that he had seen the incident but had very categorically stated that Qamre Alam was fired in the head point blank, but neither the injury report nor the statement of the Doctor corroborate the stand taken by P.W.-3. Also, the P.W.-3 had spoken a falsity that Sarfraj was present at the marriage and was also present at the place of incident. Thus, we are of the view that the entire evidence of P.W. - 3 who claims himself to be an injured eye-witness was not be believed at all. Also, the P.W.-3 had spoken a falsity that Sarfraj was present at the marriage and was also present at the place of incident. Thus, we are of the view that the entire evidence of P.W. - 3 who claims himself to be an injured eye-witness was not be believed at all. The injury had taken place from, as per the doctors evidence, a distance of 20 paces and as per the statement of D.W.-1 Sarfraj was not present at all and, therefore, there is no portion of the evidence of P.W.-3 which could be relied upon and, therefore, it would not be proper for the Court to even consider that whether a part of the evidence of the P.W.-3 was be at all considered. 28. For the reasons stated above, we are of the view that the Criminal Appeal No. 2652 of 1981 deserves to be allowed and, therefore, the same is allowed. The judgement and order dated 7.11.1981 passed by the 2nd Additional Sessions Judge, Gorakhpur vis-a-vis appellants 1 & 3 is set aside. The appellants Rafiq and Bhola are already on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. 29. So far as the Government Appeal No. 493 of 1982, for the reasons which we have stated in the preceding judgment we are of the view that the Government Appeal has no merits. Uponb an evaluation of the evidence which has been produced before us, we are definitely of the view that the acquittal of Sarfraj was correctly done. No interference is warranted. The Government Appeal No. 493 of 1982 is according dismissed. 30. For the hard work which has been put in by the learned Amicus Curiae Sri Swayamanand Sisodiya, we quantify his fee as Rs. 25,000/- which shall be payable to him by the Legal Services Authority forthwith. The payment be got done under the supervision of the Registrar General of this court.