Judgment 51. Judging the case on broad probability as well the possibility of, false implication of the accused persons stands ruled out in view of the fact that if the naxalites would have been the real culprits they would not have been spared by the witnesses and atleast some of them must have been named by the witnesses as accused but now person from outside the village has been made accused in this case. 52. Thus it would appear that except Baijnath Rai and Deonath Pandey, others, namely, appellants Gopal Sharan Pandey, Sadhu Sharan Pandey, ramgopal Pandey, Ramdeo Pandey, Ram Ayodhya Pandey, Ram Janam Pandey, bishram Pandey, Nar Narain Pandey, Kamla Pandey @ Kamlakant Pandey, Jai ram Pandey, Rajendra Pandey, Lakshmi Pandey alias Lakshminarain Pandey and Narsing Pandey have been identified by 3 or more witnesses as described above. Participation of appellants Baijnath Rai and Deonath Pandey have already been disbelieved on the basis of two identification, i. e. , P. Ws.2 and 5, because P. Ws.5 is not a witness of murder of Fulkumari, while considering the case with respect to the murder of Fulkumari. 53. On the point of participation of the appellants in the crime in question a discussion has already been made above, from which it would be clear that there are three or more than three identifications against the following appellants : (i ). Gopal Sharan Pandey (ii ). Ram Gopal Pandey (iii ). Sadhu Sharan pandey (iv ). Ramdeo Pandey (v ). Ram Ayodhya Pandey (vi ). Ram Janam Pandey (vii ). Bishram Pandey (viii ). Nar Narain Pandey (ix) Kamla Pendey @ Kamlakant Pandey (x) Jai Ram Pandey (xi)Rajendra Pandey (xii) Lakshmi Pandey @ Lakshmi Narain Pandey, and (xiii) Nar Singh Pandey. 54. Now regarding their individual liability, as already found that appellants Gopal Sharan Pandey, Ram Gopal Pandey, Sadhu Sharan Pandey, ramdeo Pandey, Ram Ayodhya Pandey, Ram Janam Pandey and Bishram pandey have been convicted under Sec.302, read with Sec.34 of the Code, the judgment and orders of conviction and sentence passed by the learned trial court for killing Fulkumari and quite justified and the same has to be upheld. 55. 55. From the evidence of the witnesses discussed above, it is fully established that there had been a horrible occurrence in the P. O. village, in which there has been five murders, out of which identity of one could not be established, rampant arson by setting the houses as well as heaps of straw on fire. Hence it has to be held that some of the members of the unlawful assembly in prosecution of the common object of killing the persons whoever might had been available and setting the houses and heaps of straw belonging to the villagers of that village, on fire committed the offences punishable under Sections 302 of the code as well as punishable under Sections 435 and 436 of the Code Others were members of that unlawful assembly and the aforesaid offences were committed in prosecution of common object of that assembly. Thus the judgment and orders of conviction passed by the learned trial court against the aforesaid 13 appellants, named in paragraph-54, of this judgment are hereby confirmed, to the extent that besides the conviction of the appellants Gopal Sharan Pandey, ram Gopol Pandey, Sadhu Sharan Pandey, Ramdeo Pandey, Ram Ayodhya pandey, Ram Janam Pandey and Bishram Pandey under Sec.302/34 of the code, the judgment and orders of conviction passed against all the 13 (thirteen)appellants for offences under Sections 302/149,436/149 and 435/149 are also quite justified and the same are also affirmed. 56. The judgment and orders of conviction passed by the trial court against appetllants Gopal Sharan Pandey, Sadhu Sharan Pandey, Ramdeo Pandey, nar Narain Pandey, Kamla Pandey and Jairam Pandey under Sec.27 of the anns Act is also upheld. 57. The judgment and orders of conviction passed by the trial court under Sec.147 of the Code against appellants-Ram Ayodhya Pandey and ram Janam Pandey, as well as the judgment and orders of conviction passed against rest of the appellants under Sec.148 of the Code whose participation has been believed and conviction has been upheld, are also affirmed. 58. Appellants Ram Gopal Pandey has also been convicted under section 436 of the Code for setting the houses of Kapildeo Yadav (P. W.2) and khakhanu Singh (P W.16) on fire. His conviction is also quite justified in view of the prosecution evidence and the same is also upheld. 59. In the result Cr. 58. Appellants Ram Gopal Pandey has also been convicted under section 436 of the Code for setting the houses of Kapildeo Yadav (P. W.2) and khakhanu Singh (P W.16) on fire. His conviction is also quite justified in view of the prosecution evidence and the same is also upheld. 59. In the result Cr. Appeal No.370/86 with respect to appellant No.5 ramjanam Pandey, is dismissed and this appeal with respect to other appellants is hereby allowed. 60. So far as Cr. Appeal No.388/86 is concerned, the appeal of appellants Gopal Sharan Pandey, Ram Gopal Pandey, Sadhu Sharan Pandey, ramdeo Pandey, Ram Ayodha Pandey, Bishram Pandey, Nar Narain Pandey, kamla Pandey alias Kamlakant Pandey, Jai Ram Pandey, Rajendra Pandey. Lakshmi Pandey aliens Lakshminarain Pandey and Nar Singh Pandey is dismissed. and so far as other appellants of this appeal are concerned, their appeal is allowed. 61. As a consequence of this, the judgment and orders of conviction and sentence passed by the learned trial court against the appellants, whose appeals have been allowed, the same are hereby set aside and they are acquitted of the charges levelled againt them. Now they shall be released from the custody forthwith if not wanted in any other case. 62. The judgment and orders of conviction and sentence passed by the learned trial court against appellants Gopal Sharan Pandey, Ram Gopal Pandey, sadhu Sharan Pandey, Ramdeo Pandey, Ram Ayodhya Pandey, Bishram pandey, Nar Narain Pandey, Kamla Pandey alias Kamlakant Pandey, Jai Ram pandey, Rajendra Pandey, Lakshmi Pandey alias Lakshmi Narain Pandey and nar Singh Pandey of Cr. Appeal No.386/86 are affirmed subject to the modification in the orders of conviction as pointed out above. 63. Likewise, the judgment and orders of conviction and sentence passed against appellant No.5 Ram Janam Pandey of Cr. Appeal No.370/86 are also hereby affiremed subject to the modification in the orders of conviction as indicated above. 64. Both the appeals stand disposed of accordingly. Ramnandan Prasad, J. I agree. Appeals decided accordingly.