JUDGMENT G.C. Bharuka, J. The present appeal has been filed by the sole appellant against the judgment and order dated 31-5-1988 passed by the 2nd Addl. Sessions Judge, Patna, in Sessions Trial No. 16 A of 1978 whereby the appellant has been convicted under Section 302/149 of the Indian Penal Code and sentenced to imprisonment for life. The appellant has also been convicted under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. He has further been convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. The sentences have, however, been ordered to run Concurrently. Though the appellant has also been convicted under Section 148 of the Indian Penal Code, no separate sentence under this count has been awarded to him. 2. In this case the formal F.I.R. (Ext. 6) has been drawn up on the basis of the Fardbeyan (Ext. 3) of Shyama Devi, wife of the deceased Udai Sonar. The Fardbeyan was recorded at village Belchhi, which is the place of occurrence of the present case. The substance of the information given by Shyama Devi to the Officer-In-charge was that on 26-5-1977 two to three persons came to Sidheshwar Paswan (the deceased) at village Belchhi and suggested to him that both the parties should settle their dispute. They said that Parsuram Dhanuk had come to the south of the village across the river and they should go and talk with him. They then went away Shyama Devi asked her husband Udai Sonar not to go, as she apprehended that he may be assaulted. Udai Sonar after taking his meal at night went to sleep in the Dalan of Permeshwar Mahto and came home in the morning. On 27-5-1977 one Pahar after sun rise which would mean about 6 or 6.30 A.M., Parsuram Dhanuk came near the house of Shyama Devi with a mob and started abusing Udai Sonar. When the latter came out of the house, he was caught hold of by Parsuram Dhanuk and dragged away. When Kesho and Awadhesh Sonar tried to prevent Udai Sonar being taken away, they were also caught hold of by the mob which consisted of Mahabir Mahto, Rajendra Mahto, Siban Mahto, Nepali Mahto, Tulsi Mahto, Sitaram Mahto, Sadhu Mahto and Bundela Dusadh besides Parasuram Dhanuk and about 50-60 others. When Kesho and Awadhesh Sonar tried to prevent Udai Sonar being taken away, they were also caught hold of by the mob which consisted of Mahabir Mahto, Rajendra Mahto, Siban Mahto, Nepali Mahto, Tulsi Mahto, Sitaram Mahto, Sadhu Mahto and Bundela Dusadh besides Parasuram Dhanuk and about 50-60 others. They took away the three brothers, namely, Kesho Sonar, Udai Sonar and Awadhesh Sonar to a Khalihan south of the village where Parsuram Dhanuk shot them dead. Some of the accused remained in the khalihan while others entered village armed with guns. They chased Sidheshwar and seven other Paswans and the Paswans fled for life and closed themselves in the house of Rohan Mahto. The mob of Mahabir and other appellants forced themselves into the house of Rohan Mahto (P.W.2) and brought out Sidheswar Paswan, Sahdeo Paswan, Sahdeo Paswan, Nawal Paswan, Raja Paswan, Bhattu Paswan, Deoki Paswan, Ramasis Paswan and Siban Paswan. They were also taken to the Khalihan south of the village, tied in a rope. In the field of Sahdeo Mahto of village Baghatilla all the eight Paswans were also shot and killed. Thereafter, a pyre was lit and all the eleven dead bodies were consigned to the flames. According to the informant Shyama Devi the cause of occurrence was the dispute between Sidheshwar Paswan on the one band and Mahabir Mahto on the other. The dispute, as alleged, was on account of murder of Dhanpat Paswan which had taken place about 5-6 months prim to this occurrence. According to Shyama Devi, Mahapir Mahto and Parsuram Dhanuk suspected that Sidheshwar Paswan was responsible for the killing of Dhanpat Paswan, Parsuram Dhanuk and Mahabir Mahto also suspected that Udai Sonar supported Sidheshwar Paswan. Sidheshwar Paswan had also brought his men from Asthama and some of them had gone away the previous evening. Finding a suitable opportunity Parsuram Dhanuk and Mahabir Mahto came with a mob, caught hold of them and shot and killed all the eleven persons. This Fard-Beyan gave rise to Barh P.S. Case No. 9 (5) 77 and the police took up the investigation. 3. As it transpires from the records the S.I., A.K. Mishra of Barh Police Station, who had initially investigated the case till 16-6-1977. Investigation was taken over by Lalan Mishr (P.W.15), S.I. on 16-6-1977, who submitted the charge-sheet in this case on 30-6-1977. 3. As it transpires from the records the S.I., A.K. Mishra of Barh Police Station, who had initially investigated the case till 16-6-1977. Investigation was taken over by Lalan Mishr (P.W.15), S.I. on 16-6-1977, who submitted the charge-sheet in this case on 30-6-1977. From the evidence of this witness (P.W.15) it transpires that during the trial A.K. Mishra had died. In the charge-sheet Parshuram Dhanuk and Mahabir Mahto and several others including the petitioner were shown as accused. Since as per the execution report of the police the appellant Tulsi Mahto was found to be absconding and there was no likelihood of his apprehension in near future, therefore, by orders dated 22-12-1979 at the request of the prosecution his case was split up and the remaining accused persons were put on trial in Sessions Trial No. 16 of 1978. After the appellant was apprehended he was put on trial in Sessions Case No. 16A of 1978. Before proceeding to deal with the case of the present appellant it will be worth while to indicate that the other accused persons connected with the occurrence who have been subjected to trial in Sessions Trial No. 16 of 1978 and were convicted by the trial court had preferred appeals in this Court being Appeal Nos. 154, 155, 216, 217 and 218 of 1980. This Court by its judgment dated 11-1-1982 upheld the conviction of Parsuram Dhanuk and Mahabir Mahto under section 302 of the Indian Penal Code and awarded death sentence to both of them Keshav Mahto, Naresh Mahto, Siri Mahto, Kailash Mahto, Ramkishun Mahto, Baldeo Mahto, Kishori Mahto, Sitaram Mahto, Sahdu Mahto, Rajendre Mahto, Siban Mahto and Nepali Mahto were also found guilty of the various offences and accordingly their conviction and sentences awarded by the trial court were upheld. 4. Now coming to the present case during the trial 15 witnesses have been examined on behalf of the prosecution. Out of these witnesses Mahendra Prasad (P.W.1), Rohan Mahto (P.W.2), Janki Paswan (P.W.3), Girja Devi (P.W.4), Subash Devi (P. W. 5), Anup Paswan (P. W. 6), Bal Gobind Paswan (P. W. 7), Ram Prasad Paswan (P. W. 10) are the eye-witnesses of the occurrence at one stage or the other Dr. Shanker Prasad Deokuliar (P.W.8), Dr. Panchnand Das (P.W.9) and Dr. Digamber Jha (P.W.12) are the witnesses who had conducted the postmortem examination on the dead bodies of the deceased. Shanker Prasad Deokuliar (P.W.8), Dr. Panchnand Das (P.W.9) and Dr. Digamber Jha (P.W.12) are the witnesses who had conducted the postmortem examination on the dead bodies of the deceased. Sakuni Devi (P.W.11) is the wife of the deceased Sidheshwar Paswan. She is just a tender witness. Hari Paswan (P.W.13) is the village chaukidar, who alongwith two other persons had taken the eleven dead bodies to Barh hospital for postmortem examination. Awadhesh Singh (P.W.14) is the Inspector of C.I.D., who had submitted supplementary case diary in this case. Lallan Mishra (P.W.15) is the S.I., who had submitted charge-sheet in this case. 5. The Defence has also examined four witnesses, namely, Ram Sakal Paswan (D.W.1), Anup Paswan (D.W.2), Janki Paswan (D.W.3) and Kali Charan Paswan (D.W.4). 6. P.W.1 is the grand-son (Daughter's son) of Rohan Mahto (P.W.2), Recalling the occurrence he has deposed that in the morning at about 9 A.M. he saw Sidheshwar Paswan and his persons being chased by the accused. Sidheshwar Paswan and his men entered the house of his maternal grand-father and bolted the door from inside. The accused persons started firing and thereafter they started making efforts to break open the door. 7. On the basis of the evidence, which has been laid in this case, the prosecution case as it emerges, is that in the morning of the fateful day eight Paswans, namely, Sidheshwar Paswan, Nawal Paswan, Raja Ram Paswan, Sahdeo Paswan, Ramashish Paswan, Deoki Paswan, Bhatu Paswan and Siban Paswan and some of their men went inside the house of Rohan Mahto (P.W.2) and bolted the door from inside in order to hide themselves. They did so because they were being chased by a mob led by Parsuram Dhanuk and Mahabir Mahto with guns in their hand. The members of the mob were variously armed with gun, lathi, garansa, etc. The accused persons forced their entry into the house and took out the Paswans from inside, tied their hands and took them to the nearby field. Three Sonan brothers were also brought from their house in a similar fashion and carried to the field where all the eleven persons were shot dead by gun and thereafter they were consigned to flame with the help of kerosene oil, cow dung and other inflammable articles. While this gruesome act was in process, the police arrived at the spot. Thereafter, the Ford-Bayan (Ext. 3) was recorded. While this gruesome act was in process, the police arrived at the spot. Thereafter, the Ford-Bayan (Ext. 3) was recorded. At the instance of the police, the village Chaukidar, Hari Paswan. (P.W.13) along with two other persons carried the dead bodies to Barh hospital where post-mortem was conducted by Dr. Shankar pd. Deokuliar (P.W.8). Dr. Panchanan Das (P.W.9) and Dr. Digamber Jha (P.W.12). From the evidence of medical witnesses, it is clearly established that the victims were shot dead by gun injuries and their bodies were found either with part or material burns. 8. Learned counsel appearing for the appellant does not seriously dispute the occurrence. His grievance is that the appellant has been falsely implicated in the present case because of previous enmity and for that purpose he has relied on the deposition of some of the prosecution witnesses. It has also been submitted that since the informant has not been examined in this case as a witness, therefore, this has also an adverse effect on the prosecution case. I do not find any substance in the submission because neither any prejudice is caused to the appellant due to non-examination of the informant nor in any way it can be said to have affected the establishment of the prosecution case. 9. So far as the occurrence is concerned, the prosecution, beyond any shadow of doubt, has established that a holocaust had taken place in village Belchhi on the fateful day resulting in murder of eleven persons (eight Paswans and three Sonars). Since the appellant has been discharged of the allegation of actual murder of any of the deceased for want of sufficient evidence in this regard against the appellant, the issue which falls for consideration is whether the appellant was a member of the unlawful assembly and had participated in the manner held by the trial court. The finding of the trial court with regard to the appellant is that the accused was armed with fire arm for using the same for unlawful purpose. The trial Court has also found that after the murder of the deceased persons, the mob had set the dead bodies to fire apparently for causing disappearance of evidence of murder in order to save themselves and the appellant Tulsi Mahto had also taken part in it. 10. The trial Court has also found that after the murder of the deceased persons, the mob had set the dead bodies to fire apparently for causing disappearance of evidence of murder in order to save themselves and the appellant Tulsi Mahto had also taken part in it. 10. Now, for appreciating the submission made on behalf of the appellant it will be worthwhile to go through the oral evidence to the extent it concerns involvement of the appellant. P.W.1 in his examination in chief has specifically stated that this appellant was a member of the unlawful assembly-with firearm in his hand. He also identified the appellant Tulsi Mahto in dock but surprisingly in his cross-examination he said that he had not seen him in the mob during the occurrence. Rohan Mahto (P.W.2) speaks about the complicity of the appellant in the occurrence as a member of the unlawful assembly but refused to identify the appellant in the dock. In cross-examination he says that for some time past he is having weak eye-vision. Janki Paswan (P.W.3) has specifically named the appellant as a member of the unlawful assembly. He bas also deposed that this appellant, who was having fire-arm, had participated in setting fire to the bodies of the deceased. To the same effect is the evidence of Girija Devi (P.W.4), Subash Devi (P.W.5), Aunp Paswan (P.W.5) and Govind Paswan (P.W.7). The witnesses, P.Ws. 3, 4, 5, 6 and 7 have also identified the appellant in the court. The learned counsel for the appellant has referred to the various paragraphs of the depositions of some of the prosecution witnesses to prove the enmity as a cause for false implication. As a matter of fact even as per the prosecution possibly the group rivalry was the cause of this unprecedented holocaust in the remote village Belchhi. Therefore, this plea is of no avail to the appellant. 11. So far as the defence witnesses are concerned, they have corroborated the correctness of the prosecution case but with respect to involvement of Tulsi Mahto in this occurrence, they have tried to create a cloud of doubt and confusion by deposing that the person in the dock is not Tulsi Mahto. The assertion of the defence witnesses on the face of it seems to be false and concocted. The assertion of the defence witnesses on the face of it seems to be false and concocted. In view of overwhelming evidence against the appellant, it has to be held that he had participated in the crime as a member of the unlawful assembly in furtherance of a common object of killing the victims. It is also established from the evidence that the appellant was also having fire-arms and had participated in setting fire to the bodies of the victims with ulterior motive of destroying the evidence of the offence. 12. Keeping in view all these aspects and materials on record, in my view, the trial court was right in convicting and sentencing the appellant. Accordingly, the appeal being without any merit, is dismissed. S.C. Mookherji, J. - I agree.