D. M. PATNAIK, J. ( 1 ) ALL the appellants assail their conviction under section 201 I. P. C. and sentence of R. I. for three years, whereas, appellants Kalisetti Bhimaraju, Dasiri Krishnamurty and Pemi Appa Rao assail their conviction under section 302/34 I. P. C. and sentence of imprisonment for life. ( 2 ) PROSECUTION case in brief is, on 23. 5. 1990 during the morning hours deceased Pemi Balaram and his wife (P. W. 2) and appellant Nali Karleyya were engaged in plucking screwpine flower (Kiya Phula ). Sometime thereafter when the deceased and P. W. 2 left that place, brother of appellant Nali Karleyya made an allegation before Naidu Jagannath, the headman of the village, that the deceased had committed theft of screwpine flower and tendered Rs. 20/- to the said Naidu Jagannath to convene a village meeting for decision. To counter this, on 24. 5. 1990 the deceased borrowed Rs. 1000/-from a co-villager and while was going to village Mandan to deposit the amount with the headman around 1 p. m. , it was alleged, that appellant K. Bhimaraju assaulted on the backside of deceased Balaram with a split-wood. After the deceased fell down on the ground, appellant B. Appa Rao with a piece of stone crushed the head of the deceased (Chhechidela ). At that time the other appellants being armed with Kati and lathis assaulted the deceased who died at the spot. All the accused persons on the next day carried the dead body and cremated the same inspite of protest by P. W. 2 and others. P. W. 2 lodged a report at the police station. The police visited the cremation ground and recovered from the burning pyre some burnt bone pieces which were subjected to forensic laboratory test which showed the bones of a human body. The appellants denied the prosecution allegations and further pleaded that the case was falsely instituted against them because of rivalry between the two groups during the panchayat election. ( 3 ) HEARD Mr. S. K. Mohanty and Mr. A. K. Acharya, Learned Counsel for the appellants, and Mr. J. K. Mohanty, learned Standing Counsel, for the State. Though Mr. S. K. Mohanty advanced extensive argument and referred to a series of decisions of this Court and the apex Court in regard to the credibility of the witnesses particularly the evidence of P. Ws. S. K. Mohanty and Mr. A. K. Acharya, Learned Counsel for the appellants, and Mr. J. K. Mohanty, learned Standing Counsel, for the State. Though Mr. S. K. Mohanty advanced extensive argument and referred to a series of decisions of this Court and the apex Court in regard to the credibility of the witnesses particularly the evidence of P. Ws. 2, 3 and 6 who are relations of the deceased, the effect of suppressing the real F. I. R. , non- examination of independent as well as material witnesses, inconsistency in the evidence of the prosecution witnesses with regard to the place where the occurrence took place, enmity between P. W. 4 and the appellants over the issue of Panchayat election etc. , I feel, it would be idle to drift into all those aspects in the case since in my view the matter can be otherwise disposed of in the manner hereinafter discussed. Mr. J. K. Mohanthy, learned Standing Counsel for the State, on the other band, supported the judgment of conviction. ( 4 ) THE conviction of the appellants under section 201 I. P. C. is not proper for the following reason. P. W. 2 in Para 6 of her evidence stated that after the return, of P. W. 6, her brother from the field the latter was forced to accompany the dead body to the cremation ground and it was the accused persons who carried the dead body, but in the F. I. R. she stated that the above gentleman and many other peoplet together after discussion among themselves carried the dead body and cremated the same. She did not mention in the FI. R. that the accused persons carried the dead body and cremated the same. This being a material omission with regard to the allegation of an offence u/s. 201 I. P. C. , it should not have been accepted by the Trial Court. P. W. 6, brother of P. W. 2 stated in Para 2 of his evidence that when he reached the house of P. W. 2, he was forced by the accused persons. He along with P. Duryodhan, one of the nephews of the deceased, carried the dead body to the cremation ground. Therefore, it is evident from this statement of P. W. 6 that he was also present at the time of cremation. He along with P. Duryodhan, one of the nephews of the deceased, carried the dead body to the cremation ground. Therefore, it is evident from this statement of P. W. 6 that he was also present at the time of cremation. On the face of such evidence, the appellants committing the offence under section 201 I. P. C. did not arise and thus, they are acquitted of the said charge. We may, therefore, consider whether the conviction under section 302/34 I. P. C. of the three appellants is correct. ( 5 ) THE trial Court has accepted the testimony of P. W. 2, the wife and P. W. 3, the daughter of the deceased as true and has recorded the order of conviction. Although Mr. Mohanty, learned Counsel for the appellants, was very critical about the infirmities pointed out by him with regard to the veracity of these witnesses and highly improbable nature of the prosecution case, we are unable to accept his submission that the evidence of P. Ws. 2 and 3 should be discarded. Though they are related to the deceased yet in the facts and circumstances of the case, their presence at the spot at that precise moment being highly probable, they were but natural witnesses to the occurrence. The evidence of P. W. 2 which has been duly corroborated by the version in the F. I. R. and that of P. W. 3 and the post-occurrence evidence of P. W. 6, was to the effect that while the deceased was going to tender Rs. 1001/- to the Naidu, the headman of the village, she and P. W. 3 followed him. At that time, according to her evidence, near the betel shop of one Jaya Sahu, appellants K. Bhimaraju and D. Krishnamurty assaulted her husband from back side on his head for which he fell down on the ground. Inspite of her protest, appellant P. Appa Rao hit a stone on the head of the deceased and thereafter, the other appellants namely, K. Purusottam, Kalisetti Basantulu, Binoi Dilesu, Togi Naraidu, Godala Mohan Rao, Nali Karleyya and Nali Bhimaraju and others assaulted the deceased with lathi and stone etc. and her husband died at the spot. Nothing has been elicited in her cross-examination to disbelieve the evidence of these two witnesses. and her husband died at the spot. Nothing has been elicited in her cross-examination to disbelieve the evidence of these two witnesses. Even, assuming, we eliminate the evidence of P. W. 3, the child witness, the sole evidence of P. W. 2, the wife of the deceased being free from any infirmity, the same can be the sole basis for conviction. This proposition of law is well settled. The material facts and names of the three appellants and the manner of assault are found to have been mentioned in the F. I. R. For these reasons we accept the finding of the trial Court that P. Ws. 2 and 3 gave a truthful version that it was the above named three appellants who assaulted the deceased, but the matter still remains for decision as to what offence the appellants committed by such assaults. ( 6 ) ALL homicides are not murder. The prosecution is to prove that the death so caused came within the definition of murder. Admittedly, the dead body was not available for post-mortem examination. P. W. 7 is the 1. 0. who stated that he received the F. I. R. on 24. 5. 1990 and proceeded to village Kirtipur. He revisited the village on 25. 5. 1990 and could come to know from P. W. 2 that the dead body of P. Balaram was being cremated at the village cremation ground. He saw the dead body on the burning pyre. He extinguished the fire and collected some burnt bone pieces. He held inquest over the materials and subsequently sent those bones to the Professor, F. M. T. of the M. K. C. G. Medical College Hospital, Berhampur for examination. P. W. 1 was the Professor and Head of the Department of the F. M. T. in the Medical College Hospital who examined the bones and submitted his report. In Para 2 of his evidence he stated that the bones were burnt and destroyed to a great extent, but he opined that the said bones were of human origin. He further stated that there was no evidence of ante-mortem bone injuries. The evidence of P. W. 7, the 1. 0. In Para 2 of his evidence he stated that the bones were burnt and destroyed to a great extent, but he opined that the said bones were of human origin. He further stated that there was no evidence of ante-mortem bone injuries. The evidence of P. W. 7, the 1. 0. that he collected the bones of the deceased from the burning pyre coupled with the evidence of P. W. 1, the Professor of F. K. T. , amply establish that the bones examined were that of the deceased, but the opinion of the Professor is that on examination he did not find any ante-mortem bone injury. The Doctor did not state as to which part of the body those bones belonged. However, with this little information, I can only conclude that prosecution has failed to prove if the deceased was assaulted by the appellants on any vital part of the body, particularly the head, which is the prosecution case. So much so, P. Ws. 2 and 3 are completely silent if they found any bleeding injury from the head of the deceased. Had anyone of them said that the deceased sustained a bleeding injury on the head, I would have certainly accepted her version, even in the absence of any opinion of the Doctor. The occurrence took place on 24. 5. 1990 at about 1 p. m. The dead body was cremated on 25. 5. 1990 in the afternoon. I have already held in the foregoing paragraph that, the prosecution case that, the appellants carried the dead body and cremated the same is doubtful for which they have been exonarated from the charge under section 201 I. P. C. Had it been so proved by the prosecution that immediately after the assault the appellants were the only persons who carried the dead body and cremated the same, it could have been certainly proved their liability for the offence under section 302 I. P. C. because of such a telling circumstance, but the prosecution has failed to connect the appellants in carrying the dead body and cremating the same. Thus the homicidal nature of death of the deceased is doubtful. The conviction of the three appellants under section 302 I. P. C. cannot, therefore, be sustained and the same is set aside. Thus the homicidal nature of death of the deceased is doubtful. The conviction of the three appellants under section 302 I. P. C. cannot, therefore, be sustained and the same is set aside. In the absence of any particulars with regard to the weapon (i. e. size of the lathi etc.) used, it is rather legitimate to conclude that the three appellants committed an offence punishable under section 32. 5 I. P. C. ( 7 ) IN the result, therefore, conviction of the three appellants under section 302 I. P. C. in Criminal Appeal No. 222 of 1991 is set aside and, instead, they are convicted under section 325 I. P. C. and sentenced to undergo R. I. for three years. The appellants in Criminal Appeal No. 216 of 1991 are acquitted of the charge under section 201 I. P. C. The appeal is allowed in part. K. L. Issrani, J. I agree. Appeal allowed in part.