JUDGMENT O. N. Asthana, J. All the accused-appellants of these three Criminal Appeals stand convicted for the offences punishable under Sections 302 read with Section 149 I.P.C. and Section 436 read with Section 149 I.P.C. and awarded the sentences of life imprisonment and ten years respectively and also under Section 440 I.P.C. Further the accused-appellant Jai Prakash Narain has been held guilty for the offence punishable under Section 436 read with Section 114 I.P.C. and the accused-appellant Jagdish Ram has been held guilty for the offences punishable under Sections 336 and 323 I.P.C. 2. The prosecution case is that on 16th March (sic) a day of Holi festival, the informant, Hari Prasad son of Ganpat (P.W.9) invited his friend Jafru Mian at his abadi house in village Diyava (Police Station-Hilsa, District Nalanda) to take lunch in noon-hours with him. While Jafru Mian was coming to the informant's house at 12 noon, and while he reached on the Pathway near the house of one Shivnandan Mahto, the accused-appellant, Jagdish Ram began to assault Jafru Mian, and the informant protested. The accused-appellant, Jagdish Ram whose house is by the side of the house of the informant, begar in to quarrel with the informant, abused the informant and threw stone and brickbats at the informant's house. Some villagers arrived and he was pacified. The informant, Hari Prasad, extended the invitation to Jafru Mian to come along with his family members to take the dinner in the night at his newly built (built a year back) house at Pokhar Khanda situate two hundred and odd yards away from village abadi. Jafru Mian (P.W.1) his brother, Kamruddin Ansari (P.W.5) and his father, Qaiyum Ansari came at his house at Pokhar khanda at about 9 p.m. in the night. The informant, Hari Prasad (P.W.9,) his father Ganpat, and his brothers Kishun Prasad (P.W.3) and Brajnandan (P.W.7) were there at the house. Thus, the informant, his father, Ganpat, his brothers Kishun Prasad and Brajnandan, Qaiyum Ansari and his sons Jafru Mian and Kamruddin were sitting in the compound of the house at Pokhar Khanda. Ganpat sent his son, Brajanandao to bring the cooked food from the old abadi house for serving the dinner. Thus, the informant, his father, Ganpat, his brothers Kishun Prasad and Brajnandan, Qaiyum Ansari and his sons Jafru Mian and Kamruddin were sitting in the compound of the house at Pokhar Khanda. Ganpat sent his son, Brajanandao to bring the cooked food from the old abadi house for serving the dinner. And soon more than one hundred persons came there and some of them armed and they surrounded the compound of the house raising slogans "kill them, kill them." Out of fear, the informant, his brother and father, Qaiyum Ansari and his sons rushed inside the house and closed the door. The members of the mob-pushed the door, began to hurl abuses, pelted brickbats, and they started damaging the chappar and tiles of the house. Ganpat, his sons, Qaiyum Ansari and his sons all arrived upstarts in the pucca first floor room and peeped from windows and raised alarm and started calling the villagers for help but no one came forward to their rescue. It was full moon Night. The informant, Hari Prasad identified the accused appellants, Jagdish Ram, Sakaldeep Ram, Ramakant Prasad and Raj Kumar armed with pistols, accused appellant, Jawahar Manjhi and krishna Ram armed with guns and the accused appellants Lalaram @ Lalbabu Kahar, Lekhraj Manjhi. Baleshwar Manjhi, Ashok Ram @ Ashok Prasad, Chotan @ Chotan Manjhi, Ganga Bishun Manjhi, Jaiprakash Narain, Jatan Manjhi, Ramchardra Manjhi, Lala Krishna Choudhary and Munshi Manjhi armed with lathis, and Hira Manjhi and Bishu Manjhi (who died during the pendency of the appeals) armed with lathis, and they were throwing stones and brickbats at the house of the informant and some indulged to uproot the Chappar of the contiguous Osara (for tying cattle). Soon the accused Jaiprakash Narain brought a tin of kerosene oil and gave it to the accused appellant Jawahar Manjhi uttering to put the house on fire. Besides the moon light, some more light was also coming from bulb which was giving light from the cabin of Dost Mahmood. The accused appellant Lala Ram @ Lal Babu kahar uttered that it was good opportunity and bring the match stick and but the house on fire. Besides the moon light, some more light was also coming from bulb which was giving light from the cabin of Dost Mahmood. The accused appellant Lala Ram @ Lal Babu kahar uttered that it was good opportunity and bring the match stick and but the house on fire. The accused appellant Jawahar and others picked up dry paddy stalks (which were stored for the cattle fodder) and dipped them in the kerosene oil and the accused appellants Lala Ram, Jagdish Ram and Jawahar Manjhi threw those burning paddy stalks time and again all around above the Chappars of Osara and the Chapper of the first floor room. The accused appellant, Lala Krishna Choudhary carved out two long green bamboo branches from the side by southern bamboo clump and he put fire at one end of the branch and lighted fire to the chappar roof of the first floor room. As the first floor also caught fire in its roof, the articles of the room also started burning. The inmates inside the room felt-much heat and burning. The informant, his brother, Kishun Prasad, Kamrudin and Jafru who somehow succeeded in breaking the iron bars of the window of the room of the first floor jumped from the first floor to the ground. The accused Surendra raised the garasa and made an attack on Krishna Prasad, and surendra pushed Krishna Prasad to the fire. Qaiyum Ansari fired two shots in air from his licensed gun. The culprits did not retreat. 3. The accused appellants lit fire to the first floor windows where bars were removed. The accused appellants fired the guns to keep the villagers away. The elderly Ganpat and Qaiyum Ansari could not come out, and they were burnt to death. Bhagwan Mahto (PW2) and Sia Saran Mahto (PW 8) came ahead to extinguish the fire but the accused appellants Fuddi Gope, Ramji Prasad and Srichand Prasad halted them giving threats to their lives and they uttered let the occupants of the house die. Thus, no help was there to extinguish the fire. 4. Chowkidar Lala Gope and Ram Tahal Ram having come to know in the village abadi that a mob had surrounded the house of Ganpat at Pokhar Khanda rushed to inform the officer-in-charge of near by Karari Police Outpost. The Police Officer rushed with the armed force. Thus, no help was there to extinguish the fire. 4. Chowkidar Lala Gope and Ram Tahal Ram having come to know in the village abadi that a mob had surrounded the house of Ganpat at Pokhar Khanda rushed to inform the officer-in-charge of near by Karari Police Outpost. The Police Officer rushed with the armed force. On the way, Bhagwan Mahto and Sia Saran Mahto met the Police Officer and informed him that the mob had set the house of Ganpat on fire in which persons were there. The Police Officer arrived at the burnt house, and he came to know about the occurrence from Hari Prasad, in informant (PW 9). The Police Officer, Ram Nagina Ojha, asked the Chowkidar and a couple of village-men to bring water and to make efforts to extinguish the fire. The Police Officer, Sri Ojha went to the first floor room with the help of staircase and saw that the two persons, namely Qaiyum Ansari and Ganpat Prasad were dead due to the burn injuries. Sri Ojha took down the statement of the informant, Hari Prasad relating to the occurrence. The fardbeyan of Hari Prasad (PW9) is exhibit-3. Later, the formal first information report was prepared in the records of the rural Police Station, Hilsa next day in the morning at 8 a.m. on 17.3.1976 (Police Station five miles away) and that formal first information report is exhibit-4. 5. Ram Nagina Ojha (PW 12) started investigations in this case. He recorded the statement of the informant, Hari Prasad (PW 9) He found Mohammad Kamruddin, Zafruddin and Kishun Prasad injured with the fire heat and at that time they were not in a position to make statements before the investigating Officer. The Investigating Officer prepared the medical examination memos (exhibits 5 to 5/3) relating these persons and the informant and directed the Chowkidar, Lala Gope to carry them to the State Dispensary, Hilsa for treatment and medical examination. In the night hours, adequate help was not available to examine the dead bodies and to send them for post mortem, as they were lying in the room on the first floor. The Investigating Officer inspected the house and also made its note in the case diary. In the night hours, adequate help was not available to examine the dead bodies and to send them for post mortem, as they were lying in the room on the first floor. The Investigating Officer inspected the house and also made its note in the case diary. It had one room on the ground floor and one room on the first floor, and the northern-eastern side and the adjoining Osara were in fallen condition and the chappars of the Osara and the first floor room were burnt. The dead bodies, in burnt condition, were lying in the first floor room. The Investigating Officer deputed armed guard for the care of the dead bodies. 6. Next morning, the Investigating officer prepared the inquest report relating these dead bodies of Ganpat and Qaiyum Ansari. The inquest reports are exhibits 6 and 6/1. These dead bodies were sent for post mortem along with constable Rashid Khan. Thereafter, the Investigating Officer made a detailed inspection of the house at 8 a.m., and also prepared the site plan exhibit 7. The Investigating Officer found that there were four windows in the first floor room and the two vertical rods of the two windows were broken open, and the side walls of this first floor room and its chappar cover on the top were in burnt condition, and a wooden chowki and a wooden box placed in that room were also burnt. The Investigating Officer also found one green bamboo kept by the side of this burnt house and, he also found the fresh signs of cutting two thin bamboos from the nearby southern bamboo clump. A small hut by the side of this burnt house was also burnt. Further, at a distance of about one hundred yards, a couple of huts, built by the Mushars of the village, were also found burnt (probably some members of the mob would have burnt these huts as well). In his statement, Zafruddin Ansari (PW 1) has stated that these accused appellants were disputing claim over the land of these plots where these burnt huts and this house of Ganpat were situate. 7. The Investigating Officer prepared a seizure list relating the burnt ash of chappars and burnt clothes of the wooden box and this seizure list is exhibit 8/1. 8. 7. The Investigating Officer prepared a seizure list relating the burnt ash of chappars and burnt clothes of the wooden box and this seizure list is exhibit 8/1. 8. The Investigating Officer (PW 12) arrived at the old residential house of Ganpat situate inside abadi and he found that the brickbats were lying inside the courtyard of the house of Ganpat and that the roof top of the entrance room was partly broken. The Investigating Officer prepared a seizure list (exhibit-8) relating to the collection of the broken materials of the roof top and the brickbats found in the inner courtyard of this house of Ganpat. 9. The Investigating, Officer recorded the statements of the witnesses Hari Prasad, Urmila Devi, Kamruddin, Zafru @ Zafaruddin Ansari. Brajnandan Prasad, Ishri Gope, Kishun Prasad and others. On 20th October, 1976 Ram Nagina Ojha handed over the investigation, and the investigation was concluded after recording the statement of a couple of witnesses by the Police Inspector, Damodar Sharma Damodar Sharma gave the charge-sheet in the case. 10. Dr. S. C. Mishra conducted the post mortem on the dead body of Qaiyum Ansari at 4.30 p.m. on 17th Match, 1976. There were multiple Blisters and burns all over the body, and these burns were deep up to the muscle level and at some places up to the depth of the bones. The burns were more than 70%. At 5 p.m. Dr. S. C. Mishra conducted the post mortem on the dead body of Ganpat Prasad. The burns and blisters were all over the body and they were deep up to the muscle and deep up to the bone. The total burns were 60% or about all over the body. 11. According to Dr. S. C. Mishra, deaths of Qaiyum Ansari and Ganpat Prasad were caused due to burns and due to toxinia. Dr. Mishra told, further, that the time elapsed since death was 24 hours approximately at the time of the post mortem. 12. The prosecution has examined Md. Zafruddin Ansari (PW 1), Bhagwan Mahto (PW2), Kishun Prasad (PW 3), Ram Tahal Ram (PW 4), Md. Kamruddin (PW 5), Smt. Urmila Devi (PW 6), Brajnandan Prasad (PW7) Siya Saran Prasad (PW 8), Hari Prasad (PW 9) Ram Dhani Prasad (PW 10), Dr. S. C. Mishra (PW 11) and Ram Nagina Ojha, Investigating Officer (PW 12) 13. Md. Zafruddin Ansari (PW 1), Bhagwan Mahto (PW2), Kishun Prasad (PW 3), Ram Tahal Ram (PW 4), Md. Kamruddin (PW 5), Smt. Urmila Devi (PW 6), Brajnandan Prasad (PW7) Siya Saran Prasad (PW 8), Hari Prasad (PW 9) Ram Dhani Prasad (PW 10), Dr. S. C. Mishra (PW 11) and Ram Nagina Ojha, Investigating Officer (PW 12) 13. Md. Kamruddin (PW 5) told the trial court in his statement on oath that he was giving tuitions at home to the younger sons of Ganpat including Brajnandan Prasad (PW 7) who were then studying in schools. Thus, Ganpat was anxious to serve the meals to Amruddin and his family-men. 14. Zafruddin Ansari @ Zafar India, elder brother of Md. Kamruddin (PW 1), Urmila Devi, Wife of deceased, Ganpat, (PW 6) and Hari Prasad (PW 9) stated on oath that Ganpat Prasad called Zafru Mian and Kamruddin for joining the lunch at their village abadi house, and while Zafru was arriving, the accused appellant Jagdish Ram caught hold Zafru Mian and slapped him, and Hari Prasad intervened, and the accused appellant Jagdish Ram abused Hari Prasad and also threw brickbats in the home of Hari Prasad (son of Ganpat, Further, from the statement of smt. Urmila Devi, it also appears that the accused appellants, Ashok Ram and Raj Kumar Ram entered inside the house of Ganpat later in the evening and abused and assaulted the elderly lady, Urmila. 15. Md. Zafruddin Ansari P.W.(1), Kishun Prasad, son of Ganpat (P.W.3), Md. Urmila Devi, it also appears that the accused appellants, Ashok Ram and Raj Kumar Ram entered inside the house of Ganpat later in the evening and abused and assaulted the elderly lady, Urmila. 15. Md. Zafruddin Ansari P.W.(1), Kishun Prasad, son of Ganpat (P.W.3), Md. Kamruddin (P.W.5), Hari Prasad, son of Ganpat and informant (P.W.9) have narrated the occurrence on oath how these accused appellants and some of them armed along with others arrived at the newly built house of Ganpat situate at Pokharkhanda at about 9 p.m. in the night from the village abadi, while Zafra Miarr (P.W.1), his brother, Kamruddin Ansari (P.W.5) and their father, Qaiyum Ansari (deceased, burnt inside the house), end Hari Prasad, informant (P.W.9) and Kishun Prasad (P.W.3), sons of Ganpat and their rather, Ganpat (deceased burnt inside the house and their brother, Brajnandan (P.W.7) were there at this house and Brajnandan was sent by Ganpat to bring the cooked food from the old abadi house for serving the dinner, and these accused appellants along with other members of the mob surrounded the house, and Had Prasad, Kishun Prasad, Ganpat, Zafru Mian, Kamruddin and Qaiyum Ansari went inside the ground floor room and closed the door and later due to fear went upstairs to the first floor room while these accused appellants along with others began damaging the chapoar of adjacent osara and started hurling abuses and made the efforts to push open the door, and how these accused appellants and their companions started throwing brickbats and stone at this house of the informant and indulged in uprooting the chappar of the Osara and the accused-appellant Jai prakash Narain brought the tin of kerosene oil and the other accused appellants picked up dry paddy stalks and dumping them in the kerosene lighted those paddy stalks and threw the on the chappars of osara and the Chappar of the first floor room of the house and how the accused-appellant Lal Kishun Chaudhary brought long green bamboo branches from the side-by southern bamboo clump and the accused-appellants put fire to the chappar of the first floor room with the help of these long bamboo branches, and how Hari Prasad, Kishun Prasad, Kamruddin and Zafru managed to break the iron bars of the window of the room of the first floor and jumped down to the ground and the accused appellant, Surendra made an attack on Kishun Prasad with the garasa and that Ganpat and Qaiyum Ansari were burnt to death. 16. Md. Zafruddin Ansari (P.W.1) identified the accused appellants, Jagdish Ram, Raj Kumar Ram, Ramakant, Sakaldeep Ram, Jawahar Manjhi, Lal Babu @ Lala Ram, Surendra, Baleshwar Manjhi, Rajendra, Chattu Manjhi (died during the pendency of the appeal), Jatan Manjhi, Prakash Manjhi, Balgovind Manjhi, Monaki Manjhi, Baleshwar Chaudhary Girja Manjhi, Pyare Manjhi, Shyam Lal Manjhi, Chotan Manjhi, Ganga Bishun Manjhi, Lal Kishun Chaudhary and Kaleshwar Chaudhary. 17. Kishun Prasad, son of Ganpat, (P.W.3) identified the accused appellants Jawahar Manjhi, Lekhraj Manjhi, Ganga Bishun Manjhi, Shyam Lal Manjhi (died during the pendency of the appeal) Baleshwar Manjhi, Chattu Manjhi (died during the pendency of the appeal), Dahu Manjhi, Munshi Manjhi, Balgovind Manjhi, Chandrika Chaudhary @ Chandrika Manjhi, Kaleshwar Chaudhary, Lal Kishun Chaudhary, Shamim Mian, Jagdigh Ram, Rajkumar Ram, Sakaldeep Ram, Ramakant Prasad, Lala Ram @ Lal Babu Krishna Ram, Fuddi Gope, Ramji Prasad @ Ramji Gope, Srichand Prasad @ Srichand Gope, Jaipraksh Narain, Neelkanth and Surendra Prasad. 18. Md. Kamruddin (P.W.5) identified the accused-appellant Jagdish Ram, Ramakant Prasad, Sakaldeep Ram, Raj Kumar Ram, Jawahar Manjhi, Krishna Ram, Rajendra Mochi, Pyare Manjhi, Lalkishun Chaudhary, Lekhraj Manjhi, Chattu, Manjhi, Munshi Manjhi, Jatan Manjhi, Ramchandra Manjhi, Baleshwar Manjhi, Neelkanth, Md. Shamim, Jaiprakash Narain, Surendra and Lala Ram. 19. Hari Prasad, informant (PW 9) identified the accused appellants, Jaiprakash Narain Jawahar Manjhi, Jagdish Ram, Lala Ram @ Lal Babu, Lalkishun Chaudhary, Surendra, Sakaldeep Ram, Ramakant Prasad @ Ramakant Ram, Raj Kumar Ram, Ashok Ram, Krishna Ram, Lekhraj Manjhi, Baleshwar Manjhi, Jatan Manjhi, Ganga Bishun Manjhi, Munshi Manjhi, Bissu Manjhi (died during the pendency of the appeal), Hari Manjhi died during the pendency of the appeal) Chotan Manjhi and Ramchandra Manjhi. 20. Brajnandan Prasad (PW 7) who had gone to the abadi house to bring the cooked food to serve the dinner, stated on oath in the court while he was returning with the food and was near the house of Sheo Balak Gope, he saw that the chappars of his new houses where his father, brothers and Qaiyum Ansari and his two sons were there in were burning, and he identified these accused appellants surrounding his new house, namely, Jagdish Ram, Raj Kumar Ram, Ramakant Ram, Jaiprakash, Jawahar Manjhi, Lal Kishun Chaudhary, Surendra, Munshi, Girja, Bharosi Manjhi (died during the pendency of the appeal). Chottan Manjhi and Lal Babu @ Lala Ram Kahar. 21. Chottan Manjhi and Lal Babu @ Lala Ram Kahar. 21. Ram Dhani Prasad (PW 10) brother of Ganpat Prasad, was sleeping in his house at village abadi, and his wife woke him up telling that his brother Ganpat's cabin (new house) by the side of Pokharkhanda was burning. This witness, Ram Dhani Prasad got up and came outside his house and arrived towards the burning house of his brother, Ganpat and he told the court, further that he saw that the accused-appellants, Jagdish Ram, Ramakant Prasad, Raj Kumar Ram, Ashok Ram and Krishna Ram were there by the side of the burning house. 22. Ram Tahal Ram (PW 4) stated in the court that he saw at 9 p.m. or about in the night from a distance that a mob of about two hundred persons were surrounding the house of Ganpat and he went along with the village Chowkidar to the Area Police Station to inform the Police Officer. This witness told, further, when the Police Officer arrived and the fire or the burnt house was extinguished, he went inside the house along with the Police Officer and he found the two dead bodies of Ganpat and Qaiyum in that burnt house. 23. Sia Saran Prasad (PW 8) told that he saw the new house of Ganpat burning from a distance and he heard the cries as well and he went to the Police Station to inform the Police Officer, and that the Police Officer found two burnt dead bodies of Ganpat and Qaiyum inside the house in his presence. 24. Urmila Devi (PW 8), wife of deceased, Ganpat, was at the old abadi house, and she could reach the place of occurrence in the early hour of the next morning. 25. Bhagwan Mahto (PW2) stated in the court that on hearing the cries, he came up to house of Sheo Balak, and he saw that the new house of Ganpat was burnt and was surrounded by many persons and that he did not go near the place (that burning house) and, thus he did not recognise who were the persons committing that crime. He told, further, that he went to nearby Police Officer where Ram Tahal Ram, Chowkidar was already telling the Police Officer that the new house of Ganpat was surrounded by a mob. 26. He told, further, that he went to nearby Police Officer where Ram Tahal Ram, Chowkidar was already telling the Police Officer that the new house of Ganpat was surrounded by a mob. 26. It was mentioned specifically in the first information report that some village-men including Bhagwan Mahto (PW 2) and Sia Mahto (PW 8) came forward hearing the cries of the informant and his brother, and the accused-appellants and their associates rushed towards them and threatened them to go away. The prosecutor declared both the witnesses hostile in the trial court and brought their statements on record what they told Investigating Officer during the investigations. It appears in their statements to the Investigating Officer they told that they came near the burning house belonging to Ganpat which was situate on Gair Mazarua land, and they also recognised some of these accused appellants who were surrounding the burning house. 27. Where five or more persons having a common object initially join or continue in the assembly, and in prosecution of their common object commit offence or they knew that it was likely to be committed in prosecution of that object, the member joining that unlawful assembly shall be liable. Thus, if one becomes a member of the unlawful assembly, and/or his association in the unlawful assembly is clearly established, and he knew that such offence was likely to be committed in prosecution of the common object of the unlawful assembly, such person shall be liable constructively. The learned advocate for the appellants urged while seen in the melee in a faction ridden society (here the accused-appellants are mostly Manjhi/Kahar by caste), the court should apply the working test of being shared about the role attributed to every accused an the reference has been made to the decision (Muthu Naiker Vs. State), 1978 Supreme Court, 1647. Further, the learned advocate for the appellants, making reference to the decision Masalti Vs. State), 1978 Supreme Court, 1647. Further, the learned advocate for the appellants, making reference to the decision Masalti Vs. State 1965 Supreme Court 202, has drawn our attention that it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and have joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly; and that a single witness, if trustworthy though is enough for conviction, but where a Court has to deal with evidence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or more witnesses who give a consistent account of the incident. The learned advocate for the appellants has also drawn attention to the decision Ram Janam Pandey Vs. State 1995 PLJR (SC) page 63 where the Bench of Patna High Court took the standard of the deposition of three witnesses for the presence of the accused. We find that the Supreme Court reiterates the safe rule for recording conviction where more than one person that is two persons would have identified (in that large assembly). The deposition of two trustworthy witnesses would be establishing the identity of the accused beyond doubt. 28. The learned advocate for the appellants also emphasized that the word 'knew' be read what offence the members must have known to be likely to be committed. 29. The learned advocate for the appellants raised tile contentions in this appeal(1) that the first information report is ante timed and there is no explanation from the side of the prosecution how the Area Magistrate saw the first information report relating to this occurrence on 23rd March, 1976, (2) that the prosecution has not examined independent witnesses, (3) that the light was not there to identify the culprits in the mob and (4) that looking to the prosecution evidence, the object of the assembly could be to destroy the structures of this new house of the informant and his father, and the appellate Court should examine if these accused appellants shared the common object of the commission of murder by action, conduct or words, or might have known that the murders were likely to be committed as well in prosecution of the common object. 30. 30. According to the prosecution version, in the night at 9 p. m. on 16/l7th March, 1976, this occurrence took place. The village chowkidar rushed to inform the police Officer of nearby karari Police Outpost that a mob had surrounded the house of Ganpat at Pokharkhanda. The Police Officer, Ram Nagina Ojha, rushed to the place with the armed forces. The informant, Hari Prasad gave his statement to the Police Officer, Ram Nagina Ojha, at 10.45 p.m. in the village in the night of 16/17.3.1976 at his burnt home where his father, Ganpat Prasad and Qaiyum Ansari, were burnt to death and others faced the heat of the burning house while they managed to escape. This fardbeyan of the informant, Hari Prasad, relating to this occurrence was forwarded by Ram Nagina Ojha same night on 16th March 1976. The Area Police Station, Hilsa, situate 5 miles away, took down this report made by the informant, Hari Prasad in the records of the Police Station at 8 a.m. in the morning on 16th 17th March, 1976 with the complete note that the date and hour of occurrence was 16th March 1976 at p, m. or about and this statement of informant, Hari Prasad, was recorded at 10.45 p.m. same night on 16th March, 1976 and same received at Area Police Station and entered in the records of Police Station at 8 a.m. in the morning. There is noting to suggest if any motive could be there for the informant, Hari Prasad to lodge the report late relating to this occurrence. Further, nothing has been suggested to Ram Nagina Ojha (P.W.12) to show and to infer if he had any animus against these accused appellants to implicate them falsely or to connive with the informant, Hari Prasad. We find that the informant, Hari Prasad, gave the version of the occurrence to the Police Office earliest, and that report was taken down in the records of the Area Police Station promptly as well. There were Holi Holidays, and, thus, the officials of the Court of Area Magistrate too were not coming either to the office or the Court or to the residence of the Magistrate, and thus, the report was not put before the Area Magistrate. Only when the Court opened after Holi Holidays, the report was placed before the Magistrate. There were Holi Holidays, and, thus, the officials of the Court of Area Magistrate too were not coming either to the office or the Court or to the residence of the Magistrate, and thus, the report was not put before the Area Magistrate. Only when the Court opened after Holi Holidays, the report was placed before the Magistrate. Such delay in placing the report before the Area Magistrate neither affects the credibility of the prosecution case nor create any suspicion in itself relating to the contents of the first information report. Where the Apex Court found that the prosecution evidence was not reliable and it also seemed that the first information was not promptly made and sent to the Ana Magistrate, the Apex Court took into the consideration that the delay in seeing the first information report by the Magistrate was also an aspect to doubt the prosecution case. Here, we find that the report was lodged by the informant promptly, and the prosecution has examined eye witnesses before the trial Court why were the natural and probable witnesses and their depositions did not suffer from any material infirmity, and, as such, we find that the late seeing of the report of this case by the Magistrate in itself does not create any doubt in the prosecution case. 31. The prosecution examined the independent witnesses, Bhagwan Mahto (P.W.2) and Sia Saran Mahto (P.W.8). They became hostile, and they did not come forward to state that they saw the occurrence and recognized several accused appellants though these witnesses made such statements to the investigating Officer during investigation. This shows that the village-men were not coming forward to state in court relation to this occurrence. Thus, it cannot be said that the prosecution had been suppressing independent witnesses, who were likely to depose otherwise. 32. It was full moon lit night, and this occurrence took place from 9 p.m. to 10.30 p.m. or about. The village-men assembled and participated in this occurrence for more than an hour. Obviously, this informant, Hari Prasad and other prosecution witnesses had the ample opportunity to identify these accused appellants as culprits who committed the offences at this new house of Ganpat. The informant, Hari Prasad who identified the culprits named them in the first information report. There was ample moon light. Obviously, this informant, Hari Prasad and other prosecution witnesses had the ample opportunity to identify these accused appellants as culprits who committed the offences at this new house of Ganpat. The informant, Hari Prasad who identified the culprits named them in the first information report. There was ample moon light. Besides it, the thatches of the Osara and the top roof of the first floor of the house were burnt and these thatches gave more light which helped further in the identification of the culprits. A couple of these accused appellants lighted the paddy stalks and bamboo ends (to put fire to the thatches of osara and the top roof of the house) and they also gave added light for the identification of the culprits. Thus, there was ample light for identification of the culprits in the mob. 33. The depositions of the prosecution witnesses, Ram Dhani Prasad (PW10) and Md. Kamruddin (PW 5) show that a couple of the accused appellants were anxious to dispossess Ganpat from the land by demolishing, this house. The advocate for the appellants raised the contention that the unlawful object of this assembly was to destroy the structure of this new house of informant and his father, Ganpat, and the accused appellants Lal Kishun Chaudhary, Lal Babu Kahar @ Lala Ram, Jawahir Manjhi, Jai Prakash Narain, Jagdish Ram and Raj Kumar Ram who had been named by Zafruddin Ansari (PW1), Krishna Prasad (PW3), Md. Kamruddin (PW5) and Hari Prasad, informant (PW9) indulging in the crime by their actions be held guilty. Further, the learned counsel for the appellants contended that the accused appellants whose names do not find mention in the first information report be given the benefit of doubt. 34. All the three accused appellants of Criminal Appeal No. 282 of 1985, namely Fuddi Gope, Ramjee Prasad @ Ramjee Gope and Shree Chand Prasad @ Shree Chand Gope (though named in the first information report as the persons who stopped the village-men from coming forward to extinguish the fire and to save the occupants of the house) had been identified and named by one witness Kishun Prasad (PW3). Accordingly, these accused appellants Fuddi Gope, Ramjee Prasad @ Ramjee Gope and Shree Chand Prasad @ Shree Chand Gope are awarded the benefit doubt. 35. Accordingly, these accused appellants Fuddi Gope, Ramjee Prasad @ Ramjee Gope and Shree Chand Prasad @ Shree Chand Gope are awarded the benefit doubt. 35. Parkash Manjhi, Bharosi Manjni (died during the pendency of the appeal), Monaki Manjhi and Dahu Manjhi, accused appellants in Criminal Appeal No. 291 of 1985 (not mentioned in the first information report) had been identified by one prosecution witness Md. Shamim, Neel Kanth Prasad, Balgovind Manjhi, Peyarey Manjhi, Girja Manjhi and Shyam Lal Manjhi (died during the pendency of the appeal), accused appellants of Criminal Appeal No. 291 of 1985 (not mentioned in the first information report) had been identified by two prosecution witnesses. As the names of these accused appellants Prakash Manjhi, Balgovind Manjhi, Md. Shamim, Neel Kanth Prasad, Monaki Manjhi, Peyarey Manjhi, Dahu Manjhi and Girja do not find place in the first information report, they are awarded the benefit of doubt. 36. The accused appellants Chandrik a Chaudhary, and Baleshwar Chaudhary Criminal Appeal No. 320 of 1985 had been identified by one prosecution witness Kameshwar Chaudhary @ Kameshwar Chaudhary and Rajender Mochi of Criminal Appeal No. 320 of 1985 had been identified by two prosecution witnesses. As Kameshwar Chaudhary @ Kaleshwar Chaudhary, Rajender Mochi, Chandrika Chaudhary and Baleshwar Chaudhary had not been named in the first information report, they are awarded the benefit of doubt. 37. In the first information report, there is the recital that Kishun Prasad (PW3) (brother of the informant) was assaulted by the accused persons while he came on the ground jumping from the window of the first floor. Kishun Prasad (PW3) narrated on oath that the accused Surendra Prasad assaulted him on his forehead with his garasa (Sharp edged weapon). The informant Hari Prasad (PW9) stated on oath that the accused Surendra Prasad struck his brother Kishun Prasad with garasa and pushed him in the burning fire. A perusal of the medical report on record shows that this Kishun Prasad had no garasa injury on his body though he had some injuries of blunt weapons. Thus, the accused appellant, Surendra Prasad of Criminal Appeal No. 320 of 1985 is also awarded the benefit of doubt. 38. The accused appellant Chathu Manjhi (though not named in the first information report as the informant Had Prasad did not identify him well at the place of occurrence) had been named to be there by Md. Thus, the accused appellant, Surendra Prasad of Criminal Appeal No. 320 of 1985 is also awarded the benefit of doubt. 38. The accused appellant Chathu Manjhi (though not named in the first information report as the informant Had Prasad did not identify him well at the place of occurrence) had been named to be there by Md. Zafruddin (PW 1), Kishun Prasad (PW 3) and Md. Kamruddin (PW5). The advocate for the appellants has drawn attention to the fact that the witness, Zafruddin Ansari (PW1) did not tell the presence of this accused Chathu Manjhi at the place of occurrence in his statement to the Investigating Officer. The deposition of Md. Zafruddin Ansari on oath relating to the presence of Chathu Manjhi at the place of occurrence does not deserve credence. Thus, there remain the two identifications of Kishun Prasad (PW 3) and Md. Kamruddin (PW 5) relating to the presence of Chathu Manjhi at the place of occurrence. The advocate for the appellants has drawn attention to the fact that the Magistrate making his observation noted in his order dated 27.3.1976 that this accused Chathu Manjhi was twelve or thirteen years old, and urged that looking to his tender age be would have hardly intended to commit crime or to participate in the commission of crime (though no evidence has been brought on record that he had not attained sufficient maturity of understanding. Accordingly this accused appellant Chathu Manjhi of Cr. Appeal No. 291 of 1985 is awarded the benefit of doubt. 39. The accused appellants Rama Kant Prasad. Sakaldeep Ram, Ashok Ram @ Ashok Prasad, Heera Manjhi (died during the pendency of the appeal), Bissu Manjhi (died during the pendency of the appeal), Jateen Manjhi, Ram Chander Manjhi, Munshi Manjhi Lekhraj Manjhi, Krishna Ram @ Krishna Manjhi, Ganga Bishun Manjhi and Chhotan Manjhi (of Criminal Appeal No. 291 of 1985), and the accused appellants Lal Kishun Chaudhari, Baleshar Manjhi Raj Kumar Ram, Jagdish Ram, Jai Prakash Narain, Jawahir Manjhi and Lal Babu Kahar @ Lala Ram (of Criminal Appeal No. 320 of 1985) are named accused in the first information report lodged by the eye witness of the occurrence, Hari Prasad, informant (PW 9). The deceased accused appellants Heera Manjhi and Bissu Manjhi were identify the by one witness, namely, Hari Prasad (PW 9) in the evidence. 40. The deceased accused appellants Heera Manjhi and Bissu Manjhi were identify the by one witness, namely, Hari Prasad (PW 9) in the evidence. 40. The accused appellants Ashok Ram @ Ashok Prasad had been identified by Hari Prasad (PW 9) and Ram Dhanj Prasad (PW 10), and the accused appellant Ram Chander Manjhi had been identified by the prosecution witness Md. Kamruddin (PW 5) and Hari Prasad (PW 9). Their presence finds corroboration from the contents of the first information report. 41. The other accused appellant Rama Kant Prasad had been identified by the prosecution witness Md. Zafruddm Ansari (PW 1), Kishun Prasad (PW 3), Md. Kamruddin (PW 5) Brajnandan Prasad (PW 7), Hari Prasad (PW 9) and Ram Dhani Prasad (PW 10). The accused appellant Sakaldeep Ram had been identified by the prosecution witnesses Md. Zafruddin Ansari (PW 1), Kishun Prasad (PW 3), Md. Kamruddin (PW 5), and Hari Prasad (PW 9). The accused appellant Jateen Manjhi had been identified by the prosecution witnesses Md. Zafruddin Ansari (PW 1), Md. Kamruddin (PW 5) and Hari Prasad (PW 9). The accused appellant Munshi Manjhi had been identified by the prosecution witnesses Md. Kamruddin (PW 5), Brajnandan Prasad (PW 7) and Hari Prasad (PW 9). The accused appellant Lekhraj Manjhi had been identified by the prosecution witnesses Kishun Prasad (PW 3), Md. Kamruddin (PW 5) and Hari Prasad (PW 9). The accused appellant Krishna Ram @ Krishna Manjhi had been identified by the prosecution witnesses Kishun Prasad (PW 3), Md. Kamruddin (PW 5), Hari Prasad (PW 9) and Ram Dhani Prasad (PW 10). The accused appellant Ganga Bishun Manjhi had been identified by the prosecution witnesses Md. Zafruddin (PW 1) Kishun Prasad (PW 3) and Hari Prasad (PW 9). The accused appellant Chhotan Manjhi had been identified by the prosecution witnesses Md. Zafruddin Ansari (PW 1), Brajnandan Prasad (PW 7) land Hari Prasad (PW 9). 42. The accused appellant Lal Kishun Chaudhari had been identified by the prosecution witnesses H. Zafruddin Ansari (PW 1), Kishun Prasad (PW 3), Md. Kamruddin (PW 5), Brajnandan Prasad (PW 7) and Hari Prasad (PW 9). The accused appellant Baleshwar Manjhi had been identified by the prosecution witnesses Md. Zafruddin Ansari (PW 1), Kishun Prasad (PW 3), Md. Kamruddin (PW 5) and Hari Prasad (PW 9). The accused appellant Raj Kumar Ram had been identified by the prosecution witnesses Md. Kamruddin (PW 5), Brajnandan Prasad (PW 7) and Hari Prasad (PW 9). The accused appellant Baleshwar Manjhi had been identified by the prosecution witnesses Md. Zafruddin Ansari (PW 1), Kishun Prasad (PW 3), Md. Kamruddin (PW 5) and Hari Prasad (PW 9). The accused appellant Raj Kumar Ram had been identified by the prosecution witnesses Md. Zafruddin (PW 1), Kishun Prasad (PW 3), Md. Kamruddin (PW 5) Brajnandan Prasad (PW 7), Hari Prasad (PW 9) and Ram Dhani Prasad (PW 10). The accused appellant Jagdish Ram had been identified by the prosecution witnesses Md. Zafruddin Ansari (PW1), Kishun Prasad (PW 3) Md. Kamruddin (PW 5), Brajnandan Prasad (PW 7), Hari Prasad (PW 9) and Ram Dhani Prasad (PW 10). The accused appellant Jai Prakash Narain had been identified by the prosecution witnesses Kishun Prasad (PW 3), Md. Kamruddin (PW 5), Brajnandan Prasad (PW 7) and Hari Prasad (PW 9), The accused appellant Jawahir Manjhi had been identified by the prosecution witnesses Md. Zafruddin Ansari (PW 1), Kishun Prasad (PW 3), Md. Kamruddin (PW 5), Brajnandan Prasad (PW7) and Hari Prasad (PW 9). 43. The presence of the above said accused appellants finds corroboration from the contents of the first information report. 44. These accused appellants, armed with guns, pistols, garasas and lathis (named in the first information report) along with others moved some distance from their village abadi and arrived at the newly built house of Ganpat Prasad where Ganpat Prasad and his sons, Qaiyum Mian and his sons were sitting. Seeing the arrival of the mob, they went inside the house and bolted the door. Being scared by the pushing of the bolted door and damaging chappar and roof of the ground floor by these accused appellants and their associates, Ganpat and his sons, Qaiyum Mian and his sons come up stains in the first floor room and raised alarm and cried for help through the windows of that first floor room. These accused appellants knew that S/Sri Ganpat, Qaiyum Mian and their sons were there inside the house. The whole house was set on fire bringing kerosene oil and throwing the on soaked paddy stalks and burning the bamboo ends and throwing over and putting them along all the thatches of the ground floor and the thatched roof of the first floor and the windows were also burnt by these accused appellants and their associates. The whole house was set on fire bringing kerosene oil and throwing the on soaked paddy stalks and burning the bamboo ends and throwing over and putting them along all the thatches of the ground floor and the thatched roof of the first floor and the windows were also burnt by these accused appellants and their associates. The accused appellants must be credited with the knowledge that the murders by fire would be the consequence. 45. Further, the statement of Hari Prasad. PW 9, (informant) shows that some members of the arriving mob were uttering": Kill them, kill them:" This fact also finds mention in the first information report. The accused appellants were there, and it must have been known to these accused appellants that the murders were to be likely there by fire burns. 46. The accused appellants Ramakant Prasad, Sakaldeep Ram, Ashok Ram @ Ashok Prasad, Jateen Manjhi, Ram Chander Manjhi. Munshi Manjhi, Lekhraj Manjhi. Krishna Ram @ Krishna Manjhi, Ganga Bishun Manjhi and Chhotan Manjhi (of criminal Appeal No. 291 of 1985) and the accused appellants Lal Kishun Chaudhari, Baleshar Manjhi, Raj Kumar Ram, Jagdish Ram, Jai Prakash Narain, Jawahir Manjhi and Lal Babu Kahar & Lala Ram (of Criminal Appeal No. 320 of 1985) are guilty for the offences of murder punishable under Section 302 read with Section 149 IPC and, further, also for the commission of mischief by fire punishable under Section 436 read with Section 149 IPC. The sentences awarded (and to run concurrently) by the trial court to these accused appellants are affirmed. 47. The accused appellants, Fuddi Gope, Ramjee Prasad @ Ramjee Gope and Shree Chand Prasad @ Shree Chand Gope (of Criminal Appeal No. 282 of 1985): Parkash Manjhi, Md. Shamim, Neel Kanth Prasad, Monaki Manjhi, Balgovind Manjhi, Peyarey Manjhi, Oahu Manjhi and Girja Manjhi (of Criminal Appeal 291 of 1985) and the accused appellants Kaleshwar Chaudhary @ Kameshwer Chaudhary, Chandrika Chaudhary, Rajender Mochi, Surender Prasad and Baleshwar Chaudhary (of Criminal Appeal No. 320 of 1985) are acquitted of the charges. The judgment and order of the trial Court awarding sentence, to these accused appellants stands set aside, and they are discharged from the liabilities of their bail bonds. 48. The accused appellants Chathu Manjhi, Heera Manjhi, Bissu Manjhi, Bharosi Manjhi and Shyam Lal Manjhi of Criminal Appeal No. 291 of 1985 are reported dead. 49. The judgment and order of the trial Court awarding sentence, to these accused appellants stands set aside, and they are discharged from the liabilities of their bail bonds. 48. The accused appellants Chathu Manjhi, Heera Manjhi, Bissu Manjhi, Bharosi Manjhi and Shyam Lal Manjhi of Criminal Appeal No. 291 of 1985 are reported dead. 49. The accused appellants, namely, Rama Kant Prasad Sakaldeep Ram, Ashok Ram @ Ashok Prasad, Jateen Manjhi, Ram Chander Manjhi, Munshi Manjhi, Lekhraj Manjhi, Krishna Ram @ Krishna Manjhi, Ganga Bishnu Manjhi and Chhotan Manjhi (of criminal Appeal No. 291 of 1985) and the accused appellants Lal Kishun Chaudhari, Baleshar Manjhi. Raj Kumar Ram, Jagdish Ram, Jai Prakash Narain, Jawahir Manjhi and Lal Babu Kahar @ Lala Ram (of Criminal Appeal No. 320 of 1985) shall be taken into custody to undergo the sentence. 50. Accordingly, these Appeals stand decided. Loknath Prasad, J. I agree. Appeals disposed.