M. F. SALDANHA, J. ( 1 ) THIS appeal presents a slightly unusual set of facts in so far as even though the charge is of murder, the corpus delicti is not traceable. The prosecution alleges that six accused had taken part in the incident on 31-1-1992 at about 7. 30 p. m. at village madanahalli. It is alleged that deceased mastansab maktumsab soudagar was chased by the six accused and that he took refuge in a farm house where, after entering, he bolted the door from inside. A-1, a-2 and a-4 are alleged to have climbed on to the roof and removed one of the zinc sheets. A-l was armed with a gun and a-2 was armed with a pistol and it is alleged that after gaining access through the roof, that they shot mastansab. Thereafter the door was opened from inside and a-6 was asked to bring a bullock-cart into which the body was placed and taken to a spot at a distance of about 5 k. ms. At that place, the body was burnt making use of wood sticks that were available at that spot. It is also alleged that the ashes and other remnants were carried by the accused to a further point near the river where they were disposed of. Since the deceased did not return to his house, his father P. W. 1-mareyamsab maktunsab soudagar went in search of him on sunday, 2nd february, 1992. According to him, P. W. 24-saifansab told him that he had seen the deceased along with a-4, boarding a bus on friday, the 31st january, 1992. P. w. 1-mareyamsab states that he went in search of his son and that he found a towel lying on the path leading to the village which towel was identified by him as the one which the deceased normally carried. On going further, he learnt about the incident and he thereafter contacted the police authorities who came to the village and commenced investigations. In the meanwhile, the farm house where the incident had taken place had been cleaned up and fresh cow-dung had been applied to the floor which was heavily blood-stained in the course of the incident. On checking the adjoining area, the police officer found a few stones which had traces of blood on them and which were attached. In the meanwhile, the farm house where the incident had taken place had been cleaned up and fresh cow-dung had been applied to the floor which was heavily blood-stained in the course of the incident. On checking the adjoining area, the police officer found a few stones which had traces of blood on them and which were attached. In the course of the investigation, the investigating officer also made his way to the spot where the body had been burnt by following the cart-tracks. At this place, all that he could find was the evidence of recent burning which was also confirmed by the adjoining land owners. On checking the spot, the police officer found some coins and he also found two keys which were taken charge of. He also attached the bone splinters which according to him were the remnants of the corpse after the burning. The investigating officer also drew up an inventory of the spot where the ashes and other remnants were alleged to have been thrown near the river, but nothing incriminating was found at that place. The six accused were placed under arrest and on completion of the investigation, they were charge-sheeted for the offence of having been members of an unlawful assembly, the object of which was to commit the murder of mastansab, trespass in respect of the entry into the farm house and an offence under Section 27 of the Indian arms act in so far as the firearms in question had been used for unlawful purposes. There were also two other charges which came to be framed. The first of them is under Section 506, Indian Penal Code in respect of intimidation to the witnesses and a more serious charge under Section 201, Indian Penal Code which was in respect of the wilful destruction of the evidence of the crimes. The accused were committed to the court of session and the trial thereafter proceeded. ( 2 ) THE evidence essentially consisted of the deposition of the four eye-witnesses-p. w. 2-laxmibai, P. W. 3- irappa, son of P. W. 2, P. W. 4-suresha, brother of P. W. 3, and P. W. 5-bhimashya, brother of suresha. The learned trial judge accepted the evidence of these witnesses and held that the prosecution had established all the charges and consequently convicted all the six accused. The learned trial judge accepted the evidence of these witnesses and held that the prosecution had established all the charges and consequently convicted all the six accused. They were awarded a sentence of rigorous imprison-ment for life in respect of the murder charge and lesser sentences in respect of the subsidiary charges and it is against this set of convictions, that the present appeal is directed. ( 3 ) MR. Acharya, learned counsel who appears on behalf of the appellants, contended that the conviction itself is unsustainable in law. In the first instance he submitted that there is virtually no supportive evidence in this case in so far as the body was admittedly destroyed and therefore, there is no medical evidence on record. He submitted that the first aspect of the matter viz. , the fact that the deceased met with a homicidal death has itself not been conclusively established and that this court ought to re-examine the record for purposes of ascertaining as to whether or not serious lacunae as pointed out by him and which according to the learned counsel are fatal to the prosecution, have been overlooked by the trial court or not. ( 4 ) AS far as the homicidal death is concerned, we do not really need to labour on this point because the learned state public prosecutor has brought to our notice the fact that the record conclusively indicates that deceased mastansab was very much alive on the evening of 31,1. 1992 when he was chased into the farm house which he entered and bolted the door. It is true that the deceased was not seen alive thereafter and that the body was never traced by the investigating authorities, but the evidence on record conclusively establishes that a short while thereafter, the body of mastansab who was dead was brought out of the farm house and taken away in a cart. The record also indicates that this body was burnt at the spot in one of the fields from where the investigating officer recovered the coins, keys and bone splinters. The record also indicates that this body was burnt at the spot in one of the fields from where the investigating officer recovered the coins, keys and bone splinters. There can be no manner of doubt that even in the absence of the corpus delicti, that it has been established that the deceased met with a homicidal death because among other things, the witnesses have clearly stated that the body was full of blood when it was brought out of the farm house and that mastansab was dead. ( 5 ) MR. Acharya submitted that p. ws. 2, 3, 4 and 5 on whose evidence the entire case rests have admitted to one very important fact viz. , that they were instrumental in cleaning up the farm house and obliterating all traces of blood and whatever other evidence may be indicative of the commission of the offence. Mr. Acharya submitted that irrespective of these witnesses contending that they had been ordered to undertake the clean-up operation, that they having carried out this task is established and if that is the case, that they are participants in at least one part of the offences, all of which are integrally linked to each other and have taken place in quick succession. The learned counsel submitted that this would relegate these witnesses to the positive of accomplices in so far as they are participants in the crimes and that therefore, their evidence becomes automatically suspect and even if the court were to place some reliance on it, that corroboration is an absolute necessity. The learned counsel relied on the decisions in State of Kerala v thomas alias boby, wherein the Supreme Court has categorically laid down this proposition. The submission proceeds on the footing that the accomplices' evidence is of a lower calibre in so far as a participant in the crime is essentially a tainted witness and that in order to inspire confidence, there must be other supportive evidence which a court will always insist upon. ( 6 ) WE need to record here that the learned state public prosecutor has vehemently disputed this position. He submits that a clear reading of Section 201, Indian Penal Code will indicate that a person who does a clean-up job after an offence is committed does not ipso facto becomes vulnerable under Section 201, Indian Penal Code unless the most important ingredient is present viz. He submits that a clear reading of Section 201, Indian Penal Code will indicate that a person who does a clean-up job after an offence is committed does not ipso facto becomes vulnerable under Section 201, Indian Penal Code unless the most important ingredient is present viz. , the intention to destroy that evidence or suppress it with the sole purpose of screening the offenders or ensure by that this evidence is not available to the law enforcement authorities. The learned state public prosecutor has drawn a clear distinction between the situation where the evidence may be unintentionally destroyed and a culpable act which is geared to sabotage the law enforcement machinery's attempts to bring the criminal to book. He has submitted that in the present case, the court will have to take into account one more crucial factor viz,, that the witnesses who admittedly did remove all traces of blood from the farm house, have done so because they were intimidated by the accused at gun point and made to perform this job under duress. The learned Advocate further pointed out that the witnesses in question were admittedly outside the farm house and that they were effectively not participants in the offence and that therefore it would be absolutely wrong to categorise them as accomplices. As far as this aspect of the matter is concerned, we need to note that undoubtedly he raised an interesting point of law in so far as in the peculiar facts of this case, the witnesses themselves admit that they cleaned up the blood-stains and obliterated traces of the murder by putting fresh cow dung on the floor, but this was done under intimidation from the accused and at their behest and not with the idea of assisting the accused or suppressing or destroying the evidence. We need to take cognizance of another more important but very crucial aspect of this case in so far as the learned state public prosecutor is absolutely right when he points out to us that a careful scrutiny of the sequence of events will indicate that the entire set of offences were completed before the clean-up operation was undertaken and that therefore it would be incorrect to allege that the witnesses were participants in the crime as often happens in other cases, as also, from the fact that P. W. 2 is an elderly lady and the other three are her sons and nephews, it is clear to us as is evident from the record, that they were virtually ordered to carry out the job and as innocent rustic villagers, not only were they left with no choice in the matter but more importantly that they were acting under duress and there is nothing on record to indicate that the performance of this action was in order to either destroy the evidence or prevent it from being taken note of by the police. This is an important aspect of the matter with regard to the essential ingredients of Section 201, Indian Penal Code and we do need to uphold the submission canvassed by the learned state public prosecutor that on these facts and in this background, the four witnesses cannot be categorised as accomplices in law. That being the position, the basic infirmity pleaded by the learned counsel for the appellants vis-a-vis their guilt of their offence and the want of intrinsic value, must necessarily be discarded. ( 7 ) THE second serious head of challenge as presented by the appellants' learned counsel proceeds on the footing that p. ws, 2, 3, 4 and 5 who allege that they had witnessed the incident on the evening of 31-1-1992 do not disclose the fact that they had been eye-witnesses to a gruesome murder right until the afternoon of sunday, 2nd february, 1992 initially when P. W. 1 arrived there in search of his son and thereafter when the police came to the village. There is also considerable delay in the recording of their statements and Mr. There is also considerable delay in the recording of their statements and Mr. Acharya submitted that all these factors taken together would conclusively indicate that after mastansab disappeared and it became apparent that somebody had done away with him, that the police have virtually fabricated the charges against the present six accused. On the point of how serious an infirmity of non-disclosure is, mr, acharya relied on three decisions of the Supreme Court in shivaji dayanu patil v State of Maharashtra , sonia bahera v State of Orissa and State of Karnataka v venkatesh and others. We do not in the least dispute the well known proposition that the non-disclosure of crucial material, such as the fact that one has witnessed a murder, for a considerable period of time would cast very serious doubt with regard to the veracity of the witness and the Supreme Court had occasion to lay down that a criminal court would have no option except to reject such evidence, where it casts a doubt in the mind of the court as to whether at all the witness was in the know of things or has deposed on the basis of fabricated material, ( 8 ) MR. Acharya submitted that the convictions solely rest on the evidence of these four witnesses and on the ground of non-disclosure or abnormally late disclosure, if this evidence is rejected that the entire prosecution case falls to pieces. On this aspect of the matter, the learned state public prosecutor submitted that this is not a case in which non-disclosure could be alleged. He has repeatedly taken us through the detailed depositions of these four witnesses for the purpose of indicating that the incident had taken place in a remote corner of a small village and that p. w, 2 is an old lady of 65 years and the other three eye-witnesses are her sons and nephews in their early 20's. He points out that the incident was of a shocking and alarming nature where firearms were used and where the witnesses have all stated that they were similarly threatened by the accused immediately after the incident when they were ordered to clean up the place and that in this background, the non-disclosure had been more than fully explained and that it is justifiable. On the other hand, he points out that as soon as P. W. 1 came in search of his son, the witnesses have told him about the incident and that they have not kept anything back from the police authorities. Having regard to the distance involved and the fact that the police officer was desperately trying to trace the body or whatever remained of it, he contends that there might have been some delay in the process of recording the statements, but that this is not a circumstance which could be used against these witnesses. Another aspect of the matter which was pointed out to the court by the learned state public prosecutor was that there is nothing on record to indicate that these witnesses had been asked about the incident by anybody else and that they suppressed the information from them. He has also contended that if the witnesses who have been cross-examined at great length have withstood the cross-examination and if the evidence before the court is otherwise reliable and trust-worthy, that the infirmities pleaded cannot be used as grounds to either water-down or neutralise that evidence. ( 9 ) AS indicated by us, a court would be not only suspicious but would be put on guard in the case of witnesses who have remained tight-lipped about the incident for a crucial period of time or in case of witnesses who have come out with a particular version at a rather belated stage, but it needs to be taken note of that these concepts cannot be evaluated in a vacuum and that in every criminal case the court has to do a situauonal evaluation. The facts of this case are extremely peculiar in so far as the incident has taken place at a distant corner of a remote village and there is nothing to indicate that there was any other activity around that place. The incident had taken place late in the evening and the accused had removed the body from the spot and burnt it and they had also threatened those presebt at gun point and seen to it that all traces of the crime including the blood-stains were obliterated. The incident had taken place late in the evening and the accused had removed the body from the spot and burnt it and they had also threatened those presebt at gun point and seen to it that all traces of the crime including the blood-stains were obliterated. It has also come on record that the witnesses were threatened and intimidated and in this background, if they kept quiet for the whole of the next day until the father of the deceased came in search of his son and the police arrived at the spot, it would be difficult to brand them as tainted witnesses or persons who had kept back vital material or ones who have fabricated after a certain amount of thought. The most important aspect of the matter as far as the charge of non-disclosure is concerned is the crucial question as to whether an opportunity to disclose has arisen. That is an aspect of the law which is often overlooked and we must point out that the learned state public prosecutor has focussed considerable attention on it in bringing to our notice the all important facts that the courts would be justified in discarding the evidence of witnesses who have been shown to have come in contact with others or witnesses who had an excellent opportunity of disclosing what was to their knowledge and still did not do so. This is one of the cases where there was virtually no such opportunity and this aspect of the matter really clinches the issue because, in fairness to the witnesses that they have disclosed about the incident on the first opportunity on sunday. The entire debate therefore with regard to the four eye-witnesses being relegated to the category of persons who were guilty of suppression or non-disclosure is really groundless. ( 10 ) WE do not need to reproduce in detail the evidence of p. ws. 2, 3, 4 and 5, but they have broadly stated that the deceased ran towards the farm house which is adjacent to where they normally reside and that he was being chased by the six accused. They stated that the deceased locked the door and that the accused were unable to get at him. 2, 3, 4 and 5, but they have broadly stated that the deceased ran towards the farm house which is adjacent to where they normally reside and that he was being chased by the six accused. They stated that the deceased locked the door and that the accused were unable to get at him. A-1 was armed with a gun and a-2 was armed with a pistol and according to P. W. 2, she even begged all of them not to harm the deceased but that the accused stated that they had been able to corner him and that they would not spare him. The eye-witness goes on to relate the rest of the incident in so far as one of the accused latched the door from outside and a-l, a-2 and a-4 climbed on to the roof of the farm house, they thereafter removed the zinc sheet and shot the deceased with the firearms that were with them. Thereafter, the door was opened from inside and a-6 was ordered to bring a bullock-cart. The eye-witnesses are categorical about the fact that mastansab was dead, that his body was full of blood and that the accused persons lifted the body and put it in the bullock-cart. ( 11 ) THE bullock-cart as also the bulls, for some strangerea sons, were attached by the investigating officer. It was the investigating officer who found that there were traces of blood on a plank which came to be attached, but there is hardly any justification for the bulls also being attached. In fact, during the trial, the witnesses were asked to step out of the court room and identify the cart and the bulls, which according to us was wholly and completely unnecessary. The pieces of wood that were attached along with the stones from outside the farm house which were found to be sprayed with blood were sent for chemical analysis, and eventhough the type of blood could not be ascertained, the report indicates that these items were in fact stained with blood. That is a circumstance which lends considerable support to the version of p. ws. 2, 3, 4 and 5 that the incident had taken place at that spot and that the body was thereafter removed from there in the bullock-cart. ( 12 ) MR. That is a circumstance which lends considerable support to the version of p. ws. 2, 3, 4 and 5 that the incident had taken place at that spot and that the body was thereafter removed from there in the bullock-cart. ( 12 ) MR. Acharya, the learned counsel who represents the appellants, has very carefully analyzed the evidence of these four eye-witnesses and he points out that their versions do not absolutely tally, that there are variations with regard to the roles ascribed to different accused and with regard to the description of the incident. The learned counsel has also drawn our attention to the fact that the statements recorded under Section 164, Criminal Procedure Code omit to mention several particulars which have thereafter emerged in the evidence before the court. In sum and substance, the learned counsel has contended that there is no consistency in the evidence, that these variations are sufficient to create a degree of doubt in the mind of the court on the question of veracity because he submitted that these four persons contend that they had all witnessed the same incident which was one of short duration and that there should be no scope whatsoever for even the slightest variation in their narration. We have taken note of this head of criticism, but we are unable to attach any importance. For one thing, the witnesses are rustic villagers and a doubt would have certainly arisen in the mind of the court if all of them had later on given perfect evidence with computer like precision. The fact that there are a few minor discrepancies here and there only goes to inspire greater confidence in the mind of the court because one cannot overlook the background and status of the witness who is porhing more than a rustic farmer, the age of each of the withe, s, their mental make-up, their capacity to comprehend and made importantly their capacity to reproduce and narrate in their own simple manner all the details of the incident. What the court is really concerned about is the question as to whether the basic fundamental and most material features of the incident have been clearly and correctly stated and whether in the case of these four witnesses, there is a broad consensus with regard to the narration of the incident and the names of the persons who had participated in it. We have gone through the detailed evidence once when the appellant's learned counsel dealt with it and secondly when the learned state public prosecutor took us through it for the second time and the answer to the aforesaid two questions is positively in the affirmative. It is in this background that we have no hesitation in upholding the finding of the learned trial judge that the evidence of these four eye-witnesses does inspire confidence and deserves to be accepted. ( 13 ) THERE was considerable debate with regard to the recoveries and we shall deal with that aspect of the matter very briefly. The record indicates that two keys were recovered from the spot where the body was burnt and it has also come on record that one of these keys fitted the lock of the house of the deceased and that the second key fitted a steel trunk that was in that house. The two-fold contention of the prosecution is that the finding of these two keys establishes along with the recovery of bone pieces that the body burnt at that place was that of mastansab. The defence has vehemently contended that merely because these keys were recovered from that spot, it cannot lead to the inference that it was the place where the body of the deceased was burnt. There is some discrepancy in the evidence with regard to the name of the village where the keys were ultimately tried out. We have taken note of this fact, but having regard to the totality of the evidence and it general calibre, in our considered view, the reference to the name is nothing more than an error of description. We are fortified in this view because there is ample evidence on record to indicate that the body was taken away in a bullock-cart after the murder by the accused and that it was burnt by them at that particular spot and the coins which the deceased was carrying and the keys which he obviously had on his person being non-combustible items, they did not burn but only got charred and they were ultimately found in that place. The presence of bone splinters is not only an incriminating circumstance but it conclusively establishes that the body was in fact burnt at that place. The presence of bone splinters is not only an incriminating circumstance but it conclusively establishes that the body was in fact burnt at that place. It may be that having regard to the fact that the pieces were extremely small and that they did not burn completely, the c. a. was unable to give a definite finding as to whether they were human bones or not. The fact however that they were bone splinters and that there is supportive evidence from the adjoining land owners about a body having been burnt on the previous day is sufficient to establish the prosecution case. This is not only a strong corroboration but also conclusively establishes the offence under Section 201, Indian Penal Code. ( 14 ) AS regards the subsidiary charge under Section 27 of the arms Act, Mr. Acharya pointed out that even assuming that a-1 and a-2 were found in possession of a gun and a pistol, that both of them have established that they possess licenses for these firearms. Also he emphasised that the ballistics expert has not been able to connect the use of the these firearms with the offence in so far as no pellets or cartridges were found and the dead body itself had been destroyed and there was nothing to establish the nexus between these weapons and the commission of the offence. We do accept this position, but we cannot overlook the fact that the eye-witnesses have conclusively indicated that these were the weapons used in the commission of the offence. The ingredients of a charge and offence under Section 27 of the arms act pre-supposes that the firearm in question can be used for lawful purposes and the learned trial judge is absolutely right when he records the finding that where the firearm which was duly licensed was used for the purpose of committing murder, that the offence under Section 27 would be established. We see no reason why this finding sould be disturbed. ( 15 ) THE last aspect of the matter which was argued by Mr. acharya was that the court should not ipso facto jump to the conclusion that the charge under Section 149 is established and that therefore, irrespective of the overt acts committed by some accused that all of them should be held liable for all the offences. ( 15 ) THE last aspect of the matter which was argued by Mr. acharya was that the court should not ipso facto jump to the conclusion that the charge under Section 149 is established and that therefore, irrespective of the overt acts committed by some accused that all of them should be held liable for all the offences. His submission was that the offence of forming an unlawful assembly would require certain basic ingredients which point towards the fact that all the accused were working in concert towards the common objective. This according to the learned counsel was absent in the present case. His submission therefore was that even if the charges are established that the court ought to scrutinize as to whether each of the accused are individually liable. The learned state public prosecutor contended that the doctrine of res ipsa loquitur would apply in this case in so far as the facts speak for themselves. He contended that the mere act of the accused joining together and chasing the deceased and participating in different degrees in the act of killing him and disposing of the body and suppressing the evidence would automatically invite the consequences of Section 149, Indian Penal Code. On the facts of the present case, we find that it would be dangerous to uphold that proposition because the acts of the accused fall into two distinct categories. It has come on record that there was some animus as far as a-1 and a-2 and the deceased are concerned because of old hostility and similarly, that there was some background of some litigation and disputes between a-4 and the deceased. The evidence also indicates that a-l and a-2 were armed with a gun and a pistol and that these were the weapons used for the purpose of killing the deceased and it has also come on record that a-4 had also climbed on the roof and removed the zinc sheets for the purpose of getting to aim at the deceased. It is true that the witnesses have attributed some supportive role to three remaining accused. On the facts, we are not inclined to hold that a-3, a-5 and a-6 could be held liable for any of the offence. It is true that the witnesses have attributed some supportive role to three remaining accused. On the facts, we are not inclined to hold that a-3, a-5 and a-6 could be held liable for any of the offence. The evidence satisfactorily brings home, the charges as far as a-l, a-2 and a-4 are concerned, but fails to do so as far as the remaining three accused are concerned. To this extent therefore, the finding of the learned trial judge would require some alteration. ( 16 ) WE are conscious of the fact that as far as the charge of unlawful assembly is concerned that the law requires participation of a minimum of five persons and in the view that we have taken, since three out of six accused are acquitted, the question that arises is as to whether the charge under Section 149, Indian Penal Code would still survive. We answer this question in the affirmative in so far as the three accused persons who have been acquitted have been given the benefit of doubt by this court, but effectively, the charge of an unlawful assembly would still survive for the simple reason that it is permissible in cases of this type for even one person to be convicted for such a charge on the ground that he along with others unknown had been a participant of an unlawful assembly. The mathematical requirement of five persons does not necessarily require that five should be convicted and it would be open to a court to convict a lesser number of persons and for such a charge to still survive as the evidence does indicate participation of several persons. ( 17 ) THE appeal accordingly succeeds partially. The conviction and sentence recorded against a-1, a-2 and a -4 has been confirmed. The conviction and sentence recorded as against a-3, a-5 and a-6 are set aside. ( 18 ) AS far a-3, a-5 and a-6 are concerned, since it is pointed out to us that they are in custody and are undergoing sentence, it is directed that they shall be set at liberty forthwith, if they are not required in any other case. ( 19 ) THE appeal partially succeeds and stands disposed of. --- *** --- .