M. C. JAIN, J. The State has preferred this appeal against the judgment and order dated 8-2-1980 passed by Sri V. S. Agrawal, the then IIIrd Additional Sessions Judge, Pilibhit in Sessions Trial No. 63 of 1979, acquitting the five respondents under Section 302 IPC read with Section 149 IPC. Out of the five respondents, Darshan Singh, Khajan Singh and Makkhan Singh, respondents No. 1, 3 and 4 respectively have died and the appeal has abated so far as they are concerned. There remain only two respondents No. 2 and 5, namely, Diwan Singh and Guru Datt Singh respectively. Respondent No. 2 Diwan Singh and deceased respondent No. 3 Khajan Singh, instead of Section 302 read with Section 149 IPC, were convicted under Section 307 IPC and each sentenced to rigorous imprisonment for four years. They were also held guilty for the offence under Section 201 IPC and convicted and sentenced to undergo two years rigorous imprisonment thereunder. The two sentences were directed to run concurrently. The remaining three respondents Darshan Singh, Makkhan Singh and Gurudatt Singh were acquitted. 2. The relevant facts may be stated shortly. The deceased was one Baqar Singh. The incident had allegedly occurred on 11-5-1978 at about 6. 30 p. m. within village Bhagwanpuri Ghat, Police Station Puranpur, District Pilibhit and the report was lodged by Pipal Singh a Jagir Singh P. W. 2 who was the son of the deceased on 11- 5-1978 at 9. 05 p. m. Eight months before the incident, the complainants brother Kikar Singh was allegedly murdered by Darshan Singh, Diwan Singh, Makkhan Singh and some others. Of that incident the FIR had been lodged by Baqar Singh and prosecution was pending. The accused respondents bore ill will against Baqar Singh on this account. On the fateful day and time, the victim was going to his field for bringing fodder on a buffalo cart. Smt. Yogendra Kaur, P. W. 3 (daughters daughter of the deceased) was sitting on that cart. Pipal Singh @ Jagir Singh P. W. 2 and Kashmir Singh were following that cart on foot for helping Baqar Singh in fetching the fodder. When that cart reached within the limits of village Bhagwanpuri near the Jhala of Bagga Singh, all the respondents emerged from their hiding. Diwan Singh and Khajan Singh were armed with guns whereas Darshan Singh was armed with a chopper. When that cart reached within the limits of village Bhagwanpuri near the Jhala of Bagga Singh, all the respondents emerged from their hiding. Diwan Singh and Khajan Singh were armed with guns whereas Darshan Singh was armed with a chopper. Makkhan Singh and Guru Datt Singh were armed with swords. They surrounded the cart and on the command of Darshan Singh, Khajan Singh and Diwan Singh opened fire on Baqar Singh whereby he sustained injuries on chest and back. Baqar Singh fell down on the cart. Pipal Singh and Kashmir Singh challenged the respondents, but they proceeded towards them offering threats, brandishing their arms and aggressively remarking that anybody reaching near them would be killed. The respondents then took away the cart alongwith the dead-body of Baqar Singh towards the forest area. Pipal Singh and Jogendra Kaur returned back to the village and informed Smt. Jiva Bai and Smt. Gurdeva Bai about the incident. Then they went to the Police Station where the FIR was lodged and the case was registered. 3. The following day i. e. , 12-5-1978, certain recoveries were made from river Sharda. From that very river a half-burnt headless dead-body with trunk only was recovered which was said to be that of Baqar Singh. It was subjected to post-mortem on 13- 5-1978 conducted at 10. 45 a. m. by Dr. R. C. Maheshwari P. W. 1. 4. As per the post-mortem report, it was a headless body. Both upper and lower limbs were absent. Skull bones were broken in pieces and charred with 5th and 6th degree burns of whole of the trunk and abdomen and pubic region. Muscles of all the parts were burnt by 5th degree and charred. There was blackening of the whole body. Bones of vertebral column were found fractured and charred and black. All the muscles of chest were burnt by 5th degree. Liver, spleen and parts of intestine were also burnt. Putrefication had started in those organs. Maggots were present. 5. The cause of death was reported to be shock as a result of severe extensive burns. 6. The prosecution examined Pipal Singh P. W. 2 and Jogendra Kaur P. W. 3 as eye-witnesses of the incident. Kartar Singh P. W. 4 was witness of various recoveries. The defence of the respondent was of denial. 7. Maggots were present. 5. The cause of death was reported to be shock as a result of severe extensive burns. 6. The prosecution examined Pipal Singh P. W. 2 and Jogendra Kaur P. W. 3 as eye-witnesses of the incident. Kartar Singh P. W. 4 was witness of various recoveries. The defence of the respondent was of denial. 7. The trial Judge held that only Diwan Singh and Khajan Singh could be held guilty under Section 307 IPC and further under Section 201 IPC. He accordingly recorded the impugned judgment. 8. We have heard learned A. G. A. from the side of the State and Sri K. K. Arora, learned Counsel for the respondents. It is urged by learned A. G. A. that the evidence was sufficient to convict all the respondents under Section 302 IPC read with Section 149 IPC as all of them had formed an unlawful assembly with deadly weapons and had taken away the dead-body of Baqar Singh on the cart after shooting. Learned Counsel for the respondents, on the other hand, has vehemently countered the submission of learned A. G. A. According to him, there was no legal evidence to convict any of the respondents for the murder of Baqar Singh. 9. After having thoroughly examined the evidence on record, we find that the conclusion arrived at by the learned Sessions Judge is quite justified and reasonable with the result that no interference is called for by this Court of appeal. We shall spell out the reasons for our view endorsing the impugned judgment. The dead-body subjected to post-mortem was headless and even hands and feet were missing. Only trunk was available in extremely charred condition. Dr. R. C. Maheshwari P. W. 1 deposed that the body was so severely burnt that it was not possible to give any opinion whether any injuries of gunshot, chopper or swords existed on the dead-body. That means to say, the body was burnt to such an extent that it was not possible to find out any ante-mortem injuries thereupon. Further, the death was due to burn injuries and shock resulting thereby. The trial Judge, in our opinion, has rightly observed that in such circumstances it could certainly not have been in an identifiable position. Kartar Singh P. W. 4 himself stated that it was only by guess-work that it was accepted to be the dead-body of Baqar Singh. Further, the death was due to burn injuries and shock resulting thereby. The trial Judge, in our opinion, has rightly observed that in such circumstances it could certainly not have been in an identifiable position. Kartar Singh P. W. 4 himself stated that it was only by guess-work that it was accepted to be the dead-body of Baqar Singh. Obviously, if the burns producing shock were the cause of death, the testimony of Pipal Singh P. W. 2 and Jogendra Kaur P. W. 3 was rendered doubtful that Khajan Singh and Diwan Singh had shot dead Baqar Singh on the cart itself and his dead-body was taken away by all the respondents alongwith cart. Indeed, they could not be very certain about the death of Baqar Singh as none of them had any occasion to go near him after shooting. In those circumstances, their testimony could only establish murderous assault by Diwan Singh and Khajan Singh by gun fire on Baqar Singh and not the murder. 10. Out of the fire-arm bearing respondents, the Court is presently concerned only with Diwan Singh as Khajan Singh has died. The other respondent with whom the Court is presently concerned is Guru Datt Singh who was allegedly armed with a sword. There was no evidence from the side of prosecution that the deceased was attacked by Guru Datt Singh by a sword. It sounds to be somewhat incongruent that Guru Datt Singh was there at the spot with sword simply to make a show without any positive role to play in the incident. The same reasoning justified the acquittal of other two respondents Darshan Singh and Makkhan Singh who were allegedly armed with chopper and sword respectively (both of them now dead ). The fact was, however, there that after being injured by shooting, Baqar Singh was taken away on the cart and was not found alive thereafter. The testimony of Pipal Singh P. W. 2 and Jogendra Kaur P. W. 3 was capable of being believed that Baqar Singh was injured by shooting by Diwan Singh and Khajan Singh before being taken away on the car. Really speaking, it could not be established clinchingly that headless dead-body subjected to post-mortem was that of Baqar Singh. Therefore, on a judicial and dispassionate consideration of the evidence on record, the conviction of both of them only under Sections 307 and 201 IPC was justified. Really speaking, it could not be established clinchingly that headless dead-body subjected to post-mortem was that of Baqar Singh. Therefore, on a judicial and dispassionate consideration of the evidence on record, the conviction of both of them only under Sections 307 and 201 IPC was justified. 11. Shortly put, the proof or evidence on record was only to the effect that Diwan Singh and Khajan Singh had injured Baqar Singh by shooting while he was going on a cart. He had fallen down on the cart. After being so injured, he was then taken away by them on that cart. Thereafter, he was never seen alive again. Under these circumstances, Diwan Singh and Khajan Singh alone could be convicted only under Section 307 IPC and 201 IPC, and not under Section 302 IPC. The other three Darshan Singh, Makkhan Singh and Gurudatt Singh were rightly afforded the benefit of doubt that they did not play any positive role and also having regard to the background of the enmity. 12. To come to the conclusion, in view of the discussion made hereinabove, we find no ground whatsoever to interfere with the finding recorded by the learned trial Court. The appeal is dismissed. Appeal dismissed .