Judgment : LAKSHMAN URAON, J. ( 1 ) THE appellants have filed this appeal being aggrieved by and dissatisfied with the order of conviction and sentence dated 3. 6. 1997 and 4. 6. 1997 passed by Shri Nirmalendu Kumar Kanth Niraj. 1st Addi. Sessions Judge, Giridih in S. T. No, 227/1979. whereby and whereunder all the four appellants have been convicted for the offences punishable under Sections 148, 302/149, 20 1/149 and 436/ 149. IPC and sentenced to undergo imprisonment for life for the offences punishable under Section 302 read with Section 149, IPC and to undergo R. I. For five years for the offences punishable under Section 436 read with Section 149, IPC and to undergo R. I. for a period of three years under Section 201 read with Section 149. IPC and further sentenced to undergo R. I. for a period of three years: under Section, 148/ IPC, ordering that all the sentences in respect of all the appellants in each count shall run concurrently. ( 2 ) BRIEFLY stated prosecution case is based on the fardbeyan, Ext. 2, of the informant. PW 2, Prkash Tiwari, of villagepumanagar, P. S. Giridih Mufassil, recorded by the S. I, R. P. Singh on 31. 3. 1975 at 10. 30 p. m. Purnanagar at his house in which he has alleged that he is the cousin brother of Shyam Sundar Tiwari, PW 1. Their houses are adjacent to each other having common courtyard. On Monday 31. 3. 1975 he had returned from forest at about 12 noon and after taking meal he slept. At about 4 p. m. on the same day, the villager; Balbir Tiwari, went to his courtyard and inquired as to whether Dhaneshwartiwari had concealed himself in his house, or not. He entered into the house of the informant and searched Dhaneshwar Tiwari but he could not find him. Then he went to his house. After 15 minutes,, Balbirtiwari alongwith his three sons, Bhukhlal Tiwary, Lal Mohan Tiwary and Chandrapal Tiwary alongwith labourer, Karu Mallah, having farsa, bhakhua, balam in their hands, again started searching Dhaneshwar Tiwari. First they searched the North facing room and house of Shyam Sundar Tiwari, PW 1 after taking key from his mother, Rajo Devi, PW 4. Then Chandrapal Tiwari entered into the house of Shyam Sundar Tiwari facing towards East and searched Dhaneshwar Tiwari. First they searched the North facing room and house of Shyam Sundar Tiwari, PW 1 after taking key from his mother, Rajo Devi, PW 4. Then Chandrapal Tiwari entered into the house of Shyam Sundar Tiwari facing towards East and searched Dhaneshwar Tiwari. In that house there was a room in the upper storey in which woods and straw were heaped in abundance. The appellant, Chandrapal Tiwari said that Dhaneshwar Tiwari had concealed himself in the room on the roof. Then all the appellants raised alarm. Dhaneshwartiwari hurled bricks causing injury near the eye of the appellant, Bhukhlal Tiwari and also. injury to the appellant, Chandrapal Tiwari. In the mean time, the informant, who was standing on the courtyard, saw that the smoke was coming out from the house. At that time, Dhaneshwartiwari, Chandrapal Tiwari, Bhukhlal Tiwari were inside the room. He could not see as to who had set fire to the house, but Dhaneshwar Tiwari who was inside the room was saying that he will die alongwith them. When the house was set on fire then Chandrapal Tiwari, Lal Mohan Tiwari and Bhukhlal Tiwari came out from the room. Dhaneshwar Tiwari also came out from the said room in the courtyard. All the appellants, namely, Chandrapal Tiwari, Lal Mohan Tiwary, Bhukhlal Tewari and Karu Mallah assaulted Dhaneshwar Tiwari with farsa, bhakua and balam in the courtyard. On being injured, Dhaneshwar Tewari fell down in the courtyard and died. Then Balbir Tiwari (since dead) ordered to throw the dead body of Dhaneshwar Tiwari into the burning fire. On his order, Lal Mohan Tiwari, Bhukhlal Tiwari, Chandrapal Tiwari and Karu Mallah lifted Dhaneshwar Tiwari and threw the dead body into the burning fire near the door. The dead body started burning. The appellant also threw the burning woods on the dead body of Dhaneshwar Tiwari which was falling from the roof. After the alleged occurrence all the appellants including Balbir Tiwari fled away from the P. O. The informant alongwith his cousin brother, Shyam Sundar Tiwari, and other members of his family tried to extinguish the fire but failed. On the alarm, Jagdish Tiwari, Hail Prasad Tiwari, PW 5, Ganesh Tiwari. Tekial Ram, DW 1 and many others including Jago Tewari went thereand saw the alleged occurrence. On the alarm, Jagdish Tiwari, Hail Prasad Tiwari, PW 5, Ganesh Tiwari. Tekial Ram, DW 1 and many others including Jago Tewari went thereand saw the alleged occurrence. The informant has stated that the appellant, Lal Mohan Tiwari, was saying that one year prior to the alleged occurrence Dhaneshwar Tiwari (deceased) had murdered his mother. Since then Dhaneshwar Tiwari was absconding. They had uttered that they had taken revenge by causing murder of Dhaneshwar Tiwail. Blood was scattered in the courtyard in abundance. The learned 1st Addi. Sessions Judge, Giridih, framed charges against all the appellants under Sections 302/149, 436 and 148, IPC on 4. 8. 1981. After examination of nine prosecution witnesses including the informant, charge was amended on the petition filed by the learned APP and accordingly fresh charges under Sections 302/149, 201/149, 436/149 and 148. IPC were framed against all the accused persons on 16. 7. 1983. ( 3 ) THE prosecution has examined altrether nine witnes lo stantiate the charges levelled against all the accused persons. Before framing charges, Balbir Tiwari died his natural death. Hence he was not charged to face trial in this case. PW 1, Shyam Sundar Tiwari, is the cousin brother of the informant, PW 2, Prakash Tiwari. PW 3, Draupadi Devi, is the wife of the informant who was declared hostile by the prosecution. PW 4, Rajo Devi, is the mother of PW 1 and is the eye-witness. PW 5, Han Prasad Tiwari and PW 6, Jagdish Tiwari who have been mentioned as eye-witnesses of the alleged occurrence in the fardbeyan, Ext. 2, have not supported the prosecution case hence they have been declared hostile by the prosecution. PW 7, Rita Devi, is the wife of PW 1 and is an eyewitness. PW 8, Dr. B. N. Prasad, conducted the post mortem examination on the remains of the dead body of Dhaneshwartiwari and PW 9, Rudra Pratap Singh, is the 1. 0. of this case. ( 4 ) THE learned 1st Additional Sessions Judge, Giridih, considered the evidence of witnesses, PW 1, PW 2, PW 4 and PW 7, supported by the evidence of Doctor, PW 8 and the 1. 0. , PW 9 and found these appellant guilty for the charges levelled against them and convicted them as mentioned above in para 1. ( 4 ) THE learned 1st Additional Sessions Judge, Giridih, considered the evidence of witnesses, PW 1, PW 2, PW 4 and PW 7, supported by the evidence of Doctor, PW 8 and the 1. 0. , PW 9 and found these appellant guilty for the charges levelled against them and convicted them as mentioned above in para 1. ( 5 ) THE defence has examined DW 1, Tekial Ram and DW 2, Kartik Singh, who deposed that no such occurrence took place as alleged by the informant, PW 2. Prakash Tiwail. It has been submitted for the appellants that it was PW 1, Shyam Sundar Tiwari, who, after setting fire in his house, fled away and after three days he returned back to his home and whose statement was recorded on 7. 4. 1975 under Section 161, Cr PC. Due to enmity these appellants have been made accused in this case only to save Shyam Sundar Tiwari, cousin brother of the informant, Prakash Tiwari, PW 2. It was also urged on behalf of the appellants that 400-500 villagers were present but none of them has been examined by the prosecution, who are the independent eyewitnesses. The Prosecution has not examined Ganesh Pandey and Tekial Ram, who have been mentioned as eye-witness in the fardbeyan, nor other charge-sheeted independent witnesses namely, Kartik Singh, Bharat Singh and Abdul Gafur, have been examined in this case. The prosecution has preferred to examine only the interested witnesses who are of the same family and are closely related. PW 1, Shyam Sundar Tiwari managed to flee away just after the alleged occurrence and remained absent for three days which shows his doubtful conduct. The defence has totally denied that these appellants committed the alleged occurrence; rather they are innocent and have taken the plea of their false implication. ( 6 ) THE learned APP has submilled that in this present case the mother of the appellant, Lal Mohan Tiwary, was murdered one year prior to the alleged occurrence by Dhaneshwar Tiwary. Since thereafter Dhaneshwar Tiwari was absconding. But when he came to the village home and concealed himself in the house of PW 1, Shyam Sundar Tiwary, the appellants No. 1, 2 and 3, who are the sons of late Balbir Tiwari and their labourer, Karu Mallah, appellant No. 4, set the house on fire. Since thereafter Dhaneshwar Tiwari was absconding. But when he came to the village home and concealed himself in the house of PW 1, Shyam Sundar Tiwary, the appellants No. 1, 2 and 3, who are the sons of late Balbir Tiwari and their labourer, Karu Mallah, appellant No. 4, set the house on fire. When the house started burning, then all the three appellants, who are the sons of late Balbir Tiwari, came out from the room and were in the courtyard. Dhaneshwar Tiwari hurled bricks causing injury to Bhukhlal Tiwari and Chandrapal Tiwari. When the 1. 0. anested them he found injuries on their persons and referred them for treatment which shows that they were present at the P. O. It was also urged that Dhaneshwar Tiwari when came out from the room in the Angan, then he was assaulted by farsa, bhakua and balam by all these four appellants. On the order of Balbir Tiwari (since deceased) all the four appellants threw the dead body of Dhaneshwar Tiwari into the burning fire by the side of the door and fled away. The 1. 0. found huge blood on the courtyard and seized the bloodstained soils. He also seized the burnt materials of the house including the charred burnt dead body of Dhaneshwar Tiwari and prepared seizurelist. It was submitted that the learned Court below has rightly relied on the evidence of the eyewitnesses, PW 1. PW 2, PW 4 and PW 7, corroborated by the evidence of the 1. 0. PW 9 and the Doctor, PW 8, and convicted and sentenced the appellants. ( 7 ) ALTHOUGH 450-500 villagers were present at the P. O. but none of them has been examined in this case only because when the 1. 0. , PW 9, went to the P. O. village, Purnanagar, there was complete lull. The villagers were inside their homes. Only the informant and the other members of his family were present at the P. O. The 1. 0. , PW 9, was informed on 31. 3. 1975 at 6. 30 p. m. by Bahadur Ghatwar and Rameshwar Tiwari, son of Balbir Tiwari and the brother of the appellants No. 1, 2 and 3, that an absconder accused, Dhaneshwar Tiwari, had concealed himself in the roof of the house of Shyam Sundar Tiwari at village Purnanagar. The villagers had surrounded him. 3. 1975 at 6. 30 p. m. by Bahadur Ghatwar and Rameshwar Tiwari, son of Balbir Tiwari and the brother of the appellants No. 1, 2 and 3, that an absconder accused, Dhaneshwar Tiwari, had concealed himself in the roof of the house of Shyam Sundar Tiwari at village Purnanagar. The villagers had surrounded him. Dhaneshwar Tiwari was hurling bricks on them. Hence out of fear none of the villagers went to catch hold of him. They informed orally to the 1. 0. , Officer-in-Charge, to arrest Dhaneshwar Tiwari immediately. On this information, SDE No. 511 dated 31. 3. 1975 was entered and the ASI alongwith Police force proceeded for village Purnanagar and reached there at 7. 15 p. m. He saw flames in one side of the village. He went to Balbirtiwari, (since deceased), who was the father of Rameshwartiwari, to get information. Balbirtiwari was found at his door who informed that it was too late for him however he felt solace in his heart as Dhaneshwar Tiwari was burnt to death. The 1. 0. went to the P. O. which was the burning house of Shyam Sundar Tiwari, PW 1. He entered into the courtyard. He found Prakash Tiwari, PW 2, his wife and other females who informed that the dead body had been thrown into the burning fire near the door. The 1. 0. , with the help of the villagers, the Police and Mukhia extinguished the flames of the fire. They removed the burnt ashes near the door which is the East facing room of the house of the Shyam Sundar Tiwari. He found the remains of the burnt dead body of Dhaneshwar Tiwari inside the room near the door. Thereafter, he recorded the fardbeyan, Ext. 2, of PW 2. Prakash Tiwail. On that basis ASI, J. Topno, entered formal FIR Ext. 4, after endorsement on the fardbeyan, Ext. 3. He prepared inquestreport of the burnt charred remains of the dead body of Dhaneshwar Tiwari in presence of the witnesses in carbon process, Ext. 5. He remained at the P. O. village at night and in the morning he sent thedead body for post mortem examination to Giridih Sadar Hospital. He found the P. O. to be the house of PW 2, Prakash Tiwari. The door is towards East of the house. He found Northern portion of the house half burnt. 5. He remained at the P. O. village at night and in the morning he sent thedead body for post mortem examination to Giridih Sadar Hospital. He found the P. O. to be the house of PW 2, Prakash Tiwari. The door is towards East of the house. He found Northern portion of the house half burnt. The other half portion of the house is in the share of PW 1, Shyam Sundar Tiwari. Shyam Sundar Tiwari had two rooms which were found burnt. He found fire, ashes, burnt woods tiles and the remains of the burnt charred dead body of Dhaneshwar Tiwari near the door. He found bloodstained soil in an area of 2. 5t which was 6 East from the door of Southern side small room and 12 South from the door, of back room. He seized bloodstained soil, ash, tiles, burnt woods in presence of witnesses and prepared seizurelist Exts. 7 and 7/1 respectively. He prepared sketch map of the P. O. , Ext. 8. He arrested all the appellants and found injuries on the person of Bhukhlal Tiwary and Chandrapal Tiwary. Hence he prepared injuryslips, Exts. 9 and 9/1 respectively and sent them for medical treatment. ( 8 ) THE P. O. is not in dispute which is corroborated by the inquestreport, Ext. 5 and seizurelist, Exts. 7 and 7/1, prepared at the P. O. itself in presence of the witnesses. The house of PW 1, Shyam Sundartiwari was burnt, is also not in dispute. There was heap of woods and straws on the roof in one of the rooms, which had two doors. The doors were without any hook and open. Dhaneshwar Tiwari had concealed himself on that roof. The ground floor is the cowshed of PW 1, Shyam Sundar Tiwari. The alleged occurrence took place at 4. 15 p. m. on 31. 3. 1975. The informant does not know as to how the Police went to his village as he had not informed the Police. On the other hand, DW 1, who has been mentioned as an eye-witness in the fardbeyan, Ext. 2, had gone to the P. O. at 4 p. m. and seen the house of Shyam Sundar Tiwari burning. He saw Shyam Sundar Tiwari and his wife in the courtyard. He found the door closed and chained from outside of the house which was burning. 2, had gone to the P. O. at 4 p. m. and seen the house of Shyam Sundar Tiwari burning. He saw Shyam Sundar Tiwari and his wife in the courtyard. He found the door closed and chained from outside of the house which was burning. He was willing to extinguish the fire but PW 1, Shyam Sundar Tiwari, objected him informing that Dhaneshwar Tiwari had set himself on fire and was burning. Shyam Sundar Tiwari, PW 1, fled away from the P. O. and returned back after 3-4 days. He did not see Prakash Tiwari at the P. O. This witness has not deposed that he went to P. S. to inform the Police. When Police went to the village this witness was not present there. He has not stated anything before the Police which shows that he is a complete liar whose house is at distance of 100 yards from the house of the informant. DW 2, Kartik Singh, also went to the P. O. on alarm alongwith the Mukhiya, Tekial Ram, DW 1 and Ganesh Pandey. He saw the house of Shyam Sundar Tiwari burning and the door was closed from outside with bolt. When Mukhiya asked to extinguish the fire then Shyam Sundar Tiwari informed that the fire had caught from all the sides. Let the house burn. Shyam Sundar Tiwari informed that Dhaneshwar Tiwari himself had set the house on fire. This witness saw the blood fallen on the courtyard of Shyam Sundar Tiwari. Both these DW5 have been informed by Shyam Sundar Tiwari that Dhaneshwar Tiwari himself set house on fire which does not get corroborated by the evidence of PW 1, Shyam Sundar Tiwari. Hence, the evidence of these two DW5 do not carry any importance who had come to depose that Shyam Sundar Tiwari had not allowed them to extinguish the fire and also after the alleged occurrence Shyam Sundar Tiwari absented himself, creating doubts regarding setting of fire in his house. The evidence of both these DW5 on this point, can easily be discarded as they had come without knowing the full facts as to who were present at the P. O. and who informed the Police about the alleged occurrence. They did not inform the Police that it was PW 1, Shyam Sundar Tiwari, who set fire in his house. The evidence of both these DW5 on this point, can easily be discarded as they had come without knowing the full facts as to who were present at the P. O. and who informed the Police about the alleged occurrence. They did not inform the Police that it was PW 1, Shyam Sundar Tiwari, who set fire in his house. ( 9 ) IN this present case only the interested closely related witnesses are the eye-witnesses who are PW 1, Shyam Sundar Tiwari, PW 2, Prakash Tiwari, PW 4, Rajo Devi and PW 7, Rita Devi. I have to consider the evidence of these interested closely related witnesses carefully as to whether their evidence is truthful or not. The 1. 0. has deposed that when he went to the P. O. village, there was lull in the village. He first went to the house of Balbir Tiwari, father of the appellant Nos. 1, 2 and 3, who informed that now he was feeling peace as Dhaneshwar Tiwari was burnt to death. PW 1 and PW 2 have not alleged anything against the bad character and criminal history of Dhaneshwar Tiwari (deceased ). Although they were related with him, but there was no visiting term in between the deceased and these witnesses. PW 3, Draupadi Devi, wife of the informant, PW 2, has deposed that the deceased, Dhaneshwar Tiwari, was carrying criminal history as he figured in several dacoity cases and also was of a loose character. Females of the village including herself were not used to go in front of Dhaneshwar Tiwari. The defence has also brought into evidence by cross-examining the PW5 that Dhaneshwar Tiwari was absconder only because one year prior to the alleged occurrence he had caused murder of the mother of the appellant Nos. 1, 2 and 3. There was enmity with these appellants due to murder of their mother and they were seeking opportunity to cause his murder. When they came to know that Dhaneshwar Tiwari had come to his house then, they searched him. They suspected that he might have concealed himself in the house of the informant, Prakash Tiwari as Prakash Tiwari and PW 1, Shyam Sundar Tiwari are cousin brothers and were related to the deceased, Dhaneshwar Tiwari although they were not in visiting terms. When they came to know that Dhaneshwar Tiwari had come to his house then, they searched him. They suspected that he might have concealed himself in the house of the informant, Prakash Tiwari as Prakash Tiwari and PW 1, Shyam Sundar Tiwari are cousin brothers and were related to the deceased, Dhaneshwar Tiwari although they were not in visiting terms. It also proves that Dhaneshwar Tiwari was of a loose character having criminal history and there were criminal cases pending against him. ( 10 ) PW 1, Shyam Sundar Tiwari, PW 2, Prakash Tewari, PW 3, Draupadi Devi, PW 4, Rajo Devi and PW 7, Rita Devi, who are of the same family, have deposed that there is common courtyard of the house of PW 1 and PW 2. On 31. 3. 1975 at 4 p. m. they were in their houses. At that time, Balbirtiwari (since dead), father of the appellant Nos. 1, 2 and 3, went there and asked as to whether Dhaneshwartiwari had concealed in their houses or not. PW 1 and PW 2 informed that Dhaneshwartiwari was not in their houses, even then, Balbirtiwari made search for him in their houses and when he could not trace out Dhaneshwar Tiwari then he went back to his home. After 15 minutes, all these four appellants alongwith Balbir Tiwari came armed with farsa, bhala, bhakua, axe and started searching Dhaneshwar Tiwari. In the Eastern house which is cowshed of Shyam Sundar Tiwari, there were two doors but without any doorplank. In the upper floor, household articles, woods and straws were stored. The appellant, Chandrapal Tiwari went on that roof and said that Dhaneshwar Tiwari had concealed himself on that roof. Balbir Tiwari and his three sons alongwith the labourer, Karu Mallah, were standing in the courtyard. The appellants threw tiles and bricks upon Dhaneshwar Tiwari. In reply Dhaneshwar Tiwari also hurled bricks at the appellants causing injury to Bhukhlal Tiwari and Chandrapal Tiwari. This evidence is corroborated by the 1. 0. , PW 9, who found injuries on their persons when arrested them and prepared injury slips, Exts. 9 and 9/1. These witnesses PW 1 and PW 2 saw the house burning. Then the appellants came out of the room and were in the courtyard. Dhaneshwar Tiwari also came out of the room in the courtyard. 0. , PW 9, who found injuries on their persons when arrested them and prepared injury slips, Exts. 9 and 9/1. These witnesses PW 1 and PW 2 saw the house burning. Then the appellants came out of the room and were in the courtyard. Dhaneshwar Tiwari also came out of the room in the courtyard. As soon as Dhaneshwartiwari came out of the room, all the appellants started assaulting him. Chandrapal Tiwari, Karu Mallah, Lal Mohan Tiwari and Bhukhlal Tiwari assaulted with Bhakua, farsa and balam. On being injured, Dhaneshwar Tiwari fell down and died on the courtyard. Thereafter all these appellants on theorder of Balbir Tiwari threw the dead body into the burning fire near the door. The beams and other building materials on being burnt fell down which were also thrown on the dead body of Dhaneshwar Tiwari. PW 1 has deposed that out of fear the villagers fled away. However, he and other members tried to extinguish the fire but in vain. PW 1 informed the Mukhia of the village about the alleged occurrence. He had no knowledge as to when Dhaneshwar Tiwari had entered into his house. He and his mother, PW 4, Rajo Devi, had gone to Ghatwal Tola to preach Ramayan and returned home in between 2-3 p. m. He has denied that in his absence Dhaneshwar Tiwari had entered into the room of his wife and bolted the room from inside and he suspected and raised alarm and on his alarm the villagers assembled there and surrounded the house. Dhaneshwar Tiwari left the room and concealed himself in the upper roof where woods and straws were stocked and where he himself set that house on fire resulting his death due to burning. These witnesses could not see as to who set fire in the house of PW 1, Shyam Sundar Tiwari, PW 2, the informant, Prakash Tiwari, has deposed that Dhaneshwar Tiwari was murdered by the appellants only because he had caused murder of the mother of Lal Mohan Tiwari prior to the alleged occurrence. This witness had seen Dhaneshwar Tiwari in his house where the appellants had caused his murder. This witness had seen Dhaneshwar Tiwari in his house where the appellants had caused his murder. Although Dhaneshwar Tiwari was not in visiting term with this witness and had gone to his house, even then this witness, PW 2, had not asked the reason as to why he had gone to his house on that day at about 4 p. m. After the alleged occurrence PW 1, Shyam Sundar Tiwari went in search of his cattle and returned back to home at about 8 p. m. PW 1 has also deposed that after the alleged occurrence he went in search of his cattle and returned home at late night. He was present in his house at night. In the next morning the Police was also camping at the village. The defence has taken the plea that Shyam Sundar Tiwari himself set the house on fire, where Dhaneshwar Tiwari had concealed himself, to cause his murder only because he had illicit relationship with his wife and has thereafter absconded for three days. It has been falsified by the evidence of PW 1 and PW 2 who have deposed that after the alleged occurrence PW 1, Shyam Sundar Tiwari, had gone in search of his cattle. The cowshed of PW 1, Shyam Sundartiwari, was set on fire as on its upper roof he had stocked woods and straws. It is quite natural that the cattle might have been frightened which were being searched till late night by PW 1, Shyam Sundar Tiwari. His statement was not recorded on that night or on the next morning but it was recorded on 7. 4. 1975. The defence took advantage of this late recording of the statement of PW 1 on 7. 4. 1975 that he himself might have set his house on fire only to burn Dhaneshwar Tiwari to death and fled away. This is falsified by the statement of PW 1 and PW 2 who deposed that he was at home at night and was present in the next morning also. As his house was completely burnt there was no way except to remain out of his house for some days. He had to seek shelter for him and his family members. This is falsified by the statement of PW 1 and PW 2 who deposed that he was at home at night and was present in the next morning also. As his house was completely burnt there was no way except to remain out of his house for some days. He had to seek shelter for him and his family members. PW 3, wife of PW 2, has partly supported the prosecution case that all these appellants went inside her house in search of Dhaneshwar Tiwari having balam, bhakua and axe in their hands. Dhaneshwar Tiwari had concealed himself in the Eastern room on the upper floor where straws were heaped. The appellants hurled stones on Dhaneshwar Tiwari and Dhaneshwar Tiwari also hurled stones on them. When Dhaneshwartiwari came out of the roof then the appellants started assaulting him. She could not see as to who assaulted him. There were 1000 persons at the P. O. PW 4, Rajho Devi, has also deposed that the appellants entered into her house in search of Dhaneshwartiwari. When they saw Dhaneshwartiwari on the roof, they set the house on fire. When Dhaneshwar Tiwari came out then all the appellants started assaulting him resulting his death. After his death the dead body was thrown into the burning fire. PW 7, Rita Devi, has deposed that her husband had gone in search of cattle and had returned home at 3-4 a. m. (night ). By that time the Police had left the P. O. village. She has specifically deposed that Balbir Tiwari (since dead) had stick in his hand and the appellants had balam, bhakua and axe in their hands. ( 11 ) PW 8, Dr. B. N. Prasad. has deposed that on 1. 4. 1975 at 1. 30 p. m. remains of the burnt charred body of Dhaneshwar Tiwari was brought before him. The Charred particles were taken off as ashes. He found the following parts of the charred burnt body : (1) Back half of the skull lower half of face burnt and charred. Front half of skull and upper part of face completely burnt including all soft parts and brain (2) Cervical vertebrae attached in front to some charred masses and laryinx which on cutting disintegrated into coal particles (3) Both shoulders and upper limbs completely burnt and missing (4) Thoracie vertebrae no ribs, all were burnt leaving charred stumps attached. Front half of skull and upper part of face completely burnt including all soft parts and brain (2) Cervical vertebrae attached in front to some charred masses and laryinx which on cutting disintegrated into coal particles (3) Both shoulders and upper limbs completely burnt and missing (4) Thoracie vertebrae no ribs, all were burnt leaving charred stumps attached. All the soft tissues of thoracic i. e. , lungs, heart and blood vessels charred (5) Lumber vertebrae and pelvic bones and both hips and lower limbs completely burnt and missing (6) Liver was recognized as charred mass (7) Shape of the pelvis and charred mass infront indicated male body. He prepared post mortem report in his pen and signature. Ext. 1. He deposed that front part of the face of the body burnt completely and was difficult to ascertain the identity of the deceased. No injury was found on the person of the deceased. The time of death has not been mentioned in the post mortem report. Nature of the burn could not be ascertained. He did not find any incised wound due to severe burn injury on the person of the deceased. ( 12 ) THE appellants No. 1, 2 and 3 are the sons of late Balbir Tiwari. The appellants were in search of Dhaneshwar Tiwari who was absconding after causing the murder of their mother, PW 9. 1. 0. , was first informed by Bahadur Ghatwar and Rameshwar Tiwari, son of Balbir Tiwari at 6. 30 p. m. on 31. 3. 1975 that the villagers had surrounded the absconder accused, Dhaneshwar Tiwari, who had concealed himself in the house of Shyam Sundar Tiwail. The alleged occurrence took place at about 4. 15 p. m. After the alleged occurrence Rameshwar Tiwari, one of the brothers of the appellant Nos. 1, 2 and 3, had gone to the P. S. and informed orally which was entered as SDE No. 511 dated 31. 3. 1975. He had not given any detail about the alleged occurrence. When the 1. 0. went to the village then he first went to Balbir Tiwari to know about the alleged occurrence as his son Rameshwar Tiwari had informed him orally at the P. S. Balbir Tiwari informed the 1. 0. , PW 9, that he was feeling peace as Dhaneshwar Tiwari had been burnt to death. He did not narrate about the alleged occurrence. The 1. 0. , PW 9, that he was feeling peace as Dhaneshwar Tiwari had been burnt to death. He did not narrate about the alleged occurrence. The 1. 0. went to the house of PW 1 and PW 2. As PW 1, Shyam Sundar Tiwari, was not there, the other members of the family including the informant, his wife and his mother were there, who informed about the alleged occurrence and the manner of the alleged occurrence that in search of Dhaneshwar Tiwari the appellants had entered into the house of Shyam Sundar Tiwari. They found Dhaneshwar Tiwari concealed in the Eastern room on the upper floor where there were woods and straws. Shyam Sundar Tiwari hurled stones and bricks causing injury to Chandrapal Tiwari and Bhukhlal Tiwari. The appellants also threw bricks at him. Thereafter PW 1, PW 2, PW 4 and PW 7 saw the house of Shyam Sundar Tiwari in flames. The appellants came out of the room and stayed in the courtyard. Dhaneshwar Tiwari also came out of the room in the courtyard. Then all the four appellants armed with farsa, balam, and bhakua, assaulted Dhaneshwar Tiwari causing bleeding injuries who fell down in the courtyard and died. Thereafter the dead body was thrown into the burning fire near the door of the house of PW 1, Shyam Sundar Tiwari. PW 9, 1. 0. , found huge blood in the courtyard which he seized and prepared seizurelist. He also extinguished the fire with the help of the informant, other villagers and the constables. The charredremains of the dead body were found near the door which were seized and seizurelist was prepared and were sent for postmortem examination to the Sadar Hospital Giridih. The Doctor PW 8, could not give any definite opinion regarding the cause of the death and the injuries sustained on the body as the dead body was completely burnt and turned into charred coal masses. However, it could be identified that it was a dead body of a male person. The evidence of the eye-witnesses who are although closely related, have supported the prosecution case unequivocally to prove the charges levelled against these appellants. The appellants by producing DW 1. However, it could be identified that it was a dead body of a male person. The evidence of the eye-witnesses who are although closely related, have supported the prosecution case unequivocally to prove the charges levelled against these appellants. The appellants by producing DW 1. Tekial Ram DW 2, Kartik Singh, have tried to create doubt in the prosecution case that it was Shyam Sundar Tiwari, PW 1, who set his house on fire and managed to escape for about 3-4 days. The evidence of these defence witnesses could not be corroborated only because PW 1, PW 2, and PW 7 have deposed that after the alleged occurrence Shyam Sundar Tiwari had gone in search of his cattle and returned home after 2-3 hours at late night and was also present in the village in the next morning. Thus the evidence of these two defence witnesses does not carry any weight as it has not discredited the evidence of the eye-witnesses as discussed above. The objective findings of the 1. 0. that bloodstained soils were found in the courtyard in huge quantity and the charred burnt remains of the dead body of Dhaneshwar Tiwari were found near the door of the burnt house, also corroborate the evidence of the eye-witnesses that when the house was burning the appellants came out of the room in the courtyard. Dhaneshwartiwari also came out from the roof in the courtyard. At that time all the appellants assaulted him with axe, balam and bhakua resulting bleeding injuries on his person who fell down in the courtyard and died. Thereafter his dead body was thrown into the burning fire. The body was so completely burnt that the 1. 0. after extinguishing the fire, recovered the remains of the charred burnt body which siezed and prepared seizurelist and post mortem examination. The house was burning when the 1. 0. went to the P. O. He first tried to extinguish the fire and then searched the remains of the dead body. He prepared seizurelist after recording the fardbeyan of the informant, PW 2, which is quite natural and the delay in recording the fardbeyan has satisfactorily been explained. When Rameshwar Tiwari, son of Balbir Tiwari, alongwith Bahadur Ghatwar went to the P. S. and informed orally to the 1. 0. on 31. 3. 1975 at 6. He prepared seizurelist after recording the fardbeyan of the informant, PW 2, which is quite natural and the delay in recording the fardbeyan has satisfactorily been explained. When Rameshwar Tiwari, son of Balbir Tiwari, alongwith Bahadur Ghatwar went to the P. S. and informed orally to the 1. 0. on 31. 3. 1975 at 6. 30 p. m. then they did not give any details about the alleged occurrence. Similarly Balbir Tiwari also did not give any details about the alleged occurrence to the 1. 0. PW 9 when he went to the village Purnanagar. As I have stated above that the villagers were frightened and had closed themselves inside their homes, they were not found at the P. O. when the 1. 0. had gone there. He could not record their statement. Some of the independent witnesses who are charge sheeted, had also not been examined by the prosecution only because the alleged occurrence took, place in the month of March 1975 and the prosecution had lastly examined the witnesses in the year 1982 who might have lost their interest in the prosecution case being an independent village witness. Thus non-examination of independent village witnesses does not discredit the prosecution case as corroborated by the eye witness. PW 1, PW 2, PW 4 and PW 7. I find that the learned Court below has considered the evidence of these eyewitnesses and also the objective finding of the 1. 0. , PW 9, and has rightly arrived at the conclusion in convicting and sentencing these appellants for the offences charged against them. ( 13 ) THUS, I do not find any cogent reason to interfere with the findings of the learned Court below. In view of my above considered facts I find that the prosecution has proved the genesis and the manner of the alleged occurrence and also the time and the place of the alleged occurrence, beyond all shadows of reasonable doubts. All these appellants had in prosecution of their common object taken active part in causing the murder of Dhaneshwar Tiwari and thereafter throwing his dead body into the burning fire. ( 14 ) IN the result, I do not find any merit in this criminal appeal which fails and is accordingly dismissed. The impugned order of conviction and sentence passed by the learned Court below in ST No. 227/1979, is hereby, affirmed. Appeal dismissed. ( 14 ) IN the result, I do not find any merit in this criminal appeal which fails and is accordingly dismissed. The impugned order of conviction and sentence passed by the learned Court below in ST No. 227/1979, is hereby, affirmed. Appeal dismissed. --- *** --- .