I.A. Ansari, J.:- 1. By this common judgment and order, we propose to dispose of the Criminal appeal, namely, Crl.A.(J) 84/2012, preferred by the accused-appellants, Binon Boro and Rajbhor Boro, as well as the Death Reference, namely/Death Reference No. 1/2012, seeking confirmation of the death sentences passed against the present accused-appellants by the learned Sessions Judge, Udalguri, in Sessions Case No. 93(D-U) of 2012. 2. By judgment and order, dated 31.7.2012, passed, in Sessions Case No. 93(D-U) of 2012, by the learned Sessions Judge, Udalguri, the present accused-appellants, namely, Sri Binon Boro and Sri Rajbhor Boro, stand convicted under sections 302 and 436, IPC read with section 34, IPC and they have been sentenced, for their conviction under section 302, IPC read with section 34, IPC, to be hanged by neck, till death, with further direction to each of them to pay fine of Rs. 1,00,000 and, in default of payment of fine, suffer simple imprisonment for two years each with direction that the fine amount shall, if paid, be given to the heirs of deceased Siring Boro. The two accused-appellants, namely, Binon Boro and Rajbhor Boro, have been further sentenced, for their conviction under section 436, IPC read with section 34, IPC, to suffer imprisonment for life and pay fine of Rs. 1,00,000 each and, in default of payment of fine, to undergo simple imprisonment for two years each with further direction that the amount of fine shall, if paid by the accused, be given to the heirs of deceased Siring Boro. Aggrieved by their conviction and the sentences, passed against them, as mentioned hereinbefore, the accused-appellants have preferred the appeal. 3. Prosecution's case, as unfolded at the trial, may, in brief, be described, thus : (i) Deceased Siring Boro was father of six sons including Binon Boro, who is one of the accused-appellants in the present case. Sometime before the occurrence, which led to the trial, and, subsequently, conviction and sentences of the accused-appellants, as mentioned above, deceased Siring Boro had partitioned his properties and distributed the same amongst his sons, the partition having been completed amicably. Accused Binon Boro had accepted the family settlement with regard to the partition of the ancestral property and started residing at the house of co-accused Rajbhor Boro, a relative of deceased Siring Boro, accused Rajbhor Boro's house being located near the house of deceased Siring Boro. Accused Binon Boro had accepted the family settlement with regard to the partition of the ancestral property and started residing at the house of co-accused Rajbhor Boro, a relative of deceased Siring Boro, accused Rajbhor Boro's house being located near the house of deceased Siring Boro. Anil Boro (PW1), one of the elder brothers of accused Binon Boro, used to live with his parents, whereas Krishna Boro, another brother of accused Binon, used to stay away from his house in connection with his work and he had not built his house on his share of the partitioned land; rest of the brothers of the accused Binon, except Anil Boro (PW1), had built their houses on their respective shares of land and started living there. Anil Boro (PW1) did not built any house as he had been suffering from illness and, therefore, had been living with his parents. Smt. Moina Boro (PW2) is younger sister of accused Binon Boro and she, too, used to live with her parents and her brother, Anil Boro (PW1). (ii) On 22.1.2009, at about 8.00 p.m., Moina Boro (PW2) was sitting along with her father, deceased Siring Boro, outside their house, but by the side of fire and, at that time, Anil Boro (PW1) brought meals for himself and his father, Siring Boro, and, as asked by Anil Boro (PW1), PW2 (Moina Boro) went inside the house to bring some salt from the kitchen and when she (PW2) returned from the kitchen with salt, she saw accused Binon coming there and, when their father, Siring Boro, went to wash his hands, the accused assaulted him, whereupon Siring Boro raised hue and cry and, hearing the hue and cry, when PW1 rushed forward, he (PW1) saw accused Binon Boro dealing blows on the face of Siring Boro by means of an iron rod taken from a bicycle. On seeing PW1, as accused Binon Boro asked as to who he (PW1) was, PW1 ran away from there with the intention to enter into the house of his younger brother, Khagen, but, on the way, he hid himself behind a coconut tree, which is at a distance of about 50 feet from the place of occurrence, and, from there, he saw his father lying injured on the ground and, just then, one of his brothers, Sunil Boro, arrived at the place of occurrence asking his father as to what had happened and, at that very moment, accused Binon dealt a blow on Sunil's head with the said iron rod and, on witnessing the occurrence of assault by accused Binon on his father and his brother, Sunil, Anil Boro (PW1) went running to the house of his another brother, Khagen, and, having informed Khagen about the occurrence, he kept sitting there as he was feeling dizzy. (iii) Out of fear, PW2 did not step forward. However, PW2 noticed that as her father was groaning and struggling for life, accused Binon beat him to death. At the time, when Siring Boro and his son, Sunil, were so killed, accused Rajbhor Boro was with accused Binon and when Binon assaulted Sunil, accused Rajbhor felled Sunil down on the ground by pushing Sunil by his hands and accused Binon beat Sunil to death. Having killed Siring Boro and Sunil Boro, both the accused persons cried out loudly asking as to who else were there inside the house, they hit the walls of the house and threatened the inmates that they would kill all others like they had killed Siring Boro and Sunil Boro. (iv) When the two accused were shouting and threatening the other inmates of the house, as mentioned above, the mother of accused Binon came outside the house, whereupon the two accused assaulted her on her legs and, on being so assaulted, she ran away. (v) PW2, on witnessing the ghastly occurrence of killing of her father, Siring Boro, and elder brother, Sunil, by none other than her own brother, Binon, and cousin, Rajbhor, ran away from her house and entered the house of her neighbour, Bhaben, and it is then that she, suddenly, saw fire and PW2 thought that the accused persons had set ablaze her father, Siring Boro, and elder brother, Sunil. However, on coming out of the house of her neighbour, Minati Boro, Moina Boro (PW2) saw the house of her sister-in-law (i.e., wife of Sunil), burning. Five persons, namely, Anima (deceased Sunil's wife), her fours sons, David, Diganta, Tiken and Jibon, who were inside the house at that time, were all charred to death in the fire, which had engulfed the house. PW2 clearly heard the two accused shouting, while they were setting fire to the house of Sunil (since deceased). On the following morning, when PW2 went back to her house, she saw her father, Siring Boro, and elder brother, Sunil, lying dead on the ground, her father's head resting on Sunil's lap. (vi) Though PW1 had reported the occurrence to the VDP Secretary and requested him to come to the place of occurrence, the VDP Secretary did not come. (vii) On the following day, i.e., on 23.1.2009, PW1 lodged a written Ejahar (Ext. 1) and, treating the same as First Information Report, Tangla Police Station Case No. 5/2007, under section 302/436, IPC, was registered against accused Binon Boro inasmuch as the FIR named accused Binon Boro as the sole assailant and did not, thus, mention the name of accused Rajbhor Boro as one of the assailants. Police visited the place of occurrence, held inquest over the said two dead bodies and prepared inquest report. Police also seized a small quantity of ashes and a partially burnt wooden post by means of Seizure List (Ext.2). During investigation, the said two dead bodies were also subjected to post mortem examination and, on completion of investigation, police laid charge sheet, under section 302/436/34, IPC, against the two accused-appellants. 4. At the trial, when charges, under sections 436 and 302, IPC read with section 34, IPC, were framed, both the accused-appellants pleaded not guilty thereto. 5. In support of their case, prosecution examined altogether 11 witnesses. The accused persons were, then, examined under section 313, Cr.PC and, in their examinations aforementioned, the two accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 6. The accused persons were, then, examined under section 313, Cr.PC and, in their examinations aforementioned, the two accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 6. Having, however, found the two accused guilty of the offence under section 302, IPC and 436, IPC, which they stood charged with, the learned trial court convicted them accordingly and passed sentences against them as already mentioned above. 7. As the two accused have been sentenced to death, the proceedings of the trial have been submitted to this court, under section 366, Cr.PC, for confirmation of the sentences of death. The two accused, too, aggrieved by their conviction and the sentences, passed against them, have preferred the present appeal jointly. 8. We have heard Mr. A.M. Bora, learned counsel, appearing as amicus curiae in the appeal, and Mr. T.J. Mahanta, learned counsel, appearing as amicus curiae in the Death Reference. We have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 9. According to the evidence of PW1, accused Binon Boro is his younger brother and accused Rajbhor Boro is his cousin, whose house is near the house of this witness (PW1). PW1 has clarified that the occurrence took place on the day of Saraswati Puja. It is in the evidence of PW1 that 4/5 months before the occurrence, the ancestral property of deceased Siring Boro had been partitioned by him amongst his six sons, accused Binon being one of the sons. 10. It is also in the evidence of PW1 that accused Binon accepted the partition and received his share of the property. PW1 has deposed that after the partition of the properties, accused Binon started living with the co-accused, Rajbhor Boro, in the latter's house and while PW1 started living with his parents, his brother, Krishna, who used to stay outside in connection with his work, did not build any house on his share of the property, but the rest of his brothers built their houses on their respective shares of land and started living there. 11. As far as this witness (PW1) was concerned, he had, according to what he (PW1) has deposed, not built his house, because of his illness and had been, therefore, living, at the time of the occurrence, with his parents. 11. As far as this witness (PW1) was concerned, he had, according to what he (PW1) has deposed, not built his house, because of his illness and had been, therefore, living, at the time of the occurrence, with his parents. 12. As regards the occurrence. PW1 has deposed that, on the fateful day, at about at about 8.00 p.m., when he, along with his father, Siring Boro (since deceased), was getting ready to take their meals, accused Binon came there and, when their father, Siring Boro, went out to wash his hands, the accused attacked him, whereupon Siring Boro raised hue and cry and, on hearing his hue and cry, when PW1 went outside, he saw the accused dealing blows on the face of Siring Boro by means of an iron rod taken from a bicycle. On seeing PW1, when accused Binon Boro asked as to who he (PW1) was, PW1 ran away from there with the intention to enter into the house of his younger brother, Khagen, but, on the way, he hid himself behind a coconut tree, which was at a distance of about 50 feet from the place of occurrence, and, from there, he saw his father lying injured on the ground and, just then, one of his brothers, Sunil Boro, arrived at the place of occurrence asking his father as to what had happened and, at that very moment, accused Binon dealt a blow on Sunil's head with the said iron rod and, on witnessing the occurrence of assault, on his father and his brother at the hands of accused Binon, PW1 went running to the house of his another brother, Khagen, and, having informed Khagen about the occurrence, he kept sitting there as he was filling dizzy. 13. It is in the evidence of PW1 that, later on, he came to know that accused Rajbhor Boro had pushed Sunil to the ground and Binon beat him (Sunil) to death. It is the further evidence of PW1 that as a result of the fire, which was set by the accused persons to Sunil's house, Sunil's wife and children died and that there were five persons in the house, when fire was set to Sunil's house. 14. It may be pointed out that on the very night of the occurrence, PW1 saw his brother Sunil's house burning. 14. It may be pointed out that on the very night of the occurrence, PW1 saw his brother Sunil's house burning. It is also in the evidence of PW1 that on the night of the occurrence itself, when he saw Sunil's house burning, he came to learn that the two accused persons had set fire to the house of Sunil. 15. According to the evidence of PW1, on the following day, he (PW1) lodged an Ejhar, which is Ext. 1, police came and seized a little ash of the charred house and one burnt post by means of Seizure List (Ext. 2). 16. Explaining as to why the name of accused Rajbhor Boro did not appear in the said Ejahar, PW1 has deposed that he had not written accused Rajbhor's name in the Ejahar, for, when he was at the place of occurrence, he had seen accused Binon alone. 17. In his cross-examination, PW1 has clarified that a little before the incident had taken place, when he had been cooking in the kitchen, he heard sound coming from the direction of the road and, at that time, his mother was sleeping and his sister, Moina Boro (PW2), was sitting along with her father, Siring Boro, by the side of fire in their courtyard. PW1 has explained, in his cross-examination, that they did not have electricity in their house and it was a dark night and that Sunil's house is situated about 100/150 meters away from their house. PW1 has also explained, in his cross-examination, that, on hearing sound, Sunil Boro had came to the courtyard asking his father as to what had happened and, after a while, Sunil went back to his home and, thereafter, PW1 took meals to the courtyard for himself and for his father and the incident took place, when his father went to wash his hands. 18. It is in the evidence of PW1 that even after hearing hue and cry, none of the neighbours came to the place of occurrence. 19. PW1 has also deposed that though he had told the VDP Secretary about the incident and requested him to come to the place of occurrence, the VDP Secretary did not come. 20. Nothing was elicited from the cross-examination of PW1 to show that what he had deposed was untrue or false. 21. 19. PW1 has also deposed that though he had told the VDP Secretary about the incident and requested him to come to the place of occurrence, the VDP Secretary did not come. 20. Nothing was elicited from the cross-examination of PW1 to show that what he had deposed was untrue or false. 21. Coming to the evidence of Moina Boro (PW2), who is daughter of deceased Siring Boro and younger sister of accused Binon Boro, we notice that, according to her evidence, on the day of the occurrence, at about 8.00 p.m., she was sitting, along with her father deceased Siring Boro, by the side of fire outside their house and, at that time, Anil Boro (PW1) brought meals for himself and his father, Siring Boro, and, as asked by her elder brother, Anil (PW1), she (PW2) went inside the house to bring some salt from the kitchen and when she (PW2) returned from the kitchen with salt, she saw accused Binon coming there and dealing a blow on her father's (Siring Boro's) head with a stick, whereupon her father fell down on the ground and, on hearing the scream, her another elder brother, Sunil, came running enquiring as to what had happened. PW2 has also deposed that, while she was brining water for her father, Sunil was lifting her father and, at that very moment, accused Binon beat Sunil to death and, out of fear, she (PW2) did not step forward. It is the further evidence of PW2 that while her father was groaning and struggling for life, accused Binon beat him to death. 22. It is in the evidence of PW2 that at the time, when Siring Boro and his son, Sunil, were so killed, accused Rajbhor Boro was with the accused Binon and that having killed Siring Boro and Sunil Boro, both the accused persons shouted loudly asking as to who else were there inside the house, they hit the walls of the house with sticks and threatened the inmates of the house by saying that they would kill all others like they had killed Siring Boro and Sunil Boro. PW2 has deposed that when accused Binon assaulted Sunil, accused Rajbhor made Sunil fall on the ground by pushing him with hands and accused Binon beat Sunil to death. 23. PW2 has deposed that when accused Binon assaulted Sunil, accused Rajbhor made Sunil fall on the ground by pushing him with hands and accused Binon beat Sunil to death. 23. PW2 has further deposed that when the two accused were shouting and threatening the other inmates of the house, as mentioned above, the mother of accused Binon came outside the house, whereupon the two accused hit on her mother's legs and, on being so assaulted, her mother ran away and, at that time, she (PW2), suddenly, saw fire and she thought that the accused persons had set ablaze her father and elder brother, Sunil. However, on going outside, PW2 (according to what this witness has deposed) saw that the house of her sister-in-law, i.e., wife of Sunil, was burning. It is in the evidence of PW2 that altogether five persons, namely, Anima (deceased Sunil's wife), her fours sons, namely, David, Diganta, Tiken and Jibon, who were inside the house at that time, were all charred to death in the fire. 24. According to the evidence of PW2, she (PW2) clearly heard the two accused shouting, when they were setting fire to the house of Sunil (since deceased), and, on the following morning, when PW2 went back to her home, she saw her father and elder brother, Sunil, lying dead on the ground, her father's head resting on Sunil's lap. It is in the evidence of PW2 that the two accused persons had not come to see her father, Siring Boro, as the two accused had been hiding. PW2 has further deposed that police came on the following day of the occurrence and examined them and that she gave before the Magistrate a statement, which is Ext. 5. 25. In her cross-examination, PW2 has deposed that she had not seen as to who had set fire to the house of Sunil, but she had heard her sister-in-law, Anima, shouting. Explaining the reason as to why she had not mentioned to the police the names of accused Rajbhor and Binon as the persons, who had been shouting, PW2 has deposed that the two accused had threatened that the villagers should not talk too much to the police and if somebody were to do so, his/her life would be endangered and, that was why, she had not mentioned the names of accused Rajbhor and Binon to the police. This assertion of PW2 has gone unchallenged by the defence. 26. PW3 is a neighbour of the informant, Anil (PW1), as well as of the accused, Binon Boro. In his evidence, PW3 has deposed that he was not present at his home at the time of the occurrence, because he had gone to the town for work as a daily wage earner, that the day of the occurrence was the day of Saraswati puja and that when he returned home at about 9.00 p.m., he saw that several people had gathered at the house of the informant and that the house of the informant had been gutted in fire. It is the further evidence of PW3 that, on the following morning, he came to know that David Boro, Phiku Boro, Diganta Boro, Jiban Boro, Siring Boro and Anima Boro had been murdered by the accused Binon Boro, but he did not know as to how the house had been gutted in fire or as to who had set the house ablaze. 27. PW3 was declared hostile by the prosecution and was cross-examined. In his cross-examination, PW3 has, however, denied to have stated before the police that on the day of the occurrence, at about 8.00 p.m., when the father of the accused, Siring Boro, the mother of the accused, brother, Anil Boro, and sister, Moina Boro, were taking meals, the accused came to his parents' house and had an argument for the landed property and, suddenly, accused Binon Boro assaulted his father by a lathi on his father's head and, that, thereafter, Binon Boro, along with accused Rajbhor Boro, assaulted Sunil Boro, whereupon Sunil Boro fell down on the ground and Rajbhor Boro went to his house and Binon Boro went to the house of Sunil Boro and set fire to Sunil's house and, as a result thereof, Anima Boro, David Boro, Diganta Boro, Fiku Boro and Jibon Boro, who were inside Sunil's house, were burnt to death, that though he saw the entire occurrence, he could not shout, because of fear. 28. 28. Considering the fact that PW3 has not owned up the statement, which was attributed to have been made to the police by him during the investigation of the case, the previous statement of PW3, depicted above, is not substantive evidence and cannot, therefore, be relied upon to found any of the two accused-appellants guilty of the offences, which they stood charged with. 29. Coming to the evidence of PW4, we notice that PW4 was the VDP Secretary of Panipota village, where the occurrence took place. In his evidence, PW4 has deposed that on the night of occurrence, at about 7.30 p.m., while he was at his home, he heard hulla from the direction of the house of Anil Boro (PW1) and, about one hour thereafter, Anil Boro (PW1) came to his house and informed him that his father, Siring Boro, and brother, Sunil Boro, had been murdered by his brother, accused Binon Boro, but, out of fear, he (PW4) did not visit the house of Anil Boro and when he visited the house of Anil Boro (PW1), on the next morning, he met the other family members of Anil Boro (PW1) and, on being asked, the informant (i.e., Anil Boro) told him (PW4) that accused Binon Boro had committed murder of his father, Siring Boro, and his brother, Sunil Boro, Anima Boro (i.e., wife of deceased Sunil Boro) and their four children and, thereafter, he (PW4), accompanied by a cousin of Anil Boro and another person, went to the police station, police came to the place of occurrence and seized some articles. It is also in the evidence of PW4 that he saw all the dead bodies. 30. From the cross-examination of PW4, nothing significant could be elicited by the defence to prove that what he had deposed were untrue or false. 31. PW5 is the doctor, who, admittedly, conducted post mortem examination on the dead body of Sunil Boro. The post mortem examination revealed as follows: "Injury: (1) A lacerated injury of size 4 cm x 3 cm is present over the scalp on the back right side over the occipital bone with bone deep. (2) A comminuted fracture is present in the occipital bone under the injury No. 1 through which brain matter comes out. (3) A depressed fracture is present in the parietal bone at the vertex. (2) A comminuted fracture is present in the occipital bone under the injury No. 1 through which brain matter comes out. (3) A depressed fracture is present in the parietal bone at the vertex. Scalp, Skull, Vertebrae: Scalp and skull as described, vertebrae healthy. Membrane - congested. Brain - lacerated, Liver, Spleen, Kidney, Bladder - healthy. Organ or genital - External as described, internal healthy. Walls, ribs, cartilage, pleura, larynges and tracia, lungs, pericardium, heart, vessel all are healthy. Disease and deformity not detected. Dislocation not detected. Abdomen-walls, peritoneum, mouth, pharynges, esophagus - all healthy. Stomach and its contents - Mucosa healthy and contained about 100 gms of partially digested food materials without any suspicious smell. Small intestine and its contents: Mucosa healthy and contained digested food particles without any suspicious smell. Large intestine and its contents: Mucosal healthy and contained focal matter." 32. With regard to the cause of death of Sunil Boro, the doctor (PW5) has opined that death was due to coma as a result of the head injury, sustained by Sunil Boro, that all the injuries were ante-mortem and were caused by blunt force impact and that the injuries were homicidal in nature. 33. In his cross-examination by the defence, PW5 has clarified that though the head injury, on deceased Sunil, might be caused by falling on a hard substance, the injury, on vertex, was caused by blunt force impact. 34. By cross-examining PW5, the defence did not succeed in showing that the findings and/or opinion of the doctor, as regard the injuries sustained by deceased Sunil and the cause of his death, were either erroneous or false or unreliable. This apart, even we do not notice anything inherently improbable or incorrect in the evidence of the doctor (PW5) and, hence, we have no reason to disagree with the findings of the doctor and his opinion with regard to the cause of death and/or the nature of injuries and the nature of weapon used. 35. It is in the evidence of PW5 that, on the same day on which he conducted post mortem examination on the dead body of Sunil, he conducted post mortem examination on the dead body of Siring Boro too. The post mortem examination, conducted on the dead body of Siring Boro, revealed as follows : "Injury: 1. 35. It is in the evidence of PW5 that, on the same day on which he conducted post mortem examination on the dead body of Sunil, he conducted post mortem examination on the dead body of Siring Boro too. The post mortem examination, conducted on the dead body of Siring Boro, revealed as follows : "Injury: 1. A lacerated injury of size 4 cm x 3 cm is present over the middle of the chin exposing the teeth and bone. 2. A lacerated injury of bone deep size 4 cm x 3 cm present over the scalp is parietal area right side 3 cm away from midline and extending to the vertex. 3. A comminuted fracture is present in the parietal bone. Calp. Skull vertebra. Scalp and skull as described, vertebra healthy. Membrane - congested. Brain - lacerated over the injury No. 3. Liver spleen kidney bladder - healthy. Organ of genital - External as described, internal healthy. Walls ribs cartilage, Pleura, Larynges and tracia, lungs, pericardium, heart, vessel all are healthy. Disease or deformity not detected. Dislocation not detected. Abdomen-walls, peritoneum, mouth, pharynges, esophagus - all healthy. Stomach and its contents - Mucossa healthy and contained about 100 gms. of partially digested food materials without any suspicious smell. Small intestine and its contents: Mucosa healthy and contained digested food particles without any suspicious smell. Large intestine and its contents: Mucosas healthy and contained focal matter." 36. In the opinion of the doctor (PW5), Siring Boro's death was caused due to coma as a result of the head injury, sustained by Siring Boro, that all the injuries were ante-mortem and were caused by blunt force impact and that the injuries were homicidal in nature. 37. In his cross-examination by the defence, PW5 has explained that though the head injury on deceased Siring Boro might be caused by falling on a hard substance, the injury, on vertex, was caused by blunt force impact. 38. By cross-examining PW5, the defence could elicit nothing to show that the findings and/or opinion of the doctor, as regard the injuries sustained by deceased Siring Boro and the cause of his death, were either erroneous or false or unreliable. 38. By cross-examining PW5, the defence could elicit nothing to show that the findings and/or opinion of the doctor, as regard the injuries sustained by deceased Siring Boro and the cause of his death, were either erroneous or false or unreliable. This apart, even we do not notice anything inherently improbable or incorrect in the evidence of the doctor (PW5) and, hence, we have no reason to disagree with the findings of the doctor and his opinion with regard to the cause of death and/or the nature of injuries and the nature of weapon used. 39. PW6, a co-villager of the informant as well as accused Binon Boro, was a witness to the inquest held by the police over the dead body of Sunil Boro. This witness has deposed that he had heard that the accused persons had committed murder of David Boro, Fiku Boro, Diganta Boro and Jibon Boro. 40. PW7 is also a co-villager of the informant as well as accused Binon Boro. PW7 is a witness to the inquest held by the police over the dead bodies of Siring Boro, Sunil Boro and the four other dead persons. 41. PW8 and PW9 were, at the relevant point of time, the Sr. Scientific Officer and Scientific Officer, respectively, at the Forensic Science Laboratory, at Kahilipara, Guwahati, to whom the samples of the remains of the charred bodies of Diganta Boro, Anima Boro, Jibon Boro and Fiku Boro were sent for serological test. In their reports, PW8 and PW9 have recorded that the remains of the dead bodies, sent to them for serological examination, were not fit for serological examination. However, in their reports, PW8 and PW9 confirmed that the remains of the dead bodies did not give any positive test for poison. The defence declined to cross-examine these two witnesses. 42. PW10 was the Sub-Inspector of Police, at Tangla Police Station, who has deposed that he, after going through the case diary, found that Sub-Inspector, Manoj Baruah (PW11), who had investigated the case before him, had already completed the investigation and he (PW10), therefore, merely submitted charge sheet against accused Binon Boro and Rajbhor Boro. 43. PW11 is the Investigating Officer of the case. 43. PW11 is the Investigating Officer of the case. In his evidence, this witness has deposed that on 23.1.2009, i.e., on the following day of occurrence, the Officer-in-charge, Tangla Police Station, entrusted him with the investigation of the case, whereupon he (PW11), along with his police staff, reached the house of deceased Siring Boro, drew a sketch map of the place of occurrence, held inquests over the dead bodies of Siring Boro and Sunil Boro, seized one wooden stick and one bloodstained iron rod and, thereafter, sent the dead bodies to Civil Hospital, Mangaldai, for post mortem examination. PW11 has deposed that Anima Boro, David Boro, Jibon Boro and Fiku Boro were burnt to ashes completely and, hence, post mortem examination on the aforesaid persons' dead bodies could not be done. It is the further evidence of PW11 that accused Binon Boro was arrested on 24.1.2007 and accused Rajbhor Boro was arrested on 26.1.2007. 44. From the cross-examination of the Investigating Officer, nothing significant could be elicited by the defence to show that whatever this witness had deposed was untrue and/or false or unreliable. 45. From the above discussion of the evidence on record, we find that there is no direct evidence against the accused-appellants involving them in the commission of an offence under section 436, IPC inasmuch as no one had seen the two accused-appellants setting fire to the house of Sunil Boro. Though PW1 has claimed that the two accused had set fire to the house of Sunil, the fact remains that even PW1 has not claimed that he had witnessed the two accused setting fire to the house of Sunil Boro. Far from this, the evidence on record shows that PW1 had run away after having seen the assault on his father, Siring Boro, and he. brother, Sunil Boro, and had not, therefore, seen any of the two accused-appellants setting fire to the house of Sunil Boro. Neither did PW1 mention nor did the prosecution or the court ask PW1 as to who was the witness, who had told PW1 that the accused persons had set fire to the said house. 46. Similarly, PW2 did not see the accused persons setting fire to the house of deceased Sunil. PW2 has merely stated that she had heard the accused persons shouting at the time of setting fire to the house of Sunil. 46. Similarly, PW2 did not see the accused persons setting fire to the house of deceased Sunil. PW2 has merely stated that she had heard the accused persons shouting at the time of setting fire to the house of Sunil. What the two accused-appellants were shouting, at the said point of time, is not discernible from the evidence on record. However, PW2 has admitted that she did not state before the Investigating Officer that the accused persons had been shouting at the time of setting fire. Later on, she gave an explanation by saying, in this regard, that the accused persons had threatened her by saying that her life would be endangered and, for this reason, she did not, out of fear, mention the name of accused Rajbhor before police. 47. Even if what she has stated is true, we find it wholly unsafe to rely on the testimony of PW2, wherein, she, for the first time, stated before the court that at the time of the incident of fire, she heard the accused persons shouting, more particularly, when we notice that PW1 has not claimed that she had seen any of the two accused-appellants setting fire to the house of her brother, Sunil Boro (since deceased). 48. In this case, the name of the accused, Rajbhor, was, admittedly, not mentioned in the FIR. Only accused Binon Boro has been implicated in the FIR. PW1, who witnessed the occurrence, has stated that, later on, he came to know that accused, Rajbhor, had made his brother, Sunil (deceased), fall on the ground and beat him to death; but PW1 had not stated before the police that Rajbhor Boro had assaulted his brother. Similarly, PW2 did not mention the name of Rajbhor in her statement recorded either under section 164, Cr.PC or under section 161, CrPC. Therefore, involvement of accused, Rajbhor Boro, in the commission of the crime is doubtful. 49. The evidence of PW1 and PW2, as regards involvement of accused Binon Boro in causing death of his father, Siring Boro, and brother, Sunil Boro, are cogent and without blemish. But the evidence of PW1 and PW2 that accused Binon Boro is responsible for causing death of the wife and children of Sunil Boro by setting fire to their house, as indicated above, cannot be safely relied upon. But the evidence of PW1 and PW2 that accused Binon Boro is responsible for causing death of the wife and children of Sunil Boro by setting fire to their house, as indicated above, cannot be safely relied upon. The victims, in this case, were, no doubt, innocent, helpless and relatives of the accused; but there is no direct or indirect evidence, which shows that accused-appellants were the ones, who had set fire to the house of Sunil, and/or caused death of Sunil's wife and children. There may be suspicion that the accused-appellants were the ones, who had set fire to the house of Sunil Boro, but the fact remains that suspicion, howsoever strong, cannot take the place of proof and cannot become the basis for conviction of an accused. 50. In the facts and circumstances of the case at hand, we do not find any such aggravating circumstances, which could make one hold that the present case was the rarest of rare cases calling for imposition of capital punishment. 51. For the reasons discussed above, we find ourselves constrained to hold that the conviction of the accused-appellant, Rajbhor Boro and the sentences passed against him are required to be set aside and he deserves to be acquitted of the offences of which he stands convicted of. 52. As far as the accused-appellant, Binon Boro, is concerned, we are of the view that his conviction, under section 302, IPC, for committing the offence of murder, by intentionally causing deaths of his father, Siring Boro, and his brother, Sunil Boro, need to be maintained, but his conviction for having committed murder, by intentionally causing the death of Sunil Boro's wife and his children by setting fire to their house, must be set aside and the accused-appellant, Binon Boro, shall accordingly be acquitted and the sentences passed against him, in this regard, shall accordingly be set aside. 53. In the result and for the reasons discussed above, while we hereby acquit accused-appellant, Rajbhor Boro, of the offences, which he has been convicted of, we maintain the conviction of the accused-appellant, Binon Boro, for committing murder by intentionally causing death of his father, Siring Boro, and his brother, Sunil Boro. 53. In the result and for the reasons discussed above, while we hereby acquit accused-appellant, Rajbhor Boro, of the offences, which he has been convicted of, we maintain the conviction of the accused-appellant, Binon Boro, for committing murder by intentionally causing death of his father, Siring Boro, and his brother, Sunil Boro. We, however, set aside the conviction of the accused-appellant, Binon Boro, for having intentionally caused the deaths of Sunil Boro's wife and his children and/or for setting fire to the house of Sunil Boro and the consequential sentences flowing therefrom. 54. We, while setting aside the sentences of death, passed against the two accused-appellants, hereby, sentence the accused-appellant, Binon Boro, to suffer imprisonment for life and also pay fine of Rs. 50,000 and, in default of payment of fine, suffer rigorous imprisonment for further period of 1 year. The amount of fine shall, if realized, be paid to the heirs of Siring Boro. 55. With the above observations and directions, this appeal as well as the Death Reference shall stand disposed of. 56. Let the amicus curiae be paid a sum of Rs. 5,000 each for their valuable assistance rendered to the court. 57. Send back the LCR.