Judgment S. Hoda, J. 1. In Cr. Appeal no.102 of 1987 there are two appellants, Sheo kumar Singh and Balister Singh alias Krishna Kant Singh and in Cr. Appeal no.118 of 1987 there is only one appellant, namely, Bijay Shanker Singh, appellant Bijay Shanker Singh was charged under Sections 302, 302/34, 120-B of the Indian Penal Code and Sec.27 of the Arms Act. Appellant Balister singh alias Krishna Kant Singh was charged under Sections 302/34, 120-B of the Indian Penal Code and Sec.27 of the Arms Act and appellant Sheo kumar Singh was charged under Sec.302/34 and 120-B of the Indian Penal code. All the appellants have been tried in Sessions Trial no.131/11 of 1984 by the 3rd Additional Sessions Judge, Sasaram. The learned Additional sessions Judge, by his judgment dated 7th March, 1987, convicted appellant bijay Shanker Singh under Sections 302, 302/84, 120-B of the Indian Penal code and Sec.27 of the Arms Act and sentenced him to undergo rigorous imprisonment for life under the aforesaid sections of the Indian Penal Code, and rigorous imprisonment for ore year under Sec.27 of the Arms Act. Appellant Balister Singh alias Krishna Kant Singh has been convicted under sections 302/34, 120-B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life under the said sections. He has also been convicted under Sec.27 of the Arms Act and sentenced to undergo rigorous imprisonment lor one year. Appellant Sheo Kumar Singh has been convicted for the offence under Sections 302/34 and 120-B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The sentences were ordered to run concurrently. Both the appeals have been heard together as they arise out of the common judgment and will be governed by this judgment. 2. The prosecution case is that on 12-12-1983 at 3.45 P. M. the deceased parmahans Singh was brought to Bhabua Sub-divisional Hospital in an injured condition for his treatment where he gave his statement before the Assistant Sub-Inspector of Police, Sri N. K. Singh, P. W.18, that while he was coming from kekra temple after offering his prayer the appellant Bijay Shanker Singh son of balsingar Singh of village Bararhi, P. S. Chand, District-Rohtas, fired at him causing injuries on different parts of his stomach as a result of which he fell down and raised alarm. On hearing the alarm raised by the deceased many persons of the village assembled there and they brought him to the said hospital for his treatment. The deceased has further stated that four to five days prior to the said occurrence the appellant Bijay Shanker Singh had assaulted the driver and couducter of his Bus for which a case was lodged at Chand P. S. The statement given by the deceased was read over and explained to him on which he put his left thumb impression as he was not in a position to put his signature on his statement. The Fardbsyan, which is Exhibit-11, was recorded in presence of witnesses Arjun Singh and Mahesh Singh and thereafter it was forwarded to Chand P. S. for institution of the case. Dying declaration of the deceased Parmahans Singh was also recorded at 4.15 P. M. by Sri Tarkeshwar pathak, Judicial Magistrate, P. W.15, in presence of Dr. Shayam Sunder Singh, p. W.9. The said dying declaration is Exiubit-5, One Ram Krit Singh, P. W.8, who is fall brother of the deceased and was making round of his field close to the said temple, reached the scene of occurrence on hearing the sound of gun fire and found appellant Bijay Shaoker Singh fleeing away on a Bullet motor cycle with a gun. He also found the Pujari of the temple and other persons there and saw his brother in a serions condition on the roof of the temple and so he brought him to the Sub-divisional Hospital for his treatment with the help of others. It is said that the condition of the deceased was very serious so he started with his injured brother for Benaras for his treatment. It is said that Parmahans Singh died on the way to Benaras near Mohania but as the body was having some temperature he was brought to State Hospital, Kapil chaura at Benaras where Dr. B. M. Shri vastava, P. W.13, declared him dead. P. W.13 also held post mortem on the deid body on 13-12-1983 at 2.45 P. M. 3. P. W.17, Chandrama Singh, was posted as Assistant Sub-Inspector of police at Chand Police Station in 1983. On hearing the news of death of parmahans Singh he went to the place of occurrence which is Mahabir temple situated at a distance of five hundred yards from the residential area of village kekra. P. W.17, Chandrama Singh, was posted as Assistant Sub-Inspector of police at Chand Police Station in 1983. On hearing the news of death of parmahans Singh he went to the place of occurrence which is Mahabir temple situated at a distance of five hundred yards from the residential area of village kekra. On the left of the temple he found blood and also found trailing marks of blood on the stair and blood marks were also found just close to the room of Pujari. He seized the blood and he also seized an empty cartridge and prepared seizure list, Exhibit-7, in presence of witnesses Shanker Singh and Bal karan Singh. One empty cartridge was handed over to P. W.17 by P. W.8 on 14-12-1983 which was said to have been found at the place of occurrence by P. W.8. The officer-in-charge, P. W.16, seized a S. B. B. L. gun no.2987 from the house of appellant Balister Singh alias Krishna Kant Singh of village sheohoria which was produced by the father of Balister Singh. The licence of the gun stands in the name of appellant Sheo Kumar Singh of village Sheohria. 4. The prosecution, in support of its case, examined twenty witnesses. Out of these, P. Ws.1 to 5 were declared hostile. P. Ws.6, 7, 8, 10, 11 and 14 are said to be eye-witnesses of the occurrence. P. W.9 is the doctor who examined the injuries on the person of the deceased. P. W.12 is a formal witness and P. W.13 is the doctor who conducted the post mortem on the dead body of the deceased. P. W.15 is the Judicial Magistrate, who recorded the dying declaration, Exhibit-5. P. W.16 is the officer-in-charge of Chand Police station and P. W.17 is the Assistant Sub-Inspector of Police who investigated the case. P. W.18 is also an Assistant Sub-Inspector of Police. P. W.19 is a formal witness and P. W.20 is an Additional Judge, Varanasi. 5. First I will take up Cr. Appeal no.102 of 1987 in which Balister Singh alias Krishna Kant Singh and Sheo Kumar Singh are the appellants. Out of the aforesaid eye-witnesses P. Ws.6, 10, 11 and 14, none of them have alleged anything against these two appellants nor they have named these appellants. 5. First I will take up Cr. Appeal no.102 of 1987 in which Balister Singh alias Krishna Kant Singh and Sheo Kumar Singh are the appellants. Out of the aforesaid eye-witnesses P. Ws.6, 10, 11 and 14, none of them have alleged anything against these two appellants nor they have named these appellants. P. W.7, Paharoo Singh, has stated that Balister Singh was seen with appellant bijay Shanker Singh at Chand Bazar earlier to the main occurrence on a motorbike with a S. B. B. L. gun which he handed over to the appeliant Bijay shanker Singh and got off the motor-bike and thereafter at about 3.00 P. M. he returned at Chand Bazar and said to this witness that he had killed the tiger which would not survive. P. W.8, Ram Krit Singh, has also not named these two appellants but. for the first time, in Court he stated that he suspects the hands of these two appellants also. Thus, from the evidence it will appear that the gun said to have been used for killing the deceased Parmahans Singh belonged to the appellant Sheo Kumar Singh and appellant Balister Singh alias krishna Kant Singh is said to have handed over this gun to the appellant Bijay shanker Singh. 6. Mr. Vyas Muni Singh, learned counsel appearing in Cr. Appeal no.102 of 1987 for the appellants, has submitted that there is no evidence on the record that the gun and the empty cartridges, which are said to have been seized, were sealed in presence of the appellants or witnesses and, in that view of the matter, it cannot be said that the empty cartridges, which were seized, were fired from that very gun, which was seized from the house of the appellant balister Singh alias Krishna Kant Singh. He has further submitted that the gun and the emptry cartridges were seized on 13-12-1983 but they were sent to the Director, Forensic Science Laboratory, Patna, on 28-12-1983. The report of the Director, Forensic Science Laboratory, was received by the Court on 24-7-1986, which is Exhibit-18. Thus. it has been submitted that the gun and the empty cartridges which were seized, had remained for fifteen days with the police without being sealed in presence of the appellants or the witnesses, cannot be said to have been used for killing the deceased. Thus. it has been submitted that the gun and the empty cartridges which were seized, had remained for fifteen days with the police without being sealed in presence of the appellants or the witnesses, cannot be said to have been used for killing the deceased. It may be also noticed that the appellant Sheo Kumar Singh, while examined under Sec.313 of the code of Criminal Procedure, was not put any question in regard to the gun. which is said to have been used for killing the deceased Parmahans Singh. 7. P. W.7. Paharu Singh, in his evidence, has said that he had seen the appeliant Balister Singh alias Krishna Kant Singh at Chand Bazar giving the gun to the appellant Bijay Shanker Singh and as to what happened at the place of occurrence P. W.7 is silent on that Whereas P. W.6, the Pujari, who has given the details of the happening at the place of occurrence, has stated in his evidence that P. W.7 was also present at the place of occurrence. Thus, in view of the evidence of P. W.6 it becomes doubtful that P. W.7 was at chand Bazar. In such a situation, it cannot be said that P. W.7 had seen the appellant Balister Singh alias Krishna Kant Singh giving gun to the appellant biyaj Shanker Singh at Chand Bazar. 8. In the report, Exhibit-18 in two sheets, of the Director, Forensic Science laboratory, Patna, it has been mentioned as follows : "it is, therefore, concluded that the cartridge cases marked D-1 and D-2 have been fired from the same firing pin of a weapon which fired s (A) viz. from 12 bore S. B. B. L. gun No.2937 marked a noted in Item (1 ). " the report further mentions : "as a result of chemical analysis the gun shot discharged residue could be detected in the swabbing indicating that the weapon sent for examination was fired some times before sending it to the laboratory. Opinion, however, on exact date and time of firing is not possible. " 9. Learned counsel has submitted that ths ballistic details are wanting in the report and as such the report of the Forensic Science Laboratory cannot be relied upon to establish that ths gun, which was sent for examination, was the same gun which was used to kill the deceased. " 9. Learned counsel has submitted that ths ballistic details are wanting in the report and as such the report of the Forensic Science Laboratory cannot be relied upon to establish that ths gun, which was sent for examination, was the same gun which was used to kill the deceased. It has been submitted that there is no evidence with regard to the distance from which the gun was fired no approximate time as to when the weapon was last fired has been given. It appears that medlies empty cartridges nor the test cartridge were produced in Court to enable the Court to satisfy itself about the correctness of the report of the expert. Thus, it has been submitted that in absence of these things the report, Exhibit-18, cannot be relted upon. It has also been submitted that there is no photographs of the finger-prints on the empty cartridges and the gua said to have been seized and as such the use of the gun for the aforesaid crime cannot be established. 10. In the case of In re Kodur Thimma Reddi and others, (reported in air 1957 Andhra Pradesh 758), their lordships have quoted passages from the book on Scientific Criminology by Nigel Morland : "nigel Morland in his book on Scientific Criminology at page 91 characterises these markings as thumb-print of the gun and describes them as below : - "when a fire arm of any kind is discharged, the gases generated by the combustion of the charge have two effects ; they eject the bullet from the muzzle with considerable velocity, and they drive back the cartridge against the breech face of the weapon. The pressure with which the later occurs is sufficient to cause the cap and base of the cartridge, which are of comparatively soft metal, to take an imprint of the breech face, in much the same way as a piece of wax pressed on to a seal takes an impression of the design. It is this imprint which enables cartridges to be identified as to having been fired from a particular gun. It is this imprint which enables cartridges to be identified as to having been fired from a particular gun. while describing the method of examining cartridges, at page 92 he states as follows :- "broadly, therefore, the method of determining whether a cartridge has been fired from a given gun-Often an important factor in crime investigation-Is as follows : several trial shots are fired from the gun it is desired to test. The markings made on the cartridges are compared with those on the suspected cartridge. By a process of comparison and minute examination according to a fixed plan, identity can be established or disproved with a probability of error so remote as to be entirely outside practical consideration. To put the problem simply, it may be stated thus : the trial shots give the thumb-print of the gun. Has the suspected cartridge the same thumb print If it has, identity is established ; if not, it is, certain that the gun and the cartridge do not "marry". In practice, as would be expected, the matter is not so simple as this and many difficulties and complications arise. To start with, not only the marks already mentioned on the base of the cartridge and on the cap, but those on the body, or tumular part, have to be considered. There are others that provide clues, such as the indentation made by the firing-pin and by the mechanism for ejecting the spent cartridge The pressure of the gases formed by the explosion also plays a part in determining the nature of the thumb-print, since, owing to slight differences in the charge as between cartridge and cartridge, certain marks may appear on one cartridge and not on another". This makes it clear that even the examination of cartridges requires minute care and through satisfaction for correct conclusions. The court drawing an inference from the opinion of the expert therefore should be satisfied of all these. " 11. It will appear from the evidence and materials on the record that the details are short in the report of the Forensic Science Laboratory in respect of the following : (i) The distance from which the gun was fired, not mentioned ; (ii) Approximate time as to when the gun was last fired is wanting ; (Hi) Pellets removed from the body of the deceased not microscopically compared with the pellets of the trial shots. The empty cartridges and the trial shot cartridges not produced before the court so that the identity of the marks on the suspect may be established with the test shot cartridge. 12. Thus, in the light of the discussion made above, I give benefit of doubt to the appellants Sheo Kumar Singh and Krishn Kant Singh alias balister Singh, They are, therefore, acquitted. Their conviction and sentences are set aside. 13. Criminal Appeal No.118 of 1987 :- In this appeal the appellant, Bijay Shanker Singh, is said to have fired at the deceased. The deceased, Parmahans Singh, in his Fardbeyan has clearly stated that appellant Bijay Shanker Singh twice fired at him which hit him at his stomach at several places. The Fardbeyan of the deceased is Exhibit-11. The dying declaration of the deceased, which is Exhibit-5, is very brief and which reads as follows :This dying declaration was recorded by P. W.15, Tarkeshwar Pathak, who was at the relevant time Judicial Magistrate, first class. P. W.8. who is full brother of the deceased, was making round of his field close to the place of occurrence, on hearing the sound of gun he arrived at the place of occurrence and saw appellant Bijay Shanker Singh fleeing away on a Bullet motor cycle with a gun in his hand. 14 Mr K. N. Chaubey, learned counsel appearing on behalf of the appellant in Criminal Appeal No.118 of 1987, has submitted that the prosecution case is inherently incredible and that the mental condition of the deceased was such that he could not have given the statements, as contained in exhibit-11 and Exhibit-5. In this connection,he has pointed out that in the dying declaration it has been mentioned that the deceased, who had received gun shot injuries in his stomach,gave his statement with great difficulty because he was "ardh Morchit". Thus, the learned councel has submitted that the deceased was not in a fit mental condition to give any statement. This contention of the learned counsel cannot be accepted. The word "ardh morchit" does not mean that he was not in a position to make any statement. The Fardbeyan and the dying declaration clearly show that it was appellant bijay Shanker Singh who fired at the deceased. None of the witnesses, who have been examined, has stated that the petitioner was not in a condition to give any statement. The word "ardh morchit" does not mean that he was not in a position to make any statement. The Fardbeyan and the dying declaration clearly show that it was appellant bijay Shanker Singh who fired at the deceased. None of the witnesses, who have been examined, has stated that the petitioner was not in a condition to give any statement. There is no reason to disbelieve the evidence of P. W.15, who recorded the dying declaration and has stated in his evidence that at the time of recording the statement of the injured, the injured was in a position to understand and give reply after understanding the same. In view of this clear evidence of P. W.15 it is not possible to accept the submission of the learned counsel for the appellant. Learned counsel has not shown any material to disbelieve the evidence of P. W.15 who was a Judicial Magistrate at the relevant time. Nor the defence has been able to show that the deceased was tutored to make such a statement. It will also be relevant to mention here that not even a suggestion was given to the Investigating Officer or the Magistrate that the deceased was not in a position to give statement as noted in the dying declaration. No doubt, P. W.15 has stated that several persons were present while he was recording dying declaration but by mere presence of several persons at the time of recording dying declaration but by mere presence of several persons at the time of recording of dying declaration it cannot be inferred that the statement was tutored. Had there been tutoring by the persons present there P. W.15, who is a responsible Judicial Officer, must have mentioned this fact. But, as I have stated earlier,not even a suggestion was put to him by the defence. 15. There are several eye witnesses of the occurrence P. W.6, who was the Pujari of the temple, has stated in his evidence that at the time of occurrence he was sitting near the temple where the appellant Bijay Shanker Singh came with a single barrel gun and enquired from him about the deceased. He told the appellant that he was offering prayer inside the temple. At that very time the deceased came out from the temple and thereafter the appellant fired at him causing injuries on his stomach. He told the appellant that he was offering prayer inside the temple. At that very time the deceased came out from the temple and thereafter the appellant fired at him causing injuries on his stomach. The deceased caught hold of the gun but the appellant assaulted him with his leg and got his gun released and thereafter the appellant again fired at him It has been submitted that this witness was suffering from cataract and he could not have identified the appellant. But, from the evidence it appers that the appellant had gone to him an enquired from him about the deceased therefore it cannot be said that he could not have identified him. Moreover, it has not come in the evidence that duc to cataract he was completely unable to see anything. The defence has not been able to take out anything to disbelieve this witness. The next witness is P. W.8, who is brother of the deceased. According to his evidence he was making round of his field close to the temple and on hearing the sound of gun he went towards the temple and saw persons running and also saw the appellant fleeing away on a motor cycle with a gun in his hand. He has also said that the Pujari, who is P. W.6,and other persons were saying that it was the appellant who had murdered his brother witha gun shot. The next witness is p. W.11, who is also related to the deceased. He has said in his evidence that while he was going towards his field on the eastern side of the village he saw two persons running towards the temple and he also accompanied them and saw the appellant going towards the temple, He also went towards the temple where he saw that the appellant caused injury to the deceased by fire arm. P. W.10 is also a close relation of the deceased. He has also said in his evidence that the appellant fired at the deceased twice. P. W.14, who is also brother of the deceased, though not an eye-witness, has stated that he heard the appellant saying that he had killed the tiger. 16. The defence has not been able to bring out any tangible material from the evidence of the aforesaid witnesses which would discredit their evidence. P. W.14, who is also brother of the deceased, though not an eye-witness, has stated that he heard the appellant saying that he had killed the tiger. 16. The defence has not been able to bring out any tangible material from the evidence of the aforesaid witnesses which would discredit their evidence. P. W.9, Shyam Sunder Singh, is the doctor who examined the deceased on 12-12-1983 and found a number of injuries. According to him, these injuries were caused by fire arms and were grievous in nature and dangerous to life. The injury report is Exhibit-3. No doubt, in his evidence he has stated that all the injuries were within a radius of 1 1/2" and were result of one shot. But, in Exhibit-3, which is the injury report prepared by him, it has not been stated that the injuries were the result of one shot nor it has been stated in the report that the deceased was not in a position to give statement. The post mortem was done by Dr. B. M. Shrivastava, P. W.13. He found a number of gun shot injuries on the person of the deceased. In his evidence he has said as follows: (1) Multiple stiched wound seven in number in an area of 8 Cm x 9 Cm on upper part of the abdomen below sternum, 11 Cm above umblicus. (2) Gun shot wound 1/2 Cm x 3/4 Cm with averted margin 16 Cm away from mid-line on back of left lumber region. (3) Gun shot wound 1/2 Cm x 1/2 Cm averted margin 1 1/2 Cm below wound No. (2), 14 Cm away from midline on back left lumber region. (4) Stiched wound 2 Cm in length on outer aspect of left side of abdomen, 10 Cm below left scapula. On internal examination be found left 9th rib on outer part fractured. Both chambers of the heart were empty. Three litres of blood was found in abdominal cavity. Six holes with irregular margin were present on stomach 1 ft. away from the deodunum. Transverse column were ruptured. Left lobe of liver and spleen were also ruptured. Two pellets were taken out from the tissues surrounding wound no 4 and another two pellets were taken out from wound no.3. 17. From the evidence of the afofesaid eye-witnesses and the evidence of the doctor, P. W.13, the guilt against the appellant is established. Transverse column were ruptured. Left lobe of liver and spleen were also ruptured. Two pellets were taken out from the tissues surrounding wound no 4 and another two pellets were taken out from wound no.3. 17. From the evidence of the afofesaid eye-witnesses and the evidence of the doctor, P. W.13, the guilt against the appellant is established. No doubt, p. W.9, the doctor, who examined the injuries at the first instance, has introduced some facts which appears to have been done with the purpose of weakening the defence. Thus, in the light of the evidence of the eye-witnesses and p. W.13 the evidence of P. W 9 cannot be given much weight. 18. The learned counsel for the appellant has next contended that in the fardbeyan the deceased has not mentioned whether it was a single barrel or double barrel gun. But, in the dying declaration he has stated that he was shot at by the appellant by a double barrel gun and as such the dying declaration cannot be relied upon because it is against the evidence on the record. The p. Ws have stated that the deceased was shot at by a single barrel gun. It has also been submitted that the learned trial court has erred in relying on one part of the dying declaration and rejecting the other part. It has been urged, therefore, that dying declaration should not have been relied partly. No doubt, the trial court has held that the "material portion of the dying declaration that he was murdered by Bijay Shanker Singh can be accepted as it can be separated. The other evidence show that that part of the dying declaration relied upon is correct and trustworthy and as such the Court can act upon this part of the dying declaration despite the fact the other part of the dying declaration has not been proved to be correct". The trial court, in my view, should not have separated the dying declaration in two parts and accepted one part and disbelieved the other part. 19. Event if it is accepted that there is discrepancy in the dying declaration and the evidence of the P. Ws with regard to the use of the type of the gun, nothing much turns on this. 19. Event if it is accepted that there is discrepancy in the dying declaration and the evidence of the P. Ws with regard to the use of the type of the gun, nothing much turns on this. The deceased has clearly stated that he was fired at twice and the P. Ws have also stated that the appellant fired at the deceased twice. Therefore, in this context, the deceased while making dying deciaration, might have used the expression double barrel gun. Therefore, this discrepancy will not make the prosecution case fall on the ground. The Fardbeyan, the dying declaration and the evidence of the prosecution witnesses clearly establish the charge of murder against the appellant, Bijay Shanker Singh. It will be pertinent to note in this case that the dying declaration was given by the deceased at a short time before his death and that he was injured and lying in a precarious condition and the dying declaration was made shortly after assault. In such a situation, this dying declaration cannot be discarded on the ground of minor discrepancy. As it has been noticed above, the dying declaration is very brief and specific and clearly mentions the name of the appellant who has committed the offence. 20. It has been next contended by the learned counsel for the appellant that on the date of occurrence the appellant, Bijay Shanker Singh, was not present at the place of occurrence rather he was, on that date, present in the court of Judicial Magistrate, first class, at Varanasi. In this connection, the learned counsel has referred to the Exhibits produced by the prosecution and the evidence of prosecution witnesses. Exhibit-14 is the order sheet of Case no.1173 of 1983 of the Court of Judicial Magistrate, varanasi in which appellant, Bijay Shanker Singh, was accused. That order sheet relates to 12-12-1983 and in the margin the appellant Bijay Shanker singh had signed. Thus, it has been submitted that on the relevant date the appellant was present in the Court at Varanasi and it was improbable for the appellant to commit the offence. That order sheet relates to 12-12-1983 and in the margin the appellant Bijay Shanker singh had signed. Thus, it has been submitted that on the relevant date the appellant was present in the Court at Varanasi and it was improbable for the appellant to commit the offence. The learned counsel appearing on behalf of the State has submitted that from the evidence on the record it will appear that the distance from the place of occurrence to the Court at Varanasi is about 60 Kms and the appellant, according to the witnesses, fled from the place of occurrence on a motor bike and, in such a situation, it has been contended that to cover a distance of 60 Kms by a motor bike will not take more than one and half hours. The occurrence is said to have taken place at 2.30 P. M. and there was sufficient time for the appellant to reach Varanasi on the motor bike within one and half hours and to put his appearance in the Court there on that day. It has also been submitted that there was an allegation of interpolation in the order sheet of the learned Magistrate at Varanasi. The order sheet of the said date is as follows :It was alleged that the words "der Se" were struck off. In this regard an enquiry was conducted by the 3rd Additional District Judge, Varanasi, who, after enquiry found that the words "der Se" were struck off in collusion with the Bench Clerk. The said enquiry report is Exhibit-15. The 3rd Additional district Judge, Varanasi, was examined as P. W.20 and he has proved the enquiry report. Thus, on the basis of the evidence and exhibits on the record it appears that the appellant, after committing the offence rushed to Varanasi on motor bike and put his signature on the order sheet. It is also apparent that in order to show his presence during the day time at Varanasi he got the words "der Se" in the order sheet deleted in collusion with the Bench Clerk as was found in the enquiry. Having regard to the facts and circumstances of the case, the alibi of the appellant on the day and time of occurrence is not proved. 21. Having regard to the facts and circumstances of the case, the alibi of the appellant on the day and time of occurrence is not proved. 21. Having regard to the facts and circumstances of the case and in view of the discussions made above, 1 up hold the conviction of appellant bijay Shanker Singh. 22. In the result Cr. Appeal no.102 of 1987 is allowed and appellants sheo Kumar Singh, and Krishna Kant Singh alias Balister Singh who are on bail are discharged from the liabilities of their bail bonds, and Cr. Appeal no.118 of 1987 is dismissed. Appeal Dismissed.