Judgment P. K. Sarin, J. 1. -all the three appeals have been filed against the judgment and or conviction dated 29th August, 1991 passed by the 4th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No 28 of 1990 by which the appellants have been convicted under Sec.302 read with Sec.34 of the Indian Panal Code and sentenced to undergo imprisonment for life. AH the appellants, except Gorakh Singh (appellant in Cr A no.346 of 1991) were also found guilty under Sec.27 of the Arms Act and sentenced to undergo rigorous imprisonment for five years However sentences were to run concurrently. 2. The prosecution case, in brief, is that Ajit Kumar Tiwary (the deceased) along with his minor daughter. Kumari Sadhna was proceeding from his house at about 12 noon on M-1989 from his village Kumhau, police Station Sheosagar in the district of Rohtas for Sasaram and when he reached in front of the house of accused-appellant Dwarikanath Tiwary (appellant in Criminal Appeal No.382 of 1991), accused Gorakh Singh (appellant in Cr. A. No, 346 of 1991) exhorted to kill Ajit Kumar Tiwary whereupon accused Narbdeshwar Tiwary (appellant in Cr. A No 382 of 1991) fired at the deceased Ajit Kumar Tiwary by a gun. The deceased Ajit kumar Tiwary tried to flee away to save his life but accused Mithilesh upadhyaya (appellant in Cr. A. No- 373 of 1991) fired upon the deceased ajit Kumar Tiwary by a rifle which hit the chest of the deceased It is further alleged that accused Dwarika Tiwary (appellant in Cr A No.382 of 1991) also fired from his rifie. Ajit Kumar Tiwary ran towards his Baithka and accused Raghunath Singh (appellant in Cr. A. No.346 of 1991 was said to have chased him with spear in his hand. It is alleged that Ajit kumar Tiwary fell down at his door. It is further alleged that Chandradeep tiwary (informant P. W.6) a cousin of the deceased Ajtt Kumar Tiwarv was at the roof of his Dalan and had witnessed the occurrence Sudama singh (P. W.2), Paras Nath Tiwary (P. W, 4), Rajeshwar Singh (P. W.5)and one Mangal Singh (not examined) were also at the roof and they and chandradeep Tiwary came down to the place where Ajit Kumar Tiwarv was lying seriously wounded. It is alleged that accused-appellant Narbdeshwar tiwary went away after threatening that "sala KO KHATAM KAR DIVA jo UNKA SAATH DEGA UNHEN BHI KHATAM KAK DENGE. " chandradeep Tiwary and other witnesses carried Ajit Kumar Tiwarv on a cot for taking him to Sasaram for treatment. However, by the time they reached the outskirts of the village Kumbhau, Ajit Kumar Tiwary succumbed to his injuries. After putting the dead body at Kumbhau gate Chandradeep tiwary, the informant, went to the police station to inform the occurrence at 1.35 P. M. he reached the police station, Sheosagar. which was at a distance of about 7 K. M. to the south-west of village Kumbhau and his fardbeyan was recorded and on its basis first information report (Ext 4)was drawn up. The cause of incident was said to be dispute regarding property with the accused-appellant Narbdeshwar Tiwary and dwatika Tiwary. Madhusudan Sharma (P. W.7), who was the Officer-in-charge of the police station, Sheosagar investigated the case. He reached kumbhau gate at about 2.25 P. M and got prepared the inquest report (Ext.2 ). He recorded the statements of the informant, Chandradeep Tiwary (P. W 6) and Sudama Singh (P W.2) at the same place The dead body after sealing was sent for postmortem examination through constable parmanand Ray (P. W.9) and Cbaukidar Dudhnath. The Investigating officer inspected the place of occurrence at about 4 P. M. and, seized the blood from the Baithka of Ajit Kumar Tiwary (where the deceased Ajit kumar Tiwary is said to have ultimately fallen down after running from the place of occurrence) The postmortem examination on the dead body of ajit Kumar Tiwary was done by Dr. Bhagwan Singh (P. W.8) on 1-1-1989 at 4 P. M. and he prepared the postmortem examination report (Ext.5 ). After investigation charge-sheet was submitted and the case was committed to the court of session. 3. The prosecution examined Arbind Kumar Tiwary (P. W.1) (nephew of the deceased), Sudama Singh (P. W.2), Paras Nath Tiwary (P. W.4 ). a gotia of the deceased, Rajeshwar Singh (P. W.5 ). and Chandradeep Tiwary, informant (P. W.6), Madhusudan Sharama, Investigating Officer (P. W.7), dr. Bhagwan Singh (P. W.8) and Constable Parma Nand Roy (P. W.9) in support pf its case. P. W.3 Sadhna Kumari has been tendered. a gotia of the deceased, Rajeshwar Singh (P. W.5 ). and Chandradeep Tiwary, informant (P. W.6), Madhusudan Sharama, Investigating Officer (P. W.7), dr. Bhagwan Singh (P. W.8) and Constable Parma Nand Roy (P. W.9) in support pf its case. P. W.3 Sadhna Kumari has been tendered. Out of the witnesses examined on behalf of the prosecution P. Ws.1 to 6 are said to be the eye witnesses of the occurrence. 4. The accused-appellants had denied the charges and alleged false implication on account of enmity Accused-appellant Mithilesh Upadhyaya pleaded alibi that he was at Varanasi on the date of occurrence. The defence examined Chandreshwar Singh, constable (D. W.1), Shiva Shankar Dubey (P. W.2 ). Sudama Singh (D. W.3), Mahesh Tiwary (D. W.4), Nand kishore Tiwary (D W.5), Dr. Kundan Sinba (D. W.6), Deepak Kumar verma, Dy, S. P. (D. W.7), Maya Prasad (D. W.8), I. Hussain (D. W.9)and Om Prakash Singh (D. W.10 ). 5. The trial court after appreciation of the evidence found the charges against the accused proved and accordingly convicted the accused-appellants as stated above. The trial court disbelieved the plea of alibi of accused-appellant Mithilesh Upadhyaya. 6. Being aggrieved by the said judgment and sentence the appellants have preferred these appeals. As these appeals arise out of the same judgment, they are being disposed of by this common judgment. 7. We have heard learned counsel for the parties and have perused the records. From the evidence on record, the death of Ajit Kumar Tiwary on 1-1-1989 on account of fire arm injuries is amply proved by the postmortem examination report (Ext.5) and the statement of Dr. Bhagwan Singh (P. W.8 ). According to postmortem report following antemortem injuries were found on the body of the deceased Ajit Kumar Tiwary : - "injury No.1 :- An oval wound of 3"x 1/2" into Cavity deep (thorax)with scorch and blackened margin around the wound on right side of the chest at the posterior hold of the exilla having inverted margin dark colour blood escaping (wound of entry ). Injury No, 2:-An oval wound of 1"x1/2" cavity deep (thorax)about 1/2" above the injury No.1 with inverted margin and scorching and blackening round the wound (wound of entry ). Injury No, 2:-An oval wound of 1"x1/2" cavity deep (thorax)about 1/2" above the injury No.1 with inverted margin and scorching and blackening round the wound (wound of entry ). Injury No.3: An irregular wound of 2 1/4"x1 1/4" cavity deep showing sternum with everted margin on the front of chest of right side proximal to sternum at the level of manubrium sterni (wound of exit)Internal injury on discection : 1.3rd rib on right side of chest cartilage was fractured on the front. Also right lateral margin of sternum was torn beneath, the wound of exit (injury No.3 ). 2. Pleura torn both beneath the injury of entry and exit, right pleural cavity was full of dark coloured blood with clots. Right upper lobe of lung (right) was torn through and through and a large-whole about 2" diameter was present. 3. The heart was punctured in the right lower part, a hole of about 1/2"diameter was seen sprouting dark coloured blood. 4. The stomach was full with indigested rice and vegetable materials. In the opinion of the doctor, these injuries were caused by fire-arm weapons and death occurred due to shock, haemo rhage and injury to vital organs ; viz, lung, heart due to the above injuries which were sufficient to cause death in normal course of nature. The Investigating officer Madhusudan Sharma (P. W.7) had found the dead body of Ajit Kumar Tiwary at Kumbhau gate and he had prepared inquest report (Ext.2), The postmortem examination was conducted at 4 P. M. on 1-1-1989 and in the opinion of Dr. fihagwan singh (P. W.8), the death could have occurred between 6 to 12 hours earlier it shows that the death had occurred on 1-1-1989 itself. 8. Now the question is whether the present appellants had assaulted and murdered Ajit Kumar Tiwary as is the prosecution case. 9. The prosecution has examined six eye witnesses to prove that the appellant Gorakh Singh exhorted to kill Ajit Kumar Tiwary and appellant mithilesh Upadhyay, Dwarikanath Tiwary and Narbdeshwar Tiwary had fired by their respective weapons and appellant Raghunath Singh had chased the deceased with bhalua (Gandasa) in his hand. 10. P. W.1 Arbind Kumar Tiwary is the nephew of the deceased Ajit kumar Tiwary. He is the son of Dineshwar Tiwary. According to his statement, he was at the roof of his house (Jananikita) and was giving water to Tulsiji. 10. P. W.1 Arbind Kumar Tiwary is the nephew of the deceased Ajit kumar Tiwary. He is the son of Dineshwar Tiwary. According to his statement, he was at the roof of his house (Jananikita) and was giving water to Tulsiji. He stated that he saw Ajit Kumar Tiwary going along with his daughter and when they reached near the door of Radha Tiwary appellant-accused Gorakh Singh exhorted to kill whereupon accused Narbdeshwar tiwary fired on Ajit Kumar Tiwary by his gun and immediately thereafter the accused Mithilesh fired from his rifle and that shot hit Ajit Kumar Tiwary. Thereafter. Ajit Kumar Tiwary ran towards his door (of the Baithka)whereupon accused Dwarikanath Tiwary fired on Ajit Kumar Tiwary from his rifle which also hit Ajit Kumar Tiwary and accused Raghunath Singh chased ajit Kumar Tiwary with Farsa in his hand. According to this witness Ajit kumar Tiwary reached the verandah of bis Baithka and fell down. He has further stated that the deceased succumbed to his injuries when he was being carried towards Kumbhau gate. Thereafter Chandradeep Tiwary (P. W.6)went to police station for lodging the information. He has farther stated that the Sub-inspector (Investigating Officer) came at Kumbhau gate and also visited the village and took, his statement and the statements of other witnesses, sudama Singh and Deonandan Tiwary. He has stated that there was enmity between accused Narbdeshwar Tiwary and the deceased regarding land. According to his statement, the dcceased and Chandradeep Tiwary (P. W.6) and Dineshwar Tiwary (father of P. W 1) had purchased 4 decimals of land from Shankar Tiwary and accused Narbdeshwar Tiwary got the said land transferred in his favour from Shankar Tiwary and a dispute was going on in respect of the said land. 11. Sudama Singh (P. W.2), a co-villager and Paras Nath Tiwary (P. W.4), a collateral of the deceased and Rajeshwar Singh (P. W.5), a co-villager have stated that they were on the roof of the Baithka of tbe deceased Ajit Kumar Tiwary when the incident took place and that they witnessed the incident from the roof of the Baithka of Ajit Kumar Tiwary. They have stated that they had gone to the Baithka of Ajit Kumar Tiwary for viewing T. V. programme and after the programme was over they were sitting on the roof of the Baithka. 12. They have stated that they had gone to the Baithka of Ajit Kumar Tiwary for viewing T. V. programme and after the programme was over they were sitting on the roof of the Baithka. 12. Sudama Singh (P. W.2) has stated that he saw the accused persons except Dwarkanath Tiwary, in the lane in front of the house of Radha tiwary and accused Narbdeshwar Tiwary was armed with gun while Mithilesh upadhyay was armed with rifle and accused Raghunath Singh was armed with Gaodasa. He has stated that accused Gorakh Singh exhorted to kill and accused Narbdeshwar Tiwary shot at the deceased with his gun and thereafter accused Mithilesh Upadhyay shot at the deceased with his rifle and when deceased Ajit Kumar Tiwary ran back and reached near the Sahan of accused Dwarkanath Tiwary, he was shot at by accused Dwarkanath tiwary by his rifle. He has further stated that accused Raghunath was chasing the deceased. Sudama Singh has stated that the deceased Ajit kumar Tiwary reached his veranda and fell down. According to this witness and other witnesses (Rajeshwar Singh, Chandradeep Tiwary and one Mangal singh, who witnessed the incident from the roof of the Baithka of Ajit Kumar tiwary) got down and found Ajit Kumar Tiwary profusely bleeding. Ajit kumar Tiwary was being carried on a cot when he succumbed to his injuries before reaching Kumbhau gate and the dead body was than kept at Kumbhau gate and Chandradeep Tiwary went to police station for lodging information. Thereafter, the Investigating Officer came and examined the dead body of the deceased and took his (witness) statement and sent the dead body for postmortem examination. 13. P. W.4 Paras Nath Tiwary, and P. W.5. Rajeshwar Singh have also made similar statements and have assigned the same role to the different accused as has been stated by P. Ws.1 and 2. 14. P. W.6 is Chandradeep Tiwarv, the cousin of (he deceased and informant of the case. He has stated that he saw the deceased going along with his daughter Kumari Sadhna and when the deceased reached near the eastern door of the bouse of Radha Tiwary, accused-appellant Gorakh Singh exhorted to kill him whereupon accused-appellant Narbdeshwar Tiwary fired with the double barrel gun and as soon as the deceased turned to save himself, accused appellant Mithilesh Upadhyay sho. t at him by his rifle which hit the deceased. t at him by his rifle which hit the deceased. He has further stated that the deceased Ajit Kumar Tiwary started running back (towards his Baithka) and when he reached in front of the Baithka of accused appellant Dwarka Nath Tiwary, he was shot at by accused appellant Dwarkanath Tiwary by his rifle which hit him. He has further stated that accued-appellant Raghunath Singh was chasing with farsa in his hand. According to his statement, the deceased fell down after teaching his Baithka. Chandradeep Tiwarv (P. W.6) has stated that he saw the occurrence from the roof of the Baithka and he and other witnesses got down and at that time the deceased was alive and when he was being carried on a cot for Sasaram the deceased succumed to his injuries by the time they reached the outskirt of the village. Thereafter the dead body of the deceased was rut down at Kumbhau gate and he went to police station to lodge information. He has stated that after the first information report was recorded he was examined by the Investigating Officer at the police station itself and thereafter he along with the Investigating Officer came to Kumbhau gate. The Investigating Officer examined the dead body and prepared inquest report (Ext.2) and sent the dead body for postmortem examination. He has further stated that the Investigating Officer inpsected the place of occurrence and he (witness) had shown him the mark of bullet (pelet) and blood-stains on the eastern door of the house of Radha Tiwary. He had further stated that he suspected foul play in the conduct of the investigation and as such he had lodged a protest petition (Ext.3) also. 15. P W.7 is Madhusudan Sharma, who is the Investigating Officer of the case. He has stated that first information of the case (Ext.1) was recorded in his presence at the police station on the basis of information given by Chandradeep Tiwary. Thereafter, he proceeded for investigation and reached Kumbhau gate at about 2 25 P. M. and prepared inquest report (Ext.2) of the dead body and at Kumbhau gate itself he recorded the statement of Sudama Singh (P W.2) and Deonadan Tiwary (not examined) in the case. He has stated that the dead body was sent for postmortem examination, and then he went to village Kumbhau and inspected the place of occurrence. He has stated that the dead body was sent for postmortem examination, and then he went to village Kumbhau and inspected the place of occurrence. According to his statement, he found blood-stains and piece of flesh at the eastern door of the house of Radha Tiwary and also found the mark of bullet on the eastern Chaukhat. He has stated that he found blood in the verandah of the Baithka of the deceased and also inspected the Baithka and seized the blood from the Baithka of the decased. He has further stated that he recorded the statement of Rajeshwar Singh, Paras Nath Tiwary and arbind Kumar Tiwary. According to his statement, the accused were found absconding when their houses were raided. After investigation, he submitted charge-sheet. P. W.3 Sadhna Kumari, minor daughter of Ajit Kumar Tiwary, who is aged about six years and was said to have accompanied the deceased at the time of the occurrence, was tendered. 16. Learned counsel for the appellants has contended that the witnesses examined by the prosecution are not reliable and they are interested witnesses and they are deposing against the accused on account of enmity. Attention was drawn to the statements of P. Ws.1,4 and 6 wherein these witnesses have admitted the dispute regarding land and the litigation between accused narbdeshwar Tiwary and the deceased Ajit Kumar Tiwary. P. W.1 Arbind Kumar tiwary has stated that deceased Ajit Kumar Tiwary had instituted a criminal case against the accused Dwarkanath Tiwary and his father Jit Narain Tiwary and others and he (P. W. I) is a witness on behalf of the prosecution in that case and the said case is still pending. P. W.1 has further stated that Smt. Pboolmati Kuer, mother of accused Narbdeshwar Tiwary had filed a case prior to the present occurrence against him and the deceased Ajit Kumar tiwary, Dineshwar Tiwary, Triveni Tiwary, Chandradeep Tiwary and Paras nath Tiwary and that case is still pending. P. W.1 has further stated that accused Natbdesnwar Tiwary had also filed a case against him and Ajit Kumar tiwary, Dineshwar Tiwary and Chandradeep Tiwary prior to the occurrence of the present case, but in that case they have been acquitted. P. W.4 Paras nath Tiwary has also admitted the pendency of Case No.54 of 1987 instituted by Smt Phoolmati Kuer, mother of the accused Narbdeshwar Tiwary. P. W.4 Paras nath Tiwary has also admitted the pendency of Case No.54 of 1987 instituted by Smt Phoolmati Kuer, mother of the accused Narbdeshwar Tiwary. He has also stated that the case instituted by accused Narbdeshwar Tiwary in the year 1986 against him and Ajit Kumar Tiwary, Chandradeep Tiwary, Dineshwar tiwary and Arvind Tiwary was dismissed. P. W. S Paras Nath Tiwary has stated that his father Deonandan Tiwary had mortgaged his land in favour of Deep Narain Tiwary, father of accused Dwarkanath Tiwary and in consolidation proceeding Jit Narain Tiwary has lost against his (witness)father and now an appeal is pending before the Deputy Director, Consolidation. 17. P. W.6 Chandradeep Tiwary has admitted the pendency of Case no.54 of 198? instituted by Smt. Phoolmati Kuer, mother of accused narbdeshwar Tiwary. He has stated that in that case accused Dwarkanath Tiwary and his father are witnesses for Stnt. Phoolmati Kuer. These witnesses, P. Ws.1,4 and 6 have stated about the dispute regarding 4 decimals of land purchased by deceased Ajit Kumar Tiwary, Chandradeep Tiwary and Dineshwar tiwary from one Shankar Tiwary which was later on got transferred by accused Narbdeshwar Tiwary in his favour from Shankar Tiwary. 18. Merely because the litigations are going on between the parties and there was subsisting dispute regarding 4 decimals of land of Shankar tiwary alleged to be transferred in favour of Ajit Kumar Tiwary and others and subsequenty in favour of accused. Narbdeshwar Tiwary could not by itself make the statement of these P Ws unreliable. If there was, a dispute regarding land or other incident and there was enmity on that score it would be like a sword cutting both ways. It may be motivating factor for the accused to make assault on Ajit Kumar Tiwary or the informant and other related witnesses may use the opportunity to implicate their enemies falsely. However, it appears most improbable that in a day time occurrence, the actual assailant would be left over and innocent persons would be implicated on account of enmity. The occurrence took place at about noon and it was witnessed by p. Ws.1,2,4 and 6. It does not appeal to reason that the accused persons would be implicated only on account of enmity leaving the actual assailant. P. W.2 Sudama Singh has not been found to be on litigating terms with the accused persons. The occurrence took place at about noon and it was witnessed by p. Ws.1,2,4 and 6. It does not appeal to reason that the accused persons would be implicated only on account of enmity leaving the actual assailant. P. W.2 Sudama Singh has not been found to be on litigating terms with the accused persons. P. W.5 Rajeshwar Singh has also not been shown to be on litigating terms with the accused persons. These two witnesses (P. Ws 2 and 5) are co-villagers. They have stated about the firing done by accused narbdeshwar Tiwary, Mithilesh Upadhyay and Dwarkanath Tiwary. There appears to be no reason to disbelieve their statements as regards accused-appellant narbdeshwar Tiwary, Dwarkanath Tiwary and Mithilesh Upadhyay. 19. Learned counsel for the appellants has contended that there is variation between the statements given by P. Ws.1,2,4, and 6 before the investigating Officer and before the court. It has been contended that the witnesses have improved their eatlier statements made before the Investigating officer. Learned counsel has drawn the attention to various omissions and contradictions as brought out in the cross-examination of P. Ws. The same, excepting the statements relating to accused-appellant Gorakh Singh and accused Raghunath Singh, do not appear to be material. The variation is regarding minute details Moreover, the informant Chandradeep Tiwary had filed protest petition (Ext.3) before the Chief Judicial Magistrate P. W.1 arbind Kumar Tiwary and P. W.6 Chandradeep Tiwary have stated that the investigating Officer did not record their statements correctly. The prosecution witnesses, who were eye witnesses of the incident, are consistent in their statement before the Investigating Officer as well as before the court that narbdeshwar Tiwary shot at the deceased by gun are accused Mithilesh upadbyay and Dwarkanath Tiwary shot at the deceased by rifle. The statement of Madhusudan Sharma, Investigating Officer (P. W.7) id cross-examination shows that P. W.1 Arbind Kumar Tiwary had not made statement before him that on accused Gorakh Singhs exhortion accused narbdeshwar Tiwary had shot with his gun and thereafter accused Mithilesh upadhyay fired with his rifle. He has further stated that Arbind Kumar tiwary (P. W.1) did not stated before him that when the deceased was running back then accused Dwarka Tiwary fired with his rifle on the deceased from the lane of his Dalans Sahan. He has further stated that Arbind Kumar tiwary (P. W.1) did not stated before him that when the deceased was running back then accused Dwarka Tiwary fired with his rifle on the deceased from the lane of his Dalans Sahan. Madhusudan Sharma (P. W.7) has, however, stated that this witness has stated before him that the deceased run away after the firing by accused Narbdeshwar Tiwary and accused Gorakh Singh exhorted Mara Maro then accused Dwarka Tiwary fired by his rifle It appears that this witness has stated before the Investigating Officer on the date of occurrence itself, when his statement was recorded by the Investigating officer, that Narbdeshwar Tiwary and Dwarka Tiwary had shot at the deceased Ajit Kumar Tiwary. Details of the step by step act appear to have not been stated by the witness to the Invetigating Officer. It does not affect his testimony because in regard to the material particulars regarding shooting by accused Narbdeshwar Tiwary and Dwarka Tiwary there is no contradiction or any omission between his statement before the court and the statement recorded by the Investigating Officer. According to the statement of madhusudan Sharma (P. W.7), Arbind Tiwary (P. W.1) has not named mithilesh Upadhyay in his statement. P. W.1 Arbind Kumar Tiwar has stated that the Investigating Officer has not recorded his statement correctly. The statements of other witnesses show that they had mentioned the presence of accused Mithilesh Upadhyay on the spot and his participation in the crime. 20. According to the statement of Madusudan Sharma. Investigating officer (P. W.7), Sudama, Singh (P. W.2) had not stated before him that his attention was drawn towards the incident on hearing the firing and the exhortion of accused Gorakh Singh and that he saw accused Narbdeshwar tiwary, Gorakh Singh, Mithilesh Upadhyay and Raghunath Singh. The investigating Officer, Madhusudan Sharma (P. W.7) has further stated that this witness (Sudama Singh) had not stated that when Ajit Kumar Tiwary wanted to run away then accused Mithilesh Upadhyay fired by his rifle and he (Sudama Singh) had not stated that when the deceased Ajit Kumar Tiwary ran towards west in the lane and reached near the Sahan of Dalan of Dwarka tiwary, Dwarka Tiwary accused fired by his rifle. It only shows that minute details as to the sequences were not stated by this witness before the investigating Officer but he had stated before the Investigating Officer that accused Nabdesbwar Tiwary had fired with his gun while accused Mithilish upadhyay fired with his rifle and accused Dwarka Tiwari also fired as has been stated before the court by the Investigating Officer, Madhusudan Sharma (P. W.7 ). Thus the presence of accused Dwarka Tiwary. Narbdeshwar tiwary and Mithilesh Upadhyay and their participation in the commission of the crime by firing with these respective weapons had been stated before the Investigating Officer at the first opportunity by this witness and to the same effect is the statement before the court. Therefore, there appears to be no contradiction regarding material fact of participation of accused Dwarka tiwary, Narbdeshwar Tiwary and Mithilesh Upadhyay in the commission of crime. 21. According to the statement of Madhusudan Sharma, Investigating officer ( (P. W.7 ). Patas Nath Tiwary (P.4 had not stated before him that he saw the accused persons in front of Radha Tiwarys house or that any accused had shot at the deceased in front of Radha Tiwarys house or that as soon as the deceased turned Mithilesh Upadhyay fired with his rifle or that when the deceased Ajit Kumar Tiwary, while running, reached in front of the Sahan of Dwarka Tiwary (accused) then Dwarka Tiwary shot at the deceased. However, the statement of Madhusudan Sharma (P. W.7) shows that this witness has supported the Dwarka Tiwary and Mithilesh Upadhyay with their rifle and accused Narbdeshwar, Tiwary with his gun fired at the deceased Ajit Kumar Tiwary. It shows that at the first opportunity the participation of these three accused and their overt act of firing with their respective weapons were stated by this witness before the Investigating Officer. To the same effect is the statement before the court. Therefore, there appears to be no material omission in the statement of this witness before the investigating Officer. 22. According to the statement of Madhusudan Sharma (P. W.7), rajeshwar Singh (P W.5) had not stated before him that his attention was drawn towards the place of occurrence on hearing the exhortion of Gorakh singh and firing made by Narbdeshwar Tiwary or that he had seen the accused in front of the door of Radha Tiwary or that Mithilesh Upadhyay had a rifle. However, Madhusudan Sharma (P. W.7) has stated that this witdess had told him that Narbdeshwar Tiwary fired by his gun and Dwarka tiwary had fired by his rifle and that this witness has stated about the presence of Mithilesh Upadhyay in that lane. It also shows that the presence of all the three accused aforesaid was stated by this witness before the Investigating officer and there appears to be no material contradiction merely because he did not make statement in detail about the incident. 23. According to Madhusudan Sharma, Investigating Officer (P. W.7), informant Chandradeep Tiwary (P. W.6) had not stated before him that when the deceased reached the eastern door of Radba Tiwarys house then accused Gorak Singh exhorted to kill him and Narbdeshwar Tiwary fired on such exhortion or that when the deceased turned to escape accused Mithilesh upadhyay fired by his rifle or that when deceased Ajit Kumar Tiwary ; while running, reached in front of Baithka of Dwarka Tiwary, then Dwarka Tiwary fired by his rifle. However, Madhusudan Sharma (P. W.7) has stated that this witness has stated before hime that when the deceased reached in front of the house of dwarka Tiwary, accused Gorakh Singh exhorted to kill him and thereupon accused Narbdeshwar Tiwary with his gun and Mithilesh Upadhyay with his rifle fired at the decased Ajit Kumar Tiwary and Dwarka Tiwary also fired by hit rifle. It shows that the active participation of these three accused narbdeshwar Tiwary, Mithilesh Upadhyay and Dwarka Tiwary and their firing by their respective weapons were stated by this witness before the investigating Officer and before the court. The informant had lodged the first information report also naming these accused persons and their overt act. 24. Omission to make detailed statements before the Investigating officer may be on account of the manner of interrogation made by the investigating Officer himself might not have recorded the minute details when the witness had made statement regarding participation of these accused in the commission of crime. Therefore, such omissions cannot be said to be so material so as to discard the testimonies of the prosecution witnesses. 25. P. W.1 Arbiad Kumar Tiwary, P. W.4 Paras Nath Tiwary and p. W.6 Chandradcep Tiwarys statement cannot be discarded merely because they are related to the deceased or are on litigating terms with the accused narbdeshwar Tiwary and Dwarka Tiwary. 25. P. W.1 Arbiad Kumar Tiwary, P. W.4 Paras Nath Tiwary and p. W.6 Chandradcep Tiwarys statement cannot be discarded merely because they are related to the deceased or are on litigating terms with the accused narbdeshwar Tiwary and Dwarka Tiwary. In case of interested witnesses, closer scrutiny of their statements has to be made to find out whether a their statements inspire confidence or whether their statements are worthy of reliance. Keeping this principle in view, the evidence of these three witnesses has been scrutinized. Their evidence corroborated by two independent witnesses Sudama singh (P W.2) and Rajeshwar Singh (P W.5) inspires confidence regarding the active role played by accused Narbdeshwar Tiwary, Dwarka Tiwary and Mithilesh upadhyay in the commission of the crime. It is also pertinent to find that according to suggestion given by the defence to P. W.1 Arbind Kumar Tiwary the incident had taken place in which firing were made by gun and rifles and that the firing hit the deceased Ajit Kumar Tiwary, although according to the defence suggestion the incident took place in a different manner. According to the suggestion given to P. W.1, Arbind Kumar Tiwary, by the defence, P. W.1 Arbind Kumar Tiwary, deceased Ajit Kumar Tiwary, chandradeep Tiwary (P. W.6) Dineshwar Tiwary, Triveni Tiwary, Sudama singh (P. W 2); Gopal Singh and Paras Nath Tiwari (P. W.4) went armed with gun and rifle at the door of accused Narbdeshwar Tiwary and began to drag narbdeshwar Tiwary in order to kill him whereupon Narbdeshwar Tiwary and his mother raised alarm and on such alarm being reing raised villagers came firing with guns and rifles and someone shot which hit the deceased and after sometime the deceased was carried from the place near the door to Radha tiwary. It was also suggested that the mother of the accused Narbdeshwar tiwary had filed a case in respect of the said incident. No evidence on behalf the defence has been led in support of the said suggestion that the incident had taken place in the manner suggested by the defence to P. W.1. The said suggestion itself shows that the incident had taken place near the house of Radha Tiwary and in that incident gun and rifles were used. Prosecution has come with a definite case that gun and rifles were used by Narbdeshwar Tiwary, Mithilesh Upadhyay and Dwarka Tiwary. The said suggestion itself shows that the incident had taken place near the house of Radha Tiwary and in that incident gun and rifles were used. Prosecution has come with a definite case that gun and rifles were used by Narbdeshwar Tiwary, Mithilesh Upadhyay and Dwarka Tiwary. The eye witnesses have supported it. The defence has failed to lead any evidence to show that the incident had taken place in the manner suggested by the nefence to P. W.1, Arbind Kumar Tiwary. 26. So far as accused Gorakh Singh and Raghunath Singh are concerned p. W.1 Arbind Kumar Tiwary has admitted that there was no enmity of accused Gorakh Singh with him or deceased Ajit Kumar Tiwary and Gorakh singh had no concern with the land which was in dispute (between Narbdeshwar tiwary and deceased Ajit Kumar Tiwary ). He has further admitted that gorakh Singh and Raghunath Singh were not witnesses in any case relating to the deceased Ajit Kumar Tiwary and others and that Gorakh Singh is not releted to the family of accused Narbdeshwar Tiwary. P. W.1 Arbind kumar Tiwary has further stated that there is no house or door of Gorakh singh in the lane where the occurrence took place Arbind Kumar Tiwary (P. W 1) has stated that first of all Gorakh Singh exhorted to kill Ajit Kumar tiwary. However, According to the statement of Madhusudan Sharma, investigating Officer (P W.7), this witness had not stated that Gorakh Singh had exhorted to kill when Ajit Kumar Tiwary reached near the house of radha Tiwary, but had stated that when the deceased began to run then gorakh Singh exhorted. P. W.1 Arbind Kumar Tiwary has stated that Raghunath Singh, accused, chased Ajit Kumar Tiwary with Gandasa in his hand, but he had not stated so in his statement before the Investigating Officer. Sudama Singh (P. W 2) has stated before the court that Raghunath Singh was chasing the deceased with Gandasa in his hand but he has not stated so before the investigating Officer. Madhusudan Sharma, Investigation Officer (P. W.7)has stated that witness Sudama Singh (P. W.2) had not named Raghunath singh in his statement before him P. W.4 Paras Nath Tiwary has stated before the court that first of all Gorakh Singh exhorted then firing was made but he has not stated so before the Investigating Officer. Madhusudan Sharma, Investigation Officer (P. W.7)has stated that witness Sudama Singh (P. W.2) had not named Raghunath singh in his statement before him P. W.4 Paras Nath Tiwary has stated before the court that first of all Gorakh Singh exhorted then firing was made but he has not stated so before the Investigating Officer. According to the statement of Madhusudan Sharma (P. W.7), Rajeshwar Singh (P. W.5) has stated that Gorakh Singh exhorted after firing was made. He has further stated that Paras Nath Tiwary (P. W.4) had not stated before him that accused Raghunath Singh had chased the deceased. Similary Rajeshwar (P. W.5) had stated before Investigating Officer that Gorakh Singh exhorted after Narbdeshwar Tiwary had fired but in court he has stated that first of all Gorakh Singh exhorted and thereafter firing took place. He has not stated before the Investigating Officer that Raghunath Singh had Gandasa in his hand but in court he has made a contrary statement that raghunath Singh had Gandasa in his hand. Chandradeep Tiwary, the informant (P. W.6) stated before the court that Gorakh Singh exhorted and thereafter Narbdeshwar Tiwary fired but according to the statement of madhusudan Sharma, Investigating Officer (P. W.7) he had not stated so before him. Chandradeep Tiwary (P. W.6) stated before the court that accused Raghunath Singh chased the deceased with Farsa in his hand, but he has not stated so before the Investigating Officer has been stated by madhusudan Sharma (P. W.7) has further stated that the informant (P. W 6) had not named Raghunath Singh when his statement was recorded again during investigation. 27. In these circumstances, participation of accused Gorakh Singh and raghunath Singh in the commission of crime appears doubtful. The evidence on behalf of the prosecution against them does not inspire confidence. There was no cause for Gorakh Singh or Raghunath Singh to have taken part in the incident as they had no enmity with deceased Ajit Kumar Tiwary. It may be that they might have been present near about the place of occurrence but merely being present would not make them liable for the commission of the crime. Sharing the common intention by Gorakh Singh arid Raghunath singh in causing murder of deceased Ajit Kumar Tiwary is not proved beyond reasonable doubt. It may be that they might have been present near about the place of occurrence but merely being present would not make them liable for the commission of the crime. Sharing the common intention by Gorakh Singh arid Raghunath singh in causing murder of deceased Ajit Kumar Tiwary is not proved beyond reasonable doubt. The trial court erred in convicting accused Gorakh singh and Raghunath Singh with the aid of Sec.34 of the Indian Penal code. Their conviction is liable to be set aside. 28. Learned counsel for the appellats has contended that the distance of firing as given by the eye witnesses and the manner of firing is in contradiction of the medical evidence, as such, the statements of eye witnesses against the appellants ought not to have been believed. Postmortem report (Ext.6) shows that scorching and blackening was found around the wound of entry. Learned counsel has made a reference to the Medical Jurisprudence by Parikh, 3rd Edition, 1975, page 275 and has contended that scorching can be there if the firing had been done from within a range of 2-3 inches. He has further referred to the Medical Jurispridence by Modi and contended that the blackening may be caused when the firing is done from a distance within 3 feet. Learned counsel for the appellants has pointed out that the witnesses have given the distance of firing ranging from 5-6 feet to 8-10-feet. 29. P. W.1, Arbind Kumar Tiwary, has stated that the first fire was made from a distance of 8-10 feet and the second fire was made from a distance of 7-8 feet, while the third fire was from a distance of 5-6 feet. P. W.6 Chandradip Tiwary, the informant, has stated the distance to be 6-7 feet regarding the first fire and 8-10 feet regarding the second fire. The itatements of these witnesses show that Arbind Kumar Tiwary saw the occurrence from the roof of his house Jananikita and Chandradip Tiwary (P. W.6) saw the occurrence from the roof of his Baitbka. The topography as given by P,w.1 shows that the place of occurrence from the Baithka in the Jananikita house is at some distance. The witnesses have witnessed the occurrence from the roof of the Baithka of Jananikita house. The distance which they have given is only their rough estimate which they could guess from the place where they were present. The topography as given by P,w.1 shows that the place of occurrence from the Baithka in the Jananikita house is at some distance. The witnesses have witnessed the occurrence from the roof of the Baithka of Jananikita house. The distance which they have given is only their rough estimate which they could guess from the place where they were present. It is not expected from the witnesses that they shall give with mathematical acuracy the actual distance from where the firing was done. Moreover, if the accused persons, who fired on the deceased were at a distance of 5-6 feet or 7-8 feet when they fired by the fire-arms then the length of rifle or gun would also be there and the distance of actual shot would from the top of the barrel which may come to be within 3 feet. If the statements of the eye witnesses inspire confidence then their testimonies cannot be discarded merely on the basis of some inconsistency regarding the actual distance from which the firing was done. They have given rough estimate of distance not the actual distance. Learned counsel for the appellants has placed reliance on the case of santa Singh V/s. State of punjab, AIR 1956 SC 526 . In the said case, the Court has referred to the statement of balistic expert, who said that if there were burnt edges of the wound, the distance between the muzzle and the victim would only be a fe w inches and not more than nine inches. The Supreme court referred to the Taylors Principles and Practice of Medical jurisprudence, Vol. I, 10th Edition, at page 441 and quoted the following passage:- "it is impossible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity and nature of the powder, the method of charging, and the nature, of the weapon. It is unusual, however, to get marks of burning beyond a yard on a yard and a half with a shot gun, or at more than half a yard with a revolver. " In the said case the draftsman had prepared the sketch map in which he bad given the measurement from the place bf occurrence to the place where the witnesses were standing and that distance was about 25 feet. " In the said case the draftsman had prepared the sketch map in which he bad given the measurement from the place bf occurrence to the place where the witnesses were standing and that distance was about 25 feet. The Supreme court has observed in paragraph 11 that the witnesses were not giving an estimate of the distance but showed to the draftsman the particular spots where the appellant and the deceased stood at the time of firing. In the present case, there is no such measurement which was taken to indicate in any sketch map. No such-sketch plan has been brought on record. Therefore, the facts of the present case do not appear to be similar to the facts of the case santa Singh (supra ). In the present case the witnesses have given only estimate and there is no evidence regarding actual measurement where the deceased and the respective assailants were at the time of commission of the crime. 30. It has further been contended that according to the witnesses there shots were fired but only two wounds of entry were found on the person of of the deceased and the distance between the two wonds is just 1/2". It has been contended that both the , injuries appear to have been caused by a D B B. L, gun which touched the body and was triggeied in quick succession, as such, the statements of witnesses that two shots were fired from rifle and one shot from gun is not trust worthy. Considering the fact that only two wounds of entry were found, it appears that one shot bad missed to hit the deceased. The witnesses have witnessed the occurrence from some distance from the roof of the Baithka and the house They are consistent in their testimonies that the accused Narbdeshwar Tiwary, Mithilesh updhya and Dwarika Tiwary had fired from their respective weapons. The shots appear to have been fired in quick succession as such the witnesses could not have been in a position to state precisely which shot hit the deceased on a particular spot on his person. If a fire-arm is used and the shot does not hit the victim, it may be on account of misfiring or erratic aim. The testimonies of the eye witnesses cannot be discarded merely because only two wounds of entry were found. If a fire-arm is used and the shot does not hit the victim, it may be on account of misfiring or erratic aim. The testimonies of the eye witnesses cannot be discarded merely because only two wounds of entry were found. Thelearned Sessions Judge has placed reliance on the decision in the case of solanki Chimanbhai v State of Gujrat, AIR 1983 SC 484 in support of his finding that the occular testimony has not to be discarded on account of inconsistency with the medical evidence. In the said case, the Supreme Court observed as, follows :- "ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. " In the present case, the medical evidence does not go so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by the eye witnesses. In the circumstance, the testimony of the eye witnesses cannot be thrown out on the ground alleged inconsistency as contended on behalf of the appellants. 31. Learned counsel for the appellants has further contended that where the death is caused due to injury or wound caused by lethal weapon, it is always the duty Of the prosecution to have the experts evidence that it was likely, at least possible; for the injuries to have been caused with the weapon and the manner in which they are alleged to have been caused. The Supreme Court in the case of Kartarey V/s. State of U. P. , AIR 1976 SC 76 has observed as follows :- "where injuries found are forensically of the same species, e. g. stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon It is the duty of the prosecution, and oh less of the Court to see that the alleged weapon of the offence if available it shown to the medical witness and hit opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in course of justice. " In the present case, the fire-armused in the commission of the crime could not be seized and were not available to be shown to the doctor, who conducted the postmortem and was examined as PW-8 in the case. 32 It has been further contended by the learned counsel for the appellants that the prosecution has come with the definite case that the two shots were fired from rifle and one shot was fired from gun, as such, it was the duty of the prosecution to prove by positive evidence that the wounds found were caused by such weapons but the prosecution did not attempt to put any question to the doctor, Dr. Shri Bhagwan Singh (PW-8) to ascertain whether the wounds could have been caused by the rifle or by the gun. The testimony of Dr. Shri Bhagwan Singh (PW-8) shows that he stated that the injuries were caused by fire-arms. Not putting a question regarding the type of fire-arm used could not bear any material effect as the doctor was not a ballistic expert and merely by the nature of wounds he could not have given the type of the fire-arm used in causing those injuries. Learned counsel for the appellants has referred to the statement of Dr. Sri Bhagwan Singh (PW-8) wherein he has stated in his cross-examination that both injuries of entrance were so close to each other that they might be caused by oneshot fired from a gun. Learned counsel for the appellants has referred to the statement of Dr. Sri Bhagwan Singh (PW-8) wherein he has stated in his cross-examination that both injuries of entrance were so close to each other that they might be caused by oneshot fired from a gun. On the basis of this statement it has been contended that both the wounds of entry are from one shot from a gun It is difficult to agree with the opinion part of the statement of Dr. Shri Bhagwan Singh that both wounds of entry could be caused by one shot fifed from the gun. The sizes of Wounds of entry differs from each other while injury no 1 is" of the size 3"x 1/2x cavity deep. The size of injury no.2 is 1"x1/2" cavity deep. If both the injuries could have been caused by one shot from a close range it would not have been two sized wounds of entry as there would not have been scope for dispersal of pellet in such a fashion so as to cause one wound of 3" size and the other 1" size. These two injuries could not have been caused by one shot. 33. It has been contended on behalf of the appellants that independent witnesses have not been examined in, the case. It has been further contended that Shri Mangal Singh who was named in the first information report has not been examined. The first information report as well as the statement of eye witnessess examined on behalf of the prosecution show that Mangal Singh is also said to have been present on the roof of the house where prosecution witnesses Paras Nath Tiwari, Sudama Singh, Chandradip Tiwari and rajeshwar Singh were present. In these circumstances, when four persons present on the roof have been examined in the case non-examination of the 5th witness who was present on that roof does not appears to be material. It is not incumbent upon the prosecution to examine all the witnesses, who have seen the occurrence from a particular place. It is further contended that one Deonandan Tiwari has been named as a prosecution witness in the charge-sheet but he has not been examined by the prosecution. The statements of eye witnesses shows that none of them have stated that Deonandan tiwari was also present at the time of the occurrence. It is further contended that one Deonandan Tiwari has been named as a prosecution witness in the charge-sheet but he has not been examined by the prosecution. The statements of eye witnesses shows that none of them have stated that Deonandan tiwari was also present at the time of the occurrence. The name of deonandan Tiwari does not find place as an eye witness in the first information report The Investigating Officer, Madhusudan Sharma (PW-7), who has stated that he examined Deonandan Tiwari was not cross-examined whether Deonandan Tiwari gave an eye witness account. If any person is examined during investigation and he does not give eye witness account then the prosecution need not examine such witness regarding the occurrence. It appears that Deonandan Tiwari is a witness of inquest report as would be evident from Ext.2. Non-examination of Deonandan Tiwari does not appear to be material in the case. It has been contended by learned counsel for the appellants that no person of the vicinity of the place of occurrence has been examined in the case. The statement of the Investigating Officer, Madhusudan Sharma (PW-7)shows that he did not record the statement of any person of the vicinity of the place of occurrence because none gave statement. The defence has not brought out in cross-examination of any witness that other persons of the vicinity of the place of occurrence were present and have witnessed the occurrence In these circumstances, non-examination of witness of the locality does not affect the prosecution case. 34. It has been next contended that the articles found with the deceased and mentioned in the inquesl report (Ext, 2) rules out the story that the deceased was going to Sasaram at the relevant time. The inquest report (Ext.2) shows that the deceased was wearing shirt, pant and half sweater and underwear, etc. It has been contended that no footwear was found with the body and no purse etc. was found which in natural course would have been there if the deceased had started for Sasaram. The inquest report was prepared at Kumbhau gate where the deadbody was kept while taking the deceased in a seriously wounded condition from his Baithka for medical aid. The deceased ran from the place of occurrence towards the baithka and he fell down in his Baithka. The inquest report was prepared at Kumbhau gate where the deadbody was kept while taking the deceased in a seriously wounded condition from his Baithka for medical aid. The deceased ran from the place of occurrence towards the baithka and he fell down in his Baithka. On that place he was put on a cot and then carried for getting medical aid. In these circumstances footwear might have been either taken out or the same might have been lost while the deceased was running to save his life. If there was any money in possession of the deceased that might have been taken out before carrying him for medical aid. The defence has not cross-examined that eye witnesses on this store as to whether any money was in possession of the deceased before he was carried on a cot for medical aid. Hence, want of clear evidence on that score does not appear a material fact so as to disbelieve the prosecution case. The incident has taken place. The deceased Ajit Kumar Tiwari was shot at and he succumbed to his injury. That has been well established and the same is not shaken on account of missing details about the money or the footwear which the deceased might have had on his person at the time of occurrence. 35. It has been submitted on behalf of the appellants that the first information report (Ext.4) has not been proved by its writer or by anyone who was conversant with the writing. This comention appears to be misconceived, the statement of Madhusudan Sharma (PW-7), the investigating Officer is clear on the point that he himself recorded the first information report Which was scribed by Satya Narain Ram, Junior Assistant subinspector and that he (the witness) read over the same to the informant who signed the same. The first information report also bears the signature of this witness (Madhusudan Sharma ). The first information report is well proved in the case. 36. On behalf of the appellant Mithilesh Upadhya, a plea of alibi was raised before the trial court that on the date of occurrence was at Varanasi in a hospital of Banaras Hindu University on account of his serious indisposition and he was admitted in the emergency ward of Sir Sundarlal Hospital of the University and was discharged from that hospital on 2-1-1989. To prove the plea of alibi Sudama Singh (DW-3), Mahesh Tiwary (DW-4), Dr. Kundan Sinha (DW-6), Deepak Kumar Verma, (DW-7), Dr. S. P have been examined Sudama Singh (DW-1) has stated that he was research scholar in Political Science Deptt. of Banaras Hindu University in 1988-89 and was residing in Raja Ram Mohan Rai Hostel. He has stated that on 31-12-1988 in the evening on petting information about indisposition of Mithilesh Upadhya he went in his room and found that mithilesh Upadhva (the appellant) had stomachache and blood was also coming out from his mouth. Thereafter he along with 4-5 other students took Mithilesh Upadhya to the Emergency Ward of Sir Sundarlal Hospital where Mithilesh Upadhva was admitted and he remained under treatment and was released on 2-1-1989 He kas further stated that he brought blood on payment for its transfusion to Mithilesh Upadhya He has proved two receipts (Exts B and B/1)said to have been granted by Dr. A. M Singh. However, he could not tell the full name of Dr. A. M. Singh nor he could tell about the blood group. He brought blood for transfusion although he has stated that first of all he tried to procure blood from the blood bank but the blood of that particular group was not available. He could not fell whether Mithilesh Upadhya was conscious or was unconscious. The receipts do not show about any payment having been made or about ihe blood groop. Mahesh Tiwary (DW-4) has also stated that he was research scholar in Political Science Department of banaras Hindu University in the year 1987-88 and he was also one of the students, was had carried Mithilesh Upadhya to hospital on 31-12-1988. He has stated that he had purchased medicines for the treatment of mithilesh Upadhva. He has proved cash-memo for purchase of medicines (Exts. C/1 and C/2 ). He has stated that Mithilesh Upadhya was discharged from the hospital on 2-1-1989. Dr. Kundan Sinha (DW-6) has stated that he was a Medical Officer on emergency duty on 1-1-1989 and 2-1-1989 in sir Sundarlal Hospital. He has stated that on 31-12-1988 Mithliesh Upadhya aged 27 years was admitted in emergency out patient department and he was being treated for bleeding peptic ulcer. He has stated that he saw the patient for the first time on 1-1-1989 and prescribed the medicines and had also examined the patient on 2-1-1989. He has stated that on 31-12-1988 Mithliesh Upadhya aged 27 years was admitted in emergency out patient department and he was being treated for bleeding peptic ulcer. He has stated that he saw the patient for the first time on 1-1-1989 and prescribed the medicines and had also examined the patient on 2-1-1989. He has proved the entry (Ext. E) in the hospital register and has also proved that medical certificate (Ext. F ). However, he could not identify the accused Mithiles Upadhya in the dock. He has admitted that on the emergency out patient department slip (Ext. E) and medical certificate (Ext. F) the mark of identification of the patient has not been noted. He has also stated that he did not record the symptoms of peptic ulcer on the paper. He has stated that the medical certificate has been prepared on the basis of the register. He has also admitted that in Ext E the token number and hospital number have not been filed up in the second seal of the Health Centre nor is there any address of the patient. He has stated that in the University every student has been granted identity card and the prescription does not refer to the identity card number of the student and that the patient did not show his health token number. The statement of the doctor does not prove that it was actually the accused-appellant Mithilesh Upadhya, who was admitted in the hospital on 31.12 1988 and remained there upto 2.1.1989. He could not identify the appellant in court as the patient, who was treated by him. The paper produced does not contain the health token number or the identity card number or the address of the patient. There is no material on record to show that the accused-appellant was a research scholar on the said date and that he was allotted any room in the University hostel. The identity of the patient said to have been admitted and treated has not been proved to be of the appellant accused Mithilesh Upadhya. Deepak Kumar Verma, Dy S. P. (D. W.7)had supervised the case. He has stated that he did not see any identity card of Mithilesh Upadhya. He has admitted that in Benaras Hindu University Scholars have health card but he did not see the health card of Mithilesh Upadhya. Deepak Kumar Verma, Dy S. P. (D. W.7)had supervised the case. He has stated that he did not see any identity card of Mithilesh Upadhya. He has admitted that in Benaras Hindu University Scholars have health card but he did not see the health card of Mithilesh Upadhya. His statement also does not go to prove that it was the accused-appellant, who was admitted, in Sir Sundarlal Hospital on 31.12 1988 and was treated there upto 21.1989 the trial court has discussed the defence evidence on this score. Om Prakash singh (D. W.10) has not stated about Mithilesh Upadhya having been admitted in the hospital. He has only proved the signature of Dr. Akhileshwar srivastava on the proscription dated 31.12,1988 (Ext. E ). He has further stated that the name Mithilesh Upadhya with age in hindi was written by Mahatam Singh, counter-clerk. He has admitted that he was not present when the prescription was written and that there is some cuttings before the name of Mithilesh Upadha in that prescription. His statement shows that he was not an inmate of the hostel before 1990. The learned sessions Judge has dealt with the defence evidence on the plea of alibi and found that the statements of witnesses on this score are not convincing and that does not prove the plea alibi. There is no reason to take a contrary view. 37. The learned counsel for the appellants has contended that the burden which rests on the accused to prove his case is not the same as the burden of the prosecution to prove the charge beyond reasonable doubt and it is enough for the accused to show as in a civil case that the preponderance of probability is in favour of his plea. It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence, as has been held by the Supreme Court in the case of State of Maharashtra V/s. Narsingh Rao Ganga Rao Pimpal, a. I. R.1984 S C.63. It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence, as has been held by the Supreme Court in the case of State of Maharashtra V/s. Narsingh Rao Ganga Rao Pimpal, a. I. R.1984 S C.63. The Supreme Court has held in the case of Dhananjay chatterji V/s. State of West Bengal, JT 1994 (1) S. C.33 that a plea of alibi if raised by an accused is required to be proved by him by cogent and satisfactory evidence so as to completely exclude the possibility of the presence of the accused at the place of occurrence at the relevant time. The evidence adduced on behalf of the defence does not inspire confidence so as to prove the plea of alibi taken by the accused-appellant Mithilesh upadhya that he was admitted in the Hospital at Banaras Hindu University on 31.12.1988 and remained under treatment upto 2.1.1989. 38. Chandreshwar Singh (D. W.1) and Shiva Shankar Dubey (D W.2)are the Accountant and Clerk respectively in Sant Sheoji College, Sasaram. They have stated that Chandradip Tiwary (P. W.6) is a lecturer in that college since 1981 and Mithilesh Upadhya (accused-appellant) was a lecturer in that college from 1987 to 1988. Shiva Shanker Dubey (D. W.2) has admitted that he is a cousin of accused Mithilesh Upadhya. Nand Kishore Tiwary (D. W.5) is also lecturer in the aforesaid college and he has stated that be had been the Secretary of the College and that Mithilesh Upadhya was also a lecture in 1987-88 in that College. He has stated about the two groups in the college management, one led by him and the other by the acting Principal. he has stated that Chandradip Tiwary (P. W.6) was in the group of the principal while Mithilesh Upadhya was with him (witness ). The statements of these witnesses have been referred to by the appellants to show that on account Of groupism in the college Chandradip Tiwary (P. W.6) had enmity with the accused-appellant Mithilesh Upadhya and on account of that enmity mithilesh Upadhya has been falsely implicated in the case. There appears to be no such material on the record to prove the enmity between Chandradip tiwary (P. W.6) and accused-appellant Mithilesh Upadhya. There appears to be no such material on the record to prove the enmity between Chandradip tiwary (P. W.6) and accused-appellant Mithilesh Upadhya. In any case, the existence of enmity itself would not be sufficient ground to hold that the accused-appellant Mithilesh Upadhya has been falsely implicated when the eye witnesses have stated about his participation in the crime and their credibility on that score has not been shaken. The statement of Maya Prasad (D. W.8), a photographer, who had taken photograph of the disputed signature of the informant Chandradip Tiwary and the statement of I. Hussain (D W.9), hand-writing and finger-print expert, who has given his opinion regarding the disputed signature of the informant on a letter allegedly bearing the signature of Chandradip Tiwary in the office of the College are not relevant to the incident of murder. 39. The judgment of the Sessions Judge, in so far as it relates to the commission of the crime by accused-appellant Narbadeshwar Tiwary, Dwarika nath Tiwary and Mithilesh Upadhya appears to be correct based on proper appreciation of evidence. It is well established by the prosecution evidence that the accused-appellant Narbadeshwar Tiwary, Dwarika Tiwary and mithilesh Upadhya participated in the crime to commit murder of Ajit Kumar tiwary. The common intention to murder is proved beyond reasonable doubt, the plea of alibi taken by the accused-appellant Mithilesh Upadhya is not proved. On consideration of the entire materials on record, there appears to be no ground for interfering with the order of conviction and sentence passed against the aforesaid three accused-appellants. Their appeal is liable to bo dismissed. 40. Criminal Appeal no.346 of 1991 filed by Gorakh Singh and raghunath Singh against their conviction and sentence is allowed. Their sentence and conviction passed by the trial court by the impugned judgment is set aside and it is held that they are not found guilty of the charges framed against them and they ale acquitted of the same; They are discharged-from civil bonds. Criminal Appeal no.373 of 1991 filed by Mithilesh Upadhya and Criminal Appeal no.382 of 1991 filed by Dwarikanath Tiwary and narbdeshwar Tiwary are dismissed. The conviction and sentence passed against them by the trial court are confirmed. Order accordingly