JUDGMENT S.K. Kulshrestha, J. 1. The apellants have filed this appeal against the judgment dated 22.2.1990 of the learned Second Additional Sessions Judge, Chhindwara, in Sessions Trial No. 34 of 1988, by which the Appellant Mst. Ramkalibai has been convicted for an offence punishable under Section 302 of the India Penal Code while the other Appellants under Section 302/34,I.P.C. and each of them has been sentenced to suffer inprisonment for life. 2. The deceased Pushpabai was the wife of P.W.1 Prakash and sister of P.W.2 Sitabai. The accused Narayan and Ramkalibai are husband and wife and were, at the relevant time, living in the neighbouring house of the deceased. The prosecution case in brief, is that the deceased Pushpabai and accused Mst. Ramkalibai used to quarrel very frequently and, therefore, on 27.11.1987, the three Appellants entered into the house of the deceased Pushpabai and after pouring Kerasene oil over her, lighted a match to her resulting in her death. According to the prosecution, while accused Narayan and Dhanpat held Pushpabai, Mst. Ramkalibai poured the Kerosence oil and lighted match to her. P.W.1 Prakash, the husband of the deceased, at that time, was at the Colliery. Pushpabai was taken to the Police Station, where her report Ex.P.20 was recorded by the Station House Officer P.W.15 Santosh Mishra and her dying declaration (Ex.P.18) was recorded in the presence of the witnesses. 3. After recording the dying declaration, she (Pushpabai) was sent to the Primary Health Centre, along with request letter Ex.P-2 to the doctor, for recording her dying declaration. P.W.12 Dr. M.K. Jain recorded her dying declaration Ex.P.2-A and thereafter recorded her injuries at 5:15 P.M. in his report Ex.P-1-A. The doctor found that her pulse rate was 56 per minute, her B.P. was 90/60 m.m., she had received superficial burns over her body and was smelling of Kerosene oil. He referred her to the District Hospital, Chhindwara for admission and further treatment. 4. The police sent a request letter Ex.P-13 for recording of her dying declaration and, accordingly, P.W.11 Shivdayal Singh, who was posted as Tahsildar, went to the hospital and recorded the dying declaration Ex.P-14 of the deceased Pushpabai. At the hospital, she was treated by P.W.4 Dr. B. Paul, but she could not be saved and she ultimately succumbed to the burn injuries on 30.11.1987. At the hospital, she was treated by P.W.4 Dr. B. Paul, but she could not be saved and she ultimately succumbed to the burn injuries on 30.11.1987. On receiving information about her death vide Ex.P-3, a marg Ex.P-10 was registered by P.W.10 J.M. Koshta, S.I. and inquest report Ex.P-12 was prepared. The body was forwarded for postmortem examination, where P.W.5 Dr. Yugal Kishore Singh Thakur performed autopsy on the body of Pushpabai and gave his report Ex.P-5. The doctor found ante-mortem superficial burns on the whole of the face, the neck, the chest, the abdomen, the back, upper limbs, gluteal region, both thighs and both legs. Thus, the entire body had received superficial burns except the feet upto the level of ankle joints. As per the opinion of P.W.5 Dr. Yugal Kishore Singh Thakur, her death was on account of shock due to the extensive superficial burns. 5. In further sequel of investigation, the police seized a match-box, the bedding, burntpieces of Sari, hair in a small bag, blood-stained scraping from the wall, the earth sample soaked in Kerosence oil, a bottle smelling of Kerosene Oil and also a latch under seizure memo Ex.P-7. A bundle-containing clothes of the deceased, as handed over by the doctor, was seized under memorandum Ex.P-19 6. The accused persons were arrested, their nail clippings were seized under memorandum Ex.P-6. The accused were sent for medical examination and Dr. M.K. Jain, on examination, did not find any external injury on accused Narayan and Dhanpat. He prepared two slides of blood samples and forwarded the same along with his report Ex.P.14-A and Ex.P-15-A to the police. The seized articles were sent to the Forensic Science Laboratory and report Ex. P-23 was received. After completion of investigation, police filed chargesheet against the accused persons. 7. The accused denied the charges framed against them and claimed to be tried. According to the accused, deceased Pushpabai was prosecuting an illegitimate intrigue with one Nazib, with the result, her husbasnd P.W.1 Prakash had deserted her as she was selling illicit liquor along with the said Nazib. According to the accused Narayan, on the date of the incident, he had already left for his duty at 1.00 O'clock and had, on way, gone to his tailor for getting his clothes stitched. According to accused Ramkalibai, she had gone to see Pushpabai at the hospital. According to the accused Narayan, on the date of the incident, he had already left for his duty at 1.00 O'clock and had, on way, gone to his tailor for getting his clothes stitched. According to accused Ramkalibai, she had gone to see Pushpabai at the hospital. Ramkalibai further stated that Pushpabai may have committed suicide on account of some quarrel with Nazib, as Nazib was not seen since that day. Accused Dhanpat took the plea that he was on duty from 8.00 A.M. to4.00 P.M. at the Colliery. Accused Dhanpat examined D.W.1 Bharat Bhushan Sharma, Assistant Manager, D.W.2 Vijay Singh Thapa, Token Clerk, in his defence while accused Narayan examined D.W.3 Genesh, D.W.4 Noor Mohd., D.W.5 Kalicharan and D.W.6 Sukhnidhan Singh in defence. The learned trial Court, however, found the accused persons quilty and convicted and sentenced them, as stated above. 8. We have heard learned Counsel for the parties and perused the record. 9. Learned Counsel for the Appellants has urged that It is evident from the testimony of P.W.1 Prakash that the deceased was having illegal promiscuity with Nazib and was involved in the illicit trade of liquor, with the result she been deserted by her husband who was living in a separate house with her younger sister. The learned Counsel, therefore, contends that the possibility of the deceased having committed suicide or having received burns at the hands of the said Nazib, who was not seen from the date of the incident, was not ruled out in the case and, therefore, it can not be said that Pushpabai met a homicidal death. P.W.1 Prakash, husband of the deceased, has deposed that he had married Pushpabai in the year 1976 and they had four children from this wed-lock. On 27.11.1987, he had left for his duty at 8 O'clock in the morning and while he was on duty in the Colliery, Rafiq gave his the news that Pushpabai received burns and was lying in the water storage tank in the house. According to this witness, he took an ambulance and rushed home where he found Pushpabai lying on the floor in badly burnt condition and Rama and Sitabai were present. According to this witness, he took an ambulance and rushed home where he found Pushpabai lying on the floor in badly burnt condition and Rama and Sitabai were present. She was immediately rushed to the police station in the ambulance where she lodged report stating that the accused Dhanpat had held her while Narayan had poured Kerosene oil and his wife had lighted a match to her. She was then sent to the hospital and later she died. He could not, however, say as to how his wife got burnt. 10. In his cross-examination, P.W.1 Prakash has admitted that a quarter had been allotted to him at Vasari. He has admitted that Nazib was visiting them since two years prior to the incident, which he had not liked and had objected to it. He has also admitted that despite his objection and his having told his wife not to allow Nazib to come to the house, Nazib was visiting them, with the result he had got a quarter allotted to him. He has further admitted that enraged by his objection, his wife had bitten his finger about eight days before the incident and that his wife was extremely quarrelsome and was engaged along with Nazib in the illicit trade of liquor. He has admitted that he had reported the matter to the police against his wife and the said Nazib. He has admitted that Ashabai, the younger sister of his wife, was living with him as his wife, but denied any relations with her prior to the date of the incident. From the testimony of P.W.1 Prakash, It is more than obvious that his relations with his wife were not cordial and there was estrangement between the two on account of the visits of Nazib which he had found objectionable. It is also clear that the deceased Pushpabai had not heeded to the advice of her husband and had contiunecl to have some relationship, may not be exactly promiscuous, with the said Nazib, with whom she was engaged in the sale of illicit liguor, so much so that her husband had to get a separate quarter allotted for himself. It is also clear that the deceased Pushpabai had not heeded to the advice of her husband and had contiunecl to have some relationship, may not be exactly promiscuous, with the said Nazib, with whom she was engaged in the sale of illicit liguor, so much so that her husband had to get a separate quarter allotted for himself. In view of the admission of P.W.1 Prakash that after her death, he had started living with her younger sister Ashabai, it would also not be unreasonable to assume that he himself had some intimacy with her even prior to the death of his wife, as Ashabai was already a married woman having a child. Under these circumstances, it is clear that both, Prakash and his wife Pushpabai, were having extremely strained relations, but the question is whether on account of the same, Pushpabai had committed suicide as suggested by the learned Counsel for the Appellants. 11. P.W.1 Prakash has frankly conceded that they had no dispute with the accused persons, but he could not tell whether his wife had any quarrel with them. Under these circumstances, if the deceased had committed suicide, there appears no reason why she would not implicate her husband on whose account she had done so and make successive declarations right from the F.I.R. stage indicating complicity of the Appellants. The fact that immediately on reaching the police station, a report was lodged, a dying declaration was recorded by police, a dying declaration was recorded by doctor and yet another dying declaration was recorded by Executive Magistrate and in all of them she has said that kerosene Oil was poured over her and she was burnt by accused persons, completely rules out even a remote possibility of her having committed suicide. If it had been a case of suicide on account of any mis-haviour of her husband, there was no reason why she would not say so in her statements recorded by various persons. It, therefore, completely rules out the possibility of suicide and we are of the considered view that the death of deceased Pushpabai was homicidal, on account of burns having been caused to her. 12. It, therefore, completely rules out the possibility of suicide and we are of the considered view that the death of deceased Pushpabai was homicidal, on account of burns having been caused to her. 12. The case of the prosecution against the Appellants is based on F.I.R. Ex.P-20 said to have been made by the deceased within two hours of the incident which partakes the character of dying declaration, her dying declaration Ex.P-18 recorded by P.W.15 Santosh Mishra in the presence of the witnesses, her dying declaration Ex.P-2-A recorded by P.W.12 Dr. M.K. Jain at 5. 05 P.M. on the same day and the dying declaration Ex.P-14 recorded at 7.05 P.M. on 27.11.1987 by P.W.11 Shivdayal Singh Parihar. In the report Ex. P-20, the deceased has stated that while her husband had gone out for his duty, at about 3.00 P.M. in the after-noon, Narayan, his wife and Dhanpat Vishwakarma came to her house and Nayaran and Dhanpat poured kerosee oil on her and the wife of Narayan lighted a match to her with the result her entire body got burnt. P.W.1 Prakash has stated that the said report was lodged in his presence and his wife had informed the police that Dhanpat had kept-her in his hold, Narayan had poured kerosene oil and his wife had lighted a match. It is, therefore, clear that the statement of P.W.1 Prakash, insofar as Dhanpat is said to have held her, is not consistent with what has been stated by the deceased in the F.I.R. Ex. P-20. P.W.2 Sitabai, sister of the deceased, has testified that Pushpabai had informed her that Dhanpat and Narayan had caught hold of her while Ramkalibai had poured kerosence oil and lighted a match to her. The statement of P.W.2 Sitabai with regard to the participation ascribed to the accused Dhanpat and Narayan is also inconsistent with what has been stated in the F.I.R. Ex. P-20. The fact that accused Ramkalibai had lighted a match, has been consistently deposed to even by the witnesses. 13. As per the statement of P.W.15 Santosh Mishra, S.H.O., immediately after recording the F.I.R. Ex.P-20, he had recorded the dying declaration of the deceased Pushpabai in the presence of the witnesses. The dying declaration so recorded has been exhibited as Ex. The fact that accused Ramkalibai had lighted a match, has been consistently deposed to even by the witnesses. 13. As per the statement of P.W.15 Santosh Mishra, S.H.O., immediately after recording the F.I.R. Ex.P-20, he had recorded the dying declaration of the deceased Pushpabai in the presence of the witnesses. The dying declaration so recorded has been exhibited as Ex. P-18 and quite significantly, in this dying declaration, what is alleged against accused Narayan and Dhanpat is only enmity and no specific role has been ascribed to them. The dying declaration Ex. P-18 reads as under; MERI DUSHMANI NARAYAN AUR DHANPAT BADHAI SE CHAL RAHI HAI, MITTI KA TEL DALKAR JALA DI. GHAR ME BACHCHE THE. AADMI NAHIN THA. MACHIS SE JALAYA NARAYAN KI AURAT NE MACHIS SE AAG LAGAI. BAHAR SE DARWAJA LAGA DIYE KARIB TIN BAJE KI BAAT HAI. 14. In the said dying declaration, she has stated "there was enmity with Narayan and Dhanpat. She was burnt by pouring kerosene oil. Children were in the house, husband was not there. A match was lighted. The wife of Narayan lighted a match to her. The door was latched from outside. It was about 3 O'clock." Ex. P-18 dying declaration is also inconsistent with that has been stated in Ex. P-20 F.I .R. and the statement of P.W.1 Prakash and P.W.2 Sitabai, insofar as the role attributed to accused Narayan and Dhanpat is concerned. It is also to be noted that the F.I.R. bears time as 17. 00 Hours as the time it was lodged and immediately thereafter Dr. M.K. Jain is said bo have recorded her dying declaration Ex. P-2-A at 5. 05 P.M. . Under these circumstances, the prosecution wants the Court to believe that after the recording of the F.I.R. at 5. 00 P.M. and before her dying declaration was recorded by Dr. M.K. Jain at 5. 05 P.M. the dying declaration Ex. P-18 had been recorded. This implies that within five minutes, the F.I.R. and the dying declaration Ex.P-18, both, were recorded and the deceased was sent to the Primary Health Centre where the doctor had come out and recorded her statement. If the timings are examined in their proper perspective, the over-writing in the F.I.R. with regard to the time 17.00 at which it purports to have been recorded, acquires greater significance. It is, therefore, clear that the F.I.R. was not recorded at 17. If the timings are examined in their proper perspective, the over-writing in the F.I.R. with regard to the time 17.00 at which it purports to have been recorded, acquires greater significance. It is, therefore, clear that the F.I.R. was not recorded at 17. 00 Hours as stated by the prosecution. It appears that in the precarious condition of health on account of the serious burn injuries, when the deceased was brought to the police station, Ex. P-18 dying declaration was recorded on the first impulse which merely refers to enmity with the accused Narayan and Dhanpat and while it does say that kerosene Oil was poured, it does not in exact words attribute any role to Narayan and Dhanpat in pouring of the kerosene oil over the deceased. The next dying declaration Ex. P-2A is said to have been recorded by P.W.12 Dr. M.K. Jain at 5. 05 P.M. P.W.12 Dr. M.K. Jain has testified that on 27.11.1987 he was posted at the Primary Health Centre, Damua as Assistant Surgeon and the requisition Ex. P-2 was received from Police Station Damua for recording of the dying declaration of Pushpabai, wife of Prakash. He had found her in a fit condition to give the statement. On being asked, Pushpabai had stated that at 3 O' clock, Narayan, Dhanpat and the wife of Narayan had poured kerosene oil over her and lighted a match. He has further testified that he had himself recorded the dying declaration Ex. P-2-A and subscribed his signature in portion 'B to B' and had taken thumb impression of Pushpabai in portion 'C to C' After recording her dying declaration, he had examined her and found superficial bum injuries all over her body, her pulse rate was 56 per minute, her B.P. was 90/60, no abnormality was detected in her C.B.S., R.S., C.M.S. and other systems were normal. The injuries were on account of burns and weregrievous. He had recorded injuries in his report Ex. P-1-A. 15. In the dying declaration Ex. P-2-A, Pushpabai has not ascribed specific role to the accused persons as is the case in her report Ex. P-20 and earlier dying declaration Ex. P-2-A. She has made a general statement that the three appellarts poured kerosene oil over her and lighted a match. Learned Counsel for the Appellants has referred to the decision of the Supreme Court in State of Orlssa/. P-20 and earlier dying declaration Ex. P-2-A. She has made a general statement that the three appellarts poured kerosene oil over her and lighted a match. Learned Counsel for the Appellants has referred to the decision of the Supreme Court in State of Orlssa/. Parasuram Naik (A.I.R. 1997 S.C. 3569) and has contended that since tie doctor has not recorded in the dying declaration that she (the deceased) was in a fit condition to make statement, the dying declaration should not be icted upon. Learned Counsel has also pointed out that thumb impression of the deceased finds place in portion 'C to C at the right hand bottom corner of the paper on which the dying declaration has been recorded and almost more than half of the paper is blank from written portion, which indicates that it must have been subsequently fabricated. 16. Coming to the first argument of the learned Counsel for the Appellants that on account of omission to record that the deceased was in a fit condition to make a statement, the dying declaration should be discarded, it is noticed from the testimony of P.W.12 Dr. M.K. Jain that he had gone to the ambulance in which Pushpabai had been brought and had asked her a few questions. She has been brought outside the hospital about ten minutes prior to the recording of the dying declaration, and since it was not possible to take her to the hospital as it required climbing stairs and the passage to the stairs was quite narrow, he had recorded her statement and examined her in the ambulance itself. according to this witness, since she was in a condition to give statement, he had recorded her statement and thereafter at 5.15 P.M. he had examined her injuries and given his report Ex. P-1-A. In the report Ex. P-1-A, which is recorded ten minutes after the dying declaration Ex. P-2-A, he has stated that her thumb impression had been taken in the dying declaration as her identification mark and has described her general condition as normal except that she was unable to stand. P-1-A. In the report Ex. P-1-A, which is recorded ten minutes after the dying declaration Ex. P-2-A, he has stated that her thumb impression had been taken in the dying declaration as her identification mark and has described her general condition as normal except that she was unable to stand. It, therefore, clearly appears that she was in a condition to speak and speak coherently, the doctor had no interest to record her dying declaration if she was not in a fit condition to make one and in view of the general condition described by the doctor in the report Ex. P-1-A, it is clear that she was conscious and was in a position to make the said statement, in a recent decision in Kamlesh Rani V. State of Haryana [JT 1998 (1) S.C. 7], it has been observed by the Supreme Court that even where time of recording of dying declaration has not been mentioned and the deceased had 80% burns, it could not be inferred that she was not in a position to make the statement which was recorded by the doctor. It would, thus be seen from the other circumstances such as injury report Ex. P-1-A immediately recorded after recording of the dying declaration and the testmony of P.W.12 Dr. M.K. Jain that the deceased was in a fit condition to make the dying declaration. 17. We may also examine the ancillary argument of the learned Counsel that the thumb impression has been obtained on the dying declaration at the bottom of the page after a considerable blank space. A perusal of the dying declaration Ex. P-2-A indicates that the thumb impression was taken onlyas a mark of ner identification and this impression has been referred to as her identification mark even- in the report Ex. P-1-A. We also find that Dr. M.K. Jain has a habit of drawing a vertical line before signing any paper, as such - verical lines above signatures are also noticed in Ex. P-15-A, the medical repor of accused Narayan and Ex. P-16-A, the medical report of accused Dhanpat. Since the thumb impression has been obtained only by way of her identificaton mark and not in confirmation of the statement recorded in the dying declaration, no inference descrediting the dying declaration can be drawn in the facts of the present case. 18. Next dying declaration Ex. P-16-A, the medical report of accused Dhanpat. Since the thumb impression has been obtained only by way of her identificaton mark and not in confirmation of the statement recorded in the dying declaration, no inference descrediting the dying declaration can be drawn in the facts of the present case. 18. Next dying declaration Ex. P-14 was recorded by P.W.11 Shivdaya Singh Parihar, who was posted on that date as Tahsildar. He has deposed that(sic) on receiving requistion in this befalf, he had gone to the W.C.L. Hospital where Pushpabai had been admitted in the emergency ward. Pushpabai had given the statement which he had recorded. She had stated that Dhanpat and Narayan had caught her while the wife of Narayan had poured Kerosene oil over her and lighted a match. She had also stated that Narayan was shouting that he had Rs. One Lac and he would commit murder. She had also stated that there was a quarrel with the accused. 19. A perusal of Ex. P-14, dying declaration, indicates that she has stated there was a quarrel with the wife of Narayan a day prior to the date of the incident in which she had called the deceased a flirt. The statement further says that the three accused came, Narayan and Dhanpat caught hold of her while the wife of Narayan poured kerosene oil and lighted a match to her. P.W.11 Shivdayal Singh Parihar has admitted that he commenced recording the dying declaration at 7. 05 P.M. and completed the same at 7.25 P.M. He has admitted that he did not consider it necessary to obtain the certificate from the doctor after recording the dying declaration. 20. In the present case, there are successive dying declarations, including the First Information Report which could be treated as dying declaration on acccount of the death of Pushpabai. We have already observed that the over-writing in the time mentioned in the F.I.R. Ex. P-20 creates suspicion about the same having been recorded at the time it purports to have been recorded. The dying declaration Ex. P-18, therefore, becomes the first dying declaration in the case and while it is true that Ex. P-2-A was also recorded by P.W.12 Dr. M.K. Jain and Ex. P-14 by Executive Magistrate, the first version of the deceased with regard to the incident finds place only in Ex. P-18. The dying declaration Ex. P-18, therefore, becomes the first dying declaration in the case and while it is true that Ex. P-2-A was also recorded by P.W.12 Dr. M.K. Jain and Ex. P-14 by Executive Magistrate, the first version of the deceased with regard to the incident finds place only in Ex. P-18. Although it is true that P.W.14 Sheikh Rafiq has not supported the prosecution and had been declared hostile as he has stated that when Pushpabai was brought out of the water tank, she was not in a condition to say anyting, but he has also admitted that Ex. P-18 was recorded by the S.H.O. in the ambulance in which Pushpabai had been brought. Ex. P-18 does not ascribe any specific role to accused Narayan and Dhanpat but only to accused Mst. Ramkalibai. The different version given by P.W.1 Prakash and P.W.2 Sitabai with regard to the role of accused Narayan and Dhanpat also confirms that the role of ascribed to them in the subsequent dying declaration Ex. P-2-A and Ex. P-14 could as well have been on account of the improvement made by the deceased and an after-thought on account of her strained relations with them, as otherwise there was no reason why she would not mention in Ex. P-18 that they had cought hold of her or had poured kerosene oil over her. In view of the inconsistencies referred to above in the dying declarations with regard to the accused Narayan and Dhanpat and further inconsistency between the statement of P.W.1 Prakash and P.W.2 Sitabai, only the dying declaration Ex. P-18, which is first in point of time, inspires confidence and trust worthiness. Since in Ex. P-18, no positive act has been attributed to accused Dhanpat and Narayan while evidence with regard to accused Ramkalibai is consistent and reliable, accused Dhanpat and Narayan deserve benefit of doubt. 21. We may also consider the defence evidence adduced by accused Dhanpat and Narayan. D.W.1 Bharat Bhushan Sharma is Assistant Manager in the Colliery where Dhanpat was working as carpenter. According to him, Dhanpat was on duty from 8. 00 A.M. to 4. 00 P.M.. He has exhibited the attendance register and has testified that during the period of duty no worker can leave Colliery without permission and such permission is recorded in the register. He has exhibited the relevant page of the register as Ex. D-2. According to him, Dhanpat was on duty from 8. 00 A.M. to 4. 00 P.M.. He has exhibited the attendance register and has testified that during the period of duty no worker can leave Colliery without permission and such permission is recorded in the register. He has exhibited the relevant page of the register as Ex. D-2. D.W.2 Vijay Singh Thapa was a clerk in the mines. He has confirmed that no worker is allowed to leave without permission and a record of such permission is maintained. He has, however, admitted that if any worker leaves for tea etc. for a few minutes, no entry is made in the register. He has admitted that Dhanpat was not working inside the mines but outside. 22. D.W.3 Ganesh has stated that accused Narayan was working inside the mines. For reaching the mines at 4.00 P.M., a person is required to leave at about 1.00 P.M. and report well before the time to obtain the miner's lamp. He has stated that accused Narayan was on duty in the mine from 4.00 till 12.00 in the night along with him. However, he has not been able to give particulars of any other person who had been on duty at that time. D.W.4 Noor Mohammad is a tailor. He has deposed that Narayan had come to give his clothes for stitching at about 2.30 P.M. . D.W.5 Kalicharan has deposed that on the date of the incident, he had given caplight to accused Narayan as Narayan was on duty from 4.00 P.M. to 12.00 in the night. He has also exhibited Ex. D-4, a register in which entries are made, in this behalf. D.W.6 Sukhnidhan Singh has exhibited register Ex. D-5 indicating that Narayan was on duty from 4.00 P.M. to 12.00 in the night in mine 22-23, from where it was not possible to come out in between without the permission, of which also record is maintained. 23. The learned trial Court has considered the evidence of the defence witnesses and has observed that the defence evidence appears to have been fabricated, as the accused persons did not take any steps to get their presence verified by police when they were accused in the case and arrested by police. 23. The learned trial Court has considered the evidence of the defence witnesses and has observed that the defence evidence appears to have been fabricated, as the accused persons did not take any steps to get their presence verified by police when they were accused in the case and arrested by police. It is true that the plea of alibi requires clinching evidence to exclude any possibility of the accused being present on the scene of the occurrence and merely by preponderance of probability, the same can not be proved. In the defence evidence, as rightly observed by the learned judge, there was a room for doubt that the accused could as well have been present at the time of the incident, but in the present case, since we rind that the case of the prosecution against Narayan and Dhanpat is even otherwise doubtful, it is not necessary to dwell on the subject of the plea of alibi raised by them. We may also observe that the nail clippings of accused Narayan and Dhanpat were sent to the Forensic Science Laboratory and the report Ex. P-22 shows that traces of kerosene oil were not found in them. 24. In the result, this appeal is partly allowed. While conviction and sentence passed against the Appellant Mst. Ramkalibai wife of Narayan Kori is affirmed, the conviction of the accused Narayan son of Sunderlal and Dhanpat son of Shivpujan Lohar and the sentence passed against them is set aside and they are acquitted. Accused Narayan and Dhanpt shall be set at liberty forthwith if not required in connection with any other matter.