Judgment 1. These two appeals have been heard analogous as they arise out of the common judgment and order passed by the then Vth Additional Sessions Judge, Siwan in Sessions Trial No. 97 of 1987 whereby the accused-appellant Basudeo Singh of Cr Appeal No. 247 of 1990 has been convicted under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life. He was also convicted and sentenced under Section 148 of the IPC to suffer rigorous imprisonment for two years. Accused-appellant No. 6 Bishun Giri and accused-appellant No. 8 Ambika Giri of Cr Appeal No. 178 of 1990 have been convicted under Section 323 of the IPC and sentenced to undergo rigorous imprisonment for nine months. Accused-appellant No. 1 Harendra Singh, accused appellant No. 2 Balister Singh and accused-appellant No. 5 Nathuni Singh have been convicted under Section 148 of the IPC and sentenced to rigorous imprisonment for two years while the other accused-appellants including Ambika Giri and Bishun Giri have been convicted under Section 147 of the IPC and sentenced to rigorous imprisonment for one year six months. Sentences under different counts have been directed to run concurrently. 2. The case in brief is that due to long-standing enmity between the Informant party and the accused-persons, 12 accused-persons who are appellants in two appeals on 23-6-1985 at about 11 a.m. with another one came to the darwaja of the Informant Ramanand (PW-7) after forming an unlawful assembly being armed with various weapons. It has been alleged specifically that accused-appellant Basudeo Singh was having pistol in his hand, Nathuni Singh having a bomb, Ambika Giri with lathi, Bishun Giri with lathi, Manshi Singh with lathi, Balister Singh was having a bag containing bomb in it, Mahendra Singh, Madho Singh, Jaleshwar Singh and Kamla Singh without any weapon and Mahendra Singh was having a pistol in his hand. It has been further alleged that the accused-persons came from the eastern side of the house of the Informant and at the instigation of Nathuni Singh accused-persons started assaulting. The son of the Informant Ganesh Singh and the brother of the Informant Ram Dayal Singh and Harendra Singh came out of their houses were abused and on objection being raised, accused Basudeo Singh opened his pistol and fired from a close distance of one step and hit Ganesh Singh as a result of which he fell down. The son of the Informant Ganesh Singh and the brother of the Informant Ram Dayal Singh and Harendra Singh came out of their houses were abused and on objection being raised, accused Basudeo Singh opened his pistol and fired from a close distance of one step and hit Ganesh Singh as a result of which he fell down. It was further alleged that accused Ambika Giri inflicted lathi blow on the head of the Informant Ramanand Singh and accused Bishun Giri gave a lathi blow on the head of Harendra Singh and also gave lathi blow on the left leg of the informant Ramanand Singh. Accused Nathuni Singh threw his bomb to create panic for the purpose of retreating and he also took out another bomb from the hand of Balister Singh and also threw it. It was also alleged that the other accused-persons hurt the different members of the prosecution party with lathi and brick-bats. On alarm being raised by the injured persons villagers arrived at the place of occurrence and at their intervention the accused-persons fled away. Ramanand Singh while being treated at Jamo Bazar Dispensary gave fardbeyan to K. P. Singh, S. I. of Jamo Bazar Police Station on the basis of which a case was registered. Post-mortem was held over the dead body of Ganesh Singh and injured persons namely Harendra Singh and Ramanand Singh. The Informant had been treated at Jamo Bazar Hospital. When charge-sheet was submitted against some of the accused-persons showing main assailant Basudeo and three others as absconder. Afterwards, those persons had also surrendered except one accused who is still absconding. On being committed to the Sessions-charges were framed on 18-1-1985 against accused-persons besides Basudeo Singh under Sections 307/149 of the Indian Penal Code. Against Basudeo Singh there was specific charge under Section 302 of the Indian Penal Code read with Section 27 of the Arms Act. Other accused-persons besides Basudeo Singh had also been charged under Sections 302/149 of the Indian Penal Code. Specific charge was made against Harendra Singh Under Section 27 of the Arms Act. When the charges were read over and explained to the accused-persons, they pleaded not guilty. Other accused-persons besides Basudeo Singh had also been charged under Sections 302/149 of the Indian Penal Code. Specific charge was made against Harendra Singh Under Section 27 of the Arms Act. When the charges were read over and explained to the accused-persons, they pleaded not guilty. The defence case is a total denial of the prosecution case and it is their plea that to grab the disputed land measuring two kathas 18 dhoors purchased by accused Nathuni Singh from Phoolkumari Kunwar, the prosecution party came armed and in the course of scuffle Ganesh might have sustained injuries. The specific case is that the occurence did never take place either at darwaja or sahan of the Informant Ramanand rather it took place at the disputed land which is situated at a distance on the eastern side of the house. There is also another plea which has specifically been taken from the side of accused-appellant Basudeo Singh to the effect that at the time of occurrence he was not at the village and he was at Saharghat where he was operated upon for treatment of hydrocele and on the alleged date of occurrence he was at hospital. He got released only on 30-6-85. Thus, accused Basudeo Singh had taken a plea of alibi and that plea was also taken during the course of investigation as is revealed from the records and at the advice/direction of the superior Police Officer this plea of alibi was also inquired into by the Investigation Agency and finding the same to be not substantiated charge-sheet was submitted. 3. For and on behalf of the prosecution as many as ten witnesses have been examined out of them vital witnesses are PW-1 Lal Babu Singh, PW-6 Mahadeo Bhagat, PW-7 Ramanand Singh. PWs 3 and 7 were injured in that incident. All the above witnesses posed themselves as eye-witnesses to the occurrence. Besides them PW-2 Sudama Singh is a formal witness who proved the inquest report. PW-4 Dr. Halimat Singh is the Medical Officer of the State Dispensary at Jammo Bazar who examined the injuries on the person of PW-7 Ramanand Singh and PW-3 Harendra Singh. PW-5 Dr.Radha Kant Choubey is the Medical Officer who held post-mortem over the dead body of Ganesh Singh. PW-4 Dr. Halimat Singh is the Medical Officer of the State Dispensary at Jammo Bazar who examined the injuries on the person of PW-7 Ramanand Singh and PW-3 Harendra Singh. PW-5 Dr.Radha Kant Choubey is the Medical Officer who held post-mortem over the dead body of Ganesh Singh. PW-10 Rajendra Singh is a formal witness who proved the formal FIR PW-8 is also an Officer of the Police who took part at the initial stage of the investigation. 4. On behalf of the accused-persons, five defence witnesses have been examined, most of them are on the point of alibi as raised from the side of accused-appellant Basudeo Singh. Others have proved the land dispute between the parties and also some documents regarding the previous litigation between the parties. Learned Sessions Judge after scrutinishing the evidence on record came to the finding that the prosecution would be able to prove the charge of Section 302 of the Indian Penal Code against the accused appellant Basudeo Singh and also convicted him accordingly. But, the other accused-persons are not found to be guilty by roping Section 149 of the Indian penal Code for the substantial Section of murder is Section 302 of the IPC. Two accused-persons namely Ambika Giri and Bishun Giri have been found guilty for causing hurt by blunt substance on the persons of the Informant Ramanand Singh and PW-3 Harendra Singh. Charge framed under Sections 307/149 of the Indian Penal Code had not been found to be proved. But, curiously enough although no charges were framed either under Section 148 or 147 of the IPC some of the accused-appellants have been convicted under the same sections of the Penal law. 5. Let me take up first of all, the appeal preferred by other accused-persons except Basudeo Singh in Cr Appeal No. 178 of 1990. It can be proved against the two accused-persons namely, Ambika Giri and Bishun Giri that they had assaulted Ramanand and Harendra Singh by means of lathi and considering the simplicity of the injuries as deposed by the doctor, conviction was made under Section 323 of the Indian Penal Code. On perusal of the evidence of the two injured witnesses namely, Harendra Singh and Ramanand Singh, it could be found that they have specifically brought allegation against these two appellants to have assaulted them by lathi. On perusal of the evidence of the two injured witnesses namely, Harendra Singh and Ramanand Singh, it could be found that they have specifically brought allegation against these two appellants to have assaulted them by lathi. Their evidence have been corroborated by other two eye-witnesses also namely, Mahadeo Bhagat and Lal Babu Singh. From the side of the defence, it is alleged that Lal Babu Singh is only a chance-witness and he is not of the same village where the occurrence took place. But, this witness has given vivid reasons as to how and in what way he remained present at the place of occurrence on the date of occurrence. On close scrutiny of the cross-examination by different accused-persons, it could be found that his such evidence and presence on the place of occurrence could not be discarded in any way whatsoever. So he being the independent witness although he has got some relationship with some of the members of the prosecution party his evidence can be taken to be a supporting evidence of the two injured witnesses as has already been said above. So the conviction arrived at under Section 323 of the IPC in respect of accused-appellant Bishun Giri and Ambika Giri is found to have been proved beyond all reasonable doubt. Regarding the place of occurrence very many attempts were made from the side of the defence to shift it from the place as alleged from the side of prosecution to the disputed land where there was litigation between the parties but that attempt could not be successful. The Investigating Officer had found the dead body of Ganesh Singh lying at the Sahan of the Informant. The blood marks found at the place of ocurrence had also been taken for the purposes of forensic examination and that blood marks were found near the dead body at the Sahan. It could be found from the inquest report also that the dead body was found lying at the Sahan of the Informant. Thus, when the place of occurrence could not be shifted, the whole defence story that the prosecution party were the aggresors for the purpose of grabbing the disputed land falls through as a castle of cards. The admitted fact is that two parties are litigating for a long time over a disputed plot of land. Thus, when the place of occurrence could not be shifted, the whole defence story that the prosecution party were the aggresors for the purpose of grabbing the disputed land falls through as a castle of cards. The admitted fact is that two parties are litigating for a long time over a disputed plot of land. There were criminal and civil cases but only because enmity is there, it cannot be said that there is false implication as the enmity cuts both the ways. When the injured witnesses being supported by two independent witnesses have stated categorically about their assault and on the assault on the person of Ganesh Singh which could not be dislodged in any way whatsoever then the prosecution stand that due to animosity the accused-persons being aggressors came to the darwaja of PW-7 Ramanand Singh, the injured Informant and instigated by Nathuni Singh, assault was caused by them, was rightly found to be true by the learned Sessions Judge. On independent scrutiny of evidence of these witnesses, we also arrive at the same finding. As evidence of the individual witnesses have been discussed thoroughly by the learned Sessions Judge in the impugned judgment, We refrain from doing so because it will be only a reiteration. The analysis of the evidence made by the learned Sessions Judge is found to be on right angle and perspective. But, it appears that the learned Court below has committed an error of law in the wrong impression in his mind that charges were there against the accused-apellants of Cr Appeal No. 178 of 1990 under Sections 147 and 148 of the IPC. Practically, no charges were framed under those substantive Sections of the Indian Penal Code.Charge was only framed under the substantive Section of the Indian Penal Code i.e. under Sections 307 and 302 of the IPC with the rope of Section 149, IPC. An attempt has been made from the side of the State Counsel that when roping is there under Section 149, IPC then charge under Sections 147/148 of the Indian Penal Code remains inherent on it and his submission is that even if there is no charge under Sections 147, 148 of Indian Penal Code, there is no bar in arriving at conviction under substantive penal provisions with the rope of Section 149, IPC. He might be correct in his submissions on the legal side but the fact remains in the present case that the charges framed by roping Section 149, of the Indian Penal Code has already been disbelieved by the learned Court below and no conviction has been arrived at by roping under Section 149, IPC. When there is no roping under Section 149 of the IPC then the question does not arise of arriving at a conviction either under Section 147 or under Section 148 of the IPC when no specific charges have been famed against any of the accused-persons under those substantive penal provisions. So the conviction arrived at under Sections 147, 148 of the IPC against the accused-appellants in the said appeal are totally bad and errors of records. So, such conviction is not only bad but illegal on the face of it. But, the conviction arrived at against the accused-appellant Ambika Giri and Bishun Giri under Section 323 of the IPC has been established beyond all reasonable doubts as I have stated earlier, then such conviction cannot be interfered in the appeal. Regarding sentence, it is found that these two accused-persons remained in Hajat for about one month. The occurrence took place about 14 years ago and now after 14 years, it would not be proper and justified to send these two accused-apellants to the jail again for the purpose of undergoing the balance of the sentences imposed. But, considering the gravity of the offence, the sentences are hereby converted to R.I. for the period undergone and to pay a fine of Rs. 2,000/- (two thousand) each which would be deposited with the Court below within two months next positively and in default to suffer imprisonment for one month S.I.each. If the fine is realised, the same should go in favour of the injured persons towards compensation. 6. Now coming to the other appeal i.e. Cr Appeal No. 247 of 1990, the apellant Basudeo Singh has been convicted of the charge under Section 302 of the Indian Penal Code. The charge framed under Section 27 of the Arms Act against him and other accused-persons had already been held to be not maintainable and under that charge appellant Basudeo Singh has also been acquitted. The charge framed under Section 27 of the Arms Act against him and other accused-persons had already been held to be not maintainable and under that charge appellant Basudeo Singh has also been acquitted. His conviction under Section 148 of the IPC as already stated, is also an error of record and as such not maintainable and hence conviction under Section 148 of the IPC is bad and accused-appellant Basudeo Singh is acquitted of that charge. Regarding the charge under Section 302 of the IPC, all the witnesses including the injured witnesses who were admittedly present at the scene of occurence had deposed in unequivocal voice that it was accused-appellant Basudeo Singh who had fired from his pistol pointing towards Ganesh Singh and such firing was made from a point blank range as a result of which Ganesh Singh fell down and died at the spot itself. The medical evidence i.e. post-mortem report supports in toto the version of the prosecution regarding the death by fire-arms. In the post-mortem report and in the evidence of doctor, it has been stated that there is charring and blackening on the sites where the bullet had entered and as per the evidence of doctor also such charring and blackening are caused when the pistol is fired from a distance. On this point the defence, as is found from the judgment impugned, had argued much before the Sessions Judge also and the learned Sessions had to refer Modis Jurisprudence on the point. As regards the medical evidence adduced, it has been argued before this Court in appeal that when such blackening and charring is there, then pistol must have been fired from a distance which rather suggests of the probability of the defence case that the occurrance took place at the disputed land and not at the darwaja or sahan of the accused-appellant. On evidence it could be found that the accused-appellant Basudeo Singh on being instigated by Nathuni Singh had fired from his pistol from a close distance. Such close distance had been elaborated by one of the eye-witnesses that he was about four steps apart from the deceased when the pistol was being fired and it was rightly referred to Modis Jurisprudence to the effect that from such distance if the pistol is fired, then blackening and charring can be held. Such close distance had been elaborated by one of the eye-witnesses that he was about four steps apart from the deceased when the pistol was being fired and it was rightly referred to Modis Jurisprudence to the effect that from such distance if the pistol is fired, then blackening and charring can be held. Moreover, there is overwhelming evidence of two injured witnesses who were admittedly present at the scene of occurrence and all have fingered towards the accused-appellant to have fired his pistol towards deceased Ganesh Singh as a result of which he fell down at the spot and he died instantaneously. So it was rightly held that the prosecution could be able to prove that it was Basudeo Singh who is responsible for killing Ganesh Singh and as such conviction has been held under Section 302 of the Indian Penal Code. 7. Regarding the plea of alibi, it remains the bounden duty of the defence to prove such fact to the hilt and it is a principle of law that when the plea of alibi is taken and some evidence had been adduced from the side of the defence then the same should be read side by side with the prosecution evidence. In the present case, the defence alleged that accused-appellant Basudeo Singh was called by his maternal uncle on 21-6-1985 and then he was operated in the State Dispensary at Saharghat for his hydrocele and remained as indoor patient from 23-6-1985 to 30-6-1985 on which date he was released. It appears that during the course of investigation bed head tickets were examined and the name of the accused-appellant was found in those bed head tickets. But the doctor who had operated on him could not be contacted and his whereabouts could not be stated by the employees of the State Dispensary and, as such, such plea taken by the accused-appellant was found to be disbelievable and as such charge-sheet was submitted. During the course of trial on such plea of alibi, Dr. Shiv Prasad Singh who is alleged to have operated on the accused-appellant had not been examined and when that point remained to be proved to the hilt by the accused-appellant, then the overwhelming evidence from the side of the prosecution must prevail. For the purpose of plea of alibi the question of probability does not arise. Shiv Prasad Singh who is alleged to have operated on the accused-appellant had not been examined and when that point remained to be proved to the hilt by the accused-appellant, then the overwhelming evidence from the side of the prosecution must prevail. For the purpose of plea of alibi the question of probability does not arise. It requires to be proved to the hilt but the defence has failed to prove. During the course of argument in this appeal, for that reason perhaps the learned Counsel has not pressed on that point. Thus, we find that the conviction arrived at against the accused-apellant Basudeo Prasad Singh is proper and justified and there is nothing to interfere in it. Regarding the sentence, proper sentence has been imposed and the same also has no scope to be interfered. Thus, Cr Appeal No. 247 of 1990 is hereby partly allowed and partly rejected. It is allowed in respect of the conviction and sentence under Section 148 of the IPC and retained and upheld in respect of Section 302 of the IPC. 8. Cr Appeal No. 178 of 1990 is also partly allowed besides accused-appelant No. 6 Bishun Giri and accused-appellant No. 8 Ambika Giri. All other accused-appellants are acquitted by setting aside the judgment of conviction and sentence under Sections 147 and 148 of the IPC. In respect of Bishun Giri and Ambika Giri the appeal is partly allowed in respect of the conviction under Section 148 of the IPC but retained in respect of Section 323, IPC with a modification in the sentence as already stated above.