Judgment B.P. Singh, J. As many as 22 persons were committed to the court of session for trial variously charged under sections 302, 302/149, 302/109, 307, 307/109, 147 and 148 of the Indian Penal Code, as also under sections 25 and 27 of the Arms Act and section 4 of the Explosive Substances Act, in Sessions Trial No. 43 of 1980/41 of 1982. They were tried by the 1st Additional Sessions Judge, Sitamarhi who by his judgment and order dated 1st May, 1985 acquitted two of them while convicting the remaining 20 accused persons. Against their conviction the appellants have preferred four appeals before this Court being Cr. Appeal Nos. 17 of 1985, 23 of 1985, 36 of 1985 and 77 of 1985. Though all these appeals were to be heard together, Cr. Appeal No. 17 of 1985 was separated and heard by a Division Bench of this Court, which disposed of the said appeal by its judgment and order dated 18th September, 1998. It appears that the remaining appeals were not ready for hearing and, therefore, only one of the appeals, namely, Cr. Appeal no. 17 of 1985 was heard and disposed of by a Division Bench of this Court. The remaining three appeals have been placed before us for disposal. Out of twenty appellants before this Court in four appeals, there were ten appellants in Cr. Appeal No. 17 of 1985 which has already been disposed of. In Cr. Appeal No. 24 of 1985 there are three appellants while in Cr. Appeal No. 36 of 1985 there are six appeals out of whom two have died during the pendency of the appeal. In Cr. Appeal no. 77 of 1985 the sole appellant is Dhirendra Thakur. 2. The trial court had convicted all the appellants under section 302/149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. Apart from their conviction under section 302/149 of the Indian Penal Code, eight of the appellants in Cr. Appeal No. 17 of 1985 were also found guilty of the offence under section 147 of the Indian Penal Code, while two of them were found guilty of the offence under section 148 of the Indian Penal Code, who were sentenced to two years and three years rigorous imprisonment respectively. This Court by its judgment and order dated 18th September, 1985 in Cr. This Court by its judgment and order dated 18th September, 1985 in Cr. Appeal No. 17 of 1985 acquitted all the appellants therein of the charge under section 302/149 of the Indian Penal Code, but upheld their conviction under sections 147 and 148 of the Indian Penal Code on a finding that though they were members of an unlawful assembly, they did not share the common object of committing the murder of anyone. We shall refer to the aforesaid judgment of this Court at the appropriate place where ever necessary. 3 The three appellants in Cr. Appeal No. 23 of 1985 have been sentenced to undergo rigorous imprisonment for life under section 302/149 of the Indian Penal Code and to undergo two years' rigorous imprisonment under section 147 of the Indian Penal Code. All the six appellants in Cr. Appeal No. 36 of 1985 have been sentenced to undergo rigorous imprisonment for life under section 302/149 of the Indian Penal Code. Ram Singhasan Rai has also been sentenced to undergo life imprisonment under section 307 of the Indian Penal Code. Four of the appellants, namely, Ram Singhasan Rai, Anup Lal Rai, Ramswaroop Rai and Nand Kishore Rai have been sentenced to undergo three years rigorous imprisonment under section 148 of the Indian Penal Code and seven years rigorous imprisonment under section 27 of the Arms Act. Appellants Rajendra Rai and Bhola Rai have been sentenced to undergo two years rigorous imprisonment under section 147 of the Indian Penal Code. In Cr. Appeal No. 77 of 1985 the sole appellant has been convicted and sentenced to undergo rigorous imprisonment for life under section 302 of the Indian Penal Code as well as under section 302/149 of the Indian Penal Code. He has also been sentenced to undergo three years rigorous imprisonment under section 148 of the Indian Penal Code and seven years rigorous imprisonment under section 27 of the Arms Act. 4. The case of the prosecution is that an occurrence took place at about 2 P.M. on 7.6.1978 in which three persons lost their lives, namely, Niranjan Sahni, Sakoor Nadaf and Tildhari Sahni. As many as five persons were injured in course of that incident. 4. The case of the prosecution is that an occurrence took place at about 2 P.M. on 7.6.1978 in which three persons lost their lives, namely, Niranjan Sahni, Sakoor Nadaf and Tildhari Sahni. As many as five persons were injured in course of that incident. The case of the prosecution is that in futherance of their common object, all the twenty two persons who were put up for trial, had committed these offences, apart from other offences for which they were variously charged. In support of its case the prosecution has examined as many as 25 witnesses, out of whom as many as eight are eye-witnesses, four of them being injured witnesses. The prosecution also tendered for cross-examination eight witnesses. It also examined the two investigating officers and the doctors who had performed the post mortem examination on the dead bodies of the deceased. The defence, on the other hand, also examined equal number of witnesses, and some of the accused set up the plea of alibi. 5. The occurrence is said to have taken place at about 2 P.M. on 7.6.1978 and the fardbeyan was lodged at police station-Nanpur by Rambujhawan Yadav (P.W.2) at about 8 P.M. When he came to the police station along with injured Rajendra Sahni and Tildhari Sahni, who later succumbed to his injuries. The case as set out in the fardbeyan of P.W.2, is that on 7th June, 1978 at about 12 noon he had gone from his village Mahisautha to village Samar to canvass for votes, as he was contesting the election for the post of Mukhiya. When he reached at the darwaja of Shushan Pathak, there were 25-30 persons at his Darwaja. Apart from Shushan Pathak, he named 19 other persons, who were present at the darwaja of Shushan Pathak, all of whom were put up for trial in the instant case. One of them, namely, Dhananjay Pathak told the informant to go to some other place for canvassing for votes, as they were discussing matters amongst themselves. The informant along with his supporters then went to the darwaja of Magnoo Chaudhary (P.W.6) and started canvassing for votes. At about 2 P.M. he proceeded from the darwaja of Magnoo Chaudhary (P.W.6) and was on his way to village Mahisautha. The informant along with his supporters then went to the darwaja of Magnoo Chaudhary (P.W.6) and started canvassing for votes. At about 2 P.M. he proceeded from the darwaja of Magnoo Chaudhary (P.W.6) and was on his way to village Mahisautha. When he was near the darwaja of Shushan Pathak, Shushan Pathak taunted by telling appellant Ram Singhasan Rai that the informant had got his gun seized but now he (Shushan Pathak) had managed to get the location of the booth changed from Dasai to Mahabirasthan. The informant also retorted, which led to an altercation, but the supporters of the informant advised him to proceed ahead as those persons were in a mood to quarrel. One Rama Pathak alias Ramakant Pathak assured him that there will be no quarrel and also stated that all of them will go with the informant and his associates to his village Mahisautha. The informant and his supporters then proceeded towards village Mahisautha, but when tey reached near Khanua Ghat the accused persons began to quarrel with the informant and his supporters. Some of them loudly called those persons who were sitting at a place south of Khanua Ghat and had in their possession guns and bombs. Those person came, and five of the appellants, namely, Dhirendra Thakur (appellant in Cr. Appeal No. 77 of 1985), Ram Singhasan Rai, Anup Lal Rai, Ram Swaroop Rai and Nand Kishore Rai (Appellants in Cr. Appeal No. 36 of 1985) took guns from the hands of those persons. Similarly, other accused persons took bombs from the hands of those persons. Thereafter, Shushan Pathak and Pitambar Thakur (appellants in Cr. Appeal No. 23 of 1985) sarcastically commented that the informant had got the gun seized earlier but how he could get these guns seized. They exhorted their men to fire and to hurl bombs whereupon Dhirendra Thakur (appellant In Cr. Appeal No. 77 of 1985) and Ram Singhasan Rai (appellant in Cr. Appeal No. 36 of 1985) opened fire, as a result of which Niranjan Sahni and Sakoor Nadaf were injured and died on the spot. Dhananjay Pathak, Shushan Pathak and others started hurling bombs causing injuries to Rajendra Sahni, Rajdeo Yadav (P.W.4) and Vijay Kumar Singh (P.W.17). They had also thrown bombs at the two deceased who had fallen. Appeal No. 36 of 1985) opened fire, as a result of which Niranjan Sahni and Sakoor Nadaf were injured and died on the spot. Dhananjay Pathak, Shushan Pathak and others started hurling bombs causing injuries to Rajendra Sahni, Rajdeo Yadav (P.W.4) and Vijay Kumar Singh (P.W.17). They had also thrown bombs at the two deceased who had fallen. The informant ran away and entered the house of Tildhari Sahni, Dhananjay Pathak asked his men to set fire to the house of Tildhari and commanded Tildhari to bring out the informant who was hiding in his house. Tildhari refused to do so, since the informant had taken shelter in his house. Thereupon, Sudhir Pathak pierced his bhala in the abdomen of Tildhari Sahani, and Ishwar Chandra Pathak hurled his bhala at him. Other accused persons assaulted him with fists and slaps Mithilesh Pathak, Rajendra Rai, Shola Rai, Rama Kant Pathak, Prem Chand Pathak as well as Amol Thakur and Madhu Thakur (Appellants in Cr. Appeal No. 23 of 1985) were armed with lathis, bhalas and bombs and they were using their respective weapons. Anup Lal Rai (Appellant in Cr. Appeal No. 36 of 1985) took out a match box from his pocket and set fire to the house of Tildhari. The informant made an attempt to escape but Ram Singhasan Rai opened fire from his gun on the orders of Satya (Satya Nr. Pathak) and Sindeshwari Pathak. The gun shot fired by Ram Singhasan Rai caused injuries on the neck, chest and left arm of the informant who fell down. There is also an allegation made in the report that the informant's watch was taken by Dhananjay Pathak while his spectacles and pen etc. were taken by Shushan Pathak and Ishwar Chandra Pathak. The occurrence was witnessed by several persons whose names have been disclosed in the fardbeyan. There is also a statement in the fardbeyan that injured Tildhari was unconscious. It is not disputed that while Tildhari was being taken to Darbhanga for medical treatment he succumbed to his injuries. 6. The case of the prosecution is that three persons lost their lives in the occurrence namely, Niranjan Sahni and Sakoor Nadaf, who died on the spot, while Tildhari Sahni succumbed to his injuries while being removed to Darbhanga for medical treatment. It also appears from the deposition of P.W.24, Dr. 6. The case of the prosecution is that three persons lost their lives in the occurrence namely, Niranjan Sahni and Sakoor Nadaf, who died on the spot, while Tildhari Sahni succumbed to his injuries while being removed to Darbhanga for medical treatment. It also appears from the deposition of P.W.24, Dr. Kusheshwar Jha the Medical Officer posted at Nanpore State Dispensary that he had examined Tildhari Sahni (deceased), Rambujhawan Yadav, (P.W.2) as well as Rajdeo Yadav (P.W.4), Garbhu Sahu, Rajendra Sahni (P.W. 15), and Vijay Kumar Singh (P.W. 17) at about 9 P.M. on 7.6.1978. Apart from Tildhari Sahni (deceased) all others had suffered injuries caused by fire arm. 7. It may be noticed at this stage that initially a charge was framed under Section 302 of the Indian Penal Code against appellant Dhirendra Thakur and Ram Singhasan Rai for the murder of Niranjan Sahni and Sakoor Nadaf, obviously on the basis of the allegation contained in the first information report. However, later on 5.10.1982 the charge was altered and instead of Ram Singhasan Rai, Ram Swaroop Rai was charged alongwith Dhirendra Thakur for having committed an offence under Section 302 of the Indian Penal Code. This was because the witnesses at the trial stated that not Ram Singhasan Rai, but Ram Swaroop Rai and Dhirendra Thakur fired at Niranjan Sahni and Sakoor Nadaf Rai resulting in their instantaneous deaths. 8. Dr. T.N. Singh, who was posted at Sitamarhi Sadar Hospital conducted the post mortem examination on the dead bodies of Tildhari Sahni, Sakoor Nadaf and Niranjan Sahni on 9.6.78 between 11 A.M. and 12.20 P.M. According to his findings, Tildhari Sahni had suffered injuries caused by Bhala and his death occurred due to shcok and heamorrhage caused by• the injuries. Though he mentioned two injuries, he stated that injury No. 2 was in continuation of injury No.1. Ante mortem injuries found by him were (1) Protrusion of the intestinal loop from the left side of the epigastricum region from the aperture where the blood stain was present, the dimension of aperture was 3" x 1/2" pritoneal deep. The aperture was caused by stab injury. The direction of the aperture was below upward. (2) On dissection of the abdominal Cavity clotted blood was found under pertoneum. Lower border of the liver was punctured and ruputured. Other organs were normal. The aperture was caused by stab injury. The direction of the aperture was below upward. (2) On dissection of the abdominal Cavity clotted blood was found under pertoneum. Lower border of the liver was punctured and ruputured. Other organs were normal. On the dead body of Sakoor Nadaf he found following antemortem injuries. (i) Fifteen blackened tatooed oval depression spread all over the chest. The whole skin of the chest and upper part of the abdomen black. (ii) Ten blackened tatooed oval depressions spread over the face and eyes the skin of which was blackened. Nose depressed, both eye balls lacerated and damaged. (iii) Three blackened tatooed were found on the right arm. (iv) Two blackened tatooed oval depression were found on left arm. On dissection of thorasic cavity laceration of both lungs was present. Cavity was filled with clotted blood. Three pellets were discovered from the lungs. On dissection of the scalp two pellets were found under the scalp. On the dead body of Niranjan Sahni he found following antemortem injuries. (1) Seventeen blackened tatooed oval depressions spread over chest wall. Whole of the skin of the chest and the skin of the upper part of abdomen was blackened. (2) Three blackened tatooed oval depressions spread over the right arm skin of which was blackened. (3) Two blackened tatooed spots were found on left arm. Skin was blackened. (4) Three blackened tatooed oval depressions spread over face skin of which was blackened. On dissection of thorasic cavity laceration of both lungs was found. Cavity was filled with blood clot. Fourteen pellets were found from the thorasic cavity. Time elapsed since death was 36 hours to 48 hours. The injuries on Sakoor Nadaf and Niranjan Sahni were caused by fire arm and bomb and death was on account of shock and heamorrage caused by the injuries. Having regard to the injuries suffered by the three deceased, it cannot be disputed that they met a homicidal death. P.W. 24 (Dr. Kusheshwar Jha) examined injuries suffered by P.Ws. 2, 4, 11, 15 and 17. He found the following injuries suffered by P.W.2 (Rambujhawan Yadav) (i) Multiple blackish tiny mottled with drag dried up black nodular raised injuries over the left side of front of the chest nearly at four places all adjacent to each other. P.W. 24 (Dr. Kusheshwar Jha) examined injuries suffered by P.Ws. 2, 4, 11, 15 and 17. He found the following injuries suffered by P.W.2 (Rambujhawan Yadav) (i) Multiple blackish tiny mottled with drag dried up black nodular raised injuries over the left side of front of the chest nearly at four places all adjacent to each other. (ii) Similar tiny motted injury over the front of the neck at about the three places all adjacent to each other. (iii) Small tiny mottled injuries nodular over the skin of the back of the elbow, arm and forearm. P. W. 11 (Garbhu Sah) suffered the following injuries : (i) Scattered multiple pellet of gun shot injuries on front of neck all superficial and skin deep. (ii) One pellet injury on left wrist in its middle part skin deep and superficial. (iii) One pellet injury on the leteral aspect of left side of chest skin deep and superficial. Age within 26 to 28 hours. On Vijay Kumar Singh (P.W. 17) he found the following injuries : (i) Gun shot pellet injuries multiple in nature in front of middle and right part of front of chest. All appeared to be skin deep. (ii) Gun shot pellet injuries scattered over the part of the upper abdomen all skin deep. (iii) Gun shot pellet injuries multiple in nature in the right part of back side of head, all skin deep. (iv) Gun shot pellet injuries on right side of back part of chest, all skin deep. All the injuries were gun shot pellet injuries aged within 26 to 28 hours. On Rajendra Sahani (P.W. 15) he found the following injuries: (i) Multiple scattered blackish tiny mottled injuries scattered over the parts of abdomen front of the chest face, and over the right arm. Injury simple in nature caused by fire arm such as gun shot. Age within 6 to 8 hours. It would thus appear from the evidence of P.W. 24 that P.Ws. 2, 4, 11, 15 and 17 had suffered injuries caused by firearm. 9. The informant Rambujhawan Yadav was examined as P.W.2. He was a candidate for the post of Mukhiya in the Gram Panchayat election which was to be held. The other contestants in the said election were appellant Ram Singhashan Rai and one Anirudh Rai. 2, 4, 11, 15 and 17 had suffered injuries caused by firearm. 9. The informant Rambujhawan Yadav was examined as P.W.2. He was a candidate for the post of Mukhiya in the Gram Panchayat election which was to be held. The other contestants in the said election were appellant Ram Singhashan Rai and one Anirudh Rai. The informant deposed that on the date of occurrence he proceeded from village Mahisautha to village Samar accompanied by 15-16 supporters which included P.Ws. 3, 4, 5, 7, 8, 9, 11, 12, 14, 17 and 18 apart from the two deceased, namely, Niranjan Sahni and Sakoor Nadaf. When he went to the darwaja of Shushan Pathak he found large number of persons present there numbering about 20 or 30, which included all the twenty persons put up for trial. The others were not known to him. When he approached them he was told by Dhananjay Pathak that he should go and canvass for votes elsewhere, as they were holding discussions amongst themselves. Upon this he proceeded to the darwaja of Magnoo Choudhary and started canvassing for votes. At about 2 P.M. when he reached near the darwaja of "Shushan Pathak on his way back to village Mahisautha Shushan Pathak told Ram Singhashan Rai in a sarcastic manner that the informant had got his gun seized but he (Shushan Pathak) managed to get the polling booth shifted and P.W.2 could do nothing. There was a retort by P.W.2 followed by an altercation, but his supporters advised him to proceed ahead as those persons were in a mood to quarrel. Rani Pathak alias Rama Kant Pathak then assured the informant that there will be no quarrel and further stated that they will also accompany the informant to village Mahisautha. Thus all of them proceeded towards village Mahisautha. When they reached Khanua Ghat the informant found them to be in a mood to quarrel. Pitambar Thakur and Shusan Pathak called the persons, 10 to 15 in number, who were sitting on the bank of the river armed with guns, bombs, Bhalas and lathis. Those persons came and five of the appellants, namely, Ram Singhashan Rai, Anup Lal Rai, Nand Kishore Rai, Ram Swaroop Rai and Dhirendra Thakur took the guns from them while Shushan Pathak, Shyama Kant Pathak, Shola Rai, Rajendra Rai and Dhananjay Pathak took bombs from them. Those persons came and five of the appellants, namely, Ram Singhashan Rai, Anup Lal Rai, Nand Kishore Rai, Ram Swaroop Rai and Dhirendra Thakur took the guns from them while Shushan Pathak, Shyama Kant Pathak, Shola Rai, Rajendra Rai and Dhananjay Pathak took bombs from them. Sudhir Pathak and Ishwar Chand Pathak took Bhalas from them, while others armed themselves with lathis brought by those persons. After the accused got themselves armed Shushan Pathak and Pitambar Thakur made a sarcastic comment and asked their companions to open fire. Seeking this P.W.2 and his supporters ran away and came and stood near the palm trees to the south of the house of Tetar Sahni. The informant saw Ram Swaroop Rai and Dhirendra Thakur firing from their guns hitting Niranjan Sahni and Sakoor Nadaf who fell down on receiving the gun shot injuries and died. Those who were armed with bombs exploded the bombs injuring Niranjan Sahni and Sakur Nadaf, deceaed. The informant ran and entered the house of Tildhari Sahni, chased by the accused. Guns were fired causing injuries to prosecution witnesses, namely, Vijay Kumar Singh (P.W. 17), Garbhu Sahu (P.W.11), Rajendra Sahani (P.W.15) and Rajdeo Rai (P.W.4). Dhananjay Pathak ordered to set fire to the house of Tildhari Sahni while Satto Pathak, Sindeshwar Pathak and Rama Kant Pathak ordered Tildhari to bring out the informant from his house. Tildhari Sahni refused to do so saying that the informant had taken shelter in his house. Thereupon Sudhir Pathak pierced his bhala into the abdomen of Tildhari while the bhala hurled at him by Ishwar Chandra Pathak missed the target. Anuplal Rai took out a match box and set fire to the house of Tildhari forcing the informant to go out of the house and run for his life. He was noticed by Satto Pathak, Sindeshwar Pathak and Ram Pathak who ordered his companions to fire at him, as he was escaping. Thereafter appellant Ram Singhashan Rai fired at him causing injuries on his neck, chest and arm. The accused persons thereafter fled away. The informant along with the injured Tildhari (deceased) and Rajendra Sahani (PW 15) was brought to Nanpur police station where he gave his statement at 8 P.M. At that time Tildhari was unconscious. All the three injured were sent to Nanpur hospital for medical aid. The accused persons thereafter fled away. The informant along with the injured Tildhari (deceased) and Rajendra Sahani (PW 15) was brought to Nanpur police station where he gave his statement at 8 P.M. At that time Tildhari was unconscious. All the three injured were sent to Nanpur hospital for medical aid. Having regard to the injuries suffered by Tildhari, he was directed to be taken to Darbhanga hospital but on his way he succumbed to his injuries. In his cross-examination the attention of P.W.2 was drawn to the statement made in the fardbeyan in which he had stated that Dhirendra Thakur and Ram Singhashan Rai fired at Niranjan Sahni and Sakoor Nadaf but in course of his deposition he named Ram Swaroop Rai instead of Ram Singhashan Rai, as the person who had fired simultaneously with Dhirendra Thakur. Moreover, in his fardbeyan there was no mention of the fact that the persons who were sitting at the river bank had lathis and Bhalas with them, though in course of his deposition, apart from guns and bombs, the informant stated that they had also brought with them lathis and Bhalas. Moreover, the story about the theft of certain articles mentioned in the fardbeyan was given up at the trial. In all other respects P.W.2 was fully corroborated by his fardbeyan recorded on the date of occurrence. 10. P.W.3 (Nagendra Pd. Yadav) supported the prosecution case and claimed that he was throughout present in the company of the informant and his other supporters. He, however, identified only 15 of the accused persons sitting at the darwaja of Shushan Pathak. 11. P.WA (Rajdeo Yadav) is an injured witness. He identified twenty of the accused persons at the darwaja of Shushan Pathak. He has fully supported the informant as to the manner in which the members of the defence party got themselves armed at the Khanua Ghat and how they assaulted the members of the prosecution party. This witness has clearly stated that it was Nand Kishore Rai who fired from his gun causing injuries to this witness apart from P.Ws. 11, 15 and 17. 12. P.W. 6 (Magnoo Chaudhary) deposed that on the date of occurrence P.W.2 along with 15-16 supporters of his came to his darwaja canvassing for votes. When they were returning, this witness accompanied them. 11, 15 and 17. 12. P.W. 6 (Magnoo Chaudhary) deposed that on the date of occurrence P.W.2 along with 15-16 supporters of his came to his darwaja canvassing for votes. When they were returning, this witness accompanied them. This witness has named as many as 19 accused persons as being present at the darwaja of Shusan Pathak. He has also deposed about the altercation which took place near the darwaja of Shushan Pathak. According to this witness he went up to Mahavir Sthan only and thereafter returned home. It was in the evening that he came to know about the occurrence. 13. P.W.8 Garbhu Ram is also an eye witness. He had also accompanied the informant on the date of occurrence when he went for canvassing votes. He identified 20 of the accused persons present at the darwaja of Shushan Pathak. The deposition of this witness is consistent with the deposition of the informant (P.W.2) and fully supports the prosecution case. His attention was drawn to the fact that in his statement recorded under Section 161 Cr. P.C. he had not mentioned that Ramswaraop had fired his gun and that Vijay Kumar and others had been injured by the gun shot fired by Nand Kishore Rai. Similarly his attention was drawn to various others omissions in his statement before the Investigating Officer. . 14. PW. 10, Ram Awtar Yadav, is the brother of the informant (P.W. 2). Ac. cording to him he had gone to the house of Ramphal Rai at Khanu Ghat to receive money which he had lent to him. He has supported the prosecution case fully as regards the manner of occurrence at the Khanua Ghat and thereafter. He identified as many as 21 of the accused persons. It appears that before the police he had stated that he was at his house at 2 P.M. when he heard that his brother and associates were being assaulted by the people of Samar, Sater and Jajuar at Khanua Ghat. 15. P.W. 11, Garbhu Sahu, is an injured witness and he has also fully supported the prosecution case naming 19 of the accused persons as being present at the darwaja of Shushan Pathak. He was with the informant throughout and has given substantially the same version as given by the informant. 15. P.W. 11, Garbhu Sahu, is an injured witness and he has also fully supported the prosecution case naming 19 of the accused persons as being present at the darwaja of Shushan Pathak. He was with the informant throughout and has given substantially the same version as given by the informant. He has stated that it was Nandkishore who opened fire causing injury to him as well as P.W. 4, 15 and 17. P.W. 17 Vijay Kumar Singh is another injured witness. He has also fully supported the prosecution case and he claimed to have identified all the 22 accused persons sitting at the darwaja of Shusan Pathak. In his cross examination he was also confronted with certain omissions in his statement before the police as regards the details of the occurrence to which he had deposed in course of his deposition at the trial. 16. P.W. 1 Sindi Sahni, claimed that he was with the informant throughout and had identified all the 22 accused persons. 17. P.W. 19 Ganga Sahni, was the son of. Tildhari Sahni (deceased). On hearing the sound of gunfire he came to his darwaja at about 2.30 or 3 P.M. and saw the informant entering his house. He also saw a mob of 20-22 persons whom he has named. He has named five persons armed with guns, two persons with bhalas and four persons with lathis. He has also deposed as to the manner in which Dhananjay asked his father to bring out the informant from his house and the refusal by his father to do so. He has also deposed about the manner in which Sudhir pierced his bhala in the abdomen of his father and the attempt by Ishwar Chand Pathak to assault his father with bhala which failed. This witness has deposed as to the manner in which the occurrence took place after the informant had entered the house of his father. Apart from these witnesses 8 other witnesses were tendered for cross examination namely P.Ws. 5, 7, 9, 12, 13, 14, 15, and 16. Out of them P.W. 15 Rajendra Sahni was an injured witness. 18. This witness has deposed as to the manner in which the occurrence took place after the informant had entered the house of his father. Apart from these witnesses 8 other witnesses were tendered for cross examination namely P.Ws. 5, 7, 9, 12, 13, 14, 15, and 16. Out of them P.W. 15 Rajendra Sahni was an injured witness. 18. The trial court on a very detailed and critical appreciation of the evidence on record found that though the cross examination of the witnesses did disclose some minor discrepancies and inconsistencies, that was but natural in the facts and the circumstances of the case, having regard to the fact that large number of persons were being chased by another group of persons numbering about twenty. It, however, found that so far as two of the appellants were concerned, namely, Pawan Kumar Thakur and Shesh Narain Thakur, they were not named by as many as six eye witnesses. Though they were named by four eye witnesses, it was established that before the Investigating Officer they had not been named by even those witnesses. The trial court had, therefore, no difficulty in acquitting them of the charges levelled against them. It was also found that there was nothing to prove that bombs were used in the occurrence. There was also no sanction to try the accused for the offences under the Explosive Substance Act. It therefore, held that the charge under Section 4 of the Explosive Substance Act was not proved, and five of the appellants who had been charged of having used bombs in the occurrence were acquitted. We find that though in the first information report it was alleged that five of the persons had exploded the bombs which had caused injuries to P.Ws. 4, 15 and 17, those witnesses have stated in course of their deposition that they were injured by the gun shots fired by Nand Kishore Ram. The trial court also acquitted five of the accused persons of the charge under section 25 of the Arms Act for want of sanction for prosecution under the Arms Act. The trial court also disbelieved the plea of alibi set up by appellants Dhirendra Thakur, Bhushan Pathak and Rama Kant Pathak, co-accused. It was held that the prosecution had proved beyond reasonable doubt that Sakoor Nadaf and Niranjan Sahni were shot dead at Khanua Ghat. The trial court also disbelieved the plea of alibi set up by appellants Dhirendra Thakur, Bhushan Pathak and Rama Kant Pathak, co-accused. It was held that the prosecution had proved beyond reasonable doubt that Sakoor Nadaf and Niranjan Sahni were shot dead at Khanua Ghat. Two of the accused persons are said to have fired their guns at them simultaneously and there was consistent evidence that appellant Dhirendra Thakur was one of them. The evidence with regard to other person who had fired simultaneously with Dhirendra Thakur was discrepant. It was, therefore, held that only Dhirendra Thakur could be held guilty of the charge under section 302 of the Indian Penal Code for the murders of Niranjan Sahni and Sakoor Nadal. It was further held that five of the accused persons were armed with guns and they used their guns in an illegal manner. Gun shot injuries were suffered by P.Ws. 2, 4, 11, 15 and 17. The manner in which the occurrence took place established that all the accused who were found to be present were members of an unlawful assembly having a common object, and in pursuance of that common object three persons had been killed. Consequently, twenty of the accused persons whose presence was established were held guilty of the offence under section 302/149 of the Indian Penal Code. Appellant Ram Singhashan Rai was held guilty of the offence under section 307 of the Indian Penal Code, as he fired at the informant (PW.2) and injured him in an attempt to commit his murder. Five of the accused persons, who were armed with guns were also found guilty of the offence under section 27 of the Arms Act. Out of the twelve accused persons who were charged of the offence under section 148 of the Indian Penal Code being armed with guns, bhalas and bombs, those five who were said to be armed with bombs were not found guilty under section 148 of the Indian Penal Code, as the trial court disbelieved that part of the prosecution case in which it was alleged that bombs had been used. The remaining seven persons were found guilty of the offence under section 148 of the Indian Penal Code and those armed with bombs were held guilty under section 147 of the Indian Penal Code. The remaining seven persons were found guilty of the offence under section 148 of the Indian Penal Code and those armed with bombs were held guilty under section 147 of the Indian Penal Code. The remaining eight accused persons were found guilty of the offence under section 147 of the Indian Penal Code. 19. The prosecution case that Dhananjay had instigated to set fire to the house of Tildhari was not accepted and consequently he was acquitted of the charge under section 436/109 of the Indian Penal Code. Similarly, since the evidence was discrepant as to who had set fire to the house of Tildhari, appellant Anuplal Rai was acquitted of the charge under section 436 of the Indian Penal Code. Dhananjay Pathak and Bhushan Pathak who had also been charged under section 307 of the Indian Penal Code for having attempted to murder Rajendra Sahni and others by throwing bombs were acquitted of the charge under section 307 of the Indian Penal Code since use of bombs was disbelieved. The prosecution story of Bhushan Pathak and Pitambar Thakur exhorting his companions to commit murder was not accepted and hence they were acquitted of the charge under section 302/109 of the Indian Penal Code. So far as the murder of Tildhari was concerned, Sudhir Pathak and Ishwar Chand Pathak were charged under section 302 of the Indian Penal Code. Finding the evidence led by the prosecution on this aspect of the matter to be discrepant and unsatisfactory, both Sudhir Pathak and Ishwar Chand Pathak were acquitted of the charge under section 302 of the Indian Penal Code for committing the murder of Tildhari. Appellant Ram Swaroop Rai was acquitted of the charge of murder under section 302 of the Indian Penal Code as evidence on record as against him did not definitely establish that he had fired along with appellant Dhirendra Thakur at Niranjan Sahni and Sakoor Nadaf. 20. It would thus appear that twenty of the accused persons were found guilty of the offence under section 302/149 of the Indian Penal Code and Dhirendra Thakur was held guilty of the offence under section 302 of the Indian Penal Code. The appellants were also found guilty of other offences under sections 147, 138 of the Indian Penal Code and section 27 of the Arms Act. 21. The appellants were also found guilty of other offences under sections 147, 138 of the Indian Penal Code and section 27 of the Arms Act. 21. Before dealing with the submissions urged in these appeals, it would be necessary first to consider the findings recorded by this Court in Cr. Appeal No. 17 of 1985 in which there were ten appellants who were tried along with these appellants in the three appeals before us. Out of the ten appellants in Cr. Appeal No. 17 of 1985 Sudhir Pathak and Ishwar Chand Pathak were alleged to be armed with Bhalas and the specific role assigned to them was the assault on Tildhari resulting in his death. Three of the appellants, namely, Bhushan Pathak, Dhananjay Pathak and Shyama Kant Pathak were said to be armed with bombs and the role assigned to them was that they had exploded those bombs injuring some of the members of the prosecution party. The remaining five appellants were Ramakant Pathak, Premchand Pathak, Satya Narain Pathak, Bindeshwar Pathak and Mithlesh Pathak. The omnibus allegation against them was that they were armed with lathis, but there was no specific role assigned to them. 22. While considering the appeal preferred by these appellants this Court held that there was no unlawful assembly till such time as the members of the prosecution and the defence party reached the Khanu Ghat. It was thereafter that arms were supplied to the members of the defence party, which was followed by an assault by them on the members of the prosecution party. A question arose whether all the persons shared a common and unlawful object, specifically whether they shared a common unlawful object of committing the murder of any member of the prosecution party, in prosecution of which object some others were killed or injured. Relying upon the decisions of the Supreme Court in Dukhmochan Pandey vs. The State of Bihar (A.I.R. 1998 S.C. 40) and Ram Bilas Singh vs. State of Bihar (A.I.R. 1969 S.C. 1593) it was held that the mere presence of the accused was not enough to hold that they shared the commn unlawful object of the assembly. Relying upon the decisions of the Supreme Court in Dukhmochan Pandey vs. The State of Bihar (A.I.R. 1998 S.C. 40) and Ram Bilas Singh vs. State of Bihar (A.I.R. 1969 S.C. 1593) it was held that the mere presence of the accused was not enough to hold that they shared the commn unlawful object of the assembly. Before they could be held vicariously liable under section 34 of the Indian Penal Code or section 149 of the Indian Penal Code, there must be material to show that the overt act or acts of one or more was or were done in furherance of the common intention of all the accused or in the prosecution of the common object of the members of the unlawful assembly. It must be shown that the offence committed was intimately connected with the common object of the assembly, or the act was one which upon the evidence appeared to have been done with a view to accomplish the common object attributed to the members of the assembly. Even if the accused per. sons were armed with weapons, that itself would not be sufficient to hold that the common object of all of them was to commit the murder, where assault was not on vital parts of the body, which ultimately resulted in causing some minor injuries. Their Lordships held that in the facts of this case even' if the appellants were present and had armed themselves, they became members of an unlawful assembly but without anything more it could not be held that they shared any common unlawful object to commit the murder of any person. The facts of the case disclose that no overt act was alleged against the persons said to be armed with lathis and, therefore, it could not be said that they shared the common unlawful object of the assembly to commit the murder of anyone. Similarly those armed with bombs were also entitled to acquittal because the trial court itself had disbelieved the use of bombs in the occurrence. There was no other specific role assigned to those appellants and, therefore, they were also persons who took no part in the assault that followed. Two of the appellants who were armed with bhalas were specifically assigned the role of murdering Tildhari Sahni. The trial court had held that that part of the prosecution case was not established. There was no other specific role assigned to those appellants and, therefore, they were also persons who took no part in the assault that followed. Two of the appellants who were armed with bhalas were specifically assigned the role of murdering Tildhari Sahni. The trial court had held that that part of the prosecution case was not established. In these circumstances, the court held that the ten appellants before them, though members of an unlawful assembly, did not share the common unlawful object of committing the murder of anyone since no overt act was either alleged or proved in their cases. On these findings their conviction under section 302/149 of the Indian Penal Code was set aside, except Ramakant Pathak who was acquitted since his plea of alibi was found proved. Seven of the appellants who were said to be armed with lathis and bombs were found guilty of the offence under section 147 of the Indian Penal Code only. Similarly, two of the appellants who were armed with bhalas were found guilty of the offence under section 148 of the Indian Penal Code. The presence of the convicted appellants was found to be established, but the prosecution failed to prove that they had indulged in any overt act which may lead the court to conclude that they shared the common unlawful object of the unlawful assembly to commit the murder of any member of the prosecution party. 23. We shall now take up for consideration the three appeals before us. We shall first of all take up for consideration Cr. Appeal No. 23 of 1985. In this appeal there were three appellants, namely, Pitambar Thakur, Amod Thakur and Madhu Thakur. It appears that pending the appeal two of them, namely, Pitambar Thakur, and Madhu Thakur died. Their appeal, therefore, abates. So far as Amod Thakur is concerned, Sri Parthsarthy counsel appearing on his behalf submitted that there is no overt act alleged against him. There is only an omnibus allegation that he was armed with a lathi. His case, therefore, stands on the same footing as the cases of those appellants in Cr. Appeal No. 17 of 1985 who were armed with lathis and against whom no overt act was alleged or proved. There is only an omnibus allegation that he was armed with a lathi. His case, therefore, stands on the same footing as the cases of those appellants in Cr. Appeal No. 17 of 1985 who were armed with lathis and against whom no overt act was alleged or proved. Counsel for the State also could not distinguish the case of Amod Thakur from the cases of those appellants whose conviction under section 302/149 I.P.C. was set aside by this Court in Cr. Appeal No. 17 of 1985. We are, therefore, of the view that appellant Amod Thakur deserves to be acquitted of the charge under section 302/149 I.P.C. and we, accordingly, acquit him of that charge. His conviction under section 147 of the Indian Penal Code is, however, upheld but his sentence is reduced to the period already undergone by him. 24. In Cr. Appeal No. 36 of 1985 there are six appellants, namely, Ram Singhasan Rai, Anup Lal Rai, Ramswaroop Rai, Nand Kishore Rai, Rajendra Rai and Bhola Rai. Two of them, namely, Anup Lal Rai and Ramswaroop Rai died pending the appeal. The appeal preferred on their behalf, therefore, abates. So far as appellants Rajendra Rai and Bhola Rai are concerned, the allegation against them is that they had exploded bombs in course of the occurrence. The cases of these two appellants stand on the same footing as three of the appellants in Cr. Appeal No. 17 of 1985 who allegedly had exploded bombs. The trial court has disbelieved the use of bombs in the occurrence and there is no other overt act alleged against them. In these circumstances as was ordered in Cr. Appeal No. 17 of 1985, their conviction under section 302/149 of the Indian Penal Code is set aside but their conviction under section 147 of the Indian Penal Code is upheld and their sentence is reduced to the period already undergone by them. 25. So far as the remaining appellants are concerned, namely, Ram Singhasan Rai and Nand Kishore Rai, it would be convenient to consider their cases along with the case of appellant Dhirendra Thakur, the sole appellant in Cr. Appeal No. 77 of 1985. The trial Court has found both guilty of the offence under section 27 of the Arms Act, since they were armed with guns. Appeal No. 77 of 1985. The trial Court has found both guilty of the offence under section 27 of the Arms Act, since they were armed with guns. Apart from their conviction under section 302/149 of the Indian Penal Code, two of them have also been convicted under other sections of the Indian Penal Code. Dhirendra Thakur has been found guilty of the offence under section 302 of the Indian Penal Code for having committed the murder of Niranjan Sahni and Sakoor Nadaf. Ram Singhasan Rai has been found guilty of the offence under section 307 of the Indian Penal Code for having attempted to commit the murder of the informant (P.W.2). So far as appellant Nand Kishore Rai is concerned, he has been convicted under section 302/149 of the Indian Penal Code, and there is clear evidence on record that he had fired causing injuries to four of the prosecution witnesses, namely P.Ws. 4, 11, 15 and 17. It cannot, therefore, be disputed that overt acts have been attributed to each of them. 26. It was submitted on behalf of the appellant Dhirendra Thakur that he was initially charged of the offence under section 302 of the Indian Penal Code along with Ram Singhasan Rai, since it was alleged in the fardbeyan that both of them fired simultaneously at Sakoor Nadaf and Niranjan Sahni causing their deaths. Later the charge was reframed and instead of Ram Singhasan Rai, Ramswaroop Rai (since deceased) was charged under section 302 of the Indian Penal Code along with Dhirendra Thakur for the murders of Sakoor Nadaf and Niranjan Sahni. It was submitted that since Ram Singhasan Rai has been acquitted of the charge under section 302 of the Indian Penal Code, appellant Dhirendra Thakur, is also entitled to acquittal under section 302 of the Indian Penal Code. The submission is misconceived and must be rejected. So far as Dhirendra Thakur is concerned, it is the consistent case of the prosecution, both at the stage of investigation as well as at the trial, that he had fired at Sakoor Nadaf and Niranjan Sahni along with one other accused. There is no doubt about the firing of gun by appellant Dhirendra Thakur. So far as Dhirendra Thakur is concerned, it is the consistent case of the prosecution, both at the stage of investigation as well as at the trial, that he had fired at Sakoor Nadaf and Niranjan Sahni along with one other accused. There is no doubt about the firing of gun by appellant Dhirendra Thakur. So far as Ramswaroop Rai is concerned, it was found by the trial court that in course of investigation he was not alleged to have fired at Sakoor Nadaf and Niranjan Sahni along with appellant Dhirendra Thakur. In the fardbeyan this role was not ascribed to him. It was only at the trial that the informant as well as the other witnesses named him as the other accused who had fired simultaneously with Dhirendra Thakur causing the deaths of Sakoor Nadaf and Niranjan Sahni. The trial court, therefore, and rightly, gave the benefit of this discrepancy to Ramswaroop Rai and acquitted him of the charge under section 302 of the Indian Penal Code. The case of appellant Dhirendra Thakur does not stand on the same footing because the consistent case of the prosecution is that he had fired at Sakoor Nadaf and Niranjan Sahni, both of whom died after receiving gun shot injuries. The doubt, if any, was only about the other person who fired with him simultaneously. We are, therefore, of the view that appellant Dhirendra Thakur cannot be acquitted of the charge under section 302 of the Indian Penal Code merely because co-accused Ramswaroop Rai has been acquitted of that charge. 27. From the facts of the case it appears that the members of the prosecution party and the defence party came near Khanua Ghat. At that stage no one was armed. It cannot also be lost sight of that the members of the prosecution party were the supporters of the informant (P.W.2), who was a candidate for the post of Mukhiya. Similarly, the members of the defence party were the supporters of the rival candidate, namely, appellant Ram Singhasan Rai. After they reached Khanua Ghat and the members of the defence party armed themselves with the weapons supplied by ten or fifteen persons sitting near the bank of the river, they certainly constituted themselves into an unlawful assembly. Similarly, the members of the defence party were the supporters of the rival candidate, namely, appellant Ram Singhasan Rai. After they reached Khanua Ghat and the members of the defence party armed themselves with the weapons supplied by ten or fifteen persons sitting near the bank of the river, they certainly constituted themselves into an unlawful assembly. The evidence on record is that by the time they reached Khanua Nala the member of the defence party had become agitated and were anxious to pick up a quarrel. Appellant Dhirendra Thakur, Ram Singhasan Rai, Anup Lal Rai (deceased), Ramswaroop Rai (deceased) and Nand Kishore Rai armed themselves with guns. The firing was resorted to in the first instance by appellant Dhirendra Thakur though the evidence is not consistent as to whether Ram Singhasan Rai or Ramswaroop Rai fired simultaneously with him. The members of the prosecution party were thereafter chased. The informant hid himself inside the house of Tildhari. After the house was set on fire and Tildhari wanted to escape, Ram Singhasan Rai fired at him causing him injuries. In course of the occurrence, there is clear evidence of P.Ws. 4, 11 and 17, that it was Nand Kishore Rai who fired at them causing gun shot injuries, as found by the medical officer. We are, therefore, of the considered view that having armed themselves, and having commenced the assault with the use of guns, the five appellants who were armed with guns did constitute themselves into an unlawful assembly, the object of which was to commit the murder of one or more members of the prosecution party who belonged to the rival group. This is reinforced by the fact that they were all carrying firearms and the same. There could be no other purpose behind their arming themselves with guns. Apart from the two appellants who are dead, there is clear allegation of overt act against the remaining three appellants. Dhirendra Thakur has been held guilty of the offence under section 302 of the Indian Penal Code and there appears to be no good reason to set aside his conviction, subject to the finding on his plea of alibi. Ram Singhasan Rai fired at the informant and has been found guilty of the offence under section 307 of the Indian Penal Code. Ram Singhasan Rai fired at the informant and has been found guilty of the offence under section 307 of the Indian Penal Code. His participation clearly established that he was acting in concert with other accused persons who were also armed with guns. Similarly, appellant Nand Kishore Rai fired from his gun causing injuries to P.Ws 4, 11, 15 and 17. There is clear allegation of overt acts against them and the prosecution has successfully proved its case as against them. 28. A question then arises as to whether in the facts and circumstances of this case they should be convicted under section 302 read with section 149 of the Indian Penal Code, or under any other section. Out of the five appellants armed with guns the overt act alleged against Ramswaroop Rai (since deceased) has not been believed. As against Anup lal Rai there was an allegation that he set fire to the house of Tildhari, but the charge of arson against him has not been proved. Thus, out of five appellants armed with guns, as against two, namely, Anup lal Rai and Ramswaroop Rai it has not been established that they participated by using their guns. The overt acts alleged against them have not been proved. Applying the principle as enunciated in Cr. Appeal No. 17 of 1985, it can be said with certainty that after arming themselves with guns appellant Dhirendra Thakur, Ram Singhasn Rai and Nand Kishore Rai acted in concert and used their weapons. Even assuming that by reason of their not having used their weapons, it can be said that Anup Lal Rai and Ramswaroop Rai (both since deceased) did not share the common unlawful object of committing the murder of anyone, the remaining appellants can still be held guilty of the offence under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code. The appeal preferred by Anup Lal Rai and Ramswaroop Rai has abated. Appellants Ram Singhasan Rai and Nand Kishore Rai are, therefore, convicted of the offence under section 302 read with section 34 of the Indian Penal Code instead of section 302 read with section 149 of the Indian Penal Code. The appeal preferred by Anup Lal Rai and Ramswaroop Rai has abated. Appellants Ram Singhasan Rai and Nand Kishore Rai are, therefore, convicted of the offence under section 302 read with section 34 of the Indian Penal Code instead of section 302 read with section 149 of the Indian Penal Code. On the same reasoning appellant Dhirendfa Thakur can also be held guilty of the offence under section 302 read with section 34 of the Indian Penal Code, apart from his conviction under section 302 of the Indian Penal Code. We shall presently consider the plea of alibi set up by Dhirendra Thakur in Cr. Appeal No. 77 of 1985. So far as Cr. Appeal No. 36 of 1985 is concerned, the appeals of Anup Lal Rai and Ramswaroop Rai, stand abated. Appellant Rajendra Rai and Bhola Rai said to be armed with bombs, are acquitted of the charge under section 302/149 of the Indian Penal Code but their conviction under section 147 of the Indian Penal Code is upheld, and the sentence is reduced to the period already undergone by them. Appellant Ram Singhasan Rai and Nand Kishore Rai are convicted of the offence under section 302/34 of the Indian Penal Code instead of section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The conviction of appellant Ram Singhasan Rai under section 307 of the Indian Penal Code is upheld, but he is sentenced to undergo rigorous imprisonment for a term of seven years on this court. The conviction and sentence of Ram Singhasan Rai and Nand Kishore Rai under section 27 of the Arms Act is upheld. Cr Appeal No. 36 of 1985 is disposed of accordingly. 29. All that now remains to be considered is the plea of alibi set up by Dhirendra Thakur, the sole appellant in Cr. Appeal No. 77 of 1985. In a nutshell his plea is that he had taken leave on 29.5.1978 from Jajewar High School where he was working as a teacher to get his eyes treated and also to meet the authorities concerned in connection with the transfer of Ram Nath Suman (D.W.3). After taking leave he stayed at Patna from 30th May, 1978 to 29th June, 1978 and got his eyes treated. After taking leave he stayed at Patna from 30th May, 1978 to 29th June, 1978 and got his eyes treated. Since he was at Patna throughout this period he could not have committed the offence on 7.6.78 which took place near the Khanua Nala at about 2 P.M. D.W.s 1,2,3, 17 and 18 are the witnesses who claim to have met the appellant at Patna during this period, and some of them helped the appellant to get the necessary medical treatment. D.Ws. 4, 5, 6, 12, 13, 14 and 15 are the witnesses who belong to Jajwar and who have deposed to the fact that the appellant had taken leave on 29.5.1978 and thereafter joined the school only after the Puja vacation. The trial court has considered the evidence on record, very carefully and after a detailed consideration of the evidence on record concluded that the plea of alibi was not established. Counsel for the appellant took us through the evidence on record and after giving to the evidence on record our serious consideration, we find ourselves in agreement with the trial court on this aspect of the matter. D.W.1 is Sri Kamalnath Singh Thakur, who was a member of the Bihar Legislative Council in the year 1978. According to him, the appellant was his college mate and a very close friend of his. On 30th May, 1978 the appellant came to his Bailey Road residence and stayed with him till 29th June, 1978. He used to take his meals with him in his house. According to this witness he often went to U.N.I. office located on the Fraser Road at Patna and often visited the U.N.I. office with the appellant. On 6th June, 1978 and 7th June, 1978 he went to the office of U.N.I. along with the appellant and stayed there from 2.30 P.M. till about 10 P.M. In cross-examination this witness stated that the appellant had injured his eyes and that was one of the reasons why he had come to Patna. The appellant was also interested in the case of transfer of Ram Nath Suman (D.W.3) who was a Headmaster. The eyes of the appellant were treated at the M.L.A. dispensary. This witness had not himself gone to the M.L.A. dispensary but he requested his friend Sri Parmeshwar (P.W.18), M.L.C. to get him treated who had accompanied the appellant to the M.L.A. dispensary. The eyes of the appellant were treated at the M.L.A. dispensary. This witness had not himself gone to the M.L.A. dispensary but he requested his friend Sri Parmeshwar (P.W.18), M.L.C. to get him treated who had accompanied the appellant to the M.L.A. dispensary. The eye problem was not of serious nature. He admitted that there was no eye-specialist in the M.L.A. dispensary, but he did not send him to the eye-ward of the Patna Medical College and Hospital. He also could not give the dates on which eye-drops were administered to the appellant at the dispensary. This witness admitted that in those days he used to go to the Legislative Council to attend Committee meetings, but he could not mention the dates on which he had attended those meetings. He also could not say on how many occasions he had attended Committee meetings during that period. He did not maintain a diary. He was not in any manner connected with the Hindustan News Agency but since its Manager (D.W.2) was his friend, he almost daily visited the U.N.I. office while at Patna. 30. D.W.2, Dhairya Nand Jha, stated that he was the Manager of U.N.I. at Patna since April, 1972. On 6th June and 7th June, 1978 he was in his office from 10 A.M. till 11 P.M. On those dates Sri Kamal Nath Singh Thakur (D.W.1) and the appellant came to his office. On 6th June, 1978 they came at about 4 P.M. and remained there till 10 P.M. On 7th June, 1978 they were there between 2.30 P.M. and 10 P.M. This witness admitted in cross-examination that he knew only the appellant from village Jajuwar. This was despite the fact that his sister was married at Jajuwar and the Nanihal of his cousin was also in that village. He had first met the appellant at the house of DW.1 in the year 1976. Since that year whenever the appellant visited Patna he used to come to his office. Very often he used to come with Kamal nath Singh Thakur (D.W.1). The appellant had no particular work with him. D.W.1 came to his office to read newspapers and for political discussions. He mostly came along with someone else, but sometimes he also came alone. Since that year whenever the appellant visited Patna he used to come to his office. Very often he used to come with Kamal nath Singh Thakur (D.W.1). The appellant had no particular work with him. D.W.1 came to his office to read newspapers and for political discussions. He mostly came along with someone else, but sometimes he also came alone. He mentioned the names of three or four other persons who often visited his office along with D.W.1 but he could not state the dates on which those persons had visited his office along with DW. 1. 31. D.W.3, Ram Nath Suman, is not a very material witness. He has stated that on 1st June, 1978 at about 4.30 or 5 P.M. he had met the appellant near the gate of the office of Bihar Secondary Board. In cross-examination he admitted that he met the appellant several times at Patna and at Muzaffarpur, but he could not state the dates on which he had met him. He, however, remembered that he had met the appellant on 1st June, 1978. The testimony of this witness is not of much consequence because the occurrence took place on 7th June, 1978 whereas this witness met the appellant at Patna on 1st June, 1978. What is, however, surprising is the fact that this witness does not state that he had entrusted any work to the appellant regarding his transfer. 32. P.W.17, Satrughan Prasad Singh, is another M.L.C. who was also the General Secretary of the Bihar Secondary Teachers' Association. He knew the appellant since the year 1972. Whenever the appellant came to Patna he used to stay with Kamal Nath Singh Thakur (D. W.1). In June, 1978 the appellant had met him in connection with the transfer of Ram Nath Suman (D.W.3). The appellant had met him at Patna on 31st May, 1978. He had injured his eyes. He had also met him on 6th and 7th June, 1978 at Patna in the office of the Secondary Education Board in the afternoon. He then corrected himself by stating that he had met him in the forenoon. In cross-examination this witness has admitted that as the General Secretary of the Teachers Association 300 to 400 teachers met him every day. He had not noted anywhere that the appellant had met him in the month of Mayor June. He then corrected himself by stating that he had met him in the forenoon. In cross-examination this witness has admitted that as the General Secretary of the Teachers Association 300 to 400 teachers met him every day. He had not noted anywhere that the appellant had met him in the month of Mayor June. He had requested Sri Parmeshwar (P.W.18), M.L.C. to get the appellant treated at the M.L.A. dispensary. He himself never visited the hospital. 33. D.W.18 is Sri Parmeshwar, M.L.C. who claimed to know the appellant since the year 1976 and he used to see him in the company of Sri Kamalnath Singh Thakur (D.W.1). He had got the eyes of the appellant examined in the M.L.A. dispensary in the year 1978. D.W.1, Kamalnath Singh Thakur, and D.W. 17, Satrughan Prasad Singh had requested him to get the appellant treated. On two days the appellant was treated at the M.L.A. dispensary and on both days he was examined for about ten minutes only. On 14th or 15th June, 1978 he was informed by DW17, Satrughan Prasad Singh, that the person whom he had got treated was an accused in a case of murder. This witness also admitted that there was no specialist in the M.L.A. dispensary. There are, however, eye- specialists in the Patna Medical College and Hospital. There was no need to get the appellant admitted in the hospital. The name of the appellant was not recorded in the hospital register as that was not necessary. The doctor had written out a slip which he had handed over to the appellant and the appellant might have purchased medicines thereafter. He had not arranged for supply of medicines from the M.L.A. dispensary. He was only treated at the M.L.A. dispensary. 34. From the deposition of these witnesses it appears that the appellant stayed at Patna between 30th May, 1978 and 29th June, 1978. There appears to be no convincing reason for the appellant to stay at Patna for almost a month. Admittedly, his eye-trouble was not of serious nature, and only on two days he was examined for ten minutes at the M.L.A. dispensary. The ailment was not so serious as to require hospitalisation Apart from those two days when he was treated at the M.L.A. dispensary, he was not required to stay at Patna on leave. Admittedly, his eye-trouble was not of serious nature, and only on two days he was examined for ten minutes at the M.L.A. dispensary. The ailment was not so serious as to require hospitalisation Apart from those two days when he was treated at the M.L.A. dispensary, he was not required to stay at Patna on leave. It is also not clear from the evidence of D.W. 18 as to the dates on which the appellant was treated at the M.LA dispensary. Admittedly, his name was not entered in the hospital register. The slip said to have been given by the doctor prescribing medicine etc. has not been producted by the appellant. So far as doing Pairvi on behalf of DW.3 is concerned, D.W.3 himself has not stated that he had entrusted any work to the appellant in connection with his transfer. One would have expected that if the appellant was treated at a Government hospital, his name would have been entered in the hospital register. In any event, the appellant could produce the slip written out by the medical officer to establish the date or dates on which he was so treated. Though D.W.17 stated that he met the appellant on 6th and 7th June, 1978 at Patna, there appeared to be no good reason for him to remember those dates. He admitted that he had not made a note of it anywhere. This was particularly significant because this witness claimed that 300-400 teachers used to meet him everyday in connection with their problem. It would, therefore, be impossible for a person like him to remember on which dates he met the appellant without making a note of this fact somewhere. D.W.18 has admitted that he was told by D.W. 17 on 14th or 15th June, 1978 about the involvement of the appellant through D.W.1 in a murder case. This news must have been conveyed to D.W.1 also because D.Ws. 17 and 18 knew the appellant because of his closeness with D.W.1. Even so the appellant continued to reside with D.W.1 for a fortnight thereafter. We are, therefore, satisfied that the evidence on record does not establish that the appellant was treated at the M.L.A. dispensary for his eye ailment. 17 and 18 knew the appellant because of his closeness with D.W.1. Even so the appellant continued to reside with D.W.1 for a fortnight thereafter. We are, therefore, satisfied that the evidence on record does not establish that the appellant was treated at the M.L.A. dispensary for his eye ailment. In any event, in the absence of any entry in the hospital register and the prescription issued by the medical officer, it is not established on which dates he attended the dispensary for treatment. Moreover, it appears rather natural that for such a minor eye problem the appellant should remain on leave for almost a month and not get himself treated by an eye specialist if he considered his ailment to be serious. It defies logic as to why the appellant should have got himself treated at the M.L.A. dispensary which did not have an eye-specialist, when eye-specialists were available at the Patna Medical College & Hospital, and the appellant had taken leave to get his eyes treated and had come to Patna for that purpose. 35. So far as D.Ws 1 and 2 are concerned, they have categorically stated that on 6th and 7th June, 1978 the appellant along with D.W.1 visited the office of D.W.2 and was there from 2.30 P.M. till 10 P.M. There appears to be no basis for D.Ws 1 and 2 to state that the appellant had visited the U.N.I. office on 6th and 7th June, 1978. It is not as if they had visited the office for any particular purpose. D.W.2 stated that D.W.1 used to visit his office very often and mostly he came with some other person. He could not, however, give the dates on which D.W.1 may have come with any other person to his office, but somehow or other he remembered the two dates on which the appellant had visited his office in the company of D.W.1. One fails to understand why the appellant should accompany D.W.1 to the office of U.N.I. and stay there for almost eight hours without any rhyme or reason. We, therefore, suspect that these two dates for the visit of the appellant were specially selected with a view to bolster the plea of alibi set up by the appellant. 36. One fails to understand why the appellant should accompany D.W.1 to the office of U.N.I. and stay there for almost eight hours without any rhyme or reason. We, therefore, suspect that these two dates for the visit of the appellant were specially selected with a view to bolster the plea of alibi set up by the appellant. 36. The trial court has also noticed the fact that the appellant was arrested on 30th June, 1978 in the night near the house of Dr. Jagannath Mishra, a former Chief Minister. According to D.W.1, the appellant stayed with him from 30th May, 1978 to 29th June, 1978. If the appellant had stayed with him for so long, there appears to be no reason why he should have parted company on 29.6.78, particularly when he was staying at Patna even thereafter which is proved from the fact that he was arrested on the night of 30th June, 1978 at Patna. The story about the appellant residing with DW.1 for almost a month appears to be highly improbable. We have no doubt that D.Ws 1 and 2 are not speaking the truth when they say that the appellant was in the office of U.N.I. on those dates from 2.30 P.M. to 10 P.M. 37. Once the story of the appellant having stayed at Patna between 30th May 1978 and 29th June, 1978 is disbelieved, the other evidence on record cannot be of much assistance to the appellant. The mere fact that the appellant had applied for leave and had been granted leave is no reason to hold that he could not have committed the offence on 7th June 1978. In fact, the trial court has not believed the entries made in the school register, and has recorded good reasons for not relying upon the school register, leave application, sanction order etc. It has noticed the fact that the father of the appellant was himself the Secretary of the school for several years till the year 1975. It has also noticed the evidence on record and found that the entries in the attendance register could have been made subsequently. It has noticed the fact that the father of the appellant was himself the Secretary of the school for several years till the year 1975. It has also noticed the evidence on record and found that the entries in the attendance register could have been made subsequently. In any view of the matter, as we have observed earlier, from the mere fact that the appellant had taken leave and was not attending to his duties in the school, it does not follow that he could not have participated in the commission of the offence on 7th June, 1978. What was necessary to be proved was the fact that the appellant was at Patna on the relevant date and time, and therefore it was not possible for him to have committed an offence near his village home on the date and time alleged. Since we have not accepted the evidence regarding the stay of the appellant at Patna between 30th May, 1978 and 29th June, 1978, the plea of alibi must fail. We, therefore, agree with the finding of the trial court that the appellant Dhirendra Thakur has failed to prove his plea of alibi. 38. In the result Cr. Appeal No.23 of 1985 is partly allowed and the conviction of appellant Amol Thakur under section 302/149 I.C. is set aside. His conviction under section 147 I.P.C. is, however, upheld, but the sentence is reduced to the period already undergone. The appeal of the appellants Pitambar Thakur, and Madhu Thakur abates, as they died during the pendency of the appeal. Cr. Appeal No. 36 of 1985 is also partly allowed. The conviction of appellants Rajendra Rai and Shola Rai under section 302/149 I.P.C. is set aside. Their conviction under section 147 I.P.C. is, however, affirmed but their sentence is reduced to the period already undergone. The appeal of appellants Anup Lal Rai and Ram Swaroop Rai abates, as they died during the pendency of the appeal. The conviction of Ram Singhasan Rai and Nand Kishore Rai under section 302/149 I.P.C. is altered to one under section 302/34 I.P.C. They are both sentenced to rigorous imprisonment for life. The appeal of appellants Anup Lal Rai and Ram Swaroop Rai abates, as they died during the pendency of the appeal. The conviction of Ram Singhasan Rai and Nand Kishore Rai under section 302/149 I.P.C. is altered to one under section 302/34 I.P.C. They are both sentenced to rigorous imprisonment for life. Their conviction and sentence under section 27 of the Arms Act is upheld as also under section 148 I.P.C. The conviction of Ram Singhashan Rai under section 307 I.P.C. is upheld, but the sentence of life imprisonment imposed against him is modified and instead he is sentenced to suffer seven years rigorous imprisonment. 39. Cr. Appeal no. 77 of 1985 is dismissed and the conviction and sentence of appellant Dhirendra Thakur under section 302 I.P.C. is upheld. His conviction under section 302/149 I.P.C. is altered to one under section 302/34 I.P.C. and he is sentenced to undergo rigorus imprisonment for life on this count. His conviction and sentence under section 27 of the Arms Act and under section 148 I.P.C. is upheld. All the sentences are directed to run concurrently.