Judgment CHANDRA MOHAN PRASAD, J. 1. All the three appellants were tried by the 3rd Additional Sessions Judge, Patna, for the offence under Section 302/34 of the Indian Penal Code and 27 of the Arms Act. Each of the appellants was convicted on both the counts and was sentenced to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code and R.I. for three years under Section 27 of the Arms Act vide judgment dated 4.10.1999 in Sessions Trial No. 549/96. Both the sentences were ordered to run concurrently. 2. The prosecution case as set out in the fardbeyan (Ext. 4) of the informant Ramjee Singh (PW 4) as recorded by S.I. B. Baitha on 9.8. 1995 at 9.15 p.m. Bikram Government Hospital is that, 4 years back, the informant had purchased a house from Ramanand Mistri in the village. Adjacent north of that house the house of appellant Bali Ram Singh situated. Two days ago appellant Bali Ram Singh had demolished the wall of informants purchased house. That day (9.8.1995) he (informant) had informed the matter to Rani Talab Police Station and then at 6 p.m. he was returning from P.S. In course of that his (informants) full brother Ashok Singh (deceased) who was going from his house to nahar (canal) and at about 6.30 p.m. when both of them (informant and deceased) reached in front of the house of appellant Bali Ram Singh all the three appellants abused and surrounded the deceased" and said "SALA THANA KO SUCHNA DENE GAYA THA." Then appellant Bikramaditya Singh ordered "AAJ SALE KO GOLI MAR DO." On this appellants Bali Ram Singh fired his pistol hitting Ashok Singh (deceased) on right Panjara, Ram Anuj Singh and Bikramaditya Singh also fired. Due to the fire shot the deceased was seriously injured and he fell down. Hearing the sound of shots Kedar Singh (PW 1), Sunil Singh, Lal Bahadur Singh (PW 3) and others came there. Seeing those persons assembling there the accused persons fled away. Ashok Singh (deceased) was brought on a cot to Bikram Government Hospital but he died there. 3. As many as six witnesses were examined on behalf of the prosecution. PW 1 Kedar Singh, PW 2 Shivadhar Singh and PW 3 Lal Bahadur Singh are eye-witnesses to the occurrence. PW 4 Ramji Singh is the informant himself, PW 5, Dr. Ashok Singh (deceased) was brought on a cot to Bikram Government Hospital but he died there. 3. As many as six witnesses were examined on behalf of the prosecution. PW 1 Kedar Singh, PW 2 Shivadhar Singh and PW 3 Lal Bahadur Singh are eye-witnesses to the occurrence. PW 4 Ramji Singh is the informant himself, PW 5, Dr. Pramod Kumar Jha held post-mortem examination on the dead body of the deceased Ashok Singh. PW 6 Nand Kishore Sharma is a formal witness who has proved the writings on the first information report marked Ext. 3. He has also proved the writings on the fardbeyan marked Ext. 4. 4. The defence is denial of the occurrence. The appellant Bikramaditya Singh has taken his defence of alibi on the ground that at the said time of occurrence he was on his duty as a night guard in the Commercial Taxes Office, Barth. The defence has examined 4 defence witnesses. DW 1 Jawahar Chaudhary, DW 2 Badri Mahto, DW 3 Mahesh Thakur and DW 4 Sachidanand Prasad have been examined to depose about the defence version. 5. Firstly the prosecution evidence has to be examined. The informant Ramjee Singh (PW 4) deposed that it was at 7.30 p.m. while he and his brother Ashok Singh (deceased) were going towards nahar (canal) and when they reached near the house of appellant Bali Ram Singh all the three appellants surrounded Ashok Singh (deceased). Bikramaditya Singh said "SANHA DENE GAYA HAI ISE PAKAR KAR GOLI MAR DO. " On this Bali Ram Singh fired with is pistol hitting his (informants) brother (deceased) who fell down there. Then he (informant) raised hulla whereupon appellant Bikramaditya Singh fired on Kedar Singh (PW 1) but the shot did not hit him. The informant further deposed that appellant Ram Anuj Singh had fired on his but he escaped. At paragraph 2 of his evidence he deposed that on hulla Lalan Singh (PW 3), Kedar Singh (PW 1) and others came there and seeing those persons assembling there the appellants fled away. At paragraph 3 he deposed that Ashok Singh (deceased) was taken to Bikram Government Hospital on a cot but he died in the way. At paragraph 5 he deposed that police had come to the P.O. where his fardbeyan was recorded and he had signed the fardbeyan there. At paragraph 3 he deposed that Ashok Singh (deceased) was taken to Bikram Government Hospital on a cot but he died in the way. At paragraph 5 he deposed that police had come to the P.O. where his fardbeyan was recorded and he had signed the fardbeyan there. At paragraph 6 he deposed that on the date of occurrence he had lodged the Sanha at the police station and after lodging the Sanha while he was returning the occurrence took place. At paragraph 13 he further deposed that the occurrence took place with regard to the land of Chando Devi wife of Rama Nand Mistry. He had purchased those lands 4/5 years ago and at paragraph 15 he deposed that due to the lodging of the Sanha by him the appellants had grudge against him. At paragraph 35 he deposed that there was dispute with appellant Bali Ram Singh due to the land of Chando Devi and that appellants Bikramaditya Singh and Ram Anuj Singh were the associates of appellant Bali Ram Singh. At paragraph 10 he deposed that Ashok Singh (deceased) had died in the way and the doctor had also told that he was dead. This with a slight variation the informant says that his fardbeyan was recorded at the place of occurrence whereas the same according to the prosecution case had been recorded at the Hospital. The informant supports the prosecution case on all the material points. This variation about the place of recording of the fardbeyan appears to have crept in due to slip in memory. 6. The PW 1 Kedar Singh has deposed on similar lines supporting the prosecution story. He has deposed that at about 7.30 p.m. while he was going to his house from his darwaja he saw that all the three appellants carrying pistol were surrounding the deceased and on the orders of Bikramaditya Singh, Bali Ram Singh fired shot hitting Ashok Singh on right Panjara. He has also deposed that seeing this he and Ramjee Singh (PW 4) raised hulla were upon Bikaramaditya Singh fired on him (PW 1) and Ram Anuj Singh fired on Ramjee Singh (PW 4). He also deposed that villagers Lal Bahadur Singh (PW 3) Sunil Singh, Shivadhar Singh and Kameshwar Singh assembled there and thereafter the appellants fled away. He has also deposed that seeing this he and Ramjee Singh (PW 4) raised hulla were upon Bikaramaditya Singh fired on him (PW 1) and Ram Anuj Singh fired on Ramjee Singh (PW 4). He also deposed that villagers Lal Bahadur Singh (PW 3) Sunil Singh, Shivadhar Singh and Kameshwar Singh assembled there and thereafter the appellants fled away. He further deposed in paragraph 4 that he carried Ashok Singh (deceased) on a cot to Bikram Hospital but he died of injury. He also deposed that thana (Police Station) had arrived at the hospital. By the expression arrival of thana at the hospital this witness appears to mean the arrival of police of thana and he describes the police with the expression thana. He has further deposed in paragraph 4 that the fardbeyan of Ramjee Singh (informant) was recorded there in his presence and he had signed the fardbeyan as a witness. He identified his signature (Ext. 1) on the fardbeyan. He also deposed that Sunil Singh had also signed the fardbeyan. At paragraph 9 of his evidence he deposed that the statement of the informant was recorded at thana (Police Station) and the villagers had remained there and that the statement of Ramjee Singh and none else was recorded there. While discussing the evidence of this ness the learned counsel for the appellants argued that according to the case of the prosecution the fardbeyan has been recorded at the hospital but this witness says at paragraph 11 that the statement of the informant was recorded at thana. But considering the evidence of this witness as in paragraph 4 and as discussed above that this witness means the police at the hospital as thana and describes it as such the difference about the place of the recording of the fardbeyan as pointed out by the learned counsel does nor remain of any significance. It is clear that by the expression that informants statement was recorded at thana this witness means the recording of informants fardbeyan in the hospital before the police which is described by this witness as thana. At paragraph 17 of the evidence this witness has deposed that it was about five minutes after the occurrence that he put Ashok Singh (deceased) on a cot. At paragraph 17 of the evidence this witness has deposed that it was about five minutes after the occurrence that he put Ashok Singh (deceased) on a cot. Thus it appears that shortly after the occurrence the deceased was put on a cot and the villagers proceeded to take him to hospital. At paragraph 8 he has deposed that he is the cousin brother of informant Ramjee Singh. At paragraph 27 he has deposed that appellant Bikaramaditya Singh is in service but on the date of occurrence he was in the village and he had not gone to his place of job. Thus this witness corroborates the informant on all material points. 7. PW 2 Shiva Adhar Singh had arrived at the place of occurrence on hearing the should of firing. He deposed that while he was returning from boring to his house he heard the sound of firing and on proceeding further he saw that Ashok Singh (deceased) was fallen in the corner of Bali Ram Singh meaning thereby Bali Ram Singh house. The appellants carrying pistol were standing there. Bali Ram Singh ordered to shoot where upon Bikramaditya Singh and Ram Anuj Singh respectively fired on Kedar Singh (PW 1), and Ramjee Singh (PW 4) but they narrowly escaped. Villagers assembled there and then the appellants fled away. At paragraph 3 of his witevidence he deposed that he and others were taking Ashok Singh (deceased) on a cot to Bikrara Hospital and in the way Ashok Singh had groaned and he said that Bali Ram Singh had shot him and now he would not survive. (Bali Ram Singh GOLI MAR DIYA AB NAI BACHBO). He further deposed that Ashok Singh was taken to hospital but he died before arrival to the hospital. At paragraph 4 he deposed that the cause of occurrence was that Ramjee Singh (informant) had purchased a house from Rama Nand Mistry and Bali Ram Singh had pulled bans balli of that house and Ashok Singh (deceased) had gone to prohibit which had resulted into a dispute. Thus this witness says about the dispute as the cause of the occurrence. According to the case of prosecution the cause of occurrence was lodging of Sanha by the informant at the police station on the same day. Thus this witness says about the dispute as the cause of the occurrence. According to the case of prosecution the cause of occurrence was lodging of Sanha by the informant at the police station on the same day. But considering the reason as given by the PW 2 about the occurrence it appears that this witness means about the past dispute between the parties due to the house. At paragraph 10 of his cross examination this witness has deposed that while he was near Bahiyawan village Ashok Singh had disclosed that Bali Ram Singh had shot at him. At paragraph 11 he further deposed that nobody had asked Ashok Singh (deceased) and he had voluntarily disclosed this fact. At paragraph 12 he deposed that besides him Rambahadur Singh, Lal Bahadur Singh, Sunil Singh and Kameshwar Singh were carrying cot and that when the cot had been kept down in the way Ashok Singh had disclosed the fact of shooting at the hands of Bali Ram Singh. At paragraph 19 of cross-examination this witness has said that in that house nobody lived at the time of occurrence. Here this witness appears to mean the house in dispute that is the house purchased by the informant. At paragraph 16 this witness has deposed that the whole of the villagers including the informant and the appellants all are his relations as maternal uncles (mama). Thus this witness is a common relative of both the parties. This witness appears to be natural and probable witness to the occurrence. 8. The PW 3 Lal Bahadur Singh has deposed that in the evening of 7.30 p.m. hearing hulla he had come to the corner of appellant Bali Ram Singh meaning thereby the corner of Bali Ram Singhs house. He further deposed that he had seen the appellant Bali Ram Singh, Bikaram Singh and Ram Anuj Singh fleeing from there with pistols in their hands. He also deposed that Ashok Singh (deceased) was saying that Bali Ram Singh (appellant) had shot him. Then he further deposed that villagers were carrying Ashok Singh on a cot and one man returned and he informed him that Ashok Singh died in the way. At paragraph 4 of cross- examination he deposed that when he had reached at the P.O. Kedar Singh (PW 1), Shiv Adhar Singh (PW 2) and Ramjee Singh (PW 4) were present there. At paragraph 4 of cross- examination he deposed that when he had reached at the P.O. Kedar Singh (PW 1), Shiv Adhar Singh (PW 2) and Ramjee Singh (PW 4) were present there. At paragraph 5 he further deposed that whatever he learnt from the occurrence he had learnt from Ashok Singh (deceased) and none else. He further deposed that he had also gone with Ashok Singh to some distance and then he had returned. He has further deposed that whatever Ashok Singh had disclosed, it was disclosed in presence of others also. Thus this witness says about the statement of Ashok Singh (deceased) that Bali Ram Singh (appellant) had shot him, having been made in his presence and the presence of others also. It is relevant to mention here that the PW 2 has also stated in his evidence at para 10, 11 and 12 that Ashok Singh (deceased) had disclosed, in presence of him (PW 2) Lal Bahadur Singh (PW 3) and others about his being shot at the hands of Bali Ram Singh. Thus besides the ocular evidence of the witnesses that appellant Bali Ram Singh had fired the fatal shot killing the deceased there is dying declaration also made by the deceased to this effect that appellant Bali Ram Singh had shot him (deceased) and that he would not survive the injury. The defence has suggested the (PW 3) at paragraph 9 of his evidence that he (PW 3) was enemy No. 1 of Ashok Singh (deceased). This witness has denied this suggestion but the every suggestion given by the defence is itself very important to establish the credibility of this witness as because no one will come to depose in case of the suggested enmity unless he is compelled by truth. The evidence of this witness is cogent and convincing, 9. PW 5 Dr. Pramod Kumar Jha has conducted post-mortem examination on the dead body of deceased Ashok Singh. He deposed that on 10.8.1995 at 12.50 p.m. he did autopsy on the dead body of the deceased and found the following ante mortem injuries on his person; Rigor mortis present all over the limb, eyes open, mouth semi open. PW 5 Dr. Pramod Kumar Jha has conducted post-mortem examination on the dead body of deceased Ashok Singh. He deposed that on 10.8.1995 at 12.50 p.m. he did autopsy on the dead body of the deceased and found the following ante mortem injuries on his person; Rigor mortis present all over the limb, eyes open, mouth semi open. Abrasion 1" x 1/4" just below the left elbow joint; Abrasion 1": x 1/2" over the left collar bone 2" lateral to the midline; One rounded lacerated wound 1-1/2" x 1-1/2" x cavity deep 2" lateral to midline at the level of 9th inter-coastal space in front of right side of the chest blackening and tattooing present around the wound about 1" in diameter, margin inverted, (wound of entry) (ii) On internal examination forex blood and blood clot were present in chest cavity, 9th and 10th rib of right side of chest was fractured, heart lacerated, both sides chambers empty, lungs right pale left lacerated. (iii) Pellets two in number recovered in lower lobe. Abdomen blood and blood clot and contains of stomech present in the cavity, stomach ruptured, digested food materials and blood about 1 ounce and wad recovered in the stomach. Small gut fluid and gas. large gut gas and faces. Urinary bladder empty. Liver lacerated. (iv) Pellets eight in number recovered from liver bed. (v) Spleen lacerated pellets three in number recovered from spleenish substance. Kidney pale. Membrane intact, brain matter pale. (vi) Pellets thirteen in number and wads of cartridge which were recovered during post-mortem examination from different parts of body as mentioned above were sealed in a glass bottle and was handed over to the constable along with post-mortem report. (vii) Cause of death; haemorrhage and shock caused due to fire arm. (viii) Time elapsed since death within 24 hours. 10. He proved the post-mortem examination report Ext. 2 which is in his writing and signature. At paragraph 10 he deposed that the injuries were sufficient to cause death in ordinary course of nature particularly injury No. 3 was independently responsible for causing death. At paragraph 12 he deposed that the injury Nos. 1 and 2 being abrasions may be caused by lathi. The presence of pellets and wads of cartridge indicate that the deceased was shot at from close range i.e., 3 to 4 feet distance. At paragraph 12 he deposed that the injury Nos. 1 and 2 being abrasions may be caused by lathi. The presence of pellets and wads of cartridge indicate that the deceased was shot at from close range i.e., 3 to 4 feet distance. At paragraph 15 he deposed that pistol fires bullet and not pellets. Thus the doctor has found the injury Nos. 3, the wound of entry as caused by fire arm. On dissection the doctor has recovered two pellets from lower lobe abdominal cavity, eight pellets from liver bed and three pellets from spleenic substance. Thus altogether the pellets 13 in numbers and wad of cartridge were recovered during post-mortem from different parts of the body. The wound of the entry in front of the right side of the chest being the sole wound caused by fire arm. It appears that after hitting the body the pellets spread into the body damaging the different part of body from where the pellets were recovered. According to the ocular evidence of the witness the appellant Bali Ram Singh had fired the pistol shot hitting on the right Panjara of the deceased. The site of the fire arm injury as found by the doctor corroborates this. 11. During the argument the learned counsel for the appellants submitted that according to the case of prosecution only fire shot was given to the deceased but the injury No. 1 and 2 which are abrasion 1" x 1/4" on the left joint and abdomen 1" x 1/2" over left collar bone are not explained by the prosecution. The learned APP replied that these injuries are superficial injuries and not grievous ones hence non-explanation of such injuries cannot effect the case of the prosecution adversely. The learned APP also replied that after receiving the fire shot the deceased fell down and he might have writhed with pain and that he was removed in haste from the place of occurrence and was put on a cot and he was then carried on cot to hospital covering a sub-stantial distance hence during this process some scratch and abrasions are possible. The submission of the learned APP appears to carry substantial reason hence no adverse inference can be drawn for the non-explanation of the two injuries that is injury No. 1 and 2. 12. The submission of the learned APP appears to carry substantial reason hence no adverse inference can be drawn for the non-explanation of the two injuries that is injury No. 1 and 2. 12. The learned counsel for the appellants referred to the evidence of the docotor (PW 5 at para 15) that pistol fires bullets and not pellets and he argued that it is the categorical case of the prosecution that appellant Bali Ram Singh had fired a pistol shot hitting the deceased. The learned counsel further argued that pellets as many as 13 in numbers have been recovered from the dead body. Hence it was argued that the recovery of pellets indicate that the fire shot was not made from a pistol because pistol fires bullets and not pellets. The learned APP replied that this aspect has been discussed in detail in the trial Courts judgment also. He argued that no doubt regular pistol fires bullets and not pellets but, the learned AP argued further that the appellant Bali Ram Singh who is said to have caused the fatal shot is not shown to be a licensee of any regular pistol and thus he has fired from an unregular pistol. The learned APP further argued that unregular pistols are of unregular bores and they also fire unregular ammunitions hence it cannot be ruled out that the shot so fired was fired from unregular pistol using cartridge with pellets. In that view of the matter no adverse interference need be drawn against the case of prosecution due to the finding of pellets from the wound in the dead body. 13. The appellants counsel argued that in this case the witnesses examined are relations and independent witnesses have not been examined. On perusal of the evidence of the witnesses it appears that PW 1 is the cousin of the informant. No doubts he is the cousin of the informant but on careful and critical examination of his evidence he appears to be a truthful and trust worthy witness of the occurrence. The PW 2 is not the relative of the informant only but he deposed that he is a common relative of both the parties and that the informant and the appellants both are his maternal uncles. Thus when this witness is a common relation it cannot be expected that he will speak against the appellants without seeing any occurrence. The PW 2 is not the relative of the informant only but he deposed that he is a common relative of both the parties and that the informant and the appellants both are his maternal uncles. Thus when this witness is a common relation it cannot be expected that he will speak against the appellants without seeing any occurrence. The PW 3 is not shown to be the relative of the informant. Thus he is an independent witness. As already discussed above this witness has been suggested by the defence that he was enemy number 1 of Ashok Singh (deceased) hence in view of this suggestion it cannot be accepted that he will come to depose in favour of the prosecution party without there being any truthful reason to say about the occurrence he had seen. Thus the witnesses examined by the prosecution are credible witnesses and they are sufficient to prove the case of prosecution and the non-examination of any other witness does not effect the prosecution case in any adverse manner. The learned counsel for the appellant argued that the I.O. of this case has not been examined. No doubt the I.O. has not been examined but the prosecution case cannot fail simply due to non-examination of the I.O. unless it is shown specifically that the defence has been prejudiced due to non-examination of the I.O. In this case the defence has not pointed out any material contradictions from the police statement and hence it was not shown that the defence had been prejudiced in any way due to the non-examination of the I.O. Hence under these circumstances the non-examination of the I.O. is not fatal to the case of the prosecution. 14. Learned counsel for the appellant argued that in this case there has been abnormal delay in the transmission of the first information report to the concerned Magistrate, hence it was argued by the learned counsel that the delay would indicate a chance of fabrication in the fardbeyan or first information report. The learned APP pointed out that the occurrence is of date 9.8.1995 and the first information report bears the initial of Additional Chief Judicial Magistrate, Danapur with date 11.8.1995 showing that on that day the first information report was put up before the learned Additional Chief Judicial Magistrate who perused it on that date. The learned APP pointed out that the occurrence is of date 9.8.1995 and the first information report bears the initial of Additional Chief Judicial Magistrate, Danapur with date 11.8.1995 showing that on that day the first information report was put up before the learned Additional Chief Judicial Magistrate who perused it on that date. The learned APP pointed out that the very fardbeyan shows that it was recorded at the hospital on 9.8.1995 at 21.15 hours. The learned APP argued that the fardbeyan was written at 21.15 hours i.e., at the end of the day 9.8 1995. The learned APP further pointed out that column 1 of the first information report shows that on the basis of the fardbeyan first information report was recorded on 9.8.1995 at 23.15 hours. Hence the learned APP submitted that in the ensuing morning during the regular office hours at the police station the first information report would have been sent to the Court. The learned APP also pointed out that first information report would have been sent to the Court on the same day put after its receipt in the office of the Court according to normal practice it would have been put up before the Magistrate on the next day. So in such process when the first information report has been placed before the learned ACJM Danapur on 11.8.1995 there has not been any abnormal delay in the sending of the first information report. Considering the circumstances as submitted by the learned APP there does not appear to be any abnormal delay in sending the first information report to the concerned Magistrate hence no adverse inference is required to be called for in this regard. 15. As to the defence evidence the DW 1 Jawahar Chaudhary who is an employee in the office of Commercial Taxes at Kankarbagh, Patna deposed that from 1993 to 1997 June he was posted in Commercial Taxes Office Barh and appellant Bikramaditya was also posted as peon in that office. He further deposed that from 1.8.1995 to 13.8.1995 appellant Bikramaditya worked as a peon as well as night guard and that night guards duty is to guard the office for whole night. He proved a certificate (Ext. A) granted by ACCT Barh, Circle. He further deposed that from 1.8.1995 to 13.8.1995 appellant Bikramaditya worked as a peon as well as night guard and that night guards duty is to guard the office for whole night. He proved a certificate (Ext. A) granted by ACCT Barh, Circle. It is mentioned in the certificate that vide office order No. 5/95-96 Bikramaditya Singh was deputed to work as night guard from 1.8.1995 to 31.8.1995 and he worked as such from 1.8.1995 to 31.8.1995. It has to be mentioned here that the certificate has been granted by the ACCT, Barh but he has not been examined to prove the contents of the certificate. The DW 1 appears to have put the certificate before the granting officer and he (DW 1) has proved his initial over the certificate. It has to be mentioned here that as per the certificate appellant Bikramaditya Singh is said to have been deputed to work as a night guard vide office order No. 5/95-96 but the said office order has not been brought on record. The DW 1 has said that Bikramaditya Singh had worked from 1.8.1995 to 13.8.1995 as office peon and night guard both. It is curious as to how a man worked during day time and night hours both. At paragraph 4 of his evidence the DW 1 has deposed that he performs his duty in the office up to 5.30 p.m. and he does not know as to who of the office staff goes where, after 5.30 hours. At paragraph 5 he further deposed that he could not say with certainty whether in the relevant night Bikramaditya Singh was in the office or not. Thus the evidence of this witness is not helpful the defence to establish the physical presence of appellant Bikramaditya Singh in the office during the relevant night. 16. DW 2 Badri Mahto deposed that he runs a tea shop in front of the office of Commercial Taxes at Kutcheri Chowk, Barh. He further deposed that on 9.8.1995 at 7 p.m. Bikramaditya Singh had come to his shop for taking tea and in the ensuing morning also at 6 a.m. Bikramaditya Singh has come to this shop for taking refreshment. At paragraph 3 he deposed that it takes 3 hours and 1-1/2 hours respectively in going to Barh from Patna by bus or train. At paragraph 3 he deposed that it takes 3 hours and 1-1/2 hours respectively in going to Barh from Patna by bus or train. At para 5 of cross examination he deposed that he does not remember the name of persons who come to his shop nor does he keep any record of them. At paragraph 8 of his cross-examination he was unable to say the name of any other person excepting Bikramaditya Singh who visited his shop that day. He also deposed that he does not have any licence for running the shop. Thus this witness says about Bikramaditya Singh having visited his shop at 7 p.m. on 9.8.1995 but he is unable to establish a kind of memory so that reliance can be placed on his evidence on this matter. This witness says that he does not remember the name of the persons going to his shop then how it is possible that he would have remembered the name Bikramaditya Singh with such specification after four years i.e., 9.4.1999 the day of his evidence that Bikramaditya Singh had visited his shop four years back that is on 9.8.1995 at 7 p.m. This witness has not been able to say the name of any other customer who had visited his shop on that date. In the circumstances the evidence of this witness does not appear to be reliable and he cannot be believed on his memory. 17. DW 3 Mahesh Thakur is a head clerk of the Commercial Taxes Office, Barh. he deposed that from the year 1994 to 29.2.1996 he was posted as a head clerk in the commercial taxes office. He further deposed that from 1.8.1995 to 13.8.1995 Bikramaditya Singh was a night guard in that office. He also deposed that under the duty of night guard the keys of the office remain with him since after 5 p.m. and it was also his duty to open the offices in the morning. He proved his writings on the letter No. 134 dated 16.8.1995 and the signature of ACCT Jawahar Chaudhary. The writings have been proved as Ext. B. This witness has also proved the attendance register of the office and he has deposed that the attendance of the peon on the register used to be marked by him and according to the register the appellant was present in the office from 1.8.1995 to 13.8.1995. The writings have been proved as Ext. B. This witness has also proved the attendance register of the office and he has deposed that the attendance of the peon on the register used to be marked by him and according to the register the appellant was present in the office from 1.8.1995 to 13.8.1995. At paragraph 4 of cross-examination he deposed that the clerks of the office marked their presence in their own pen but the attendance of the peons were marked in his pen. He also deposed that the attendance register was kept open from 10.30 a.m. to 11 a.m. and the office remained open from 10.30 a.m. to 5 p.m. He also deposed in paragraph 5 of cross-examination that it would not appear from the attendance register as to whose duty was from which hours to which hours. He also deposed that the office order according to which appellant Bikramaditya was deputed to work as a night peon was not present in Court. It has already been mentioned that the said office order has not been proved in this case. It appears from the evidence of this witness that he marked the attendance of the peons in the beginning of the office hours and he also deposed that appellant Bikramaditya Singh was deputed to work as a night guard at the relevant time. According to his own official duty this witness himself would have remain present in the- office from 10.30 a.m, to 5.30 p.m. which according to him is the normal office hours. This witness does not say about the presence of the appellant Bikramaditya Singh during the relevant night at the time of occurrence in the office in course of performance of duty as night guard. Thus the evidence of this witness does not go to establish that at the relevant time of occurrence appellant Bikramaditya Singh was not at the P.O. but in the office performing his duty as night guard. 18. DW 4 Schidanand Prasad is a peon of the office of Commercial Taxes. He deposed that in the year 1995 he, along with Bikramaditya Singh was posted as peon in the office of Commercial Taxes, Barh and Bikramaditya Singh was doing duty of night guard. 18. DW 4 Schidanand Prasad is a peon of the office of Commercial Taxes. He deposed that in the year 1995 he, along with Bikramaditya Singh was posted as peon in the office of Commercial Taxes, Barh and Bikramaditya Singh was doing duty of night guard. At paragraph 2 of his evidence he deposed that on 9.8.1995 Bikramaditya Singh was present in his office till 5 p.m. At paragraph 5 of his cross-examination he deposed that his (DW 4) duty in the office was up to 7 p.m. and after finishing the duty he used to go to his house. Again at paragraph 7 of cross- examination this witness says that he had met Bikramaditya Singh in the office on 9.8.1995 at 6.30 p.m. and then had gone to his house. Thus this witness gives contradictory statement as in paragraph 2 of his evidence he says that Bikramaditya Singh was present in his office till 5 p.m. but in paragraph 7 he says that he had seen Bikramaditya Singh in office at 6.30 p.m. Moreover, this witness is not a witness on the point of the presence of appellant Bikramaditya Singh in the office after the office hours performing his duty as night guard. Thus considering the evidence of the four DWs as examined by the appellants Bikramaditya Singh to prove his defence of alibi it is found that the DWs are not reliable and their evidence is not sufficient to establish that at the relevant time of occurrence appellant Bikramaditya Singh was present in the office and not at the place of occurrence. 19. Thus considering the facts and circumstances and the evidence as discussed above the prosecution is found to have successfully established that the appellant Bali Ram Singh fired with his pistol causing injury to the deceased and thereby killed him. Therefore, appellant Bali Ram Singh is liable to be convicted under Section 302 of the Indian Penal Code. The learned Sessions Judge has convicted this appellant under Section 302 read with Section 34 of the Indian Penal Code and sentenced him to undergo R.I. for life. In view of the above findings the conviction under Section 302 read with section 34 of the Indian Penal Code is set aside and appellant Bali Ram Singh is convicted under Section 302 of the Indian Penal Code. However, the sentence of R.I. for life is maintained under this section. In view of the above findings the conviction under Section 302 read with section 34 of the Indian Penal Code is set aside and appellant Bali Ram Singh is convicted under Section 302 of the Indian Penal Code. However, the sentence of R.I. for life is maintained under this section. The appellant Bali Ram Singh is found to have used country made pistol for unlawful purpose, that is, the offence of murder and for which he has been convicted under Section 27 of the Arms Act and sentenced to undergo R.I. for three years. The conviction and sentence of appellant Bali Ram Singh on both the counts as above is just and proper and does not need any interference. Hence the conviction and sentence as awarded to the appellant Bali Ram Singh are hereby confirmed and accordingly appeal No. 553 of 1999 is dismissed. 20. As to the appellant Bikramaditya Singh the prosecution has established that it was this appellant who stated "AAJ SALE KO GOLI MAR DO" and exhorted for killing the deceased as a result of which appellant Bali Ram Singh fired from his pistol and thereby killed the deceased. Considering the activity and the involvement of appellant Bikramaditya Singh in such a manner it is found that he had a common intention for the killing of the deceased and the intention was executed by the appellant Bali Ram Singh in furtherance of and as a result of exhortation given by this appellant Bikramaditya Singh in the manner as stated above. In such view of the matters the appellant Bikramaditya Singh is equally liable for the offenced of murder of the deceased punishable under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code. Therefore the conviction of appellant Bikramaditya Singh under Section 302 read with Section 34 of the Indian Penal Code and sentence of R.I. for life does not need any interference and the same is hereby confirmed. 21. So far the conviction and sentence of appellant Bikramaditya Singh under Section 27 of the Arms Act is concerned it is mentioned in the format of the charge that he used country made pistol for unlawful purpose of committing murder. Here the evidence as led by the prosecution has to be examined specifically for this purpose and for deciding this charge on this appellant Bikramaditya Singh. Here the evidence as led by the prosecution has to be examined specifically for this purpose and for deciding this charge on this appellant Bikramaditya Singh. In the first information report it was simply stated that this appellant as well as the appellant Ram Anuj Singh had also fired but in the evidence as led by the informant and other witnesses the case relating to this appellant Bikramaditya Singh as well as appellant Ram Anuj Singh was established in this way that this appellant Bikramaditya Singh had fired on Kedar Singh (PW 1) and another appellant Ram Anuj Singh had fired on informant (PW 4) but both of them (PW 1 and PW 4) escaped. Thus the prosecution case relating to this appellant (Bikramaditya Singh) as established by evidence is that he (Bikramaditya Singh) fired his pistol attempting to kill Kedar Singh (PW 1). So the unlawful purpose for . possessing the country made pistol as proved by the prosecution is the attempt to kill the PW 1 (Kedar Singh). But the charge as framed by the trial Court on this appellant is that he used the country made pistol for the unlawful purpose of murder, meaning thereby the murder of the deceased. Thus this appellant has not been charged properly for the use of attempt to murder the PW 1 and, therefore, in absence of such specific charge he cannot be convicted under Section 27 of the Arms Act and hence he (Bikramaditya Singh) is acquitted of this charge. Thus the Appeal No. 477 of 1999 is allowed in part to the extent as above. 22. Appellant Ram Anuj Singh has been convicted under Section 302/34 of the Indian Penal Code as well as Section 27 of the Arms Act. As already discussed above there is no evidence that this appellant had fired on the deceased or he gave any kind of exhortation to other appellants for the commission of the murder. Under the circumstances, there is no ground for holding this appellant liable for the offence of the murder. Therefore, the conviction and sentence as awarded to this appellant under Section 302 read with section 34 of the Indian Penal Code is hereby set aside and he is acquitted of this charge. Under the circumstances, there is no ground for holding this appellant liable for the offence of the murder. Therefore, the conviction and sentence as awarded to this appellant under Section 302 read with section 34 of the Indian Penal Code is hereby set aside and he is acquitted of this charge. As to the charge under Section 27 of the Arms Act, this appellant has similarly been charged under this section for using the country made pistol for committing the offence of murder. But on perusal of the evidence the case of this appellant as regards the use of the country made pistol is quite similar to the case of appellant Bikramaditya Singh, therefore, in view of the discussion as made in this regard in the preceding paragraph while dealing with the case of appellant Bikramaditya Singh, this appellant Ram Anuj Singh cannot be lawfully convicted, under Section 27 of the Arms Act on the basis of the charge as framed by the learned trial Court under this count. Hence this appellant (Ram Anuj Singh) is acquitted of the charge under Section 27 of the Arms Act. In the result the conviction and sentence as awarded to this appellant under both the counts stand set aside and the Appeal No. 516 of 1999 is allowed. The appellant Ram Anuj Singh is discharged from the liability of his bail bond. PRABHAT KUMAR SINHA, J. 23 I agree.