Dharnidhar Jha, J.

1. The sole appellant Vivekanand Mishra, a constable in Bihar Police Force, was tried for charges under Sections 302 and 353 of the IPC and Sec. 27 of the Arms Act in Sessions trial No. 32 of 2002/97 of 1994 which arose out of Khizersarai P.S. case No. 32 of 1992 and was found guilty of committing the above noted offences by the Presiding Officer-cum-Additional Sessions Judge, Gaya by a judgment and order of conviction dated 24th of May, 2002 and was directed to suffer rigorous imprisonment for life under Sec. 302 of the IPC.

The learned trial Judge did not pass any separate sentences for the conviction of the appellant under Sec. 353 of the IPC and Sec. 27 of the Arms Act. The above judgment and order of conviction as also sentence has been assailed in the present appeal.

2. The charges related to an occurrence dated 20th March, 1992. The prosecution story as contained in Ext-2, the fardbayan of P.W.5, constable Ramchandra Chauhan, states that at the above noted date and time while he was in the guard room and was on his bed offering his prayers after taking his bath, the appellant was sitting in the same guard room on his bed. The deceased, constable Nawal Kishore Singh, also came there after taking his bath and started offering his prayers by sitting on his bed. It is alleged that all (Sic) a sudden the appellant picked up his service rifle and fired a shot on constable Nawal Kishore Singh. The deceased cried out for help stating that the appellant had shot him and was writhing in pain.

3. P.W.5 caught hold of the appellant. At the same time constable Yugul Kishore Mehta (P.W.4) constable Fagu Ram (P.W.8), Hawaldar Sunil Kachhap (P.W.1) and constable Ravindra Nath Gupta (P.W.2) also came inside the guard room and they disarmed the appellant. Thereafter, the informant with the help of Hawaldar Sunil Kachhap (P.W.1) brought the injured constable Nawal Kishore Singh to Kutwa from where he was shifted to Khizarsari hospital and was admitted for treatment. The deceased died subsequently and the case which was initially registered under Section 307 etc. of the IPC and Sec. 27 of the Arms Act was converted into one under Sec. 302 IPC. The investigation was entrusted to P.W.9 Jaleshwar Pd. Singh, Inspector of Police, Khizarsarai police station who after examination of the witnesses and inspecting the place of occurrence, sent up the present appellant for trial which ultimately ended in the judgment and order of conviction and sentence as indicated at the very outset.

4. It may be noted that the guard room in which the occurrence took place was located in a government school and a picket of armed police force, of which the appellant as also the deceased were members, had been stationed there for maintaining peace and order in the locality. It was headed by P.W.9, S.I. Jaleshwar Pd. Singh and had also an A.S.I deputed there. The description of the place of occurrence in paragraph 5 of P.W.9, as also the evidence of other witnesses indicate as if the police guard were housed in one of the four rooms of the school whereas the three remaining rooms were utilized for schooling purposes.

5. The defence as set up by the appellant during the trial was that he was suffering from insanity from before and after the occurrence and on that particular day he had a bout of schizophrenia and was under treatment prior to and after the occurrence and as such he did not know the effect of his act. In other words the petitioner had taken a plea of exception under Section 84 of the IPC. The other aspect of the defence of the appellant, which appears from the suggestions given to different witnesses, was that the petitioner had not committed the offence and that under some sort of conspiracy hatched out by the informant and witnesses among them, the appellant was falsely implicated in place of the real culprit.

6. It appears from the record of the case that the appellants plea of insanity was raised before the court below as we