Judgment P.B. SAWANT, J.:---The case arises out of a macabre incident in which the accused shot dead his father-in-law, mother-in-law and a Police Officer, on the spot. The accused is therefore, sentenced by the trial Court to death and to pay a fine of Rs. 25,000/- for the offence under section 302 of the Indian Penal Code and in default of the payment of fine to suffer rigorous imprisonment for five years for each of the murders. The accused is further convicted under section 27 of the Arms Act and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- and in default to suffer rigorous imprisonment for two years. So also he is convicted under section 30 of the Arms Act and sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs. 500/- and in default to suffer rigorous imprisonment for one month. The accused is acquitted of the charge under section 449 of the Indian Penal Code. The learned Judge has also directed that out of the fine, if recovered, a sum of Rs. 50,000/- be awarded to the widow of the Police Officer as compensation under section 357(1)(b) of the Criminal Procedure Code. In addition to the reference for confirmation made by the trial Court, there is also an appeal filed by the accused against his convictions and sentences and both are being heard and disposed of together. 2. The prosecution and defence cases have been narrated in detail by the trial Court. We will only allude here briefly to the material facts constituting the various of both sides. The accused is a Commerce graduate and comes from an affluent family of Kolhapur which affluence perhaps has led to his present fall. He forms a joint family along with his father, two elder brothers Anandrao and Shivajirao and a younger brother Dilip. At the relevant time, the family was joint in property but not in mess. His father was one of the partners of a manufacturing firm called Packo-Engineering Works having its place of operation in Kolhapur. This firm was dissolved and his father started his own firm known as Yashwant Industries at Kolhapur itself, with himself and the wives of his three sons viz., of Anandrao, Shivajirao and the accused, and the younger son Dilip as the partners thereof. This firm was dissolved and his father started his own firm known as Yashwant Industries at Kolhapur itself, with himself and the wives of his three sons viz., of Anandrao, Shivajirao and the accused, and the younger son Dilip as the partners thereof. This partnership was the cause of dispute in the family which dispute eventually led to the present incident. The first step in the dispute was taken when the accused quarrelled with his father and his two elder brothers and asked for his share in the partition some time in November 1982. In this dispute, the accused and his younger brother Dilip were on one side whereas his father and two elder brothers were on the other side. The partition sought was of all the joint family properties. The other side suggested partition on particular lines but that was not acceptable to the accused and Dilip. Some outsiders tried to bring about a compromise between the parties but their efforts proved useless. The situation thereafter reached a stage where the firm Yashwant Industries had to be closed down. The dispute reached its next stage when in August 1983 the father and the two elder brothers and their families left the joint family house and went to reside in the house of their relation on Nalavade, in Kolhapur itself. It is alleged that this separation was on account of the strong-headedness of the accused. The separation left the accused and his family consisting of his wife and children and his brother Dilip in exclusive possession of the house with some old tenants. It is further alleged that thereafter on or about 5-9-1983, both his elder brothers assaulted the accused with a stick as he was demanding partition and share in the family properties. Two more circumstances which are necessary to be stated at this stage are that the accused's father-in-law the deceased S.B. Patil was a member of the Kolhapur Bar mainly practising on the civil side. The accused wanted Patil to take interest in his partition-dispute with his father and eldest brothers and resolve the same, Patil had accordingly tried his best to bring about a compromise but without avail. The other relevant fact of as much importance is that of the addition of the accused to alcoholic drinks. The accused wanted Patil to take interest in his partition-dispute with his father and eldest brothers and resolve the same, Patil had accordingly tried his best to bring about a compromise but without avail. The other relevant fact of as much importance is that of the addition of the accused to alcoholic drinks. According to the prosecution, he used to beat his wife and give her a cruel treatment under the influence of drink so much so that Patil at one time had thought of initiating divorce proceedings against the accused but had subsequently given up the thought for some reason. 3. The incident in question occurred between 1-30 a.m. and 1-45 a.m. on 30-7-1984. Only about three months prior to the incident, the accused had purchased a revolver which is Article No. 1 in the present case and had also obtained a license for the same. The immediate cause for the purchase of the revolver was the assault on him by his elder brothers, the recurrence of which he wanted to prevent. The events which occurred on the evening of 29-7-1984 which ultimately culminated in the offence have now to be noted since they have a good deal of bearing on the case. On that evening, both the accused and his wife witness Rupa had gone to the market and returned home at about 7-00 p.m. The accused remained in the house till about 8-00 p.m. chitchatting with his wife. Thereafter he took Rs. 40/- from her and left the house on a scooter and returned home again on scooter at about 10-45 p.m. During this interval, he was enjoying alcoholic drinks with his friends Nageshkar at a local hotel called Joijui Mogra. He imbibed there at least four to five pegs of whisky and then returned home. When he came home, his wife noticed that he had consumed liquor. She asked him to take dinner but he declined to do so. Instead, he asked her to call his younger brother Dilip who was sleeping in the room on the terrace of the house. His wife protested that Dilip should not be called at that odd hour. The accused however told her that he wanted to file a suit for partition and therefore, wanted to consult Dilip. Rupa therefore, went to call Dilip whom she informed that the accused wanted him for discussion about the partition-matter. His wife protested that Dilip should not be called at that odd hour. The accused however told her that he wanted to file a suit for partition and therefore, wanted to consult Dilip. Rupa therefore, went to call Dilip whom she informed that the accused wanted him for discussion about the partition-matter. Dilip dismissed her by saying that it was of no use discussing the matter at that hour and that they would discuss it in the morning. Rupa accordingly returned to the accused and informed him about Dilip's reaction. The accused then asked her to accompany him to Rupa's father's i.e. Advocate Patil's house to discuss the partition-matter. Rupa told him that he had consumed liquor and should not go out at that time. However, the accused insisted on going to Patil's house and carried Rupa with him on the scooter. Before starting for Patil's house, he took with him his newly acquired revolver which was loaded. On reaching Patil's house, he parked his scooter in front of the house and pressed the door-bell of the house five or six times upon which the inmates of the house, viz. Patil, his wife Vimalabai and his son Jaywant woke up from sleep. Patil and Vimalabai opened the door. When Patil opened the door, Rupa entered the house followed by the accused. Rupa (whose maiden name is Mangala) told Jaywant that the accused was armed with a revolver and, therefore, he should hide himself at the rear of the house and also call the Police. Being thus warned, Jaywant went towards the rear of the house, climbed the lodge any barbed wire compound of the house and went to the house of their family friend one Khot which house was situate at a few hundred feet away from Patil's house. There he first called witness Rekha Khot's mother who was not at home. Hence Rekha (who at the time of trial was married and became Mrs. Dudhane) opened the door. She was followed by her future husband Ashok. Jaywant told Rekha that the accused had come to his house with a revolver and he might kill his family members. He therefore, requested her to accompany him to the Police Station. Hence Rekha (who at the time of trial was married and became Mrs. Dudhane) opened the door. She was followed by her future husband Ashok. Jaywant told Rekha that the accused had come to his house with a revolver and he might kill his family members. He therefore, requested her to accompany him to the Police Station. Pursuant to this request, Rekha and Ashok accompanied Jaywant to the Rajarampuri Police Station which was in between Jaywant's and Khot's houses and was at a distance of 400 feet from Jaywant's house. Rekha and Ashok stayed outside the Police Station whereas Jaywant went inside and informed witness Nipane the Police Head Constable in charge of the Station, that the accused was creating commotion in his house by consuming liquor and that he was armed with a revolver. Witness Nipane directed four Police Constables, two in uniform and two in plain clothes, to accompany Jaywant, to his house. 4. Accordingly, the four constables, Jaywant, Rekha and Ashok came to the front door of Jaywant's house. One of the Constables knocked the door which was latched from inside. There was no response. They however heard some quarrel going on inside the house. Rekha and Ashok went towards the rear side of the house by the eastern passage between the house and the adjoining Asha Nursing Home. Jaywant followed them. While he was mid way, he met Rupa who asked him about the Police. Jaywant told her that they were at the front door whereupon both of them went towards the front of the house. In the meanwhile one of the Police Constables Jehangir Kurane, finding that there was no response from inside had directed another Police Constable witness Mohan Katkar to go to the Police Station to bring the unfortunate Police Sub-Inspector Kamble. Within a few minutes Katkar arrived on the scene with Kamble. Rupa then told the Constables and Kamble that the rear door of the house was open. Hence the Police moved to the rear of the house. The last room of the house on the rear side is the kitchen and next to it is another room called Majghar. The Police noticed that the electric light was burning inside the house and the accused with a revolver in his hand was quarrelling with Patil and his wife Vimalabai in the Majghar. The last room of the house on the rear side is the kitchen and next to it is another room called Majghar. The Police noticed that the electric light was burning inside the house and the accused with a revolver in his hand was quarrelling with Patil and his wife Vimalabai in the Majghar. Kamble standing at the rear door of the kitchen, disclosed his identity to the accused, asked him not to quarrel and to accompany him to the Police Station. The accused told him that it was a domestic quarrel and refused to go to the Police Station and told Kamble that he would come to the Police Station in the morning. At that time Patil came from Majghar to the kitchen for drinking water and the accused caught hold of the blouse of Vimalabai, brought her from Majghar to the kitchen and made her sit on the foot-step leading from Majghar to the kitchen. The food-step is situate next to the door between Majghar and the Kitchen. When Vimalabai sat on the step, the accused stood near her with the revolver pointed at her. Kamble who was at that time standing on the footsteps beyond the rear kitchen door, asked Police Constable Kurane to go and fetch the Police wireless van. At this moment the accused opened fire and emptied all nine bullets shooting P.S.I. Kamble, Vimalabai and Patil. Kamble fell on the ground outside the house and Vimalabai and Patil fell in the kitchen. After firing the shots, the accused went to the front door of the house, opened it, started his scooter and left the house. Police Constable Subhash Patil immediately ran to the Police Station and informed the Station of the shooting of Kamble and returned to the scene of offence. By that time Constables Kurane, Kumbhar and Katkar were removing Kamble to the front of the house. Rekha Khot alias Dudhane who was witnessing the incident from outside the rear door of the kitchen went inside to Vimalabai who was morning. Vimalabai asked her to give her some water which Rekha gave. But she and Ashok then lifted Vimalabai and took her outside the house from the front door. One Ambassador car arrived there just then, it was halted by the constables, and Kamble was taken to C.P.R. Hospital in that car. At the same time, one autorickshaw arrived there with some passengers. But she and Ashok then lifted Vimalabai and took her outside the house from the front door. One Ambassador car arrived there just then, it was halted by the constables, and Kamble was taken to C.P.R. Hospital in that car. At the same time, one autorickshaw arrived there with some passengers. The Constable requested the passengers to get down and Vimalabai was put in the rickshaw and taken to the same hospital. Thereafter Patil was brought by Subhash Patil and another Constable, on the road. By that time the wireless van arrived and Patil was placed in the van and taken to the same hospital. At the hospital it was noticed that Kamble and Patil had expired and the condition of Vimalabai was serious. Dr. A.B. Patil who was in charge at that time immediately admitted Vimalabai to the female surgical ward and started treating her. Vimalabai however later expired at about 8.20 p.m. on 30-7-1984. Her drying declaration was recorded by the Executive Magistrate at about 3-05 a.m. On his way back home after the incident, the accused stopped at witness Anil Joshi's house to give a ring to his sister's husband witness Rajaram Patil, and informed him that he had killed three persons. He also filled petrol at a petrol pump. 5. On these facts, the accused was tried for the offence of house trespass under section 449 I.P.C., of murders of Patil, his wife Vimalabai and the Police Officer Kamble under section 302 I.P.C., and of breach of section 27 and 30 of the Arms Act. 6. The defence of the accused was two fold. Firstly, it was his case that he had no motive in killing any of the three victims. According to him while he was talking to Patil and Vimalabai, one person in dark dress came on the scene and with a revolver in his hand shouted ""hands up"". He mistook him for a ""goonda"" or a dacoit, took out his revolver and fired shots. There was a scuffle between him and the said goonda and the shots were fired in the scuffle by accident. There is no dispute that P.S.I. Kamble was not in uniform at the time and was wearing a black jerkin. His sudden appearance with a manancing posture therefore was bound to give him the impression that he was a goonda and hence the scuffle and the shooting. There is no dispute that P.S.I. Kamble was not in uniform at the time and was wearing a black jerkin. His sudden appearance with a manancing posture therefore was bound to give him the impression that he was a goonda and hence the scuffle and the shooting. His second and the alternate defence is that the was drunk and therefore intoxicated. He had no intention of killing any one. Whatever he did was in the State of intoxication. Hence under section 86 I.P.C. he could not be charged for the offence of intentionally killing any of the three victims. 7. The prosecution examined as many as 39 witnesses. Amongst them were (1) Anandrao Atigre (P.W. 7) the elder brother of the accused who deposed to the dispute of partition between the accused and Dilip on the on hand and the rest of the members of the family on the other and also to the fact that the accused was addicted to alcohol and was ill-treating his wife. He also told the Court of the move made by deceased Patil at one time to take a divorce of his daughter from the accused : (2) Anandrao Barad (P.W. 8) a priest respected in the community, who deposed to the addiction of the accused to liquor, his quarrels with his wife, his insistence upon partition and complaint that his father-in-law i.e. deceased Patil was not taking any interest in his partition dispute; (3) Jaywant Patil (P.W. 11) the deceased Patil's son and the accused's brother-in-law who deposed to the fact that his father was asked by the accused to intervene in the partition dispute and that he had made efforts to bring about a settlement but without success. He also deposed to the part of the incident which he had witnessed; (4) Rupa alias Mangla (P.W. 6) the wife of the accused. She was declared hostile by the prosecution. However she has deposed to the fact that there was a dispute in the family with regard to partition, that the accused's two brothers Shivajirao and witness Anandrao had assaulted her husband by stick two months prior one 5-9-1983 on which day her father-in-law and the two elder brothers-in-law had left the family house. She has also deposed to the fact that some industrialists from Kolhapur and also her father viz. She has also deposed to the fact that some industrialists from Kolhapur and also her father viz. deceased Patil had made efforts to bring about a settlement in the partition dispute but without success. She has further deposed that on the night of the incident the accused had come home drunk at about 10-45 p.m. and asked her to call Dilip who refused to come down to discuss the partition-matter. She has stated that she had told the accused to take food which he had refused to do. She has also stated that the accused had taken her to her father's place on that night since he wanted to file a suit for partition; (5) Dilip (P.W. 5) the younger brother of the accused who has deposed to the fact that the accused had called him on the night for discussing the partition-matter and he had postponed the discussion till next morning. He has also stated that the accused used to take deceased Patil's advice in the matter of partition; (6) Rekha Khot alias Dudhane (P.W. 10); (7) Police Constable Subhash Patil (P.W. 22) and (8) Police Constable Mohan Katkar (P.W. 27) who witnessed the incident have deposed to it; (9) Head Constable Nipane (P.W. 12) who had deposed to the information given by Jaywant and has produced the F.I.R. and the Station Diary and the Duty List; (10) Umesh Nageshkar (P.W. 26) who was with the accused on the evening of 29-7-1984 at Jaijui Mogra Hotel; (11) Dilip Mandape (P.W. 25) the owner of the hotel; (12) Dr. A.B. (P.W. 13) who treated Vimalabai at the C.P.R. Hospital and who has also produced the medical case papers and the medico-legal register; (13) Dr. Yedekar (P.W. 15) who produced the post-mortem examination notes of deceased Vimalabai Patil; (14) Head Constable Gangaram Patil (P.W. 37) who was in charge of Police revolvers to prove that Kamble's revolver was in Police custody at the relevant time; (15) Madhukar Asgekar (P.W. 14) the Ballistic Expert; (16) the Executive Magistrate V.M. Gurva (P.W. 19) who has recorded Vimalabai's dying declaration; (17) Dr. Rajdip (P.W. 18) who had examined the accused at 8-45 a.m. on 30-7-1984 for alcohol consumption after he was arrested and (18) the Investigating Officer Damame (P.W. 39). Rajdip (P.W. 18) who had examined the accused at 8-45 a.m. on 30-7-1984 for alcohol consumption after he was arrested and (18) the Investigating Officer Damame (P.W. 39). Besides the above witnesses, the prosecution also examined Anil Joshi (P.W. 20) and Rajaram Patil (P.W. 21) to prove that the accused had on his way home after the incident given ring from Anil's house to Rajaram Patil and had actually gone to Rajaram's house, and, witnesses Bhadale (P.W. 23) and Shendure (P.W. 24) to prove that on his way back he had filled petrol in his scooter at their petrol pump. The defence led no evidence. 8. On the basis of the prosecution evidence both oral and documentary, the trial Court negatived both the defences and as stated earlier, convicted the accused, acquitting him only of the offence under section 449 of the Indian Code. 9. Shri Jethamalani made two fold submissions both based on general exceptions in the Penal Code. According to him the shooting was a pure accident in a scuffle and therefore, the accused is entitled to acquittal under section 80. In this connection he specifically made it clear that he was not setting up right of self defence. In the alternative, according to him, the accused being intoxicated could not have intended the murder of any of the victims. Hence the case fell under section 86 of the I.P.C. and the accused could be convicted only under section 304 Part-II of the I.P.C. In support of his first theory of scuffle and accidental firing he relied upon several circumstances, which according to him should be taken to have been established. He submitted that there was neither motive nor intention to kill any of the victim. The revolver was fired by the accused only when P.S.I. Kamble appeared on the scene, armed with a revolver. There were no eye-witnesses and the account given by the so-called eye-witnesses is concocted. For this purpose he relied upon police record, the medical record, dying declaration and the evidence of ballistic expert. For his alternate case of intoxication, he relied upon the evidence of the prosecution witnesses themselves, the police record and the dying declaration. 10, To examine the first theory, it is necessary first to appreciate the prosecution evidence with regard to the motive and intention on the part of the accused. For his alternate case of intoxication, he relied upon the evidence of the prosecution witnesses themselves, the police record and the dying declaration. 10, To examine the first theory, it is necessary first to appreciate the prosecution evidence with regard to the motive and intention on the part of the accused. This will have to be in two parts obviously because the victim Advocate Patil and his wife Vimalabai stand on a different footing than the other victim P.S.I. Kamble. As regards the motive vis-a-vis Advocate Patil and his wife who are admittedly the in-laws of the accused, we have the evidence of as many as five witnesses and also the documentary evidence in the form of the dying declaration (Ex. 68). The fist witness is Anandrao Atigre who is the elder brother of the accused. In his examination-in-chief, he has stated that their family owned Yashwant Industries as Industrial concern at Kolhapur, and his father, his wife Anuradha his sister-in-law Usha (wife of his younger brother Shivajirao), accused's wife Rupa, and his younger brother Dilip were its partners. In the month of November 1982, the accused had quarrelled with them and had asked for his share in the partition. Hence a survey of their properties, both movable and immovable was taken and four equal shares were made, and an offer was given to the accused and Dilip that each of them take one share out of them. However, the accused and Dilip declined the offer for some reason or the other. Thereafter they made all efforts, through respectable persons, for effecting a compromise, but according to him, the accused and Dilip refused to accept any of the proposals. The accused's wife and Dilip on the other hand froze the bank accounts of Yashwant Industries. This led to financial difficulties and eventually to the closure of the business. He has also stated that the accused was an alcohol addict since many years past and was of a headstrong nature. He used to create trouble after consuming liquor. They therefore, found it unsafe to stay in the joint family house with the accused, and went to stay at another place. He has also stated that the accused was an alcohol addict since many years past and was of a headstrong nature. He used to create trouble after consuming liquor. They therefore, found it unsafe to stay in the joint family house with the accused, and went to stay at another place. He has also stated that some time in 1982, deceased Advocate Patil had called him and his father to his house and in the presence of his wife Vimalabai and witnesses Rupa and Jaywant, had told them that some five to six days prior to that day the accused had come to their house under the influence of liquor and had abused and threatened to kill him. He had also complained that the accused assaulted Rupa under the influence of liquor for no reason and it would be difficult for Rupa to stay with the accused in their house and therefore the accused should give divorce to her. He wanted them to communicate their decision in the matter within a few days, otherwise he was contemplating further steps in that direction. According to the witness, they told Patil the decision with regard to the divorce should be taken by the accused and that he should not take any decision hurriedly in the matter. They also told Patil that they would consult their relations and communicate their decision to him. According to the witness, thereafter they went to the house of one Shivajirao Patil Sadolikar in whose family his two sisters were married and approved Shivajirao of the talk they had with Advocate Patil. On the very evening, Shivajirao Patil Sadolikar and the witness went to Advocate Patil and told him that he would take a decision in the matter after they returned from Shevgaon, a place of pilgrimage. About 10 to 12 days thereafter, Advocate Patil had called the witness and his father to his house and told them that for the present they (Advocate Patil and his family members) had dropped the idea of seeking divorce and that they should advise the accused to behave properly in future. According to the witness, at that time, witness Rupa and her children were residing with Advocate Patil and they were sent to the matrimonial home subsequently. According to the witness, at that time, witness Rupa and her children were residing with Advocate Patil and they were sent to the matrimonial home subsequently. This testimony shows that there were disputes with regard to the partitioning of the property between the accused and Dilip on the one hand and the witness and another brother Shivajirao and their father on the other. It also shows that the accused was addicted to drinking liquor for quite some time and he used to beat his wife Rupa under the influence of liquor. This evidence has practically gone unchallenged. 11. The next witness on the point is one Anandrao Barad (P.W. 8). He is a priest in the temple of Goddess Renuka and Lord Shankar in Village Khindivharavade and also resides there. Goddess Renuka and Lord Shankar seem to be the deities worshipped by the family of the accused. According to the witness, whenever the accused and his wife came to his residence to worship the Deity, the accused used to ask him about proper settlement of his partition matter and also discuss about the giving up of consumption of liquor. Rupa also used to tell the witness that the accused created trouble in the house after consuming liquor. The witness, therefore, used to advise the accused that he should give up his habit of consuming liquor and claims that the accused had for some days stopped drinking following his advice. It is further his case that on the day of the incident itself he had come to Kolhapur bazar and had met the accused's wife Mangalatai @ Rupa on the road. She had requested him to come to her house and accordingly he had gone to her house at about 12-30 or 1.00 p.m. At that time she told him that the accused had again started drinking liquor and picking up quarrels with her and abusing the members of her parents' family. When she told this to the witness, the accused was in the house. The witness, therefore, asked the accused as to why he was behaving in that matter. The witness also told him that the people from his wife's family were good. At that time the accused told the witness that his mother-in-law was arrogant. When she told this to the witness, the accused was in the house. The witness, therefore, asked the accused as to why he was behaving in that matter. The witness also told him that the people from his wife's family were good. At that time the accused told the witness that his mother-in-law was arrogant. When the accused uttered these words with reference to his mother-in-law, the witness got up and was about to leave the house when Rupa brought a cup of milk for him. The witness told the accused that he would take milk in his house provided he would give up drinking and behave properly. Thereafter the accused and the witness shared the milk equally. According to the witness, the accused at that time gave him promise that he will not consume liquor and would also behave properly in future. The witness further says that at that time the accused had also complained to him that his father-in-law meaning the deceased Patil was not taking any interest in his partition-dispute. Again, from the deposition of this witness what emerges is that the accused was very much exercised with his partition-dispute and he had also a grievance against his father-in-law that he was not taking any interest in his partition matter. Further the accused was addicted to drinks. He also quarrelled with his wife and abused his-in-laws. This testimony has also remained unscathed. 12. The next witness on the point is Rupa herself (P.W. 6). As was not unexpected, the witness turned hostile and has been cross-examined by the Public Prosecutor. However what has transpired in her examination-in-chief is that there was a dispute between the accused and Dilip on the one hand and their brothers Anandrao and Shivajirao and their father on the other, in respect of the family properties. Some two months prior to 5-9-1983 (on which date her father-in-law, the two elder brothers and members of the family left the joint family house), her two elder brothers-in-law Anandrao and Shivajirao had assaulted the accused by a stick because the accused was demanding partition of, and his share in, the family property. She has also stated that some of the industrialists from Kolhapur as well as her father had made efforts to bring about a compromise between the two sides but without avail. She has also stated that some of the industrialists from Kolhapur as well as her father had made efforts to bring about a compromise between the two sides but without avail. She has of course stated that there were no ill-feelings in the mind of the accused about her father although he had not succeeded in bringing about a partition. The witness has also deposed to the admitted fact that about three months prior to the incident, the accused had acquired the revolver which is Article No. 1. She has further stated that on 29-7-1984 the accused had returned home at about 10-45 p.m. after consuming liquor. She had asked him if he would like to take dinner to which he replied in the negative. The accused then asked her to go and call his younger brother Dilip who was sleeping on the upper floor of the house. She had asked the accused at that time as to why Dilip should be called at that odd hour to which the accused had replied that he wanted to file a suit for partition and hence he wanted to consult him. Accordingly, she had gone to call Dilip who told her that it was of no use discussing the matter at that hour and that they would go to the Court on the next day to file the suit. The accused then told her that he wanted to go to her father's place because he wanted to file a suit for partition. He also asked her to accompany him to her father's place. The accused at that time was not in a mood to listen to her and was insisting that she should accompany him. Hence she had accompanied the accused to her father's house. When they entered her father's house the accused had told her father that he wanted to file a suit for partition and hence he had come there for discussion. It further transpires from her cross-examination by the learned Public Prosecutor that before the Police she had also stated that the accused used to abuse her father and also threaten that he would see and kill her father since he was not taking active part in compromising the partition dispute. She had also stated to the Police that the accused used to give reference to the previous talk and assault her. She had also stated to the Police that the accused used to give reference to the previous talk and assault her. He was also angry with her mother, father and brother Jaywant. After he purchased the revolver the accused also used to say at times that he would take care of them by killing them one by one with his revolver. She had also told the Police that in the afternoon of 29-7-1984 witness Anandrao Barad had come to their house and the accused had told him that he had left drinking liquor and further that though he was behaving properly his brothers had not given him his due share in the property. She had also told the Police that the accused had told Anandrao Barad that her father was not taking part in effecting compromise and he had also started abusing her mother, father and brother. 13. We have then the evidence of Jaywant Patil (P.W. 11) the accused's brother-in-law and Rupa's brother who throws further light on the subject. He has stated that the accused used to visit their house and tell his father i.e. deceased Advocate Patil that he should intervene in his partition dispute and effect a settlement. His father had on two occasions made efforts to settle the matter but the efforts had proved useless. However, the accused was still insisting that his father should make further efforts to compromise the matter. In his cross-examination, he has told the Court that his father had a good opinion about the accused, that his elder sister Nandini was the wife of one Prakash Hilage Advocate who used to come to their house to see his father. He also stated that because of the closure of Yashwant Industries the position of the accused was adversely affected. 14. The next witness on the point is Dilip (P.W. 5) the younger brother of the accused who was on his side in the partition dispute and was residing with him after the rest of the family had left the joint family house. After deposing to the fact that there was a partition dispute in the family, he has stated that after separation in mess, the brothers were taking Rs. 1,000/- each for family expenses for about a month from the Yashwant Industries and thereafter even that was stopped. After deposing to the fact that there was a partition dispute in the family, he has stated that after separation in mess, the brothers were taking Rs. 1,000/- each for family expenses for about a month from the Yashwant Industries and thereafter even that was stopped. He has further deposed that at about 11 or 11.45 p.m. on 29-7-1984 when he was sleeping, Rupa had awakened him from his sleep and had told him that the accused had returned to the house after consuming liquor and he was saying that they should go to her father's place for negotiations about partition matter and hence he wanted him i.e. Dilip on the ground floor. The witness told Rupa that they should not go to her father's house at that odd hour and that it was not necessary to do so at that time and that they would go to her father's place on the next morning for consultation. Thereafter the witness only heard the sound of a scooter and that somebody had left on a scooter. He has further admitted that the accused use to take deceased Patil's advice and that he also desired that Patil should make efforts for compromise. This witness was also declared hostile and cross-examined by the Public Prosecutor and in his cross-examination it has come on record that the witness had told the Police that the accused used to get enraged with deceased Patil because he was not taking firm steps to revolve the partition dispute. 15. The eye-witness account of Rekha (P.W. 10), P.C. Subhash Patil (P.W. 22) and P.C. Mohan Katkar (P.W. 27) further shows that there was a quarrel going on between the accused and the old couple and the accused was holding a revolver in his hand at the time of the quarrel. He had also forced Vimalabai to sit on the step in the kitchen by holding her by her blouse. 16. The dying declaration of Vimalabai (Ex. 68) also throws some light on the motive and/or intention of the accused. It states that when the accused came to deceased Patil's house, he was drunk. He asked the deceased Patil and Vimalabai not talk with the husband of their elder daughter i.e. Advocate Prakash Hilage and to keep Rupa at their place. The accused further said that he would not maintain Rupa. It states that when the accused came to deceased Patil's house, he was drunk. He asked the deceased Patil and Vimalabai not talk with the husband of their elder daughter i.e. Advocate Prakash Hilage and to keep Rupa at their place. The accused further said that he would not maintain Rupa. The Patil couple both prayed to him and tried to pacify him. However, he was not in a mood to listen. Thereafter they informed Rajarampuri Police Station on phone from Asha Nursing Home. There was on exchange of words going on in the house when the Police came on the scene for stopping their quarrel. The Police asked them and the accused to come to the Police Station. The accused was, therefore, enraged and in that angry mood he took out a pistol from his pocket and started firing at the husband and wife and the Police. 17. The evidence on record establishes two things. Firstly it shows that the accused was obsessed with his partition-dispute and was keen on getting it settled as early as possible. This was natural because on the admitted evidence, Yashwant Industries having closed, his source of income had sapped and even the monthly allowance of Rs. 1,000/- which he was getting for family expenses had dried out. As the evidence of accused's brother Anandrao (P.W. 7) shows the family had substantial movable and immovable properties and if the accused were to get his share he would come in possession of a sizeable portion of wealth. It is also clear from this evidence that deceased Patil being an Advocate was looked upon by the accused as a useful person to bring about a settlement of his dispute Patil had in fact tried his best but had failed in his efforts. However, the accused continued to believe that Patil could succeed if he exerted himself sufficiently. His grievance was that Patil was not active enough in the matter. On the other hand the accused had to maintain his family consisting of his wife i.e. Patil's daughter and his two children without any source of income. He was, therefore, angry with his in-laws and would abuse them even in the presence of others. His grievance was that Patil was not active enough in the matter. On the other hand the accused had to maintain his family consisting of his wife i.e. Patil's daughter and his two children without any source of income. He was, therefore, angry with his in-laws and would abuse them even in the presence of others. His further grievance against the Patil couple was that Advocate Prakash Hilage, their other son-in-law was on friendly terms with his elder brothers Anandrao and Shivajirao and that he was on visiting terms with the old couple. Probably he suspected that because of Hilage's influence Patil was not active in settling the dispute. It is for this purpose that an indicated in the dying declaration, the accused insisted that Hilage should not be welcomed at their house and that the old couple should take care of Rupa and the he would not maintain her. The accused also seemed to be ill-disposed towards Vimalabai in particular. Thus rightly or wrongly, the accused harboured a grudge against his deceased in-laws. Whether he was rational in entertaining the grudge against them is quite a different matter. As is obvious from the other circumstances on record there are many things which he has done irrationally. That appears to be his nature and it is in keeping with this nature that he had come to entertain the grouse against his in-laws, holding them ultimately responsible for his financial plight. What is of importance to note is that he did entertain a grudge against his in-laws at the relevant time. Shri Jethmalani no doubt contended that if at all, the accused should have had a grievance against his brothers and father who were denying him his due share in the property and not against persons like the deceased Patil who at best could only have brought about a compromise and had in fact made efforts at such compromise but had failed. That undoubtedly is the way, one not of the mould of thinking of the accused, should have reasoned. But the accused obviously did not see things that way. Having brought himself to believe that his in-laws were responsible for his plight he had certainly a motive in going to them at that odd hour of the night and start quarrelling with them with vehemence. But the accused obviously did not see things that way. Having brought himself to believe that his in-laws were responsible for his plight he had certainly a motive in going to them at that odd hour of the night and start quarrelling with them with vehemence. That takes to the existence of the intention on the part of the accused in indulging in shooting at the time of the incident. According to Jaywant (P.W. 11) when the accused and Rupa came to their house and pressed the bell, his father the deceased Patil opened the door and Rupa came inside followed by the accused. Rupa then told the witness that he accused was armed with a revolver and that he should go to the rear side of the house and hide himself and also bring the Police. He followed her instructions immediately. This evidence is not shaken in cross-examination. The only additional fact which is brought on record in the cross-examination is that Rupa had also told the witness that the accused had consumed liqour at that time. This version of the witness is confirmed by the entry at Serial No. 4 in Ex. 37 which is the Police Station Diary. The entry shows that Jaywant had at about 01.00 hours on 30-7-1984 lodged a oral complaint that the accused was behaving in a disorderly manner under the influence of alcohol and that he was in possession of a revolver at that time. In her cross-examination by the Public Prosecutor, it has also come on record that Rupa had told the Police that after entering the house she had seen her brother with her father and mother and being frightened had told her brother i.e. Jaywant that as the accused was carrying a revolver Jaywant should run away from that place and call the Police. Witness Rekha Khot (P.W. 10) who is the neighbour of Patil and who was brought on the scene by Jaywant after he was asked by his sister to bring the Police, has deposed to the fact that when she came to Patil's house along with Ashok Dudhane, Jaywant and the Police, they heard some quarrel going on inside the house. Thereafter they had gone to the rear of the house and watched the scene through the rear kitchen door which was open. Thereafter they had gone to the rear of the house and watched the scene through the rear kitchen door which was open. Deceased Patil, deceased Vimalabai and the accused were present inside the room and the accused was holding a revolver in his hand. The accused was saying that Vimalabai and Patil were not taking part in the partition matter but were talking about the divorce. The accused was speaking as if he was threatening, while Patil and Vimalabai were bowing down and praying to him that if they had committed any mistake they should be pardoned. It is at that time that P.S.I. Kamble and four Police Constables came to the rear open space of the house and Patil came in the kitchen to drink water. P.S.I. Kamble told the accused that he was a Police Sub-Inspector, that they should not quarrel and create commotion as there was a hospital just adjoining the house. Kamble also told the accused that he should come to the Police Station. The accused told Kamble that it was their family dispute and that he would not come to the Police Station at that time but would come on the next day. At that time Kamble told one of the Police Constables to go and get the Police wireless van. Immediately thereafter the accused opened fire. 18. P.C. Subhash Patil (P.W. 22) who is one of the eye-witnesses has substantially corroborated Rekha's deposition on the point. He has stated that when P.S.I. Kamble arrived on the scene and Rupa met them and told them to go towards the rear of the house they went to the rear open portion of the house and climbed the foot-steps. They noticed that the accused was quarrelling with Patil and his wife Vimalabai with a revolver in his hand. At that time all the three viz. the accused, Patil and his wife were in Majghar i.e. the room adjoining the kitchen. P.S.I. Kamble disclosed to the accused his identity and asked him not to quarrel but to accompany him to the Police Station. The accused replied that it was a domestic quarrel and refused to come to the Police Station adding that he would come there the next morning. P.S.I. Kamble disclosed to the accused his identity and asked him not to quarrel but to accompany him to the Police Station. The accused replied that it was a domestic quarrel and refused to come to the Police Station adding that he would come there the next morning. At that time Patil came in the kitchen and the accused caught hold of Vimalabai's blouse and took her in the kitchen and made her sit on the kitchen foot-steps. The accused was standing near her and pointed a revolver towards her. Kamble then got down from the foot-steps on the rear of the house and asked P.C. Kurane to fetch a wireless van. Then Kamble again climbed the footsteps when the accused fired shots from his revolver. 19. Mohan Katkar (P.W. 27) another Police Constable and an eye-witness to the incident has corroborated what P.C. Subhash Patil had stated on the point. In particular, he has stated that the accused was quarrelling with Patil and Vimalabai with a revolver in his right hand. He has also deposed to the exchange of words between Kamble and the accused as deposed to by Subhash Patil. He has also stated that the accused fired his revolver when Kamble returned to the rear door step after asking Kurane to bring the wireless van. According to us, in spite of a very testing and detailed cross-examination on the subject, the substance of their version has remained unshaken. If this evidence is to be believed, which we do, it has to be accepted firstly that the accused had gone to Patil's house under the influence of liqour and armed with a revolver. Before starting for Patil's house he had collected his revolver which was not with him when he had returned home from the hotel. He had ostensibly gone to his in-laws to discuss the partition-suit. But his wife Rupa perhaps knew his intentions better and therefore, no sooner they stepped into the house she took care to warn her brother Jaywant to hide himself and call the Police. The worst apprehended ensued and the accused started quarrelling with his in-laws. He asked them not to welcome Hilage in their house. He told them that he would not maintain Rupa and that they should keep her with them. He asked them to talk of his partition dispute and not of divorce. The worst apprehended ensued and the accused started quarrelling with his in-laws. He asked them not to welcome Hilage in their house. He told them that he would not maintain Rupa and that they should keep her with them. He asked them to talk of his partition dispute and not of divorce. And all this at the point of revolver with the old couple almost on their knees. He manhandled his mother-in-law against whom he had a special ill-feeling. He was in an uncontrollable and uncompromising mood. He denied P.S.I. Kamble even after he disclosed his identity and it appears that no sooner Kamble asked a Police Constable to fetch the wireless van he got enraged and started shooting from his revolver. These facts therefore, show that not only there was a motive for shooting his in-laws, but at the relevant time the accused also intended to shoot all the three victims. It is common knowledge that intention can develop on the spot and as happened in the present case, the accused worked himself up to a stage where there was no point of return. As it is, he wanted to settle his scores, imaginary or otherwise, with his in-laws. His anger was further fuelled by the arrival of the Police who demanded of him to keep quiet and to come to the Police Station. When he defied them, he saw the prospect of his being carried to the Police Station in the Police van after Kamble called for one. That obviously proved the last straw, for it is then that he triggered off his revolver and went on firing till the last bullet at his in-laws because they, according to him were responsible both mediately and immediately for the arrival of the Police and at Kamble because he was in terms of time the most proximate adversary. Thus there was both a motive and an intention in killing the victims-motive against the in-laws and intention against all the three. 20. That takes us to the defence theory of scuffle and accidental firing. To support this theory, Shri Jethmalani contends that the eye-witness-account of the incident has to be totally ignored since according to him none of the eye-witnesses was present. 20. That takes us to the defence theory of scuffle and accidental firing. To support this theory, Shri Jethmalani contends that the eye-witness-account of the incident has to be totally ignored since according to him none of the eye-witnesses was present. Once their version is ignored then argues he, the defence version that P.S.I. Kamble was armed with a revolver and there was a scuffle has to be accepted at least as a plausible case. For this purpose, he also relied on the defence allegation that there were five bullet-entry injuries on Vimalabai's body and not four as sought to be established by the prosecution, and the fifth injury could have been caused only by the bullet fired from Kamble's revolver. It has therefore, become necessary (i) to scrutinise closely the defence regarding the presence of the eye-witnesses; (ii) the eye-witness account; (iii) the police record including the record of the custody of the Police revolvers and (iv) the medical record. The eye-witnesses in question are Rekha Khot alias Dudhane (P.W. 10); P.C. Subhash Patil (P.W. 22) and P.C. Mohan Katkar (P.W. 27). In addition of course there are two other eye-witnesses viz. the accused's wife Rupa alias Mangla (P.W. 6) and his brother-in-law Jaywant Patil (P.W. 11) to an extent. As regards Rekha Khot (P.W. 10), the defence's challenge to her presence at the time of the incident is mainly based on the fact that her house is situate beyond Rajarampuri Police Station when one goes from the deceased Patil's house i.e. the scene of offence. It is contended by the defence that when Jaywant Patil (P.W. 11) was supposed to go to the Police Station pursuant to the imploration of Rupa, there was no need for him to go to Rekha's house first. The prosecution version in that behalf is also criticised by the defence on the ground that Jaywant Patil should of all the people approach a girl like Rekha for assistance in approaching the Police Station. According to us this criticism though appears plausible at first blush, is not justified in the circumstances of the case. Admittedly, Rekha Khot and her family including her mother were known to Patil-family for a long time since they live in the same locality. It also appears that Rupa alias Mangla was Rekha's friend. The evidence also shows that Jaywant was a chicken-hearted person. Admittedly, Rekha Khot and her family including her mother were known to Patil-family for a long time since they live in the same locality. It also appears that Rupa alias Mangla was Rekha's friend. The evidence also shows that Jaywant was a chicken-hearted person. That is why Rupa had even asked him to hide himself and bring the Police. That is also what Vimalabai's, dying declaration mentions when it states that since Jaywant was hidden he had escaped the bullets. If Jaywant was a sufficiently strong and courageous person, Rupa would have asked him to wait in the house to take care of her parents and would herself have gone to the Police Station which was hardly 250-300 feet from their house. It has also to be noted in this connection that Jaywant had actually not gone to contact Rekha but had gone there to contact Rekha's mother. Since Rekha's mother was not at home, Rekha had come out followed by her future husband Ashok Dudhane. Jaywant informed them that the accused had come to his house with a revolver and he would kill them and requested them to accompany him to the Police Station. That is how Rekha and her fiance Ashok Dudhane had gone with Jaywant to the Police Station. After Jaywant recorded the complaint, both of them had then accompanied him and the Police Constables to his house. What is necessary to remember further is that even after Jaywant secured the help of the Police Constables, he had also gone to the house of his neighbour witness Darwan (P.W. 28) to bring him to the scene of offence. This conduct of Jaywant confirms the fact that he was a person who needed the assistance of others to face emergencies. We, therefore, do not see anything unnatural on his part in going to Rekha's house before approaching the Police. In his cross-examination, to the pointed question in that behalf, he has answered that although it was not necessary for him to go towards Rekha's house, since he was frightened (""I was afraid"") he felt the need to go to her house. He also added that the relations between his family and Rekha's family were cordial and that is why he had gone to her house. He also added that the relations between his family and Rekha's family were cordial and that is why he had gone to her house. We are, therefore, unable to accept the defence case that since Rekha's house was situate a few feet beyond Rajarampuri Police Station, Jaywant had not in fact gone to her house and brought her first to the Police Station and thereafter to his house. Besides, the presence of Rekha has also been deposed to by P.C. Subhash Patil (P.W. 22) and Mohan Katkar (P.W. 27). As has come out in Rupa's cross-examination by the Public Prosecutor, Rupa had also stated before the Police that when she had gone outside the house by the rear door, she had seen Rekha Khot and Ashok Dudhane standing there. Further nothing has come out in Rekha's cross-examination to cast a doubt on her version that Jaywant had come to her house and thereafter she and Ashok Dudhane accompanied Jaywant first to the Police Station and thereafter to the scene of offence in the company of Jaywant and four Police Constables. Her version as to what exactly she saw when she arrived on the scene has also not been damaged in any manner in spite of her searching cross-examination by the able Counsel for the accused. Coming now to the presence of Police Constable Subhash Patil (P.W. 22) and Mohan Katkar (P.W. 27), a cloud of dust has no doubt been raised over the Police documents produced by the prosecution to prove the availability of the said witnesses at the Police Station at the relevant time. But a close scrutiny of the documents shows that it is no more than a cloud. The first document which requires to be considered in this connection is the extract of the Police Station Diary of 30-7-1984 which is Ex. 37 on record. The entries in the said extract are in the hand-writing of Police Head Constable Nipane (P.W. 12) and he has deposed to that effect. The entry at Serial No. 1 of 00.00 hours mentions the fact that the charge of the Station Diary was with Nipane. The entry at Serial No. 2 which is at 00.05 hours mentions that different Policemen were sent to different points within the limits of the Police Station. The areas where the Policemen are sent are mentioned against their respective names. The entry at Serial No. 2 which is at 00.05 hours mentions that different Policemen were sent to different points within the limits of the Police Station. The areas where the Policemen are sent are mentioned against their respective names. This entry shows that Subhash Patil (P.W. 22) (whose buckle number is 974) was supposed to go with another Police Constable Kurane (Buckle No. 1752) for night rounds in Rajarampuri Lanes Nos. 1 to 14 and other areas. Further, the Duty List Ex. 39 shows that during the relevant hours Police Constable Mohan Katkar (P.W. 27) (whose Buckle No. is 1698) and another Police Constable Kumbhar (Buckle No. 967) were supposed to remain at the Police Station. The entry at Serial No. 3 in Ex. 37 which is of 00.35 hours shows that P.S.I. Kamble was detailed for night-round and checking within the limits of the People Station. This entry is in Kamble's handwriting and is also signed by him. According to the deposition of Nipane, since Kamble was assigned the duty of night-round, he had sent Police Constable Kurane (Buckle No. 1752) with the Police Van to bring Kamble from his house to the Police Station. It is also clear from Entry at Serial No. 4 in Ex. 37 that Jaywant had given the information to the Police Station at 01-00 hours that the accused was behaving in a disorderly manner under the influence of alcohol and that he was in possession of a revolver. By the time Jaywant gave the said information to P.C. Kurane (Buckle No. 1752), who was sent to bring P.S.I. Kamble had arrived with Kamble. Thus at this point of time, the two Police Constables detailed for night-round viz. Kurane (Buckle No. 1752) and Subhash Patil (P.W. 22) (Buckle No. 974) and Police Constables Mohan Katkar (P.W. 27) (Buckle No. 1698) and Kumbhar (Buckle No. 967) were available for being sent with Jaywant and that is how the Entry at Serial No. 4 also shows that Nipane had actually sent all these four Police Constables with Jaywant to the scene of offence. Thus Exs. 37 and 39 coupled with Nipane's deposition establishes the fact that the four Constables and particularly the two eye-witnesses Subhash Patil (P.W. 22) and Mohan Katkar (P.W. 27) were present at the Police Station and were in fact sent with Jaywant. 21. Thus Exs. 37 and 39 coupled with Nipane's deposition establishes the fact that the four Constables and particularly the two eye-witnesses Subhash Patil (P.W. 22) and Mohan Katkar (P.W. 27) were present at the Police Station and were in fact sent with Jaywant. 21. The further doubt about their presence is expressed on the ground that although Entry at Serial No. 2 in Ex. 37 shows that P.C. Subhash Patil (P.W. 22) was supposed to accompany P.C. Kurane for night-round at 00-05 hours, he is supposed to have remained at the Police Station till Jaywant lodged his information at 01-00 hours and that is contrary to the record. In the first instance, the entry at Serial No. 4 shows that H.C. Nipane had sent him along with the other three Police Constables to the scene of offence. That by itself should establish that he was available at the Police Station when Jaywant lodged his information. Secondly, as has been deposed to by Nipane, the night-rounds start at 00-00 hours and entries are made in the Station Diary in advance even before the Policemen actually proceed on their respective duties. He has also stated that although in entry at Serial No. 2 it is mentioned that the concerned Policemen were sent for night duty at 00-05 hours they had actually not left for night-rounds. In fact he had sent P.C. Kurane (Buckle No. 1752) (who was to accompany Subhash Patil (P.W. 22) for night-rounds) to bring P.S.I. Kamble, and P.S.I. Kamble along with P.C. Kurane came to the Police Station at 00-35 hours although the entry states that at that hour, Kamble had gone for night-round. The fact that he had not left the Police Station at 00-35 hours as stated in the entry at Serial No. 3 is also established by the very fact that when P.C. Mohan Katkar (P.W. 27) had returned from the scene of offence to the Police Station at 01-30 hours to take P.S.I. Kamble with him, Nipane had sent Kamble along with Katkar to the scene of offence at that hour. That is how Kamble became a victim of the shooting. Hence Nipane's testimony that although the entries in question were made in Ex. 37, the Policeman had not taken up their duties as per the said entries, stands corroborated. That is how Kamble became a victim of the shooting. Hence Nipane's testimony that although the entries in question were made in Ex. 37, the Policeman had not taken up their duties as per the said entries, stands corroborated. That also explains why Subhash Patil (P.W. 22) remained at the Police Station till 01-00 hours since he was waiting for P.C. Kurane to come back to the Police Station with Kamble, whom he had gone to bring in the Police van. As regards the presence of the other two Policemen viz. Mohan Katkar (P.W. 27) and Kumbhar (Buckle No. 967) they were supposed to remain at the Police Station as per Duty List Ex. 39. It was also contended on behalf of the defence that Exhibits 39 and 40 which are the duty lists for 29th and 30th July, 1984 did not show that P.S.I. Kamble was detailed for night-duty between 29th and 30th July, 1984 and yet he was supposed to have reported to the Police Station at 00-35 hours on 30-7-1984 as per entry at Serial No. 3 in Ex. 37. Nipane in his deposition has pointed out that although the duty-lists Exhibits 39 and 40 had not shown P.S.I. Kamble but P.H.C. Dalavi for night-duty on that day. Exhibit 109 which is the Station Diary extract of 29-7-1984 shows that the S.D.P.O. City Dn. Kolhapur, Damame (P.W. 39) at 22-05 hours on 29-7-1984 had directed that P.S.I. Kamble be given a message for night-round duty. Damame had given this direction because as has been explained by Nipane and as is evident from the entries in Ex. 108 itself, when Damame had visited the Police Station at 21-45 hours on 29-7-1984, he had found P.H.C. Dalavi absent for emergency duty and therefore, Damame assigned to Dalavi orderly duty. Entry at Serial No. 26 in Ex. 108 makes it clear. In the same document, there is the further entry at Serial No. 28 which shows that at 22-00 hours H.C. Dalavi resumed duty. The next entry at Serial No. 29 shows that Damame (P.W. 39) suggested to Nipane (H.C. 2/968) that P.S.I. Kamble be given message for the night-round duty. As pointed out earlier, this is confirmed by the entry at serial No. 3 in Ex. 37 which entry is in the hand-writing of Kamble himself and is also signed by him. The next entry at Serial No. 29 shows that Damame (P.W. 39) suggested to Nipane (H.C. 2/968) that P.S.I. Kamble be given message for the night-round duty. As pointed out earlier, this is confirmed by the entry at serial No. 3 in Ex. 37 which entry is in the hand-writing of Kamble himself and is also signed by him. The very fact further that Kamble was on duty and became the victim on that account confirms the authenticity of the entries both in Ex. 108 and Ex. 37. This is also confirmed by Damame (P.W. 39) in his deposition. It is, therefore, difficult to understand the criticism levelled against these two documents. What is more significant to note is that entry at Serial No. 27 in Ex. 108 also confirms that P.S.I. Kamble was waiting at the Police Station from 00-35 hours for the arrival of the jeep. That entry is at 21-50 hours and mentions that as per entry at Serial No. 22, there was an accident between a jeep and a rickshaw in front of the Irrigation Office and that the driver of the jeep was absconding. Hence one Head Constable Patil, (Buckle No. 2/1280) was directed to complete all work connected with the said accident. That is why as explained by Nipane in his deposition, Kamble had to wait because H.C. Patil had taken the jeep for work in connection with the said accident. It is in the jeep that Kamble was supposed to take his night-rounds. The duty list Ex. 39 further shows that H.C. Patil (Buckle No. 2/1280) was on reserved duty and was available for doing the work in connection with the said accident. The entries in Ex. 108 thus answer many of the queries raised by the defence with a view to falsify the prosecution case. The next criticism against document Ex. 37 is that it is a part of a book consisting of sheets which are unnumbered and bound loosely. What is further pointed out is that in this diary one of the pages is a Xerox copy of the original which is not on record and hence Ex. 37 should be discarded as a true document. We scrutinised the Station Diary in question to examine the validity of this criticism. What is further pointed out is that in this diary one of the pages is a Xerox copy of the original which is not on record and hence Ex. 37 should be discarded as a true document. We scrutinised the Station Diary in question to examine the validity of this criticism. It appears that the duplicate copies of the original sheets there are prepared by keeping a carbon below each of the sheets. The original is sent to the S.D.P.O. and the duplicate is retained at the Police Station. It also appears that nothing is written on the reverse of the sheets and the original and the duplicate are written on the face of the sheets themselves. It further appears that on one occasion, the person who made the entry had placed the carbon on the wrong side of the of the sheet with the result that the duplicate of it appeared on the reverse of the original sheet. Since the original had to be sent to the S.D.P.O., it became necessary to retain its duplicate copy at the Police Station and this could be done only if a Xerox copy of the same was made, and not otherwise. That is how the duplicate of one of the originals in this Diary is a Xerox copy of the original and not its carbon duplicate. This Xerox copy admittedly has nothing to do with any of the entries with which we are concerned. In fact those entries belong to 28-8-1984. The defence however in its anxiety to cast doubt on the entire Station Diary of which Ex. 37 is a part, had referred to the said Xerox copy. In the circumstances explained above, we are unable to accept the criticism either against the Station Diary or against Ex. 37. The next criticism levelled against Ex. 37 is based on its comparison with Ex. 39 which is the duty-list of 29-7-1984. It is contended that P.H.C. Nipane (P.W. 12) was, as per the last column of Ex. 39, supposed to be on casual leave on 29-7-1984 and yet in the first column of the document it is mentioned that he was on station diary duty from 8 to 13 hours and thereafter from 21 to 08 hrs. It is contended that P.H.C. Nipane (P.W. 12) was, as per the last column of Ex. 39, supposed to be on casual leave on 29-7-1984 and yet in the first column of the document it is mentioned that he was on station diary duty from 8 to 13 hours and thereafter from 21 to 08 hrs. It does appear that in the last column, against the entry ""C.L."" the buckle numbers of four Police Constables are mentioned and one of buckle numbers is 2/968 which is Nipane's buckle number. A perusal of the original duty-register Ex. 116 on record however shows that Police Constable with Buckle No. 1695 is on casual leave on 30-7-2984 and Nipane whose buckle number in 2/968 is not shown there as on casual leave. Nipane himself was cross examined on the point and he has categorically stated that he was not on casual leave that day. But what is more, the Station Diary Extract Ex. 37 itself mentions that Nipane was to be in charge of the Station Diary from 00-00 hours on 30-7-1984. The Station Diary is also in the hand-writing of Nipane himself which is not disputed. What is further, the duty-list Ex. 39 itself shows that Nipane was on duty from 8 to 12 hours on 29-7-1984 and from 21 hours on 29-7-1984 to 0-08 hrs. on 30-7-84. This duty-list is in the hand-writing of P.S.I. Chavan (P.W. 38) and he has deposed to the same. It is, therefore, not possible to accept the defence contention that Nipane was not on duty at the relevant time and the entries in the Station Diary of which Ex. 37 is an extract are not genuine. We must however note that it is conceded by Shri Hudlikar, the learned Public Prosecutor that the copies of the duty-list which were supplied to the defence, the prosecutor as well as the Court were not the true copies of the original duty-lists Ex. 39 and Ex. 40. It appears that the copies supplied by the Police earlier were different from the original and that is why the criticism of the said documents was warranted throwing doubt on the genuineness of Ex. 37 and Ex. 108. 39 and Ex. 40. It appears that the copies supplied by the Police earlier were different from the original and that is why the criticism of the said documents was warranted throwing doubt on the genuineness of Ex. 37 and Ex. 108. It is also to be noted that P.S.I. Chavan (P.W. 38) when he was asked a pointed question in that behalf, was unable to produce the duty register prior to 1-7-1984 and after 10-8-1984. The question became necessary because the duty register which was produced which was produced at Ex. 116 beginning from 1-7-1984 and ends with 10-8-1984 although about half of the book is left blank thereafter. It must therefore, be stated that the defence criticism of the document and the doubts which the defence raised with regard to the authenticity of the duty-register Ex. 116 in the circumstances was not, unjustified. However, whatever the validity of the criticism of the duty-register Ex. 116 and the duty-lists Exs. 39 and 40, it must be emphasised that the Police Station Diary of which Ex. 37 is an extract stands and can stand independently of Exhibits 39 and 40 and its authenticity is beyond question. This is so because as we have pointed out earlier, the original was sent to the S.D.P.O. the next day. The entries made there are in Nipane's handwriting. There is nothing to show that any new pages were inserted in the Station Diary. In fact it begins from 27-7-1984. What is more the entry at Serial No. 3 in the said document is in deceased Kamble's handwriting and also under his signature. The aforesaid discussion of the Police Station Diary and the duty-lists therefore leaves us in no doubt that the two Police Constables Subhash Patil (P.W. 22) and Mohan Katkar (P.W. 27) were present at the scene of offence at the time of the incident. And the purpose of the defence in attacking the said documents from different angles was only to negative their presence as eye-witnesses. 22. That takes us to the account of the incident itself which has been given by the eye-witnesses. And the purpose of the defence in attacking the said documents from different angles was only to negative their presence as eye-witnesses. 22. That takes us to the account of the incident itself which has been given by the eye-witnesses. Rekha Khot (P.W. 10) after referring to the events which took place after she came to Patil's house in the company of Jaywant and the four Police Constables two of whom were in uniform and the other two in plain clothes, has stated that when they came to Jaywant's house they went towards the front door of the house but it was latched from inside. The Police asked ""to open the door"". However there was no response from inside and hence, she and Ashok went towards the rear side of the house. At that time, they heard that some quarrel was going on inside the house. Towards the back-side of the house, they met Mangala (i.e. Rupa) who asked them as to where the Police were. They i.e. Rekha and Ashok told Rupa that the Police were at the front door of the house. Thereafter, as the rear door of the house was open they stood near the door-frame of the house and watched from there the happenings in the house. There was an electric light in about two or three rooms of the house and they saw deceased Patil, his wife Vimalabai and the accused present inside one room. The accused was holding revolver in his hand and was telling Patil and Vimalabai that they were not taking any part in his partition matter but were talking about the divorce. The accused was speaking as if he was threatening them. Both Patil and Vimalabai were bowing down to him. They also told him that if there was any failing on their part they should be pardoned. At that time P.S.I. Kamble and the four Police Constables came in the rear open space of the house. The deceased Patil came in the kitchen room for drinking water. P.S.I. Kamble told the accused that he was a Police Sub-Inspector and that they should not quarrel and create commotion. Kamble also told the accused that there was a hospital just adjoining the house. He further asked the accused to come to the Police Station. The deceased Patil came in the kitchen room for drinking water. P.S.I. Kamble told the accused that he was a Police Sub-Inspector and that they should not quarrel and create commotion. Kamble also told the accused that there was a hospital just adjoining the house. He further asked the accused to come to the Police Station. The accused however told Kamble that it was their family dispute and that he would not come to the Police Station at that time and would come there on the next day. Thereafter the accused caught hold of Vimalabai's blouse and forced her to sit in the door-frame of the house between the kitchen and the other room. He also pointed the revolver towards her. At that time P.S.I. Kamble told one of the Police Constables to go and fetch a Police wireless van. Immediately thereafter the witness heard sounds of firing of 8 or 9 rounds of revolver. These rounds were fired by the accused from his revolver. P.S.I. Kamble, Vimalabai and Patil received injuries of the shots. Kamble fell on the rear open space of the house while Vimalabai and Patil fell in the kitchen. The accused thereafter ran away from the house. The witness and Ashok Dudhane immediately rushed to the kitchen, Vimalabai asked for water. The witness gave her some water. Thereafter she and Ashok Dudhane lifted Vimalabai and brought her on the road by opening the front door of the house. At that time, one autorickshaw came there and the witness and Ashok put Vimalabai in the said rickshaw and took her to the C.P.R. Hospital. According to the witness P.S.I. Kamble was put in a private car and was also taken to C.P.R. Hospital. Lastly, the body of Patil Advocate was brought to C.P.R. Hospital, in a Police van. Thereafter the witness and Ashok Dudhane went to their residence. When they were still at the hospital they came to know that Kamble and Patil had succumbed to their injuries. This witness was cross-examined mainly to show that she was not present at the time of the incident. We do not find that anything useful to the defence has come out of her cross-examination. When they were still at the hospital they came to know that Kamble and Patil had succumbed to their injuries. This witness was cross-examined mainly to show that she was not present at the time of the incident. We do not find that anything useful to the defence has come out of her cross-examination. She was asked that from the dress of P.S.I. Kamble, it was not possible to know that he was a Police Sub-Inspector and this question appears to be correct because P.S.I. Kamble was not in the Police uniform. She denied that P.S.I. Kamble was armed with a revolver or said ""hands up"". She further denied that P.S.I. Kamble had not identified himself to the accused or that he had not told the accused that he should not create commotion or that he should come to the Police Station. She asserted that Kamble and the Constables were standing in the door-frame and on the foot-steps of the rear side of the house. She also reiterated that they were witnessing the incident by peeping inside. A suggestion was made to this witness that the Police were telling the accused, Vimalabai and Patil to come to the Police Station and at that time the accused got angry and in a fit of anger took out the revolver from his pocket. The witness stated that she did not see whether the accused had taken out the revolver from his pocket. According to her at the time of the firing, deceased Patil was in the kitchen and at a distance of one foot form Vimalabai. Kamble was slightly inside the kitchen and at some distance from the door-frame. Kamble's one foot was on the foot-step outside the kitchen and the other foot inside the kitchen. She has also further deposed that when Kamble had turned slightly he received the shots and collapsed on the ground. The shots were fired in quick succession and not at intervals. She further stated that when they lifted Vimalabai, neither her clothes nor the clothes of Ashok Dudhane nor their hands were stained by blood. There was also no track of blood from the kitchen to the road. She has further stated that Jaywant was not with them when they took Vimalabai in the autorickshaw. She also did not notice Mangalatai i.e. Rupa. 23. There was also no track of blood from the kitchen to the road. She has further stated that Jaywant was not with them when they took Vimalabai in the autorickshaw. She also did not notice Mangalatai i.e. Rupa. 23. Subhash Patil (P.W. 22) has deposed that the Police Station Officer directed him and three other Police Constables, Kumbhar (Buckle No. 967), Katkar (Buckle No. 1698) and Kurane (Buckle No. 1752) to go to the house of deceased Patil and to see the incident, and accordingly they accompanied Jaywant Patil and went to his house. At that time Rekha and Ashok Dudhane were also with them. When they reached the front door of the house, they saw that it was closed from inside. They knocked at the door and asked to open it. There was however no response. At that time P.C. Kurane asked P.C. Katkar to go to the Police Station and bring P.S.I. Kamble. Witness Rekha and Ashok Dudhane then went through the eastern by-lane to the rear side of the house. Within the next ten minutes, P.C. Katkar came with P.S.I. Kamble. At that time, Mrs. Mangala Atigre i.e. witness Rupa came from the rear side of the house and told them that the rear door of the house was open. Then Kamble accompanied by the Constables went towards the rear side of the house. Rupa also followed them. They came on the rear foot-steps and noticed that electric light was burning inside the house and the accused was quarrelling with Sakharam Patil and his wife viz. Vimalabai. The accused was also holding a revolver in his hand. At this time, the accused, Sakharam Patil and Vimalabai were in Majghar i.e. the room next to the kitchen. He also states that witness Rekha and Ashok Dudhane were with them at the time. P.S.I. Kamble disclosed to the accused his identity and asked him not to quarrel. He also asked the accused to accompany him to the Police Station. The accused replied that it was a domestic quarrel between them and refused to come to the Police Station and further told P.S.I. Kamble that he would come to the Police Station in the morning. At that time Sakharam Patil came in the kitchen to drink water. The accused caught hold of Vimalabai's blouse and took her in the kitchen and made her sit on the foot-steps in the kitchen. At that time Sakharam Patil came in the kitchen to drink water. The accused caught hold of Vimalabai's blouse and took her in the kitchen and made her sit on the foot-steps in the kitchen. At that time the accused was standing near Vimalabai and had pointed a revolver towards her. P.S.I. Kamble got down from the footsteps at the rear of the house and asked P.C. Kurane to go and bring a wireless van. After that, Kamble again came on the footsteps and at that time the accused fired eight or nine shots from his revolver. Kamble shouted ""Mother, Mother"" and fell down on the ground. Immediately, the witness ran to the Police Station and passed on the information there about the incident and returned to the scene of offence (There is an entry to that effect at Serial No. 6 at 01-50 hours in Ex. 37). When he returned, P.C. Kurane, P.C. Kumbhar and P.C. Katkar i.e. the other three Police Constables were taking Kamble to the front of the house. At that time, one Ambassador car was going by the side of Asha Nursing Home which is on the east of the scene of offence. They stopped that car. One rickshaw also arrived there. There were some passengers in the rickshaw. They asked the passengers to get off the rickshaw Kamble was put in the Ambassador car. Vimalabai was also taken towards the front side of the house by Rekha and one more woman according to the witness. She was put in the rickshaw. They were taken to the C.P.R. Hospital. P.C. Katkar accompanied Kamble in the Ambassador car. Thereafter the remaining Police Constables again entered the house and removed Sakharam Patil from the kitchen and brought him on the road. At that time, a Police wireless van arrived and Sakharam Patil was put in the van and taken to C.P.R. Hospital. P.C. Kumbhar and two other females in the neighbourhood accompanied Sakharam Patil in the wireless van. As was expected this witness has also been subjected to a very lengthy cross-examination with reference to his account of the incident. The attempt was to show that he could not have witnesses the incident even if he was present at the scene at the time. The witness has stood the cross-examination admirably well. As was expected this witness has also been subjected to a very lengthy cross-examination with reference to his account of the incident. The attempt was to show that he could not have witnesses the incident even if he was present at the scene at the time. The witness has stood the cross-examination admirably well. He told the Court that eight or nine shots were fired from the revolver within few seconds. At the time of firing, the accused was standing just near the door-frame between Majghar and the kitchen and he was on the Majghar-side and practically on the threshold of the door-frame. All shots were fired by the accused when he was standing in the same position. At that time Vimalabai was made to sit just in front of the accused. Sakharam Patil was standing at the centre portion of the kitchen whereas P.S.I. Kamble was standing on the footsteps just near the rear door of the kitchen. According to the witness, at that time Kamble might be at a distance of 11 to 12 feet from the accused and Sakharam Patil could be at a distance of six to seven feet from the accused. At the time of firing, the accused had not caught hold of Vimalabai's blouse. According to the witness, further, at that time Vimalabai might be at a distance of about two feet from the accused. She was sitting on the foot-steps between the kitchen and Majghar and was resting against the door frame. The accused extended his right hand while firing towards Vimalabai. The witness has also told the Court that when Kamble was telling the accused that he should not quarrel and come to the Police Station, neither Vimalabai nor Sakharam Patil said anything so as to tease the accused. He also asserted that Kamble did not rush in the kitchen nor was he in the middle portion of the kitchen. He denied categorically that Kamble was armed with a revolver and had rushed ahead with the revolver to accost the accused. He denied that there was a scuffle between Kamble and the accused. It also did not happen, according to the witness that Vimalabai and Sakharam Patil intervened during the scuffle between Kamble and the accused. He denied categorically that Kamble was armed with a revolver and had rushed ahead with the revolver to accost the accused. He denied that there was a scuffle between Kamble and the accused. It also did not happen, according to the witness that Vimalabai and Sakharam Patil intervened during the scuffle between Kamble and the accused. He however expressed his inability to state as to how Vimalabai received injuries by gun shots from a longer distance as compared to the distance between the accused and Sakharam Patil, although Vimalabai was at a shorter distance from the accused than Sakharam Patil. He further asserted that Kamble was standing on the top-step near the rear door of the kitchen when he received the injuries and he himself was standing near Kamble on the eastern side. He was practically touching Kamble at that time. According to him, witness Rekha and Ashok Dudhane were standing just near each other on the last steps. He further asserted that Vimalabai was taken outside the house by a woman and a girl and that it was not true to say that P.C. Katkar had taken the injured one by one to the hospital. The next witness P.C. Mohan Katkar (P.W. 27) has confirmed all that P.C. Subhash Patil has stated in his deposition with regard to the persons who accompanied him to the scene of offence when they were first directed by Nipane to visit Patil's house. He has named the other Police Constable including P.C. Subhash Patil and also Rekha Khot and Ashok Dudhane. He has also confirmed the conversation between Kamble and the accused as deposed to by Subhash Patil and the point of time at which the accused fired his revolver, and the manner in which the injured were carried to the hospital. This witness was also subjected to a detailed cross-examination, in cross-examination, the witness denied that Kamble had told the accused to ""hands-up"" and that he i.e. the accused should give revolver to him. The witness stated that he did not see if the accused had taken the revolver from his pocket. He asserted that Kamble had not asked the accused if he had a licence for the revolver. He stated that Kamble was young and daredevil. He denied that Kamble rushed towards the accused suddenly and caught hold of him. The witness stated that he did not see if the accused had taken the revolver from his pocket. He asserted that Kamble had not asked the accused if he had a licence for the revolver. He stated that Kamble was young and daredevil. He denied that Kamble rushed towards the accused suddenly and caught hold of him. He also denied that there was scuffle between the accused and Kamble or that Kamble was armed with a revolver at that time. He denied that Sakharam Patil and Vimalabai intervened during the scuffle between Kamble and the accused or that the firing in question had taken place during the scuffle. He frankly admitted that he was unable to follow the subject-matter of the quarrel between the accused, Sakharam Patil and Vimalabai. To a pointed suggestion that when the firing took place, the accused, Sakharam Patil, Vimalabai and Kamble were near each other inside the kitchen he replied that only the accused. Sakharam Patil and Vimalabai were near each other. He denied the suggestion that he himself and the other Police Officers secretly removed Kamble's revolver from the scene of offence. Then we have of course the evidence of Rupa (P.W. 6) the wife of the accused with regard to the actual incident. In her examination-in-chief she has stated that when the accused was discussing partition matter with her father, one person entered inside the house from the rear door. Here she is obviously referring to Kamble. He was wearing a black jerkin and pant of blackish colour. He was carrying a revolver. He entered their house and asked the accused to ""hands up."" That person had a scuffle with the accused and at that time her husband took revolver from his pocket. During the scuffle between that person and the accused her father and mother intervened. For a moment, she could not guess as to what was going on but she heard about seven or eight sounds of shots from the revolver. After hearing the sounds of firing she became unconscious and she does not know what happened next. According to her she regained consciousness at about 6 to 7 a.m. in her matrimonial house at Belbag. It is thereafter that she came to know that her father had expired and her mother was admitted to the hospital in an injured condition. After hearing the sounds of firing she became unconscious and she does not know what happened next. According to her she regained consciousness at about 6 to 7 a.m. in her matrimonial house at Belbag. It is thereafter that she came to know that her father had expired and her mother was admitted to the hospital in an injured condition. The learned Public Prosecutor after declaring her hostile has cross-examined her with reference to her police statement. Before we advert to her cross-examination it is necessary to state that the version of the actual incident which she has given confirms word to word with the defence which has been set up. From her cross-examination by the learned Public Prosecutor, it transpires that she had stated before the Police that she had told her brother Jaywant that the accused was carrying a revolver and he should run away from this place and call the police. She had also state before the Police that when her husband could sense that there were Police towards the front door, he got enraged and picked up quarrel with her father and mother in a loud tone. She has also stated before the Police that thereafter he closed the door of that room from inside, took revolver and pushed her father and mother inside the room. At that time, her father and mother were requesting the accused that if any wrong was committed by them they should be pardoned. The witness had gone outside the house by the rear door to call the Police and at that time she had met Rekha and Ashok who were standing there. She had asked them about the Police and they had told her that the Police were towards the front door. When she thereafter went to the front of the house, she saw P.S.I. Kamble and four Police Constables and she told them to go by the rear door which was open. Thereafter the Police had gone to the rear door of the house and she had remained in the by-lane which is on the east of her house. Within two or three minutes thereafter she heard eight or nine rounds of shots of revolver from the kitchen and hence she went towards the rear door. Outside the door and near the foot-steps she saw Kamble lying in an injured condition. Within two or three minutes thereafter she heard eight or nine rounds of shots of revolver from the kitchen and hence she went towards the rear door. Outside the door and near the foot-steps she saw Kamble lying in an injured condition. She also saw her parents lying in an injured condition in the kitchen. She had also told the Police in her statement had Rekha Khot and Ashok were trying to take the injured for medical treatment and that she herself had gone to Asha Nursing Home to give a telephone call to her elder sister-in-law Mrs. Mrunalini Patil whom she informed that the accused had fired revolver at her father and mother. She had thereafter returned to the house. She has of course denied both the statements which she had made before the Police on 31-7-1984 and 4-8-1984. The last witness on the point is Jaywant Patil (P.W. 11). He has stated that he was asked by Rupa to hide himself and to call the Police no sooner she entered the house. She had also told him that the accused had a revolver. After deposing to the fact that he had gone to the Police Station is the company of Rekha Khot and Ashok Dudhane and had lodge the complaint at the Police Station (which is corroborated by the entry at Serial No. 4 in Ex. 37), he has stated that he came to the house in the company of the four Constables, Rekha and Ashok Dudhane. Out of the four Constables, two were in uniform and the other two in plain clothes. They all came to the front door of the house. It must be remembered that the rear of the house has a compound and one has to climb over the compound either to go out or come in. That is why it appears that although the rear door was open, they had to come to the front portion of the house. According to the witness, when they came to the front door, the door was found closed from inside. He heard that a quarrel was going on inside the house. Rekha and Ashok that time went towards the rear side of the house through the bol (lane) between their house and Asha Nursing Hospital. He also started following them and on the way he met his sister Mangala @ Rupa. He heard that a quarrel was going on inside the house. Rekha and Ashok that time went towards the rear side of the house through the bol (lane) between their house and Asha Nursing Hospital. He also started following them and on the way he met his sister Mangala @ Rupa. She asked him about the Police and he told her that they were to the front of the house. Thereafter both of them went to the front of the house. By that time P.S.I. Kamble arrived there and the witness told him that some commotion was going on in the house and that he i.e. Kamble should go there by the rear door of the house. Accordingly Kamble and four Constables went towards the back portion of the house. Thereafter the witness himself went to the house of one Darwan (P.W. 28) whose house is situated in front of his house. When the witness and Darwan were proceeding to the scene of offence, the witness heard seven or eight shots of revolver emanating from his house. Immediately he rushed ahead through the lane and noticed that Kamble was lying in an injured condition near the footsteps on the rear portion of the house while his father and mother were lying injured in the kitchen. He was in a bewildered state and did not know what to do. Thereafter he came to the front of the house. He saw that Rekha and Ashok had brought his mother on the road on the front side of the house. He thereafter lodged the F.I.R. Ex. 35 at Rajarampuri Police Station at 3.00 a.m. This witness was also cross-examined by the defence at great length and his version was sought to be tested with reference to the contents of the F.I.R. It was pointed out in the cross-examination that it was not necessary for him to go to the house of witness Darwan when P.S.I. Kamble and four Constables had come on the scene. To that he replied that he was still frightened and hence he felt that he should go to Darwan's house. He has also deposed to the fact that he heard the sounds of firing of the revolver when he was at the corner of the front portion of the by-lane between his house and Asha Nursing Home. To that he replied that he was still frightened and hence he felt that he should go to Darwan's house. He has also deposed to the fact that he heard the sounds of firing of the revolver when he was at the corner of the front portion of the by-lane between his house and Asha Nursing Home. He has also stated that Kamble was lying at a distance of seven or eight feet from the rear door frame of the kitchen and he saw about three Police Constables near P.S.I. Kamble when he was so lying. He admitted that he did not lift his father and mother who were lying injured or give water to them. He was asked about the position of his father and mother when they were lying injured and he stated that his father was lying on the western side of the kitchen at a distance of about 2 feet form the western wall and one foot from the southern wall of the kitchen, whereas his mother was lying just below the foot-step in the kitchen at a distance of one or two feet from his father. He denied that he had gone to the C.P.R. Hospital accompanying his parents and stated that he was in such a mental condition that he did not know what to do at that time. There was also nobody else in the house. He has also stated that even in the morning, he did not go to the C.P.R. Hospital. Instead, he gave telephone calls to his relations and called them. Thereafter his relations and others started coming to his residence at about 2-45 a.m. He denied that his statement viz. the F.I.R. was not recovered by the Police at 3.00 a.m. on 30-7-1984. He stated that as far as he remembered he was given a message by the Police at about 3 a.m. to come to the Police Station. He denied the suggestion that his mother had ever behaved arrogantly with the accused. Whatever he has stated in the Court with regard to the actual incident, finds place in the F.I.R. (Ex. 35) and therefore, his version gets strengthened. The defence has contended that the document Ex. 35 cannot be considered as F.I.R. in view of the fact that at 01-50 hours on 30-7-1984 as evidenced by entry No. 6 in Ex. Whatever he has stated in the Court with regard to the actual incident, finds place in the F.I.R. (Ex. 35) and therefore, his version gets strengthened. The defence has contended that the document Ex. 35 cannot be considered as F.I.R. in view of the fact that at 01-50 hours on 30-7-1984 as evidenced by entry No. 6 in Ex. 37, P.C. Subhash Patil (P.W. 22) had come to the Police Station and had lodged the information that firing had taken place and Kamble was injured in that firing. In this information there is no mention of the other injured persons nor is there any other detail about the incident. This being the information lodged earlier in point of time, should be treated as the F.I.R. and not the information lodged by Jaywant at 3.00 a.m. According to us, the controversy is futile. Even the defence does not dispute that in the incident in question, all three victims Sakharam Patil, his wife Vimlabai and P.S.I. Kamble were shot at by the accused within a few seconds. It is evident from the entry at Serial No. 6 in Ex. 37 that P.C. Subhash Patil (P.W. 22) when he lodged the information at 1.50 a.m. had concentrated only on Kamble and his injured condition disregarding the other developments. His anxiety in reporting the injuries to his boss Kamble can be appreciated but his failure to communicate the other details is difficult to understand. However the facts remains that he had failed to give the equally vital other details although they are a part of the same incident and had occurred simultaneously at the same spot. The information lodged by him is therefore obviously partial and not complete. Hence it cannot be called First Information Report of the incident. However it matters very little whether information Ex. 35 is treated as F.I.R. or the entry at serial No. 6 in Ex. 37. All that ensures by treating the entry in Ex. 3 as F.I.R. instead of Ex. 35 is that the contents of Ex. 35 will not be available for corroboration of the deposition of Jaywant. Since there is enough other evidence on record which can stand scrutiny independently of the deposition of Jaywant, and Ex. 35, it does not damage the case of the prosecution. The controversy, therefore, need not detained us any further. 35 is that the contents of Ex. 35 will not be available for corroboration of the deposition of Jaywant. Since there is enough other evidence on record which can stand scrutiny independently of the deposition of Jaywant, and Ex. 35, it does not damage the case of the prosecution. The controversy, therefore, need not detained us any further. The testimony of the eye-witnesses further gets a good deal of support from the dying declaration Ex. 68. It supports the main version of the incident given by all the eye-witnesses. We have already referred to some of its contents earlier in another context. We will reproduce the relevant portion from it here, which is as follows :--- ""To-day at night at about 2 to 2-25 a.m. when we slept my son-in-law Ashok Atigre came with his wife i.e. my daughter and knocking door asked us to unlatch the door. After opening the door they both came inside and latched the door. When he came that time he was drunken and he asked us not to talk with the husband of our elder daughter, you keep my wife with you. I will not maintain her. Myself and my husband we both prayed and tried to reconcile him. However, he was not in a mood to hear. Near our house there is Asha Nursing Home. We informed Rajarampuri Police Station on phone from there. At that time the door was latched. Exchange of words were going on in the house, police came. He was not allowed to remove latch. There was no latch to the backside door. Police came for stopping our quarrel through backside door, on seeing our quarrel police asked us and son-in-law to come to police station. He was enraged and in the angry mood took out pistol from pocket and started to fire on my husband, on me and police. In the firing my husband and police officer expired and I have received bullets on my chest left side at five places. When we received bullet firing I had hidden my son so he was saved. When I have received firing at that time, myself, my husband and police were in the house."" From this statement it is clear, as pointed out earlier, that the accused was quarrelling with Patil and Vimalabai and he was not in a mood to listen to them in spite of their enfreaties. When I have received firing at that time, myself, my husband and police were in the house."" From this statement it is clear, as pointed out earlier, that the accused was quarrelling with Patil and Vimalabai and he was not in a mood to listen to them in spite of their enfreaties. The quarrel between them was still going on when the police came. The police therefore asked Patil, Vimalabai and the accused to come to the police station. The accused was enraged on that account and in that angry mood took out a pistol from his pocket and started firing at Patil, Vimalabai and the police. The dying declaration thus substantially corroborate the essential particulars of the incident given by the eye-witnesses viz. that there was a quarrel going on between the accused on the one hand and Patil and Vimalabai on the other; that Patil and Vimalabai were entreating the accused; that the police came on the scene when the quarrel was still on; the police had asked the accused, Patil and Vimalabai to come to the Police Station and it is thereafter that the accused had fired at the three victims. There are of course two material differences in the evidence of Rekha, police Constable Subhash Patil and Mohan Katkar and the version in the dying declaration. Whereas according to the witnesses, the accused was holding a revolver in his hand when he was quarrelling with Patil and Vimalabai and even before the police came on the scene, according to the driving declaration, the accused had taken out the revolver from his pocket after the police came on the scene. The second difference is between the evidence of Jaywant Patil and the dying declaration on the question as to whether the police were informed by Jaywant Patil by going to the Police Station or whether they were informed on telephone from Asha Nursing Home. According to us, some allowance has got to be made to the physical and mental condition of Vimalabai when she made the declaration. In the first instance, the dying declaration does not given a coherent account of the events chronologically. It is possible that Vimalabai's memory had become hazy and she remembered only the prominent feature of the incident. All that she knew was that the police were called and that the accused had fired after the police came on the scene. In the first instance, the dying declaration does not given a coherent account of the events chronologically. It is possible that Vimalabai's memory had become hazy and she remembered only the prominent feature of the incident. All that she knew was that the police were called and that the accused had fired after the police came on the scene. Whether the Police were informed on phone from Asha Nursing Home or whether somebody had gone to inform them is of course a matter she would not know. It appears that she had heard Rupa asking Jaywant to hide himself and call the police. Admittedly the only telephone nearby was the one in the adjoining Asha Nursing Home from where both Rupa and Jaywant had later called their relations. Hence, when Rupa asked Jaywant to call police, she must have inferred that Jaywant had gone and telephoned to police from the usual place viz. Asha Nursing Home. So also whether the accused was holding a revolver already or whether he took the revolver form his pocket after the Police came on the scene and asked all the three to come to the Police Station is a matter of detail. Further, it must be remembered that admittedly the Police Station is at a distance of about 200 to 250 feet from the scene of offence. It was therefore quicker to contact the Police Station in person than on telephone if they were to be brought on the scene immediately. And even to do that, Jaywant had to take the aid of others. It was not suggested to Jaywant that he had not gone to the Police Station to call the police. He has not been cross-examined on that point at all. This being the position, we attach no importance to the said discrepancy. As regards the second discrepancy even assuming that Vimalabai recollected the incident in all its minute particulars while giving the declaration, according to us it makes no difference to the sub-stratum of the prosecution case that it was the accused who had fired at the victims. This being the position, we attach no importance to the said discrepancy. As regards the second discrepancy even assuming that Vimalabai recollected the incident in all its minute particulars while giving the declaration, according to us it makes no difference to the sub-stratum of the prosecution case that it was the accused who had fired at the victims. A further discrepancy which was sought to be played on by the defence related to the statement in the dying declaration which is as follows :--- ""When we received bullet firing I had hidden my son so he was saved."" Relying on this statement, it was argued though not very seriously, that Jaywant was in hiding and he had not gone to the Police Station. As has been pointed out earlier, Vimalabai had obviously heard Rupa's instructions to Jaywant to hide himself. Hence Vimalabai had stated in the dying declaration that Jaywant was hidden. She could not have known whether in fact Jaywant had hidden himself. This only shows that the dying declaration is partly based on impressions. Thus we are of the view that the eye-witness account is corroborated in essential particulars by the dying declaration. Even without the dying declaration, the account establishes the prosecution case that it was the accused who on no apparent provocation, had indulged in firing the shots from his revolver at the three victims and the victims had received the injurious on account of the said firing. 24. Besides the attack against the prosecution case on the ground of the absence of the eye-witnesses, the defence has also attacked it on the ground that it is inconsistent with the injuries on the three victims. According to the defence both the number and nature of the injuries are manipulated in the medical record and the actual injuries are consistent only with the defence version which is that at the time of the incident Kamble had come inside the kitchen with a revolver in his hand and had asked the accused to ""hands up"". The accused mistaking him for a goonda, since Kamble was not in uniform, took out his revolver. There was then a scuffle between the accused and Kamble in which Sakharam Patil and Vimalabai intervened. The shots were then fired by the accused accidentally as a result of which the victims were injured. The accused mistaking him for a goonda, since Kamble was not in uniform, took out his revolver. There was then a scuffle between the accused and Kamble in which Sakharam Patil and Vimalabai intervened. The shots were then fired by the accused accidentally as a result of which the victims were injured. One of the injuries received by Vimalabai was by the bullet from Kamble's revolver. This version stands on four planks viz. that Kamble had a revolver in his hand. Secondly as soon as Kamble asked the accused to ""hands up"" there was a scuffle between him and the accused and Patil and Vimalabai intervened in the scuffle. Thirdly the shots were fired only by accident and not deliberately and lastly one of the injuries on Vimalabai was by the bullet from Kamble's revolver. These planks are erected on the foundation of the number of bullet entry injuries on Vimalabai and the nature of the injuries on all the victims. According to the defence the medical documents originally showed five entry injuries on Vimalabai, out of which one is unaccounted for by the prosecution. The medical record has been subsequently manipulated to show only four entry injuries. The defence for this purpose also contends that the register of weapons maintained by the Police has been suitably corrected to show that at the relevant time P.S.I. Kamble did not have in his possession any revolver. Before examining the medical evidence therefore, it will be convenient to examine the question whether Kamble had a revolver with him at the relevant time. We have already referred to the testimony of the eye-witnesses on this point. They were all cross-examined on the theory that Kamble had a revolver in his hand at the time. All the eye-witnesses have categorically denied the suggestion. Even the dying declaration does not refer to any such revolver in Kamble's hand. On the other hand it states that when the Police asked Patil, Vimalabai and the accused to come to the Police Station, the accused was engaged and fired shots at all of them. Coming now to the Police record of Kamble's revolver, we have the testimony of P.H.C. Gangaram Patil (P.W. 37). Admittedly he was not present at the Police Station during the night of 29th and 30th July, 1984. He has produced the register of revolvers and bullets which is Ex. 104 on record. Coming now to the Police record of Kamble's revolver, we have the testimony of P.H.C. Gangaram Patil (P.W. 37). Admittedly he was not present at the Police Station during the night of 29th and 30th July, 1984. He has produced the register of revolvers and bullets which is Ex. 104 on record. It is his case that he keeps revolvers and bullets in a cupboard and keeps its keys with him. Whenever Officers take the revolvers or return them, entries are made in the register which are signed by the respective officers. According to him as per entries at Serial No. 79 in Ex. 104, the last occasion on which Kamble had taken the revolver was on 25-7-1984. He had taken it with six rounds. He had then returned the same to the Police Station on the next day i.e. on 26-7-1984. These entries are signed by the witness as well as P.S.I. Kamble. Thereafter there is no entry in the book showing that Kamble had taken the revolver. Kamble's revolver in question bore butt No. K.P. 8. A good deal of cross-examination of this witness was directed to show that there was at least one more revolver which bore butt No. K.P. 8 and that was assigned to Police Inspector Mohite Ex. 104 further showed that Mohite had returned this revolver on 10-7-1984 and had again taken it back on 2-8-1984. On the basis of these entries against Mohite's name, it was argued that the butt numbers were irrelevant and that any Officer could use any weapon, whether it was a signed to him or not. Although, therefore, the entry at Serial No. 79 shows that Kamble had returned his revolver K.P. 8 to the Police Station on 26-7-1984, that entry by itself would not establish that Kamble had no revolver with him on the night in question. The defence in this connection has also relied upon Nipane's (P.W. 12) deposition that there is a rule that whenever a Police Officer is required to go on night duty-round he should be in uniform and keep a loaded revolver along with his uniform. As against this prosecution relied upon the present witness H.C. Gangaram Patil (P.W. 37) who was admittedly in charge of the revolvers. He has stated that there is no such hard and fast rule and it depends upon the Officer concerned. As against this prosecution relied upon the present witness H.C. Gangaram Patil (P.W. 37) who was admittedly in charge of the revolvers. He has stated that there is no such hard and fast rule and it depends upon the Officer concerned. It must further be remembered in this connection that it is not disputed that Kamble at the relevant time was not in uniform but was in plain clothes. Therefore, even Nipane's deposition is not helpful to the defence to bring home its case that Kamble must have been armed with a revolver as he was detailed for night-round. It has also to be remembered that as has been pointed out above, Kamble was waiting at the Police Station for the arrival of the jeep. He was still in his plain clothes. In fact he was enrolled for night-duty at the eleventh hour in place of H.C. Dalavi since Damame (P.W. 39) finding that Dalavi had not turned up at the Police Station had detailed Dalavi for orderly duty and assigned the night duty to Kamble. This is clear from entries 26 and 29 in Ex. 108, as pointed out earlier. Kamble and, therefore, to be fetched from his residence to the Police Station by sending a Police Constable for the purpose. All these facts show that the want of uniform and, therefore, of the revolver with Kamble was neither unnatural nor unexpected. Even if therefore it is accepted that the register of weapons Ex. 104 did not indicate the correct position, it was all the more probable that Kamble had no revolver. It should also not be forgotten that there was nobody at the Police Station at that time to issue him a revolver if he had gone. He was also taken to the scene of offence suddenly from the Police Station. It is true that Ex. 104 shows revolvers with the same butt numbers. For example, it is admitted that both Kamble and Mohite had revolvers with butt numbers K.P. 8. K.P. 8 means Kolhapur 8 although no evidence has come on record in that behalf, an explanation was sought to be advanced before us on behalf of the prosecution that, at first, running serial numbers were given to all revolvers. At a later stage, the practice was changed and different serial numbers were given to each type of revolvers. K.P. 8 means Kolhapur 8 although no evidence has come on record in that behalf, an explanation was sought to be advanced before us on behalf of the prosecution that, at first, running serial numbers were given to all revolvers. At a later stage, the practice was changed and different serial numbers were given to each type of revolvers. This explanation also accounts for the rubbing off of the original butt number on Mohite's revolver and converting, it from K.P. 62 to K.P. 8. Mohite's revolver however is not on record for our perusal to resolve the controversy. This explanation sought to be given across the bar is rightly objected to on behalf of the defence since it was possible for the prosecution to adduce this evidence through the concerned police witness which was either not done or remained to be done. However, even though this explanation is not part of the evidence on record, it is not disputed that the revolver which was assigned to Kamble bore Barrel No. 45569 and the revolver assigned to Mohite bore Barrel No. P. 2100. As witness Gangaram has stated, an Officer cannot use the revolver assigned to another Officer. The document Ex. 104 further shows that whereas Mohite had taken his revolver on 2-8-1984 from the Police Station, Kamble's revolver which was lying at the Police Station from 26-7-1984, was surrendered by the Police Station to the Head-quarters on 6-8-1984. The surrender entry of 6-8-1984 is found in the register kept at the Head-Quarters which is Ex. 103 on record. Moreover, the defence could not show that Mohite's revolver was with Kamble on the fateful night. The confusion was sought to be created because the butt numbers on Kamble's and Mohite's revolvers were the same ignoring the fact that their barrel numbers were different. The register therefore proves that on the fatal night Kamble did not have his revolver in his possession but it was with the person in charge of the revolvers. Gangaram Patil (P.W. 37) who was in charge of the revolvers was not on duty during the relevant time. If the revolver was issued by the person in charge of the revolvers in the absence of Gangaram Patil, the entry to the effect would certainly have been found in the Police record. Gangaram Patil (P.W. 37) who was in charge of the revolvers was not on duty during the relevant time. If the revolver was issued by the person in charge of the revolvers in the absence of Gangaram Patil, the entry to the effect would certainly have been found in the Police record. This is so far as the Police record with regard to the availability of the revolver with Kamble at the relevant time. 25. Coming now to the medical record, the argument on the basis of this record is that the number of injuries on Vimalabai have been manipulated later both in the post-mortem report and in the medico-legal register. (By consent the said register is given Appeal Court Exhibit 1, since, although on record, it had remained to be numbered in the trial Court). Before we advert to the relevant medical evidence, we must note here the admitted position with regard to the number of bullets fired and traced. It is not disputed that revolver Article 1 on record from which the accused fired the shots has a 22 calibre and its full loading capacity is nine rounds. It is also not disputed that the accused had emptied the revolver at the time by firing all nine bullets. The X-rays on the victims' bodies show that three bullets were still lying in Kamble's body, one in Patil's body and three in Vimlabai's body. Out of the three bullets lying in Vimalabai's body, one was removed by surgical operation. In addition to these seven bullets, one bullet was found lying at the scene of offence and one bullet was no traced. As regards the number of injuries, the injuries on the bodies of Kamble and Patil are not in dispute. Kamble had three injuries; one on the outer side of the left arm and two on the back just above the waist. All of them were entry-injuries. Patil had three injuries. Out of two entry-injuries one was on the left side of the neck and the other on the left side of the chest. The exit injury was on the left scapula. The number of injuries on Vimalabai however are seriously disputed by the defence and it is their case as stated earlier that one of the injuries on Vimalabai was caused by a shot fired by Kamble from his revolver. The exit injury was on the left scapula. The number of injuries on Vimalabai however are seriously disputed by the defence and it is their case as stated earlier that one of the injuries on Vimalabai was caused by a shot fired by Kamble from his revolver. In fact the entire attempt of the defence is thereby to show that Kamble had a revolver and by firing the shot in question, he had provoked the firing by the accused which resulted in the tragedy. It has, therefore, become necessary to scrutinise carefully the medical record in that behalf. The inquest panchnama Ex. 12 shows in all seven injuries on Vimalabai. They are described as follows :--- (1) Injury on left breast 10 cm. from the nipple at 11 O'clock position. (2) Injury at 15 cm. distance from the left nipple in 12 O'clock position. (3) Injury on the inside of the left arm at 8 cm. from the left hand to the outside on the middle. (4) Injury on the outer side of the left arm 10 cm. from the shoulder. (5) Injury at 4 O'clock position from the left nipple 10 cms. away from it. (6) Injury at 5 O'clock position at 12 cm. from the left nipple. (7) Injury on the left waist 11 cm. from the middle of the stomach. Dr. Yedekar (P.W. 15) who performed the post-mortem examination on Vimalabai's body has deposed to the post-mortem notes and according to him the post-mortem reveals :--- (1) Punctured wound over left shoulder anterio medial aspect oblique, inverted edges with blackening, co-agulate blood between wound size about 0.3 cm. X 0.7 cm. (2) Punctured wound on left second intercostal space mid-clavicular line oblique, inverted edges, blackening coagulated blood between wound---size about 0.3 cm. X 0.7 cm. (3) Punctured wound on lateral aspect of left arm about 6"" from acromion tip, edges inverted blackening coagulated blood between wound---size about 0.3 cm. X 0.7 cm. (4) Punctured wound on midial aspect of left arm above 4"" from acromion tip, ragged everted edges, bleeding in wound-irregular wound about 1 cm. in diameter. (5) Punctured wound on left side of chest 7 intercostal space, anteriar axilary line, inverted edges, coagulated blood above the wound-oblique directing downwards, size about 0.4 cm. X 0.8 cm. X 0.7 cm. (4) Punctured wound on midial aspect of left arm above 4"" from acromion tip, ragged everted edges, bleeding in wound-irregular wound about 1 cm. in diameter. (5) Punctured wound on left side of chest 7 intercostal space, anteriar axilary line, inverted edges, coagulated blood above the wound-oblique directing downwards, size about 0.4 cm. X 0.8 cm. (6) Punctured wound on left side of chest anteriar axilary line, 5th intercostal space, everted edges, irregular shape, size about 1 cm. coagulated blood present. (7) Punctured wound on left side of chest mid clavicular line 5th intercostal space, inverted edges, oblique about 0.3 cm. X 0.7 cm. blackening present and coagulated blood present. The medico-legal register Ex. APC-1 is signed by Dr. Patil (P.W. 13). He was in charge at the hospital, when Vimalabai was taken there, according to him, at about 2-30 a.m. It is he who treated her first. In his deposition he has stated that he noted the following seven injuries at the relevant time on her person : (1) Punctured wound over left shoulder anterio medial aspect, oblique inverted edges and blackening plus plus, coagulated blood plus plus, size about 0.3 cms. X 0.7 cms. (2) Punctured wound on left second intercostal space in mid-clavicular line oblique inverted edges, blackening plus plus with coagulated blood plus, plus size about 0.3 cms. X 0.7 cms. (3) Punctured wound on lateral aspect of left arm about 6"" below from tip of acromin (bone) inverted edges, oblique, blackening plus, plus coagulated blood plus, plus, size about 0.3 cms. X 0.7 cms. (4) Punctured wound on medial aspect of left-arm about 8"" below from tip of acromin, ragged appearance, everted edges, irregular shape, about 1 cm. in diameter. (5) Punctured wound on left side of chest, 7th intra-costal space, anterior axillary line inverted edges, coagulated blood plus, plus, size about 0.4 cms. X 0.8 cms. oblique. (6) Punctured wound on left side of chest anterior axillary line, in 5th intra costal space everted edges, irregular in size, about 1 cm. in diameter, coagulated plus plus. (7) Punctured wound on left side of chest, mid-clavicular line, in 5th intra-costal space, inverted edges, obliques, blackening plus, plus, coagulated plus plus, size about 0.3 cms. X 0.7 cms. These injuries were written in the medical case papers which are Ex. 43 on record. The medico-legal register Ex. in diameter, coagulated plus plus. (7) Punctured wound on left side of chest, mid-clavicular line, in 5th intra-costal space, inverted edges, obliques, blackening plus, plus, coagulated plus plus, size about 0.3 cms. X 0.7 cms. These injuries were written in the medical case papers which are Ex. 43 on record. The medico-legal register Ex. APC-1 admittedly shows that the original page on which the injuries were written has been pasted on with another page and this new page enumerates serve injuries. There is further no dispute that the original page bore the following injuries which are five in number : (1) Fire arm injury at left shoulder anterio medical aspect round about 1/2 C.M. abrasion collar seen, inverted no tatooing, bleeding + + (2) Fire arm injury infraclavicular region about 3/4 C.M. Abrasion Collar seen inverted. No tatooing Blackening + + Slight bleeding present. (3) Fire arm injury in mammary region more on lateral aspect on left side in third inter-costal space 1/2 C.M. in size. Abrasion collar seen inverted. No tatooing Blackening ++ Slight bleeding + (4) Fire arm injury in mammary region left 4th I.C.S. on anterior axillary line oval round about 1 C.M. in diameter. Bleeding + Abrasion Collar seen. Blackening + + (5) Fire arm injury on left side of chest infra mammary area in 7th left I.C.S. on anterior axillary line and about 1/2 C.M. in diameter. Abrasion collar seen. A Fire arm injuriy. Dr. Patil has admitted in para 7 of his deposition that the injuries which are stated by him in his deposition are word to word as mentioned in column No. 18 of the post-mortem notes of Vimalabai's body. He has further stated that it is not possible for him to say now whether the injuries mentioned by him in the case papers were taken verbatim from column No. 18 of the post-mortem report. He however denied that he had removed page No. 2 from the original case papers (E. 43) and had subsequently inserted the present page No. 2 after the post mortem examination. We perused the medical case papers Ex. 43 and found that page No. 2 of Ex. 43 is obviously in a different hand from pages 1 and 3 of the said document. We perused the medical case papers Ex. 43 and found that page No. 2 of Ex. 43 is obviously in a different hand from pages 1 and 3 of the said document. What is further, the reverse of page No. 1 shows a scoring of the last line which was already written there and that line bore the following words : ""L/E (1) Bullet injury."" The next page which is the disputed page No. 2 begins with the letters ""L/E"" and gives the description of the injuries in the second column and of the treatment and diet in the third column. The descriptions spread over to the reverse of the said page No. 2. It is apparently written in a different hand. There is no satisfactory explanation as to why the hand-writing on the said page No. 2 should differ from the one on the previous and subsequent pages of the document. There is also no satisfactory explanation given by Dr. Patil as to why it was necessary to paste a page on the original page of the Medico-Legal Register-APC Ex-1, unless it was to re-write the injuries. As has been pointed out above, he has himself admitted that the injuries written in the medico-legal register and the case papers are verbatim those written in the post-mortem report. There is, therefore, substance in the defence contention that page No. 2 of Ex. 43 and the pasted page on Ex. APC-1 i.e. the medico-legal register were written after the post-mortem examination. However, even if this is so, what we have to find out is whether that by itself would lead to the conclusion that one of the injuries on Vimalabai was caused by the bullet fired from another revolver viz. of Kamble as is sought to be contended by the defence. This can be answered only by scrutinising the nature of the injuries on Vimalabai's body. We will, therefore, begin by comparing the description of the injuries in the post-mortem report with the description of the injuries in the inquest panchnama Ex. 12. Dr. Yedekar (P.W. 15) who performed the post-mortem examination, has deposed to the external injury No. 1 mentioned in the post-mortem notes as an entrance wound of the bullet corresponding to external injury No. 6 mentioned therein which is the exit wound. It is this wound which is very much in dispute. 12. Dr. Yedekar (P.W. 15) who performed the post-mortem examination, has deposed to the external injury No. 1 mentioned in the post-mortem notes as an entrance wound of the bullet corresponding to external injury No. 6 mentioned therein which is the exit wound. It is this wound which is very much in dispute. It is the case of the defence that injury No. 6 is not an exit but an entry wound caused by Kamble's revolver. Everything therefore, turns on the resolution of this dispute. The inquest panchnama Ex. 12 (we are referring here to the original vernacular version of the inquest panchnama and not to the translated portion which is found in the paper-book since there is a variation in the original and the translation, mentions injury No. 2 in it which is in a 12 O'clock position to the left nipple. This is obviously equivalent to injury No. 1 mentioned in the post-mortem notes. Further, injury No. 6 mentioned in the said panchnama is described as in 5 O'clock position to the left nipple and at distance of 12 cms. from it. That is obviously the injury described as injury No. 6 in the post-mortem notes. Therefore, the existence of these two injuries viz. injury No. 1 and injury No. 6 is established by these two documents viz. the inquest panchnama and the post-mortem report independently of the medical case papers Ex. 43 and the medico-legal register Ex. APC-1. The existence of injury No. 6 thus stands established by the inquest panchnama independently even of the post-mortem notes. The further question that has to be examined in this connection is whether injury No. 6 in the inquest panchnama and the post-mortem report had inverted edges showing the entry of the bullet or everted edges showing the exit of the bullet. According to the prosecution it had everted edges whereas according to the defence it had inverted edges and that was the wound caused by the bullet fired from Kamble's revolver. There is no dispute that in the post-mortem all along injury No. 6 was shown as having everted edges. There is also no dispute that one of the nine bullets was found at the scene of offence and it was blood stained and yet another bullet was not traced anywhere. There is no dispute that in the post-mortem all along injury No. 6 was shown as having everted edges. There is also no dispute that one of the nine bullets was found at the scene of offence and it was blood stained and yet another bullet was not traced anywhere. The bullet which was found at the scene of offence obviously had come out of the body of one of the victims. Secondly, as far as the post mortem report is concerned, there is no change in the description of the edges and as we have pointed out earlier, this wound was very much there as evidenced by the inquest panchnama. The question is whether when it was originally noted in the case papers and the medico-legal register, it was given any other description that the one which is found in the post-mortem report and Ex. APC-1. The best test to find this out is to refer to the original description of the injuries in Ex. APC-1 as found on the page which is pasted on. We have already reproduced the description of the injuries as was originally in Ex. APC-1. A comparison of the original page and the newly pasted page shows that in the old page only five injuries were mentioned. Two injuries on the left arm-one on the outer and the other on the inner part of the said arm were not mentioned at all. This was an obvious omission on the part of Dr. Patil since the inquest panchnama Ex. 12 and the panchnama of Vimalabai's clothes Ex. 13 show that there were two injuries on her left arm. (The blouse Article 28 in Ex. 13 shows two holes on the left arm). What is further, these two injuries on the left arm are mentioned on page 3 of the medical case papers Ex. 43 and this entry seems to have been made some time between 5 a.m. and 7 a.m. on 30-7-1984. It is not disputed by the defence that the two injuries were on the left arm. Therefore, there is really no difference between the old page and the newly pasted page of Ex. APC-1 and between the old page of Ex. APC-1 and the post-mortem notes and the medical case papers Ex. 43. The second difference in the contents of the original page and the page pasted in Ex. Therefore, there is really no difference between the old page and the newly pasted page of Ex. APC-1 and between the old page of Ex. APC-1 and the post-mortem notes and the medical case papers Ex. 43. The second difference in the contents of the original page and the page pasted in Ex. APC-1, is that injury No. 4 on the original page which admittedly is injury No. 6 in the post-mortem report and the newly pasted page in Ex. APC-1, was originally described as ""blackening and having a diameter of 1 cm."" Whereas the description of the diameter has remained the same in the newly pasted page, the word ""Blackening"" is absent there. Relying on this omission of the word ""Blackening"", it was sought to be contended on behalf of the defence that, that was an entry wound and was sought to be converted into an exit wound by omitting the word ""blackening"". Blackening occurs only when the bullet enters the body and not when it comes out. There is no doubt that this omission in the pasted page would, if it were to stand alone, show that an attempt was to convert an entry wound into an exit wound. It must however be remembered that there is no such description of this wound in the post-mortem notes. It will be too much to suspect that when the post-mortem notes were made on 30-7-1984, they were made with a view to counter the possible defence that would be taken at the trial of this case viz. that the wound in question was caused by Kamble. Secondly, when Asagekar (P.W. 14) the ballistics expert was in the witness box, he was not cross-examined on that point with reference to the said injury No. 6 in the post-mortem notes or with reference to injury No. 4 as described in the original page of the medico-legal register. Thirdly, no opportunity was given to Dr. Patil to give his explanation as to why the original description of the said injury as ""blackening"" was omitted while writing the pasted page. On the other hand Dr. Patil has stated that the injuries which he had mentioned on the original page were incorrect and therefore, he had written a new page and pasted it on the original page. 26. On the other hand Dr. Patil has stated that the injuries which he had mentioned on the original page were incorrect and therefore, he had written a new page and pasted it on the original page. 26. We are, therefore, of the view that nothing much can be made out of the fact that the original page was pasted upon by a new page which showed that the injuries were written afresh in Ex. APC-1 and that page No. 2 in the medical case papers Ex. 43 was subsequently substituted. This is because the inquest panchnama which is the earliest document on record shows the injuries correctly and that panchnama also further proves independently as well as read with the panchnama of the clothes of Vimalabai Ex. 13, that there was a genuine omission on the part of Dr. Patil to mention the two injuries on the left arm when he wrote the original case papers. As regards the omission to describe injury No. 6 (which is injury No. 4 on the original page) as ""blackening"", according to us, although there is no satisfactory explanation for the same, that by itself will not show that it was an entry wound much less a wound caused by Kamble's revolver. As regards the nature of the injuries on the victims, both the entry injuries on Patil are either scorched or charred showing that he was shot at from a very close distance of not more than two to three inches as deposed to by Asagekar (P.W. 14) the ballistics expert. There is however no such charring or scorching of the entry injuries on either Vimlabai or Kamble which shows that they were away from the accused at least beyond the distance of two feet, if not more. Hence the defence theory of the scuffle between the accused and Kamble stands falsified by this evidence itself. 27. Thus we are of the view that there is no evidence to support the defence version that P.S.I. Kamble had a revolver in his hand when he accosted the accused by coming to the rear kitchen door or that he had fired from the alleged revolver. This conclusion of ours is strengthened by various other circumstances. In the first instance, if Kamble had a revolver he would certainly have taken an aim at the accused. There is no injury of any nature on the accused. This conclusion of ours is strengthened by various other circumstances. In the first instance, if Kamble had a revolver he would certainly have taken an aim at the accused. There is no injury of any nature on the accused. Secondly, we find that all the three injuries received by Kamble are on the hind part of his body. Two of them are on the left and right side of his back above the waist and one is on the lower back side of the left arm. All these injuries show that the bullets were fired at him when he had his back towards the accused. This is consistent with the eye-witnesses' account that when the accused told Kamble that he would not come to the Police Station, Kamble had turned to give instructions to one of the Constables to bring the wireless van and it is at this stage that the accused had fired the shots. What is more, assuming that Kamble had a revolver in his hand, the three injuries on the hind side of Kamble show that there could not have been any scuffle between the two necessitating the shooting at him. Every assuming further that Kamble had a revolver, the injuries on him show that he was not using it and had not used it at all. Further, the revolver in the hand of Kamble, assuming it was there does not explain the injuries on Patil and Vimalabai at the hands of the accused. Assuming that one of the injuries on Vimalabai was caused by Kamble's revolver it does not justify how four entry injuries on Vimalabai and two entry injuries on Patil were on that account necessitated at the hands of the accused. The theory that there was a scuffle and the said injuries were caused by the accused by an accident holds no water since it fails firstly to explain the injuries on the hind part of Kamble's body. Further, the injuries on Kamble show that they were caused from a distance ruling out the scuffle between the two. If, therefore, there was no scuffle between Kamble and the accused, the scuffle could only have been between the old couple and the accused. The question is whether the scuffle between the accused and the old couple could have justified the accused in firing the shots at them and Kamble. If, therefore, there was no scuffle between Kamble and the accused, the scuffle could only have been between the old couple and the accused. The question is whether the scuffle between the accused and the old couple could have justified the accused in firing the shots at them and Kamble. Viewed from any angle, we are of the view that the theory of scuffle and of accident firing in the scuffle, strains both imagination and credulity. Hence the reliance placed on section 80 of the Indian Penal Code to claim the benefit of the general exception enacted there is obviously uncalled for. What is more, the provisions of section 80 show that the exception mentioned therein is available only when the offence is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. (Underlining ours). The defence has not spelt out the lawful act the accused was engaged in doing at the relevant time and in what lawful manner and by which lawful means was he doing it. The defence has also not show us as to what care and precaution the accused had taken in executing the alleged lawful act. The burden is certainly on the defence to show that the act committed by the accused was covered by the said exception. Admittedly, the loaded revolver was with the accused and he had fired it and had emptied all the nine bullets rapidly within a matter of seconds. Was he trying to prevent Kamble whom he mistook for a goonda from approaching towards him and the old couple? If this is so, were three bullets were necessary to be fired on Kamble and that too on his hand side? Even assuming that Kamble had a revolver, why and how did the accused fired at the old couple no less than six rounds? Is it possible to say that as many as six bullets fired at the old couple and three at Kamble were by accident? Did both the old man and the old woman come in his way while he was firing at Kamble? Did he fire at them because they tried to intervene between him and Kamble? If they were trying to intervene, obviously there was no danger to him from Kamble. Did both the old man and the old woman come in his way while he was firing at Kamble? Did he fire at them because they tried to intervene between him and Kamble? If they were trying to intervene, obviously there was no danger to him from Kamble. Why did he then fire at all? All these questions remain unexplained if we accept the defence version of scuffle and accidental firing. The defence has also not explained them either by putting the defence case to the prosecution witnesses or giving an explanation under section 313 of the Criminal Procedure Code. In his statement under section 313, all that the accused has stated is that when he was discussing his partition matter in a peaceful way, one person meaning thereby Kamble came from the rear door of the kitchen. He was armed with a revolver. The accused mistook him for a goonda or a dacoit. That person i.e. Kamble shouted towards him ""hands up"" and at that time there was a revolver in a pocket of the accused's pant. He immediately took it out and within seconds that man rushed towards him. There was a scuffle going on between him and that man. Patil and Vimalabai intervened between them. Then there was a scuffle between the four and before he could realise there was a firing. Regarding the scuffle and the accident firing and the protection of the general exception under section 80, this is all that the accused has to say. For the reasons discussed above, we have no hesitation in discarding the said defence. 28. We may now examine the defence case for the protection of the general exception under section 86 of I.P.C. which is the alternate defence set up. Before we do so, it is necessary to appreciate the precise implications of section 86. The reading of sections 85 and 86 together makes it clear that section 86 is an exception to section 85. Before we do so, it is necessary to appreciate the precise implications of section 86. The reading of sections 85 and 86 together makes it clear that section 86 is an exception to section 85. Section 85 reads as follows :-- ""Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will."" These provisions show that if the intoxication is induced voluntarily, the act done is an offence even if the person is incapable of knowing the nature of the act or that what he is doing is either wrong or contrary to law. This section obviously covers all offences. That is why, it appears, it became necessary to enact section 86 to take care of offences requiring a particular intent or knowledge on the part of the intoxicated offender. The section takes care of such offences and states that if intoxication is involuntary, neither knowledge nor intention in committing the offence will be presumed. If however, it is voluntary only knowledge of the offence on the part of the offender will be presumed but not intention in committing it. That according to us what section 86 means and no more, as compared to section 85. The degree of intoxication demanded by both sections however remains the same. In fact, it is instructive to note that section 84 which exempts persons of unsoundness of mind also expects the degree of unsoundness to the same extent viz. incapability of knowing the nature of the act or of the knowledge that what is being done is either wrong or contrary to law. Hence the conclusion is inescapable that to avail of the exception under section 86, the degree of intoxication of the offender must be such that he is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. Intoxication short of this degree will not entitle the offender to the benefit of the exception. This construction of section 86 must follow by reading it, as we do, as an exception to section 85. Intoxication short of this degree will not entitle the offender to the benefit of the exception. This construction of section 86 must follow by reading it, as we do, as an exception to section 85. Even otherwise, we are of the view, that it is not possible to construe the said section to mean that it permits intoxication of a lesser degree. Apart from the difficulty in declining such degree of intoxication, it will open a door for imponderable problems leading to untold and unhealthy consequences. 28-A. This being the position of law, let us examine whether in the present case the defence has succeeded in proving the required degree of intoxication on the part of the accused at the time of the shooting. The defence has relied upon the prosecution case itself which consists of the evidence of Mandape (P.W. 25), Nageshkar (P.W. 26), Rupa (P.W. 6), Rekha (P.W. 10), Jaywant (P.W. 11), Entry at serial No. 4 in Ex. 37, F.I.R. Ex. 35, dying declaration of Vimalabai (Ex. 68), Dr. Rajdip (P.W. 18) and the Investigating Officer Damame (P.W. 39). In addition we have the evidence of Anandrao Atigre (P.W. 7) and Anandrao Board (P.W. 8) on the addiction of the accused used to alcohol. It is not disputed that the accused was addicted to alcohol. As has been pointed out earlier, this has been deposed to by the accused's brother Anandrao Atigre (P.W. 7), the priest Anandrao Board (P.W. 8) and accused's wife Rupa (P.W. 6). What we are concerned however is the state of the accused at the time of the incident. We have it from Rupa that on the evening of 29-7-1984 they had both gone to the bazar and returned home and were amicably chit-chatting between 7 and 8 p.m. It is at about 8-00 p.m., that the accused took from her Rs. 40/- and went out on a scooter telling her that he would return within 15 minutes. However, he went straight to a local hotel called Jaijui Mogra at about that hour. Here we have the evidence of Mandape (P.W. 25) who was at the relevant time situating at the counter of the hotel. 40/- and went out on a scooter telling her that he would return within 15 minutes. However, he went straight to a local hotel called Jaijui Mogra at about that hour. Here we have the evidence of Mandape (P.W. 25) who was at the relevant time situating at the counter of the hotel. He is a friend of the hotel owner and he has deposed that the accused came to the hotel between 8-00 or 8-30 p.m. and was sitting there till 11-00 p.m. The hotel had no licence for serving liquor. That is why this witness has stated that the accused did not drink liquor there but had only ordered Papad and boiled eggs and paid the bill of Rs. 9/- for the same. It is common knowledge that these eatables are generally consumed with liquor. On this evidence, it is established that the accused was in the hotel from 8-00 or 8-30 p.m. till about 11-00 p.m. Then we have the evidence of the accused's friend Nageshkar (P.W. 26) who was an ex colleague of the accused in Commerce classes. According to him, he had gone to the hotel at about 9-00 p.m. and was with the accused till about 10-45 p.m. He has stated that the accused had consumed liquor prior to his going to the hotel, and in his presence he consumed four to five pegs of whisky. It is further his case that when he left the accused at about 10-45 p.m., the accused was still sitting in the hotel. The next in sequence is Rupa's version that the accused returned home on scooter that night at about 10-45 p.m. As soon as he entered the house she noticed that he had consumed liquor. She asked him if he would like to take dinner which invitation he declined. The accused instead asked her to go and call Dilip who had already gone to sleep and in spite of her protests that Dilip should not be called at that odd hour, the accused replied that since he wanted to file a suit for partition he wanted to consult him. She had, therefore, to go and call Dilip who refused to come down telling her that was not the hour to discuss the matter and things could be discussed the next morning. However the accused could not be persuaded to give up his idea. She had, therefore, to go and call Dilip who refused to come down telling her that was not the hour to discuss the matter and things could be discussed the next morning. However the accused could not be persuaded to give up his idea. He expressed his desire that he must go to her father's place for discussing the matter of filing the suit for partition dispute. She tried to persuade him that since he had consumed liquor he should not go out at that odd hour but instead of listening to her advice, the accused asked her also to accompany him to her father's place. While starting for his in-law's place however the accused did not forget to take with him the loaded revolver (Article 1). Both of them then went to her father's place on the scooter with of course the accused driving the same. The eye-witnesses account further shows that the accused was quarrelling with the Patil couple prior to shooting. As soon as the accused stepped in the house Rupa took precaution to ask Jaywant to hide himself since he was drunk and carrying the revolver, and also to summon the police. The first complaint given by Jaywant at the Police Station at 1-00 a.m. shows that he had told the Police that the accused was behaving in a disorderly manner under the influence of liquor and that he was possessing a revolver. That is why the Police Constables were sent to the house with Jaywant. The eye-witnesses 'account further shows that when Kamble came on the scene he asked the accused to stop quarrelling and come to the Police Station. In spite of the fact that Kamble disclosed his identity, the accused refused to oblige with the result that Kamble had to ask for a Police wireless van. What is more this very eye-witnesses' account shows that when the accused was quarrelling with the Patil couple, it was with a revolver in hand and both Patil and Vimalabai were bowing down to him and entreating him to be tolerant. Vimalabai's dying declaration (Ex. 68) also states that the accused was drunk when he came to their house. The medical certificate issued by Dr. Rajdip (P.W. 18) and which is Ex. 65 on record shows that when Dr. Vimalabai's dying declaration (Ex. 68) also states that the accused was drunk when he came to their house. The medical certificate issued by Dr. Rajdip (P.W. 18) and which is Ex. 65 on record shows that when Dr. Rajdip examined the accused at about 8-45 a.m. on 30-7-1984, the examination revealed that he had a breath smelling of alcohol. The doctor therefore, certified that the accused had consumed alcohol though he was not under the influence of alcohol. It is however unfortunate that this Medical Officer did not take the blood and urine sample of the accused for analysis although the memo sent by the Investigating Officer Damame (P.W. 39) had requested him to furnish certificate after medical examination regarding the consumption of alcohol by the accused. The only explanation given by the Medical Officer for his lapse is that he was not specifically asked by the Police to do so. There is a thoroughly unintelligible and irresponsible answer in the face of the Police memo, Ex. 64 on record. The fault certainly lies with him. Either he cannot read or is indifferent to his duties. The fact however remains that this non-examination of the blood and urine samples of the accused has deprived the Court of a good piece of evidence. The percentage of alcohol in the blood and urine would have indicated the amount of alcohol which was consumed by the accused and that would have been an additional piece of evidence to assist the Court in drawing a conclusion on a very vital fact in the present case viz. whether the accused was or was not capable of knowing the nature of the act he was doing. We must, therefore, record here our utter dissatisfaction at the conduct of the Medical Officer. Be that as it may. 29. These circumstances were pressed into service on behalf of the defence to show that the accused was not his normal self on the occasion. His conduct according to the defence was of a person who under the influence of alcohol, was in an excited mood and in a kind of a stupor. Be that as it may. 29. These circumstances were pressed into service on behalf of the defence to show that the accused was not his normal self on the occasion. His conduct according to the defence was of a person who under the influence of alcohol, was in an excited mood and in a kind of a stupor. The very fact that the accused at that odd hour wanted his brother for discussion on the partition dispute and the further fact that he insisted even at that odd hour on going to his in-laws place for discussing the partition matter showed that he was dis-joined from his normal grooving. No person in command of his discriminating faculties would, according to the defence, have behaved in the manner in which the accused did. It should, therefore, be held, urged Shri Jethmalani, that the accused was intoxicated within the meaning of section 86 of I.P.C. To support his contention he also relied upon Modi's Medical Jurisprudence (p. 652, 653), Parekh (p. 864), Williams (p. 416, 418 and 420) and Canter Vol. VI (p. 301) and Vol. VII (p. 512 and 513). As against this, the prosecution has relied upon the prior and subsequent conduct of the accused and also the conduct of the accused as revealed during the incident itself to show that the accused, though drunk was not intoxicated within the meaning of section 86. He knew fully well what he was doing, the situation he was called upon to meet and the consequence of his actions. The circumstances relied upon by the prosecution are that the accused was admittedly a seasoned consumer of alcohol and was not a novice to lose control over himself even with five to six pegs of whisky. Being an addict, that must be his normal quota of consumption. Admittedly, before he went to the hotel at about 8-00 or 8-30 p.m., he was chit-chatting with his wife. While he was consuming liquor at the hotel till 10-45 p.m., nothing disorderly was noticed in his behaviour either by witness Mandape or witness Nageshkar. He had thereafter come home driving his scooter. Admittedly, before he went to the hotel at about 8-00 or 8-30 p.m., he was chit-chatting with his wife. While he was consuming liquor at the hotel till 10-45 p.m., nothing disorderly was noticed in his behaviour either by witness Mandape or witness Nageshkar. He had thereafter come home driving his scooter. Thereafter he was sufficiently in his senses to tell his wife to call Dilip specifically for discussing the partition matter and on Dilip's refusal to come down, he had asked his wife to accompany him to his in law's place in spite of her requests to desist from it. While starting, he took care to take the loaded revolver with him. Thereafter he drove with his wife on the scooter to his in-law's place. Since no sooner they entered the house, his wife took care to inform Jaywant to hide himself and call the Police, it is legitimate to presume that she knew the purpose for which he had come all the way with the revolver. He had, therefore, premeditated some action against his in-laws. The subsequent conduct of the accused further shows that immediately after he emptied his revolver on the three victims he quietly went to the front portion of the house where he had parked his scooter, started it and went first to witness P.W. 20 Anil Joshi's house for giving a telephone call to witness Rajaram Patil (P.W. 21) who is his sister's husband. Anil has deposed to the fact that the accused had come to him for giving a ring and had given a ring from his telephone. It appears that Anil's father is an income-tax consultant and the accused was his client. Although Rajaram Patil (P.W. 21) who is the accused's brother-in-law has turned hostile, it appears from his cross-examination by the learned Public Prosecutor that Rajaram had stated before the Police that on 30-7-1984 he had received a telephone call from the accused and had also told him that he had killed three persons. He had also further stated before the Police that he had told this to his wife and to his younger brother Shivajirao. He had then stated that the accused had, after some time actually come to the front door of their house and had started pushing the door. He had also further stated before the Police that he had told this to his wife and to his younger brother Shivajirao. He had then stated that the accused had, after some time actually come to the front door of their house and had started pushing the door. The accused was also calling him and his brother Shivajirao and that both of them thereafter had come to the balcony of the house and seen the accused gesturing to them that he had killed three persons. Thereafter his brother Shivajirao had told the accused to get out. The witness has of course denied that he had stated all this to the Police. It also further appears that after giving a ring to witness Rajaram Patil (P.W. 21). According to the prosecution, the accused had also gone to a petrol pump to fill petrol in his scooter. To support it the prosecution has examined witness Tukaram Bhadale (P.W. 23) who was the attendant at the petrol pump on that night and Shendure (P.W. 24) who was the cashier. Shendure has produced the cash memo (Ex. 74) and the account book (Ex. 78-A). The trial Court has disbelieved this evidence because, firstly, Tukaram Bhadale has admitted that when a customer purchases petrol and diesel on credit, the name of the customer and the vehicle number are mentioned on the cash memo and also the signature of the person concerned is taken on it. However, in the present case, no such number of the vehicle was written nor was the signature taken. The second reason given by the learned Judge for dis-believing this evidence is that Shendure had written the accused's surname on the cash memo and the counter foil differently ""Atigare"" and ""Atigre"" and Shendure failed to give a proper explanation for difference in writing the surname. The counterfoil Ex. 77 also shows that the accused's surname Atigare which was already written was scored out and the explanation given by Shendure for the same is that he had learnt the next morning of the incident of murders committed by Atigare and he thought that during the investigation, the Investigating Officer might examine the book of counterfoils and not the original and hence he had scored out the said name. Shri Hudlikar, the learned Public Prosecutor for the State contended that it has come on record that the petrol pump belongs to Kolhapur Motor Malak Sangh of which one Nalavade who is related to the accused's brother is the President and Rajaram Patil (P.W. 21) is a member. That is why the accused must have been supplied petrol on credit and without complying with the usual formalities. He also contended that the very fact that the counterfoil finds the surname Atigare scored out shows that originally the said name was written there and there is no reason why the said name should have been written there earlier, if the accused had not taken petrol at the pump. We agree with the prosecution submission and find that the findings recorded by the trial Court on this point are not correct. Even assuming that they are correct the only relevance of this evidence is to show that the accused was after committing the crime, conscious enough to fill the petrol and this showed that the accused was quite sober at the time. Even if therefore we disregard this conduct on the part of the accused, the fact remains that the accused had after the incident telephoned to Rajaram Patil and thereafter had gone to his house driving his scooter all the way there. The evidence further shows that when he was apprehended, he was sleeping in one of the rooms of his house. The revolver (Article 1) was actually recovered from the cup-board which also shows that after coming home he had deposited the revolver in the cupboard and he had gone to sleep. 30. As regards the conduct of the accused during the incident, it was pointed out on behalf of the prosecution that the eye-witnesses account shows that the accused was quarrelling with the old couple in Majghar the room adjoining the kitchen with a revolver in his hand. At that time both Patil and Vimalabai were entreating him. In fact, the accused caught hold of Vimalabai's blouse and made her sit on the kitchen steps. Further, when Kamble came on the scene, he had disclosed his identity and had asked him to stop quarrelling and to come to the Police Station. At that time both Patil and Vimalabai were entreating him. In fact, the accused caught hold of Vimalabai's blouse and made her sit on the kitchen steps. Further, when Kamble came on the scene, he had disclosed his identity and had asked him to stop quarrelling and to come to the Police Station. The accused had perfectly understood who Kamble was since he had replied to Kamble that it was a domestic quarrel and he would not come to the Police Station that night and would come the next morning. It is thereafter that Kamble had turned to one of the Police Constables and told him to call the Police wireless van. It is when Kamble asked for the van that the accused knowing fully well that the van was to come for taking him to the Police Station had started firing and did not spare any of the three victims. The dying declaration itself also makes it clear that when the accused came he had told the old couple two things in definite terms. One was that they should not talk to their other son-in-law Advocate Prakash Hilage and that they should keep Rupa at their place since he was not going to maintain her. Thereafter the old couple were praying to him, by bowing that if there was any mistake on their part they should be pardoned. The accused was not in a mood to listen to them. Even if the version given in the dying declaration is accepted, it is clear that as soon as Kamble asked the accused to come to the Police Station, the accused had taken the revolver from his pocket and had started firing. This conduct on his part shows that the accused was in possession of his faculties. He knew the situation he was called upon to meet. His own version of the incident which he has given under section 313 also, according to the prosecution, disentiles him to the benefit of section 86. According to the accused when he was discussing with the old couple with his wife Rupa in attendant the partition matter in peaceful manner, Kamble came on the scene. Kamble rushed in the kitchen with a revolver and he mistook him for a goonda or a dacoit when Kamble shouted ""hands up"". He i.e. the accused immediately took out the revolver from his pocket. Kamble rushed in the kitchen with a revolver and he mistook him for a goonda or a dacoit when Kamble shouted ""hands up"". He i.e. the accused immediately took out the revolver from his pocket. Thereafter Kamble rushed towards him and there was a scuffle between them and thereafter the old couple intervened. Then there was a scuffle between all the four. This shows that the theory that the accused was so intoxicated as not to be in his senses is groundless for even if we take this version of his at its face-value one thing is certain that he was sufficiently aware of the danger that he was called upon to meet and of the action that he was expected to resort to and of the nature of the action he was indulging in. 31. According to us, the utmost that the defence has established is that the accused had consumed alcohol and that on account of the said consumption he was excited. He was not behaving in a manner that a normal man would. He had become a dare-devil and was unmindful of the consequences of his acts. However that is not a sufficient defence under section 86 of I.P.C. As we have already held earlier to be entitled to the execution makes that section it has to be shown that the accused was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The evidence shows that the accused knew what he was doing. When he opened the fire. The accused also knew the state of affairs that he was called upon to face, the persons with whom he was talking, the purpose and import of his talk and the character of the persons whom he was shooting and also the purpose of his shooting. He also knew the consequences of his act although in that state of drunkenness he did not care for them. This is clear whether we accept the prosecution case or the defence version. Even if we ignore the subsequent conduct of the accused, his conduct prior to and during the incident bears out in an ample manner that the accused knew at every stage what he was up to. It must be remembered in this connection that the accused was addicted to alcoholic drinks. Even if we ignore the subsequent conduct of the accused, his conduct prior to and during the incident bears out in an ample manner that the accused knew at every stage what he was up to. It must be remembered in this connection that the accused was addicted to alcoholic drinks. Even if therefore he had imbibed five to six pegs of whisky, being a seasoned drinker, it could not have had the effect of unsetting him to the extent of not being aware of what he was doing. The consumption was spread over at least 2 1/4 hours accompanied by tit bits worth Rs. 9/- though shared with his friend Nageshkar. That the consumption had not intoxicated him is clear from the fact that no disorderly conduct on his part was noticed while he was at the hotel till 10-45 p.m. He had thereafter come home driving his scooter travelling a distance of no less than 2 kilometres as admitted by the defence at the bar. Further, when he came home, he had not forgotten the partition dispute which was weighing on his mind. The drink did not have the effect of drowning his obsession with it. He told his wife to call his brother for discussing it and when his brother refuse to come, he asked his wife to accompany him to his father-in-law's place precisely for discussing the partition-dispute. Inspite of entreaties by his wife to the contrary, he persisted in taking her there. Before starting, he did not forget to pick up his loaded revolver from the cupboard. He then drove all the way with his wife to his in-law's house admittedly about 4 kms. away if not more. (The distances he travelled further were admittedly not on straight path. In an old town like Kolhapur the usual twists and turns to the streets and roads and the lanes and by-lanes have only to be expected. Be that as it may). He then parked his scooter and entered the house. The conduct of his wife Rupa here gives a vital clue to the state of mind of the accused at that stage. No sooner she entered the house, she took the precaution to inform her brother that the accused was carrying a revolver, that he was likely to hurt him and therefore he should hide himself and also call the Police. No sooner she entered the house, she took the precaution to inform her brother that the accused was carrying a revolver, that he was likely to hurt him and therefore he should hide himself and also call the Police. Rupa had, therefore, apprehended that when the accused took the revolver with him, he had an intention to harm her father, mother and brother. Rupa has not made a clean breast of all that the accused had said to her before starting from home and/or during the journey. That is only natural and not unexpected of her. But the very fact that she sends her brother to call the Police shows that she was well aware of the accused's intentions in coming to her father's house. No respectable woman like her would ever summon the Police to a respectable house to deal with her husband. This fact has got to be emphasised and should be given its due importance in considering the intention of the accused and his state of mind at that stage. The eye-witness account shows that the accused was then quarrelling with the old couple with the revolver in his hand and the couple was entreating him to pardon them. This shows that the accused knew what he was talking and to whom he was talking. In fact, he caught hold of Vimalabai's blouse and made her sit on the kitchen footstep. If further the version in the dying declaration is to be accepted, the moment the accused entered the house, the first thing he asked his in-laws was not to welcome their other son-in-law Advocate Prakash Hilage against whom he had a grudge. He also told them that he would not maintain Rupa and they should keep her at their house. These peremptories addressed by him show that the accused knew what he was talking. What is more, when Kamble came on the scene and disclosed his identity and asked him to stop quarrelling and accompany him to the Police Station, the accused replied to him that it was their domestic quarrel, that he would not come to the Police Station and that he would come there only in the morning. This dialogue between Kamble and the accused shows that the accused knew who Kamble was and what he wanted. This dialogue between Kamble and the accused shows that the accused knew who Kamble was and what he wanted. Further the eye-witness account shows that it is only when Kamble asked for the Police wireless van that the accused started firing from his revolver. This conduct further shows that the accused knew of the situation that he was called upon to meet if the police van came for taking him to the Police Station. He had, therefore, started shooting at the three victims as being the cause of his proposed despatch to the Police Station. Further he fired all the nine rounds, thereafter walked out of the house without passing even for a moment to look at the victims and drove away on the scooter. Even if we ignore his subsequent conduct viz. giving a telephone call to Rajaram Patil's his brother-in-law by waking up witness Anil Joshi, filing petrol at the petrol pump, visiting Rajaram Patil's house and informing them that he had killed three persons and then going to his house and sleeping there after depositing his revolver safely in the cupboard, the conduct upto the shooting as demonstrated above leaves no doubt in our mind whatsoever that the accused was well aware of the purpose for which he had gone to his in-laws, of what he was speaking and doing there, to whom he was talking and the import of his talk, the situation he was called upon to meet there and the consequences of talk and deeds. Hence we are of the view that the accused was not incapable of knowing the nature of his act nor was he incapable of knowing that what he was doing was wrong or contrary to law. He had at best worked himself up and was excited and unmindful of the consequences of acts. He is therefore, not entitled to the benefit of section 86 of I.P.C. The accused is therefore, properly convicted by the trial Court under section 302 I.P.C. for each of the three murders. 32. That takes us to the question of sentence to be awarded for the offences under section 302 I.P.C. Both sides have relied upon various decisions particularly the decisions of the Supreme Court reported in A.I.R. 1980 S.C. 898 (Bachan Singh v. State of Punjab)1, and A.I.R. 1983 S.C. 957 (Machhi Singh v. State of Punjab)2. 32. That takes us to the question of sentence to be awarded for the offences under section 302 I.P.C. Both sides have relied upon various decisions particularly the decisions of the Supreme Court reported in A.I.R. 1980 S.C. 898 (Bachan Singh v. State of Punjab)1, and A.I.R. 1983 S.C. 957 (Machhi Singh v. State of Punjab)2. After considering the entire evidence on record as well as the law laid down by the Supreme Court on the subject, we are of the view that this cannot be described as the rarest of rare cases. Although the crime may appear dreadful because of the number of murders, the circumstances under which and the manner in which it was committed, show that it was an act either of a person who momentarily thought he was acting great or of a person who was temporarily excited and beside himself. The accused is a Commerce graduate and comes from a wealthy family. At the time of the offence he was hardly 31 years of age. He has nothing blame worthy to his credit except his addiction and strong-headedness. At the relevant time he was admittedly in straitened financial conditions. The only hope which he had to come in possession of some money was through partition of the joint family property. He had, therefore, becomes obsessed with only one thing, namely partition of the property. So much so that he was unable to drown it even in drinks and it kept haunting him at all hours. He was normal till 8-00 p.m. and even when he was in the hotel till 10-45 p.m. he had not indulged in any disorderly conduct. The first time he used the revolver was only after Kamble came on the scene and probably being enraged at the fact that Kamble was asking him to come to the Police Station and had further called for a Police van to take him there. The shooting from a revolver does not require either courage or morbidity of mind. It is only a matter of pulling the trigger. The accused in the excitement of the moment appears to have gone on pulling the trigger till the end not caring for the consequences. That will not necessarily show that he aimed at brutality. The shooting from a revolver does not require either courage or morbidity of mind. It is only a matter of pulling the trigger. The accused in the excitement of the moment appears to have gone on pulling the trigger till the end not caring for the consequences. That will not necessarily show that he aimed at brutality. It is true that it was not necessary to carry the revolver to Patil's house when he was going there for discussing the partition matter. It is also true that he was quarrelling with the old couple with the revolver in his hand and had chosen to defy Kamble even after Kamble disclosed his identity. It is also true that all the three victims were unarmed and therefore, helpless. The old couple in particular was bowing before him and entreating him at the time. But these factors will only show that the accused was in an excited, uncontrollable and unreasonable state of mind. That will not necessarily make the crime brutal. It is not the prosecution case that if the accused is spared the gallows, he would be a menance to the society or would indulge in similar crime after he returns from the prison. He does not live on crime. He is a young man with wife and two children and when not under the influence of liquor his behaviour is not objectionable. There are all the chances of his improvement once he is rescued from his addiction to alcohol. Imprisonment in jail is bound to keep him off alcohol and have a sobering, beneficial and healthy effect on him. It will not only cure him of his addiction to alcohol but also of his strong-headedness and short temper. We have no doubt that after his prison-term he will return as a useful member of the society and particularly of his family. Hence we are of the view that the extreme penalty is uncalled for. In addition to the life imprisonment, we are also imposing a sizeable fine on him to make him realise sufficiently the enormous evil consequences of his act and also to provide suitable compensation to the dependents and relations of the victims. Since we are increasing the fine which may technically amount to enhancement of the sentence although the substantive sentence is reduced, the defence waived the notice of enhancement and argued on the question of fine also. Since we are increasing the fine which may technically amount to enhancement of the sentence although the substantive sentence is reduced, the defence waived the notice of enhancement and argued on the question of fine also. It is after taking into consideration their arguments, that we have proposed the fine hereunder. 33. The accused has also been convicted under sections 27 and 30 of the Arms Act. Admittedly, the accused had used the revolver and the ammunition for an unlawful purpose and on that account the trial Court has convicted him for the offence under that section and has sentenced him to rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- and in default to suffer rigorous imprisonment for two years. This sentence is to run concurrently with the other sentences. There is no challenge as indeed three could not be, to the said conviction. We, therefore, confirm both the conviction and the sentence under section 27 of the Arms Act. 34. However, the conviction of the accused under section 30 is seriously challenged and according to us not without substance. The section provides for punishment for contravention of the licence or any provisions of the Act or the rules made thereunder. The prosecution case is that by virtue of the licence, the accused was supposed to posses at any point of time not more than 50 live cartridges. The evidence on record shows that at the time of his arrest the accused had as many as 120 cartridges in his possession. This is noted in the arrest panchnama (Ex. 23). The panchanama recites that from three boxes together in all 122 live cartridges were recovered from his possession. Panch Hahi Abdul Bangi (P.W. 4) is examined to depose to the veracity of the panchanama and in his deposition all that he has stated is that the boxes contained in all 122 rounds. He has not stated that they were five rounds. It is true that this panch has not been asked questions as to whether the statement made in the panchanama that the cartridges were live was true and the basis on which the said statement is made. However admittedly the panch who is a layman even if he was asked the question could not have vouched for the nature of the cartridges. However admittedly the panch who is a layman even if he was asked the question could not have vouched for the nature of the cartridges. There is no one else examined to tell the Court authoritatively that the cartridges were live. The mere omission therefore, to ask the panch the relevant question would not fasten the defence with the admission that the cartridges were live. What is more, the Investigating Officer Damane was pointedly asked a question as to whether he had sent the said cartridges for examination to the Ballistic Expert, and he conceded that he never thought of doing so. There is no other evidence with regard to the nature of the cartridges. The result, therefore, is that we have no material before us to show that the cartridges were live. The lapse undoubtedly is technical and it was possible to remedy it by recording additional evidence on the point, in this Court. In view however of the fact that the accused is being sentenced to life imprisonment, this exercise according to us will serve no useful purpose. For, even if it was established that the accused had in his possession live cartridges in excess of the permitted ones and sentenced, the sentence will have to run concurrently with other sentences. We are also imposing suitable fine for the other offences. Hence we give benefit of doubt to the accused so far as the offence under section 30 of the Arms Act is concerned. 35. The result, therefore, is that we negative the defence of the accused both under sections 80 and 86 I.P.C. and confirm his convictions under section 302 I.P.C. 36. For the reasons already discussed above, we allow the appeal partly, confirm the convictions of the accused under section 302 I.P.C. for the murder of each of the three victims, but set aside the sentence of death and fine passed by the trial Court for each of the said three convictions. Instead, we sentence the accused to life imprisonment for the offence of murder of P.S.I. Kamble and further to pay a fine of Rs. 1,00,000/- and in default to undergo rigorous imprisonment for three and a half year. We sentence the accused to life imprisonment for the offence of murder of Sakahram Patil and also to pay a fine of Rs. 1,00,000/- and in default to undergo rigorous imprisonment for three and a half year. We sentence the accused to life imprisonment for the offence of murder of Sakahram Patil and also to pay a fine of Rs. 25,000/- and in default to suffer rigorous imprisonment for three and a half years. We further sentence the accused to life imprisonment for the offence of murder of Vimalabai, Sakharam Patil and further to pay a fine of Rs. 25,000/- and in default to suffer rigorous imprisonment for three and a half years. We further confirm both the conviction and sentence of the accused under section 27 of the Arms Act. We however set aside the conviction as well as the sentence of the accused under section 30 of the Arms Act. All the substantive sentences shall run concurrently and the accused will be entitled to the set off for the term of imprisonment he has already undergone. Out of the fine imposed on the accused if recovered a sum of Rs. 1,00,000/- be paid to the widow of the deceased P.S.I. Kamble and Rs. 25,000/- to the parents of P.S.I. Kamble and a sum of Rs. 15,000/- to Jaywant Patil, son of Sakharam and Vimalabai Patil as compensation under section 357(1)(b) of the Criminal Procedure Code. The order regarding disposal of the muddemal property passed by the learned trial Judge is maintained subject to the following modification: The revolver Article No. 1 which is directed by the learned trial Judge to be confiscated to the State should instead be sold by public auction by the District Magistrate and the moneys recovered in the auction be paid to the wife of the accused or adjusted against the fine. If the amount is appropriated towards fine, then it should first be paid to the widow of deceased P.S.I. Kamble towards compensation which is ordered to be paid earlier. We are informed across the bar that the widow of P.S.I. Kamble has passed her S.S.C. Examination. Since Kamble has died in harness at a very young age, the State may also consider giving her some employment suitable to her qualifications. Mr. Mohite appearing for the accused applies for leave to appeal to the Supreme Court. There is no question of law much less a question of law which requires consideration by the Supreme Court involved in the present case. Mr. Mohite appearing for the accused applies for leave to appeal to the Supreme Court. There is no question of law much less a question of law which requires consideration by the Supreme Court involved in the present case. Hence the application for leave is rejected. We must place our appreciation of the diligent manner in which the crime in this case has been investigated and the assistance which we received from both sides for deciding this matter. We must also place on record our appreciation of the very able manner in which the case was conducted in the trial Court both by the Prosecutor and the defence Counsel. The reference is rejected. Appeal allowed partly. ----- "