jUDGMENT M.B. GHODESWAR, J. :---The Additional Sessions Judge, Nagpur, by his judgment and order dated 14-12-1993 in Sessions Case No. 868 of 1991 has convicted the accused Manohar son of Rambhau Fendar for the offence punishable under section 302 of the Indian Penal Code and awarded him the death penalty and therefore sent a reference to this Court. The appellant-accused Manohar has filed Criminal Appeal No. 6 of 1994. Therefore, the reference as well as the criminal appeal are being disposed of by this common judgment. 2. Shortly stated, the facts of the prosecution case are as under : The deceased Ramnarayan Dubey, his brother Badrinarayan Dubey and the family of the accused were residing in Mangalmurtis house (Wada) in Dhantoli, Nagpur. Shyamnarayan was residing in the locality called Pili Nadi at Nagpur and he often visited the residence of Ramnarayan Dubey and Badrinarayan Dubey in Mangalmurti Wada. Dubey brothers were occupying two rooms on the first floor and the family of the accused was occupying one room on the first floor. The relations between the family of the accused and the family of Dubey were initially cordial. Later on because of the complaints the relations between them were strained. The accused was serving as police Sub-Inspector in Police Station Umri situated at Kothari, District Chandrapur. The incident in this case occurred on 11-10-1991 between 10-30 and 10.45 p.m. in Mangalmurti Wada. The accused had fired the bullets on Ramnarayan, Badrinarayan and Shyamnarayan, when they were sitting on the ground floor in the Court-yard. Ramnarayan sustained bullet injuries and was lying in injured condition near the stair-case. Badrinarayan and Shyamnarayan also sustained the bullet injuries and went upstairs by climbing the stair-case. P.W. 6 Roma, the wife of Ramnarayan, after hearing the sound of fire came outside from kitchen into the gallery and saw Ramnarayan lying in injured condition and that Badrinarayan and Shyamnarayan also sustained injuries, and they also went upstairs by climbing the stair-case. After Badrinarayan and Shyamnarayan went inside the room on the first floor, P.W. 6 Roma closed the door of the room. The accused was trying to forcibly open the door, but he could not succeed. After Badrinarayan and Shyamnarayan went inside the room on the first floor, P.W. 6 Roma closed the door of the room. The accused was trying to forcibly open the door, but he could not succeed. She came on the ground floor and tried to snatch the revolver from the hands of the accused, and as her son aged 2 years was in upper room she again went upstairs and thereafter she went to the residence of one Vilas Muttemwar and gave a phone message to the Police Station Dhantoli. P.S.I. Maya Sankar received the phone message. Thereafter she intimated the concerned Police Officer. The Police Officers immediately rushed to the spot. Ramnarayan was found dead near the stair-case and Badrinarayan and Shyamnarayan were lying on the cot in the upper room in injured condition. The police sent the dead body of Ramnarayan and the injured Badrinarayan and Shyamnarayan to the Medical College Hospital, Nagpur. Badrinarayan and Shyamnarayan were unconscious and they were operated upon. The clothes were recovered from the dead body of Ramnarayan and also from the person of Badrinarayan. P.W. 6 Roma had gone to the Medical College Hospital. After her return to Mangalmurti Wada, her complaint Exh. 109 came to be recorded by P.W. 30 P.I. Thakur. Badrinarayan expired on 13-10-1991 and Shyamnarayan expired on 18-10-1991. The dead-body of Ramnarayan was brought in the Mangalmurti Wada on the same day. At about 9.30 p.m. when there was a big crowd of people the accused again came there and fired two bullets in air and thereafter disappeared from the scene and was absconding. The accused was arrested on 18-10-1991. The revolver, bullets and cartridges were seized from him. Similarly the letters written by the accused were also seized. He was also sent for medical examination. 3. The clothes of the deceased and the accused were sent for chemical analysis. The revolver, bullets and cartridges were also sent to the Balastic Expert for his opinion. After completing the necessary investigation, the charge-sheet was filed. 4. The charge under sections 302 and 506(B) of the Indian Penal Code and under section 27 of the Indian Arms Act was framed and explained to the accused. The defence of the accused is of grave and sudden provocation. The prosecution has examined in all 33 witnesses. The accused has examined five witnesses in his defence. 4. The charge under sections 302 and 506(B) of the Indian Penal Code and under section 27 of the Indian Arms Act was framed and explained to the accused. The defence of the accused is of grave and sudden provocation. The prosecution has examined in all 33 witnesses. The accused has examined five witnesses in his defence. The Balastic Expert is examined as a Court witness. The trial Court after appreciating the evidence and material on record recorded a finding of conviction against the accused. 5. Shri M.R. Daga, learned Counsel for the accused, has not seriously disputed the incident of fire. According to him, there was a grave and sudden provocation from the deceased and, therefore, this case falls under Exception I to section 300 of the Indian Penal Code. Though the learned Counsel for the accused has not argued on the right of private defence, this Court has to consider the plea of private defence as it appears from the statement of the accused recorded under section 313 of the Code of Criminal Procedure. The learned Counsel for the State has supported the judgment of the trial Court. 6. This case rests on the direct and circumstantial evidence. According to the prosecution, there are six eye witnesses, namely, P.W. 6 Roma, P.W. 15 Mahesh, P.W. 21 Dinkar, P.W. 3 Rambhau, the father of the accused, P.W. 7 Bharti and P.W. 8 Daduram. Out of these eye witnesses, P.Ws. 3, 7 and 8 have not supported the prosecution case. The evidence of P.W. 6 Roma is that she was married to Ramanarayan Dubey in October, 1987 and since then she was residing in the Mangalmurti Wada. She has stated that her husband Ramnarayan, his elder brother Badrinarayan alias Vishnu and her nephew Mahesh son of Shyamnarayan were residing in the two rooms on the first floor. On the western side the father of the accused P.W. 3 Rambhau was living with his wife Pramila, son Manohar (accused) and two brothers of the accused, namely, Nandkishore and Arvind. There were two separate stair-cases for reaching the room of the Dubey family and the room of the family of the accused. On the ground floor there was one tin shed where Chitra Jachak, her mother Shantabai and brother Sanjay were residing. The owner of the Wada was not residing there at the time of incident. 7. There were two separate stair-cases for reaching the room of the Dubey family and the room of the family of the accused. On the ground floor there was one tin shed where Chitra Jachak, her mother Shantabai and brother Sanjay were residing. The owner of the Wada was not residing there at the time of incident. 7. She has deposed that the accused, who was working as Police Sub-Inspector in Chandrapur District, used to visit often and he was having an illicit relation with Chitra. The accused and Chitra were making romance in the Court-yard of the Wada and they used to behave indecently. Her husband Ramnarayan had tried to convince the accused and Chitra to behave properly, but the accused was not in a mood to listen to him and they continued to behave indecently. As Ramnarayan Dubey tried to convince the accused, the accused abused and threatened him. She has also stated that her husband had lodged a report in writing in Dhantoli Police Station. On 18-4-1991 when the accused and his brother Arvind alias Pappu were quarrelling, Ramnarayan intervened and at that time the accused rushed towards her husband and threatened to kill him. Ramnarayan lodged a report in Dhantoli Police Station about this incident. She has further stated that in the month of June, 1991 the accused was giving threats to kill them by revolver, when Police Inspector of Chandrapur was present in the Wada. Ramnarayan also lodged a report of this incident also. According to her, thereafter the police gave them the protection by keeping the police guard in front of the house. She has stated that though the police guard was present, Nandkishore the brother of the accused threatened them and Nandkishore rushed towards Ramnarayan with an intention to kill him. When the police guard tried to convince Nandkishore, he assaulted the guard, and because of this incident, Nandkishore, who was a Police Constable at Kamptee, was suspended. 8. On 11-10-1991 at about 10.45 a.m. she was in the kitchen. P.W. 14 Mahesh was studying in the first room and her son Aditya was playing in that room. Ramnarayan Dubey was reading the newspaper near the stair-case in the Court-yard along with Badrinarayan and Shyamnarayan. They all were sitting on chairs. She heard the sound of 4-5 bullets. 8. On 11-10-1991 at about 10.45 a.m. she was in the kitchen. P.W. 14 Mahesh was studying in the first room and her son Aditya was playing in that room. Ramnarayan Dubey was reading the newspaper near the stair-case in the Court-yard along with Badrinarayan and Shyamnarayan. They all were sitting on chairs. She heard the sound of 4-5 bullets. She and Mahesh (P.W. 14) then rushed towards the gallery and saw that the accused was firing on three Dubey brothers through his revolver. The accused was loading the revolver. She raised shouts as ""Bachav Bachav"". Still the accused continued to fire. Therefore, she had thrown the utensils towards the accused. Badrinarayan and Shyamnarayan tried to save Ramnarayan by covering his body. Ramnarayan told his brothers to go inside the house. Badrinarayan and Shyamnarayan were coming in the house through the stair-case, and Ramnarayan was lying dead near the stair-case. Badrinarayan and Shyamnarayan fell down on the cot in the first floor. The accused was coming toward her house through the stair-case with the revolver. She, therefore, immediately closed the door of the room. The accused was knocking and pushing the door from the outside. She was standing near the door and pressing the door from inside, and her bangles were broken. Thereafter the accused went away. Then she tried to give the message to the police on phone, but could not contact the police station. Thereafter she came outside the room through the door of the kitchen and found that the accused was loading the revolver on the ground floor near the mango tree. She went near the accused and tried to snatch the cartridges from his hands and snatched one live cartridge from his hand. She rushed towards the kitchen as her son was there. She gave her son to P.W. 7 Bharti, who was standing near the bridge of main road, and then went to the house of Vilas Muttamwar for giving the phone message to the police and she informed the incident to the Dhantoli Police Station. When she returned to Mangalmurti Wada, the accused was not there. She has further stated that when she went near Ramnarayan, he was severely injured and was lying in the pool of blood. When she went upstairs, the police came there. The police removed all the three Dubey brothers to the hospital. She also went to the hospital. When she returned to Mangalmurti Wada, the accused was not there. She has further stated that when she went near Ramnarayan, he was severely injured and was lying in the pool of blood. When she went upstairs, the police came there. The police removed all the three Dubey brothers to the hospital. She also went to the hospital. According to her, somebody had given the wrist watch of the accused to her. She handed over the wrist watch and live cartridge to the police. According to her, the accused having 10 to 12 bullets at that time and he was saying that he would kill all of them while he was firing. She has admitted that Ramnarayan was 50 years old at the time of his marriage, and that the common latrine near the tin shed of Jachak family was used by all the families residing in the said Wada. She has further admitted that in the month of February, 1991 her husband had not lodged any report in the police station in respect of indecent behaviour of the accused. She has also admitted that the Dubey family has constructed a separate bath room on the ground floor in the Wada. According to her, the accused and Chitra Jachak married 2-3 months before the incident and that Dubey family was not paying the rent to the owner for the last 2-3 years. She also admitted that she was knowing Badjatya. She denied the suggestion that Ramnarayan was insisting Jachak family and Fendar family to vacate the Wada. She has admitted in the cross examination that she did not see Chitra on that day, but she saw the accused in the evening one day prior to the incident. Shyamnarayan, who was working as Sub-Editor in ""Naya Khoon"" newspaper, had come to the Mangalmurti Wada on the day of incident at about 6.30 a.m. Shyamnarayan used to come to her house daily after finishing his night duty. She denied the suggestion that Ramnarayan wanted to marry Chitra. She also denied that Ramnarayan gave the phone message to the Police Inspector, Chandrapur, and called him to Nagpur. She stated that she was not knowing Chakrawarti D.I.G. and whether he was press reporter prior to his joining the Police Department and he was a best friend of Ramnarayan. She denied the suggestion that Ramnarayan wanted to marry Chitra. She also denied that Ramnarayan gave the phone message to the Police Inspector, Chandrapur, and called him to Nagpur. She stated that she was not knowing Chakrawarti D.I.G. and whether he was press reporter prior to his joining the Police Department and he was a best friend of Ramnarayan. She also denied that Ramnarayan gave a phone message to Chakrawarti and informed him that the accused came to Nagpur and to make arrangement to arrest him. She further denied that the probation period of the accused was extended at the instance of Ramnarayan. She also denied that Ramnarayan used to beat the owner of the Wada Shri Mangalmurti (D.W. 5). Shri Mangalmurti left the Wada due to harassment by Ramnarayan. She further denied that Ramnarayan was thinking that the accused and Chitra if married, they would become strong and they would not vacate the premises and further that Ramnarayan wanted that Mangalmurti should sell the Wada through him. She further denied that Ramnarayan received some amount from Badjatya for vacating the premises. She has admitted that the Government has provided one flat in Bharat Nagar, Nagpur one and half years prior to the incident to Ramnarayan. She further admitted that the accused came in the Wada at about 8.00 to 8.30 a.m. on the day of incident, but she does not know when the accused left the Wada as she was busy with her work. Her maid servant Kokila (P.W. 9) had come in the morning. Ramnarayan woke up on that day at about 7.30 to 8.00 a.m. She denied that there was a liquor party on each and every day in the Wada with the friends of Ramnarayan. 9. P.W. 9 Kokila had also come to the house of Dubey at about 8.30 a.m. on the day of incident and she was cleaning the utensils near the water tap on the ground floor. She denied that she heard the sound of Mara mari prior to the firing and informed about the same to the police station. She has admitted that there was no firing when the three brothers were sitting in the chairs. She denied that Ramnarayan uttered the words ""Haram Khor Agaya Hai"". She admitted that she could hear the talk from the kitchen which was going in the Court-yard. She has admitted that there was no firing when the three brothers were sitting in the chairs. She denied that Ramnarayan uttered the words ""Haram Khor Agaya Hai"". She admitted that she could hear the talk from the kitchen which was going in the Court-yard. She also admitted that the accused was proceeding to the latrine for urine. She denied that Ramnarayan was saying that he suspended one brother of the accused and the accused would also be suspended. She further denied that Ramnarayan was saying as to why the accused was searching his wife there and it would be better to search his wife in brothel house and there was Mara Mari between the accused and the three brothers. She also denied that Shyamnarayan and Badrinarayan wanted to give blow of chair to the accused and Ramnarayan was giving the blows of sticks to the accused, and the accused was saving himself from them. She also denied that because the three brothers were beating the accused, he became out of order. She has stated that the accused was firing towards the three brothers from the distance of about 5 feet. This witness has proved the reports made by Ramnarayan in the police station, which are at Exh. 106 dated 18-4-1991, Exh. 107 dated 25-6-1991 and Exh. 108 dated 26-7-1991. In para 18 of her deposition some omissions are taken out on record in respect of her statement recorded by the police under section 161 of the Code of Criminal Procedure and one contradiction i.e. portion marked A in her statement. Though she has admitted that she has not stated so before the police, but from her complaint Exh. 109 all these statements, which are taken out as omission, are found in it and therefore her admission that she has not stated to the police cannot be of any significance at all. Even the contradicted portion marked A is also not proved on record. From the testimony of this witness it is clear that she was present in the house at the time of incident, and what she has deposed in the Court is the truth. Her version that she heard the sound of firing and thereafter she came in the gallery and then noticed the incident of the accused firing the bullets on the three Debey brothers is most natural. Her version that she heard the sound of firing and thereafter she came in the gallery and then noticed the incident of the accused firing the bullets on the three Debey brothers is most natural. It is true that she could not give all the details of the incident, but considering the impact of the incident and the presence of the accused having revolver, she could not describe all the details of incident in her complaint at Exh. 109. In her cross examination only the questions suggesting the defence of the accused are put to this witness, but on the incident in question there is no cross examination. Therefore, her testimony about narration of the incident goes uncha lenged. She is a natural witness. Her testimony is not shaken in her cross examination and there is nothing to doubt her testimony. Therefore, her evidence inspires the confidence of the Court. 10. P.W. 14 Mahesh, who was about 13 years of age at the time of incident, has deposed in the fashion in which P.W. 6 Roma has deposed. On the date of incident at about 10.30 to 10.45 a.m. he was studying in the first room on the first floor, and P.W. 6 Roma was in the kitchen. He says that he saw that Ramnarayan, Badrinarayan and his father Shyamnarayan were sitting in the Court-yard. He heard the sound of fire and then he came in the gallery along with P.W. 6 Roma. He saw the accused, who was standing in the Court-yard and having revolver in his hand and he fired at his uncles Ramnarayan and Badrinarayan and his father Shyamnarayan. P.W. 6 Roma was shouting ""Bachav Bachav and she also threw the bucket of utensils towards the accused. He further stated that the accused was saying that he would kill all of them and he was firing continuously. Ramnarayan was severely injured and was lying near the stair-case. Badrinarayan and Shyamnarayan were also severely injured and were having bleeding injuries. Both of them fell on the cot which was in the room. The accused followed them and he came upstairs. This witness and P.W. 6 Roma held the door of the first room as the accused was pushing that door from outside. He also says that he tried to give the phone message to the police, but he could not contact and P.W. 6 Roma went down. The accused followed them and he came upstairs. This witness and P.W. 6 Roma held the door of the first room as the accused was pushing that door from outside. He also says that he tried to give the phone message to the police, but he could not contact and P.W. 6 Roma went down. He is firm in the cross examination that the accused and Chitra used to behave in indecent manner. He denied that there were previously 2-3 marriages of his uncle Ramnarayan. He has denied that Ramnarayans first wife by name Gauri is residing at present at Chandrapur along with her children. He says that he does not know Meena Ingle and he has not read the article published by Ramnarayan Dubey against the Judge through Meena Ingle. He also does not know whether Ramnarayan Dubey wrote against the Nagpur University in the newspaper. He also does not know that Ramnarayan wrote against ""Lokmat"" and he also does not know whether Ramnarayan was taking undue advantage of his editorship and black mailing the public. He denied the suggestion that there were liquor parties in the Wada. He also denied the other suggestion regarding the beating by Ramnarayan to the owner of the Wada. He also denied that the neighbouring public of the Wada were afraid of his uncle Ramnarayan. He has stated that at about 9.30 a.m. when he came down for latrine, P.W. 9 Kokila was cleaning the utensils in the water tap in the Court yard. He has denied the suggestion that there was a sound of quarrel about 10 to 15 minutes before the firing. He also denied that if somebody calls from the Court-yard, he has to speak in very loud voice. He also denied that the Dubey brothers were beating the accused with chairs and sticks. One omission is taken out on record that the accused was pushing the door from outside. He has stated that he has not helped his father Shyamnarayan and Badrinarayan even after the police came on the spot. He further denied the suggestion that he is not an eye witness. 11. As regards the firing in question, there is also no cross examination to this witness. He has stated that he has not helped his father Shyamnarayan and Badrinarayan even after the police came on the spot. He further denied the suggestion that he is not an eye witness. 11. As regards the firing in question, there is also no cross examination to this witness. The criticism is made about the evidence of this witness that he was a child witness at the time of incident and as he has deposed exactly on the lines of P.W. 6 Roma, possibility of tutoring cannot be ruled out. About his conduct it is criticised that even after the police came on the spot, he has not helped his father Shyamnarayan and uncle Badrinarayan and this is his unnatural conduct. P.W. 14 Mahesh was residing in the Wada with Ramnarayan Dubey. Therefore, his presence at the time of incident in the Wada in the upstairs cannot be doubted. He was 13 years of age at the time of incident and a school going boy. Even though he was 13 years of age, because of his understanding he cannot be called a child witness. Being afraid of the incident he has not helped in any manner to his father and uncle, and this conduct of this witness cannot be said to be unnatural because of the impact of the incident. His testimony is also not shaken in cross examination and it inspires the confidence of the Court and his evidence gives complete and full corroboration to the evidence of P.W. 6 Roma. 12. P.W. 7 Bharti d/o Dadulal Kashyap was residing in the front side of Mangalmurti Wada. She has stated that at the time of incident she was in her house and was pressing the clothes. She heard the sound of fire. Her father Dadulal (P.W. 8) was also in the house. Dadulal (P.W. 8) was under the influence of liquor. He wanted to go outside the house, but she did not allow him. When she came outside the house, she found that there was a rush in front of the gate of Mangalmurti Wada. She has further stated that after some time P.W. 6 Roma came to her near the bridge. Aditya son of Roma was crying and Roma gave Aditya to her. P.W. 6 Roma also instructed her not to give Aditya to anyone. She has further stated that after some time P.W. 6 Roma came to her near the bridge. Aditya son of Roma was crying and Roma gave Aditya to her. P.W. 6 Roma also instructed her not to give Aditya to anyone. The Special Public Prosecutor asked for permission to cross examine the witness and after the permission was granted, the prosecution cross-examined her. Her statement recorded under section 161 of the Code of Criminal Procedure by the police was confronted to her and she denied to have told the police the portions marked A, B and C in her statement. Her statement was recorded by the Special Judicial Magistrate. Initially she had admitted that her statement (Exh. 112) before the Special Judicial Magistrate was true and correct, but subsequently she stated that this statement was false. She has stated that she has given the statement before the Special Judicial Magistrate as per the say of the police. This witness has not supported the prosecution at all. 13. P.W. 8 Dadulal has deposed that at the time of incident he was in the house. After hearing the sound of fire, he came outside the house and when he came near the bridge he rushed to the Mangalmurti Wada. The people had gathered outside the Wada and somebody said that the accused fired. He is also cross examined by the prosecution. He was residing in his house in Dhantoli for the last 30 years. He admitted that the family of Fendar was residing there for the last 20 years. He was working as Machinist in Hitvada newspaper press and thereafter in Lokmat press. He admitted that the deceased Ramnarayan was also working in Hitvada. His statement was recorded by the Special Judicial Magistrate vide Exh. 114. He has stated that the Special Judicial Magistrate did not ask him anything about the incident. According to him, he made the statement before the Magistrate as per the say of the police. He was confronted with the police statement. He denied to have stated before the police the portions marked A to E in the statement. Nothing important is elicited in his cross-examination. Therefore, his deposition is also not helpful to the prosecution. 14. The prosecution has further relied on the evidence of P.W. 21 Dinkar Jagoji Shahane. He was confronted with the police statement. He denied to have stated before the police the portions marked A to E in the statement. Nothing important is elicited in his cross-examination. Therefore, his deposition is also not helpful to the prosecution. 14. The prosecution has further relied on the evidence of P.W. 21 Dinkar Jagoji Shahane. He has stated that he was working as Driver on the car of Vilas Muttemwar, who resides in Vijayanand Society, Dhantoli, Nagpur. He was knowing Dubey brothers and the accused. He stated that Ramnarayan Dubey was the friend of Vilas Muttemwar. At the time of incident he was near the Vijayanand society. He saw the mob in front of the house of Dubey. He rushed there. He saw that Ramnarayan Dubey was lying near the stair-case and the accused was having a revolver in his hand and the accused was firing at Ramnarayan Dubey. The accused had fired twice on Ramnarayan in his presence. Then he rushed to the house of Vilas Muttemwar. He has described the clothes worn by the accused, namely, light colour Safari. He says that he informed the incident to Mrs. Muttemwar and P.W. 6 Roma came there within 5 to 10 minutes. P.W. 6 Roma informed Mrs. Muttemwar that the accused shot Ramnarayan and his two brothers. P.W. 6 Roma wanted to inform the incident to the police on phone and she informed the incident to the police. When Mrs. Dubey went to her house, he followed her. The police came there and the police took all the three Dubey brothers to the hospital. Then he informed the incident on phone to Vilas Muttemwar, who was at Delhi. He was called by Vilas Muttemwar to Delhi and he returned after 10 to 12 days. In cross examination he has stated that he was standing at a stall which was in front of Vijayanand Society on Wardha road, and the Vijayanand Society is in between Mangalmurti Wada and Wardha Road. He has admitted that the Mangalmurti Wada is not visible from the tea stall where he was standing. He also admitted that he had not stated before the police that he had seen the mob from the tea stall. He has further stated that about 20 to 25 persons had gathered near the tin shed of the Wada, and he went near the gate. He also admitted that he had not stated before the police that he had seen the mob from the tea stall. He has further stated that about 20 to 25 persons had gathered near the tin shed of the Wada, and he went near the gate. One omission is taken out from the police statement that the accused was standing at a distance of 5 to 6 ft. from Ramnarayan Dubey. He has further admitted that he has not stated before the police that he was out of Nagpur for 10 to 12 days. He further admitted that nobody made inquiry from him about the incident and he has not personally disclosed the incident to the police. The prosecution has heavily relied on the evidence of this witness as an eye witness to the incident of firing by the accused on Ramnarayan Dubey and when he says that he has not personally disclosed the incident to the police, he has not been cross examined by the prosecution on this point. It is highly doubtful that he has at all seen the firing by the accused on Ramnarayan Dubey. 15. There is evidence of P.W. 9 Kokila d/o Nilkanth Raut, who was working as maid-servant in the house of Ramnarayan Dubey. She was working with Dubey family for the last three years prior to the incident. Therefore, she is well acquainted with the families residing in Mangalmurti Wada. She has stated that she used to come to the house of Dubey at 8.30 a.m. daily and after finishing the work, again she used to come at 5.30 p.m. in the evening. On the day of incident she came at about 8.30 a.m. She was cleaning the utensils on the ground floor near the water tap. P.W. 3 Rambhau the father of the accused came there alone with a suit case. The accused followed P.W. 3 Rambhau. P.W. 3 Rambhau and the accused went to their house on upstairs. At that time the accused was wearing the black pant and white shirt. She has described the movement of the accused. After 10 to 15 minutes the accused came on the ground floor. That time the accused was wearing white Bengali shirt and Pyjama. After taking bath he again went upstairs. At that time the accused was wearing the black pant and white shirt. She has described the movement of the accused. After 10 to 15 minutes the accused came on the ground floor. That time the accused was wearing white Bengali shirt and Pyjama. After taking bath he again went upstairs. At about 9.30 a.m. the accused again came on the ground floor and at that time he was wearing Safari and went away. She says that nobody was sitting in the Court-yard at that time. 16. After finishing her work, she went to another house of Marathe and after finishing her work at Marathes house when she was proceeding at about 11.00 a.m. she heard the sound of fire. Therefore she immediately rushed to the Wada and came upto the gate of Mangalmurti Wada. She saw that the accused was loading the revolver which was in his hand. At that time P.W. 6 Roma went to the house of Nisha alias Bharti (P.W. 7) with her son Aditya. When the accused left the Wada, she entered the Wada and saw that Ramnarayan was lying near the stair-case in an injured condition. Then she went upstair and saw that Shyamnarayan and Badrinarayan were lying on the cot in an injured condition. After some time the police came there and she disclosed the incident to the police. Her statement was recorded on the very same day. In cross examination she has stated that she did not notice anything with the accused when he left the Wada at 9.30 a.m. She admitted that Ramnarayan, Badrinarayan and Shyamnarayan were reading the newspapers in the Court-yard. When the accused went to his house thereafter all the three Dubey brothers came in the Court-yard, and when the accused came down for his bath, that time three Dubey brothers were in the Court-yard and in their presence the accused went upstairs after taking his bath. The accused also went outside the Wada in their presence. She does not speak about any talk between P.W. 3 Rambhau and the accused and also in between the three Dubey brothers, and her evidence is silent about any talk between the deceased and the accused. From her evidence it is clear that at about 11.00 a.m. the accused was seen in the compound of Mangalmurti Wada loading the revolver which was in his hand. 17. From her evidence it is clear that at about 11.00 a.m. the accused was seen in the compound of Mangalmurti Wada loading the revolver which was in his hand. 17. The prosecution has examined P.W. 3 Rambhau, the father of the accused. He was residing with his wife Pramila and sons. The accused, who was working as P.S.I. at Umri Potdar Sub-Police Station, in Chandrapur District used to visit the Mangalmurti Wada. The members of the families of Jachak, Fendar and Dubey were residing in the said Wada. He has stated that D.W. Ramchandra Mangalmurti, owner of the Wada, was residing in the house of his friend Chakranarayan at the time of incident. Chitra Jachak, daughter of Shantabai, was serving in the shop of Khandelwal and the accused used to meet Chitra often and used to visit her house. He says that one year prior to the incident the relations between Dubey and the accused were cordial. According to him, in the month of August, 1990, Dubey family started causing nuisance to his family. When his son Arvind was washing his auto-rickshaw in the open space of Wada, Ramnarayan Dubey obstructed his son and Shyamnarayan rushed towards his son Arvind. There was a quarrel between Arvind and Dubey family. After his intervention the matter ended there. D.W. 5 Ramchandra Mangalmurti, the owner of the Wada, had left the premises in the year 1990. He has stated that his family and the family of Dubey were not on talking terms and there was quarrel between his sons and Dubey family on trifle matter on 18-3-1991. On 18-3-1991 the accused came to Nagpur for his training and he was residing with him. On 17-4-1991 at about 8.00 p.m. when the accused and Chitra were only chitchatting in the Court-yard, Ramnarayan uttered the word that Chitra was the daughter of prostitute and he also abused the accused and Chitra in filthy language but he says that he was not present at the house at that time. He has stated that his wife Pramila had reported the incident. When Shantabai, Sanjay and Chitra Jachak came in the Court-yard, Ramnarayan started abusing. When Sanjay asked Ramnarayan as to why he was sitting in the Court-yard and consuming liquor, Ramnarayan gave the blow of bottle on the head of Sanjay and Sanjay sustained bleeding injury and fell down. He has stated that his wife Pramila had reported the incident. When Shantabai, Sanjay and Chitra Jachak came in the Court-yard, Ramnarayan started abusing. When Sanjay asked Ramnarayan as to why he was sitting in the Court-yard and consuming liquor, Ramnarayan gave the blow of bottle on the head of Sanjay and Sanjay sustained bleeding injury and fell down. He also stated that Badrinarayan and Shyamnarayan also came there and they also started to beat Sanjay. The three Dubey brothers then caught hold of the accused and started to drag him upto the gate of the Wada. Ramnarayan asked Badrinarayan to call some persons and when the persons came there, they started beating the accused. He stated that he was obstructed by Ramnarayan and somebody beat the accused on his back and he sustained bleeding injuries. That injury had 19 stitches. Ramnarayan had threatened the accused and P.W. 6 Roma gave a phone message to the police. The police took the accused to the police station and the accused was detained and therefore on 19-4-1991 the accused could not attend his duty. 18. On 19-6-1991 the accused again came for Court work at Nagpur and stayed in the Mangalmurti Wada for about 2-3 days. On 22-6-1991 when the accused and Chitra were chitchatting, Shri Mobin, Police Inspector of Chandrapur, went to the house of Chitra and then the accused was taken by Police Inspector Mobin to Dhantoli Police Station. He has admitted that since 25-6-1991 there was police protection to the Dubey family. The police guard was posted there for 24 hours in front of the house of Ramnarayan. He states that though there was no quarrel between his son Nandkishore and the police guard, still Nandkishore was arrested on 22-8-1991 in respect of the quarrel with Dubeys family. He has stated that on 28-8-1991 the accused married to Chitra and after marriage Chitra went to reside with the accused at Umri Potdar. He stated that the Dubey family filed the report against them and they also filed the report in the police station against Dubey family. On 10-10-1991 at about 7.00 p.m. the accused came in his house. The accused told him that Chitra left for Umri Potdar and the accused inquired about her. He told the accused that Chitra had not come. The accused also made inquiry about Chitra with Shantabai, the mother of Chitra. On 10-10-1991 at about 7.00 p.m. the accused came in his house. The accused told him that Chitra left for Umri Potdar and the accused inquired about her. He told the accused that Chitra had not come. The accused also made inquiry about Chitra with Shantabai, the mother of Chitra. Then the accused and Shantabai went to search Chitra in the houses of relatives. They returned at about 10.00 to 10.15 p.m. Chitra was not found. Then this witness asked the accused to go to the house of his grand father at Takiya Dhantoli to sleep there. On 11-10-1991 he went to the accused at Takiya Dhantoli and asked the accused to go to Chandrapur and join the duty. He told the accused that they would search Chitra and brought him to Mangalmurti Wada at 8.00 a.m. He states that thereafter the accused took bath and break fast and then at about 8.30 a.m. he left the house. The accused told his mother that he would return within a short time. The mother of the accused went to Takiya Dhantoli at about 9.00 to 9.15 a.m. Then he says that after taking his breakfast at about 9.30 a.m. he left the house and thereafter he does not know when the accused came to Mangalmurti Wada. He again stated that he left the Wada at about 10.00 a.m. on 11-10-1991 and returned to the Wada on 25-10-1991. He has further stated that he has not heard any sound of fire. He was confronted with his police statement and admitted that. It did happen that at about 10.00 a.m. he closed the door of his house and came down, then entered into the compound of Agrawal by jumping wall and thereafter he ran away. He has further stated that he left the house without wearing the chappal. He also admitted that his family has not lodged any complaint against Dubey family in respect of the incident of beating to the accused. In his cross examination, he stated that he himself, his wife Pramila, Shantabai and Chitra Jachak lodged the complaint against Dubey family in Dhantoli Police Station on account of threatening etc. by the Dubey family. Similarly they lodged the reports on 19-9-1991, 20-9-1991 and 7-10-1991 against the Dubey family in Dhantoli Police Station. He states that no action was taken by the police against the Dubey family. by the Dubey family. Similarly they lodged the reports on 19-9-1991, 20-9-1991 and 7-10-1991 against the Dubey family in Dhantoli Police Station. He states that no action was taken by the police against the Dubey family. He admitted that Police Inspector Mobin took search of his house, but he states that no contraband articles were found. According to him, the accused came to his house on 8-10-1991 at about 7.00 to 7.15 p.m. but he immediately left Nagpur for Umri. He further states that on 12-4-1991 Dubey family sold Mangalmurti Wada to Badjatya. He heard that Dubey was getting rupees three lakhs and two flats in lieu of the sale of Wada to Badjatya. He has also stated that the sister of D.W. 5 Ramchandra lodged the report against Dubey family in the police station. According to him, Dubey wanted to evict them and wanted to give vacant possession to Badjatya and on this count Dubey family used to lodge false complaints against them. He has also stated that on 10-10-1991 and 11-10-1991 there was no untoward incident and still he was taking precaution to avoid the same. After cross-examination of this witness, the prosecution has not re-examined him and when the witness was discharged, the prosecution filed an application (Exhibit 103) for permission to declare P.W. 3 Rambhau as hostile and the permission to cross-examine him on the ground that in cross-examination certain new facts about selling of the Wada by Dubey family and Dubey wanted to evict P.W. 3 Rambhau and his family and wanted to give vacant possession to Badjatya had come out. The learned trial Judge has recalled this witness and granted permission to the prosecution to cross-examine this witness. This witness is cross-examined by prosecution. He has admitted that his family or any member of his family did not lodge any report against Badrinarayan and Shyamnarayan. He has lodged a report against Shyamnarayan on 20-8-1991, 19-9-1991, 20-9-1991 and 7-10-1991 in the Police Station. He has also admitted that he has not lodged any report in respect of the incident dated 18-4-1991. He has further admitted that he has not stated before police that on 18-4-1991 Ramnarayan, Badrinarayan and Shyamnarayan dragged accused upto the gate. He denied that he heard the sounds of 4-5 bullets and therefore he was frightened. He has also admitted that he has not lodged any report in respect of the incident dated 18-4-1991. He has further admitted that he has not stated before police that on 18-4-1991 Ramnarayan, Badrinarayan and Shyamnarayan dragged accused upto the gate. He denied that he heard the sounds of 4-5 bullets and therefore he was frightened. He is contradicted with his police statement portion marked A. Similarly, he also denied that he seriously doubted that it must be the accused who has fired and the firing must have been on Dubey, portion marked B in his police statement. He has admitted that he has not stated before the police that D.W. 5 Mangalmurti sold the Wada to Badjatya and further that Ramnarayan would get Rs. 3,00,000/- and two flats. He has, however, volunteered that he came to know about these facts one month after his statement was recorded by police. He did not know the whereabouts of Chitra. He denied that he heard the sound of bullet on 11-10-1991 and also denied to have stated the portions marked A, B and C in his police statement. He admitted that he stood surety for accused and Nandkishore in respect of action taken by the police on the reports of Ramnarayan Dubey. 19. This witness being father of accused is suppressing the facts of incident. Though the prosecution has examined this witness as an eye-witness, he has not supported the prosecution on the actual incident of firing. However, the prosecution and defence both placed their reliance on this witness. He has stated about the relations of Dubey family with his family, about some incidents of assault by Dubey and he claims to have given reports of the incidents dated 20-8-1991, 19-9-1991 and 7-10-1991, but these reports are not produced on record. Therefore, his testimony about the incidents dated 20-8-1991, 19-9-1991, 20-9-1991 and 7-10-1991 is not reliable. He has stated about the relationship of accused with Chitra, but has denied that they were behaving in an indecent manner in the premises of Wada. Accused and Chitra had a love-affair and they married on 28-8-1991. This portion of his evidence is not disputed by the accused and, therefore, it is reliable. 20. P.W. 4 Kailash Khandelwal is examined by prosecution on the point that accused had gone to search Chitra. Accused and Chitra had a love-affair and they married on 28-8-1991. This portion of his evidence is not disputed by the accused and, therefore, it is reliable. 20. P.W. 4 Kailash Khandelwal is examined by prosecution on the point that accused had gone to search Chitra. P.W. 4 owned a shop at Ajni Chowk styled as ""Jaya Enterprises"" and Chitra was serving as a sales-girl in his shop for the last two and half years prior to incident. As the accused used to visit his shop often, he was knowing the accused. On the day of incident at about 10 a.m., accused had come to his shop and made enquiry with him about Chitra. He told the accused that Chitra had not come and on that very day at about 12 noon when he was proceeding towards Buldi, on the way Chitra met him at Ajni Chowk. He says, he asked Chitra about the firing but she told him that she did not know anything. There is nothing to disbelieve the evidence of this witness. 21. P.W. 5 Alka wife of Sanjay Jachak was not residing in Mangalmurti Wada at the time of incident. She has stated that Chitra was having love affairs with the accused for the last 4-5 months prior to the incident and they used to sit in Court-yard and behave in an indecent manner and this was disliked by Dubey family and therefore there was quarrel and Ramnarayan lodged a report in Police Station against the accused. She has deposed that the relations between the accused and Dubey family were strained. Accused used to consume liquor and under the influence of liquor he used to threaten Dubey family to kill them. She has also stated that on the day of incident at about 11.30 a.m. she went to Mangalmurti Wada and noticed that Ramnarayan was lying in the pool of blood near the stair-case. At that time, P.W. 14 Mahesh met her and informed her that accused killed his uncle. She has admitted that love affairs between the accused and Chitra were known to Shantabai the mother and Sanjay the brother of Chitra. Her relations with her husband were not cordial and therefore she was not staying in the Mangalmurti Wada at the time of incident. She has admitted that love affairs between the accused and Chitra were known to Shantabai the mother and Sanjay the brother of Chitra. Her relations with her husband were not cordial and therefore she was not staying in the Mangalmurti Wada at the time of incident. Mere suggestion is given to this witness that accused and Chitra were not behaving in an indecent manner in the Wada which she has denied. From her police statement, one omission is taken out that accused used to consume the liquor. As this witness was residing in the Mangalmurti Wada with Jachak family, she was knowing the relations between accused and Chitra. From her evidence, it appears that accused and Chitra were in love. Though she has stated that accused and Chitra used to behave in an indecent manner in Mangalmurti Wada, she has not given the details of the indecent behaviour. 22. P.W. 16 Damodhar Kaware is examined by prosecution on the incident of 9.30 p.m. on 11-10-1991. This witness used to visit the house of Dubey and therefore he was knowing the accused. The dead body of Ramnarayan was brought in Mangalmurti Wada and he had gone there. At about 9.30 p.m., the accused came in the Wada at the gate and fired twice in the air. He has further stated that the accused also pointed the revolver at them and then the public who had gathered in the Wada and tried to run away. After waiting for some time, the accused went towards the road. When he had gone inside the house of Dubey, somebody was giving message on phone to Police. On the next day, he lodged the report about the firing (Exhibit 1). This witness is corroborated by his report (Exh. 133). 23. P.W. 18 is Dilip son of Satyanarayan Dubey. Ramnarayan Dubey was uncle of this witness. This witness has also stated that on 11-10-1991 at about 9 to 9.30 p.m. when the dead body of Ramnarayan was in the Court-yard of the Wada, the accused came there walking fast from the side of Lokmat Chowk and coming near the gate of the Wada fired two rounds in the air. Then he entered inside the gate and was murmering. He had admitted that there were about 30 to 40 police officials present with arms. 24. The prosecution has examined P.W. 1 Badrinathsingh Thakur, Assistant Sub-Inspector of Police. Then he entered inside the gate and was murmering. He had admitted that there were about 30 to 40 police officials present with arms. 24. The prosecution has examined P.W. 1 Badrinathsingh Thakur, Assistant Sub-Inspector of Police. Since 1-1-1990, he was posted at Chandrapur as a Bell of Arms and it was his duty to distribute the arms and ammunitions to Police Officers. He has stated that he issues arms and ammunition to the officer as per the order of Superintendent of Police and if the officer is known to him personally, then he issues arms and ammunition directly. He was knowing the accused who was posted at Chandrapur as Probationer Police Sub-Inspector. On 22-8-1991 at about 8 p.m., he was at Reserve Police Quarter, Chandrapur and Shri Mishra orally ordered him to issue arms and ammunition to the officers going for patrolling. On that day at about 11 to 11.30 p.m., the accused came to him for arms and ammunition as he was deputed for patrolling duty. The accused demanded one revolver and live cartridges and on next day 23-8-1991 at about 2 a.m. in the night, he issued one revolver .455. But No. 10, body No. 413527 and live 30 cartridges. He made entries of the same in the register, also obtained the signature of the accused. He has stated that one cartoon contains 12 cartridges. He issued two packets each containing 12 cartridges and 6 loose cartridges. He has identified the revolver (Article 47). He has also stated that prior to 23-8-1991, some ammunition and arms i.e. one carbine 9 MMA and 90 rounds were issued to the accused on 26-7-1991. He further stated that the accused has not returned the said carbine and rounds, but on 13-10-1991 one police constable namely Nardat, B. No. 856 brought these articles from the police of Umri Police Station and deposited with him. 25. P.W. 2 Narayan was Police Head Constable attached to Umri Potdar Sub-Police Station at the relevant time. Since the accused was Police Sub-Inspector in that Police Station, he knows the handwriting of the accused. On 10-10-1991 the accused had taken the roll call of the staff and he has shown his departure at 1.15 p.m. and made entry in station diary. Thereafter he left the Police Station. He has proved the station diary entry at Exhibit 97. Since the accused was Police Sub-Inspector in that Police Station, he knows the handwriting of the accused. On 10-10-1991 the accused had taken the roll call of the staff and he has shown his departure at 1.15 p.m. and made entry in station diary. Thereafter he left the Police Station. He has proved the station diary entry at Exhibit 97. He was also shown the weekly diary which is in the handwriting of accused starting from 13-3-1991 to 9-10-1991 (Exh. 98). He was also shown the letters written by accused and he identified the handwriting in letters (Exhs. 42, 42-B to D). He has also identified the wrist watch of the accused. He also stated that Nagpur Police came at Umri Police Station and took the search of the quarter of accused and before taking search, the father of accused had come to Umri. In cross-examination, he has stated that accused was residing alone in the quarter. He did not know when accused had married. 26. P.W. 10 Dhanraj, P.W. 11 Ramesh, P.W. 12 Shri Krishna, P.W. 13 Santosh and P.W. 15 Shri Keduram the then Assistant Sub-Inspector, Panchagaon Out-post are the witnesses when accused was caught in village Pandharkawada, Tahsil : Kamptee, District : Nagpur on 18-10-1991 with revolver and cloth bag. P.W. 10 Dhanraj has stated that at about mid-night some 20 to 25 villagers of Pandharkawada went to the river in order to immerse the idol of Goddess and when they were returning towards village, at that time they saw one person i.e. accused sleeping on the bank of the river. He was having cloth bag. The revolver was kept on the cloth bag. This witness went near the accused and took the revolver in his hand. Accused woke up and stood. The other persons caught the accused, tied his hands with the help of Lungi and then they brought the accused in the village in the Pendal of Goddess and made enquiry with him. Accused gave his name and told them that he committed the murder of Ramnarayan and his brothers with the revolver. His bag was searched. One Safari, one white Chaddar and four letters and also one torn letter, four empty cartridges were found. These articles were kept near the pendal and they informed the Police Patil of the village namely Santosh Thakare (P.W. 13). His bag was searched. One Safari, one white Chaddar and four letters and also one torn letter, four empty cartridges were found. These articles were kept near the pendal and they informed the Police Patil of the village namely Santosh Thakare (P.W. 13). P.W. 13 came there, made enquiry with the accused and then Police Patil went to give report to Police Chowki, Panchgaon. The accused was kept in the pendal of the Goddess and the villagers were keeping watch on him. P.W. 13 brought the police with him. The accused handed over all the articles to the police. Police found five cartridges in the revolver and they took the accused with them. This witness has stated that the face of the accused appeared normal. There was no injury on the face of the accused. They identified the accused in Court. In cross-examination, he has stated that accused was wearing fullpant and shirt and he had no money. Accused told them in the pendal that his revolver was loaded and they should not play with the revolver. He denied the suggestion that there was ""Mara Mari"" and in that ""Mara Mari"" the Dubey brothers sustained bullet injuries. He also stated that the eyes of the accused were not reddish and there was no injury to his lips. He further stated that he had inspected the body of accused and there was no injury on his person. 27. P.W. 11 Ramesh is a panch on the arrest panchanama and seizure of articles from the accused. P.W. 15 Shir Keduram Marai, Police Sub-Inspector, Police Station, Mounda inspected the clothes of the accused which he was wearing. After removing the shirt, the body of accused was inspected. There was no injury on his body. Panchanama was effected (Exhibit 119). He identified the clothes of the accused. He denied the suggestion that at time of arrest panchanama, there were 7 to 8 injuries on the person of accused. He also denied that there was swelling injury on the lip of the accused. 28. P.W. 12 Shir. Krishna Khandale was among the persons who had gone to immerse the idol of Goddess in the river. He was there when accused was caught. On asking, the accused gave his name and he also stated that he was in search of his wife and further that he was assaulted by three persons. 28. P.W. 12 Shir. Krishna Khandale was among the persons who had gone to immerse the idol of Goddess in the river. He was there when accused was caught. On asking, the accused gave his name and he also stated that he was in search of his wife and further that he was assaulted by three persons. He also told that he fired those persons. He was having one revolver. P.W. 10 Dhanraj took the revolver from the accused. The accused was also having cloth bag containing one white Chaddar only. This witness has not supported the prosecution. Therefore, he was cross-examined. He admitted that they took search of the cloth bag of the accused and they found one Safari Shirt, one white Chaddar, belt of the revolver, four letters and one torn letter. He was contradicted with portion marks A and B in his police statement. He also admitted that accused told them that he fired on Dubey brothers, two were dead and one was admitted in the hospital. Omissions regarding the statement of accused searching his wife, that there was scuffle between himself and Dubey brothers, in that scuffle he fired and also about the inqury on the person of accused are taken out. In cross-examination by accused, he has admitted that accused was having injuries on the left side shoulder, left hand and left wrist and also on the right shoulder and right wrist. His right eye was reddish. His lower lip was having swelling injury and those injuries were 7 to 8 days old. 29. P.W. 13 Santosh Thakare, the Police Patil of village Pandharkawada, has gone to the pendal of Goodess and made enquiry with the accused. The accused told him that he committed the murder of Dubey on account of enmity. The accused was having revolver and five live cartridges, one Chaddar and some other materials. He went to inform the police at Panchgaon Chowki and informed the police by giving the report in writing (Exh. 122). P.W. 15 Keduram, Assistant Sub-Inspector, came to Pandharkawada and took the accused with him. In cross-examination by accused, he stated that accused was saying that he came to Nagpur to search his wife and he was assaulted by three persons and in that scuffle the bullets were fired and he committed two murders. 122). P.W. 15 Keduram, Assistant Sub-Inspector, came to Pandharkawada and took the accused with him. In cross-examination by accused, he stated that accused was saying that he came to Nagpur to search his wife and he was assaulted by three persons and in that scuffle the bullets were fired and he committed two murders. He further stated that he is stating about the enmity of accused with three persons for the first time in Court. The Special Public Prosecutor requested for permission to cross-examine this witness and after permission was granted, he is cross-examined. This witness stated that in his report (Exhibit 122) he has mentioned each and every fact which was narrated by the accused and accused never stated about assault on him and therefore he has not mentioned it in his report. He has further admitted that he has not stated about the assault in his police statement. He stated that there was injury on the lower lip of the accused, but he has not stated it in his report (Exhibit 122). He has further admitted that since there was no injury on his lip he has not stated so in his report. 30. P.W. 15 Shri Keduram Marai was attached to Panchgaon Out-post as Assistant Sub-Inspector of Police on 18-10-1991. P.W. 13 Santosh-Police Patil of village Pandharkawada came to the out-post and informed him that one person having a revolver and live cartridges was caught by them. He accordingly recorded his report (Exhibit 122). Thereafter he made an entry in the station diary at Sr. No. 3 (Exh. 127) and went to Pandharkawada. He made enquiry to the accused about his name and residence. Then along with Police Patil and staff and the accused, he went to the spot where the accused was sleeping at Dhoriyapura Nallah and prepared panchanama (Exhibit 75). Then he attached revolver, cloth bag, one shirt, pant, white chaddar and revolver cord, five live cartridges, four empty cartridges, one belt, four letters and one torn letter from the accused. He prepared the panchanama (Exhibit 64). After coming to Police Chowki, he prepared occurrence report (Exhibit 129) and then prepared arrest panchanama (Exhibit 119). He also made entry of the articles which were found with the accused. That entry is at Exhibit 130. Then at about 11.30 a.m. he took the accused to Kuhi Police Station along with the seized articles. After coming to Police Chowki, he prepared occurrence report (Exhibit 129) and then prepared arrest panchanama (Exhibit 119). He also made entry of the articles which were found with the accused. That entry is at Exhibit 130. Then at about 11.30 a.m. he took the accused to Kuhi Police Station along with the seized articles. Then he was directed to produce the accused along with the property at Crime Branch, Nagpur. He, therefore, produced the accused before the Police Inspector Shri Verma of Crime Branch, Nagpur. In cross-examination, he admitted that accused was not sent for medical examination at Panchgaon. Similarly, he was not sent at the Primary Health Centre at Kuhi. 31. The evidence of P.W. 10 Dhanraj, P.W. 11 Ramesh and P.W. 15 Keduram shows that the accused was caught near Dhoriyapura Nallah with revolver and cloth bag containing the articles and he admitted the killing of two brothers and injuring the third. The learned Counsel for the accused has not disputed the arrest, seizure of articles from the accused, but he has disputed the evidence of Extra-Judicial confession as not reliable. The accused was caught there and it was but natural for the villagers of Pandharkawada to make enquiry of the accused and accused has disclosed about the incident to them. Though the accused was having loaded revolver, when P.W. 10 Dhanraj took the revolver in his hand, he asked P.W. 10 Dhanraj not to play with the revolver as it was loaded. When 20 to 25 persons of the village have caught the accused, the accused reposed the confidence and disclosed about the incident. The evidence of Extra-Judicial confession of these witnesses is reliabe. In the evidence of P.W. 12 Shri Krishna Khandale and P.W. 13 Santosh Thakare, the defence tried to suggest about scuffle between accused and deceased and the accused having injuries on his person. But in cross-examination, it is taken out that P.W. 12 Shri Krishna Khandale and P.W. 13 Santosh Thakare were improving upon their earlier versions. 32. P.W. 19 Mrs. Maya Bankar was Police Sub-Inspector in Dhantoli Police Station on the day of incident. From 9 a.m. to 9 p.m., she was on duty as Day Officer. She has stated that on 11-10-1991 at about 11 a.m. she received a phone call from a lady who made enquiry about Police Inspector Thakur. 32. P.W. 19 Mrs. Maya Bankar was Police Sub-Inspector in Dhantoli Police Station on the day of incident. From 9 a.m. to 9 p.m., she was on duty as Day Officer. She has stated that on 11-10-1991 at about 11 a.m. she received a phone call from a lady who made enquiry about Police Inspector Thakur. When she asked about the work, the lady informed her on phone that her husband was shot and he was lying and the firing took place near Vijayanand Society. That lady was frightened and that lady also told her name as Pande. Mrs. Maya Bankar has informed this incident immediately to Police Inspector Thakur and Control Room on phone and orally ordered Police Head Constable Yusuf to make entry in the station diary in respect of phone call and she immediately left the police station along with Police Sub-Inspector Tangade and the staff and went to the spot. She found that the mob had gathered in front of Mangalmurti Wada behind the Vijayanand Society. Assistant Commissioner of Police Shri Pawar (P.W. 22) had reached the spot earlier to her. She has stated that some empty cartridges and live cartridges and some utensils were lying in the Court-yard. Ramnarayan was lying in injured condition near the stair-case and he was not making any movements. He was having bleeding injuries. Assistant Commissioner of Police Shri Pawar told her that two injured persons were on the upstairs and they were to be removed to the hospital and then all the three Dubey brothers were sent to hospital. In cross-examination, she has amitted that the message which she received on phone from the lady was narrated to Police Head Constable Yusuf. She denied that lady told about the ""Mara Mari"". She has confirmed that she gave phone message to Police Inspector Thakur and Control Room on phone. 33. P.W. 20 Gitesh Muttamwar has deposed that Ramnarayan was the friend of his father. On 11-10-1991 at about 3 to 4 p.m., Police Inspector Thakur (P.W. 30) attached some articles from the custody of P.W. 6 Roma - one wrist watch and one live cartridge vide panchanama (Exhibit 110). 34. P.W. 22 Hemraj Narsinghrao Pawar was attached to Sitabuldi Division as Assistant Commissioner of Police at the relevant time. On 11-10-1991 at about 3 to 4 p.m., Police Inspector Thakur (P.W. 30) attached some articles from the custody of P.W. 6 Roma - one wrist watch and one live cartridge vide panchanama (Exhibit 110). 34. P.W. 22 Hemraj Narsinghrao Pawar was attached to Sitabuldi Division as Assistant Commissioner of Police at the relevant time. At about 11 a.m. on 11-10-1991 when he was proceeding from Variety Chowk towards Jhansi Rani Chowk on his official vehicle, he received a message from the Control Room that there was a firing behind Vijayanand Society on wireless. He immediately rushed to the spot. He saw one lady standing there on the spot. Stools, chairs, newspapers and some utensils were scattered in the Court-yard. He made enquiry with that lady and she was not in a position to speak about the incident. She was weeping and she only pointed out towards the staircase. When he went near the staircase, one person was lying there without any movements, in a pool of blood. He found blood stains on the staircase. Therefore, he went upstair. The door of the room was closed from inside. A boy opened the door. He was frightened. On entering the room, he found two persons lying on a cot in severe injured condition. They were making movements. He sent those two persons and also the third person who was lying near the staircase in Police Mobile to Medical College Hospital. When he came down, he noticed some live cartridges and some empty cartridges lying in the Courtyard. Police staff went to search for the accused. He sent that lady (P.W. 6 Roma) and some relatives of the injured persons to the hospital along with them. He has stated that he was conducting the chapter case between Dubey family and Fendar family. On requisition by Police Inspector Verma about the enquiry in the chapter case, he gave a reply (Exhibit 141) and he sent the copies of the chapter cases bearing Nos. 176 of 1991, 197 of 1991, 223 of 1991 and 433 of 1991. Xerox copies of the chapter cases are at Exhibits 106 to 108. He also sent the certified copies of Istegasha dated 21-8-1991 (Exhibit 142) and First Information Report dated 20-8-1991 (Exhibit 142-A) to Police Inspector Verma. He denied in cross-examination that he received a message that there was ""Mara Mari"" and bullet was fired. Xerox copies of the chapter cases are at Exhibits 106 to 108. He also sent the certified copies of Istegasha dated 21-8-1991 (Exhibit 142) and First Information Report dated 20-8-1991 (Exhibit 142-A) to Police Inspector Verma. He denied in cross-examination that he received a message that there was ""Mara Mari"" and bullet was fired. In his presence, the proceedings to prepare spot panchanama were started. 35. P.W. 23 Ramaji Chindhuji Kaurase took the accused to Government Medical College for medical examination on the requisition of Assistant Commissioner of Police of Crime Branch (Exhibit 144). The Medical Officer, after examining the accused, issued a Certificate and he handed over the same to A.C.P. Shri Paraskar. He gave his compliance report (Exhibit 145). 36. P.W. 24 Anil Vishnu Gujar who was Police Sub-Inspector in October, 1991 in Dhantoli Police Station received the case papers of Crime No. 264 of 1991 for further investigation. He recorded the statement of P.W. 18 Dilip Dubey and others. 37. P.W. 25 Vithal Namdeorao Zhamre, who was attached to Dhantoli Police Station, received the case papers on 12-10-1991 in respect of Crime No. 381 of 1991 for investigation. On 13-10-1991, he recorded the statement of two witnesses and also recorded the supplementary statement of P.W. 6 Roma. He has recorded the statements of P.W. 7 Bharati Dadulal Kashyap and P.W. 8 Dadulal Kashyap and proved the contradicted portions in the statement of P.W. 7 Bharati (Exhs. 148-A to 148-D) and in the statement of P.W. 8 Dadulal (Exhs. 149-A to 149-E). On 16-10-1991, he prepared a requisition letter in the name of Chemical Analyser Office, Bombay. The office copy of that letter is at Exhibit 47. The property was sent actually by the Crime Branch. On 18-10-1991 Crime Branch produced the seized property i.e. the revolver, live cartridges and letters. That property was entered in the Muddemal register and he made search for the accused but he was not found. He denied the suggestion that the Crime Branch illegally investigated the crime on 18-10-1991. He produced the accused before the Judicial Magistrate, First Class for P.C.R. on 19-10-1991. 38. P.W. 26 Akaram Khaole was attached to Crime Branch, Nagpur as Police Head Constable. On 24-10-1991, he carried the three viscera of deceased and blood samples to Forensic Laboratory, Nagpur. The Forensic Laboratory accepted the viscera and blood samples were returned to him. He produced the accused before the Judicial Magistrate, First Class for P.C.R. on 19-10-1991. 38. P.W. 26 Akaram Khaole was attached to Crime Branch, Nagpur as Police Head Constable. On 24-10-1991, he carried the three viscera of deceased and blood samples to Forensic Laboratory, Nagpur. The Forensic Laboratory accepted the viscera and blood samples were returned to him. On 26-10-1991, he along with Police Sub-Inspector Newin, carried the attached property which were lying on the spot along with the report of Police Inspector Verma and Police Inspector, Dhantoli to Bombay. Exhibit 48 is the requisition letter of Police Inspector Verma and Exhibit 47 is the report of Police Inspector, Dhantoli. The property were handed over to ballistic expert and as per Exh. 47 the Police Head Constable Janardhan handed over the clothes of the deceased to Chemical Analyser. He produced compliance report (Exhibit 151). He brought the X-ray plates of deceased from LMJ Office. On 5-12-1991, he carried the X-ray plates to Bombay along with requisition letters (Exhs. 58 59). He also carried the slippers to Chemical Analyser, Bombay. He produced the compliance report (Exh. 152). 39. P.W. 27 Madhav Vishwanath Vaidya is a panch witness on the spot panchanama. On the spot near the Mango tree, three live cartridges and five empty cartridges and one brown paper box were found. At a distance of 7 to 8 feet, four empty cartridges were found. One slipper was lying there. Near the water tank, five empty cartridges and five lids and one spect were lying. Some chairs, newspapers stool and some utensils were lying in the Court-yard. All these articles were attached in his presence. Blood-stains were found on the staircase. Police took the samples of the blood. In the first room upstair, there was pool of blood. Blood-stains were found on the wall. Pieces of bangles were also lying there. Police prepared spot panchanama (Exhibit 154) and seized the articles found on the spot in his presence. Thereafter, the Police took the house search of the accused. The door of the house was locked from outside. Police broke open the lock. One suit case was found on the cot. After opening it, one revolver cover, one empty cartridge box, one diary letters, one label of this box, clothes and one empty ammunition box with torn label (Article 32) were found. Police seized all the articles along with the suit case. Police broke open the lock. One suit case was found on the cot. After opening it, one revolver cover, one empty cartridge box, one diary letters, one label of this box, clothes and one empty ammunition box with torn label (Article 32) were found. Police seized all the articles along with the suit case. Panchanama was prepared (Exhibit 155). 40. P.W. 28 Dr. Mohd. Zakir son of Mohd. Ibrahim Ansari was working as Casualty Medical Officer in Government Medical College, Nagpur in the year, 1991. He received requisition (Exh. 144) for examination of accused. On examination, he found no injury on the body of accused except old healed scar over left forearm upper ¹/3 rd and back over left shoulder blade region. On clinical examination, he found that there were no injuries on the body of accused and there was no disease. He issued the certificate (Exh. 158). He stated in cross-examination that if the injuries are within 6 hours, at the time of examination, they may be called ""fresh injuries"" and injuries prior to 6 hours may be called ""old injuries"". In case of abrasion, there is blood clotting and later stage is accumulation of crust. Thereafter the crust becomes scape. In case of abrasion there is no scar. This process is known as ""healing"". If the injury is deep one, the scar appears. He stated that healing process may be completed within a week and old scar is different one than the old healed scar. If the scar is freshly healed, it will be tender and the colour of centre of scar will be different from the colour of the rest of the skin. He denied that the two healed scars on the person of accused were freshly healed. 41. P.W. 29 Shri Mushtaq Ahmad Niyazi was Special Judicial Magistrate, Nagpur in the year 1991. He received requisition from Chief Judicial Magistrate, Nagpur for recording the statements of witnesses under section 164 of Code of Criminal Procedure and he accordingly recorded the statements of witnesses. 42. P.W. 30 Deonathsingh Ramgovindsingh Thakur was attached to Dhantoli Police Station as Police Inspector since 15-12-1989 to 12-10-1991. On 11-10-1991 at about 11.05 a.m., he received a phone call from Mrs. Maya Bankar (P.W. 19) about firing behind Vijayanand Society in Mangalmurti Wada. 42. P.W. 30 Deonathsingh Ramgovindsingh Thakur was attached to Dhantoli Police Station as Police Inspector since 15-12-1989 to 12-10-1991. On 11-10-1991 at about 11.05 a.m., he received a phone call from Mrs. Maya Bankar (P.W. 19) about firing behind Vijayanand Society in Mangalmurti Wada. Therefore, he immediately rushed to the spot at about 11.25 a.m. Assistant Commissioner of Police Shri Pawar (P.W. 22), with police staff, had already reached the spot. The injured persons were already removed to the hospital. He prepared the spot panchanama (Exh. 154) and he conducted the house search and seized the articles as per panchanama (Exhibit 155). He recorded the statement of P.W. 6 Roma (Exhibit 109). Assistant Commissioner of Police Shri Pathak informed him that one lid was found in his car as he was carrying Ramnarayan Dubey to hospital. He went to Police Station and registered the offence bearing Crime No. 381, under sections 302, 307 of Indian Penal Code and under section 4/5 of Indian Arms Act. The printed First Information Report is at Exhibit 163. He attached the lid from A.C.P. Pathak under panchanama (Exhibit 67). He again came to the spot and recorded the statement of P.W. 14 Mahesh, P.W. 5 Alka Jachak and P.W. 9 Kokila Raut. P.W. 6 Roma produced before him one live cartridge and wrist-watch. He seized the same under panchanama (Exhibit 110). He gave directions to the staff to search for the accused. On 12-10-1991 at about 8.25 a.m., on the basis of complaint of P.W. 16 Damodhar Kaware the offence under section 4/25 of Indian Arms Act was registered against the accused vide Crime No. 264 of 1991. He also prepared the spot panchanama (Exhibit 135). He has stated that during his tenure at Dhantoli Police Station, Ramnarayan filed complaints against accused from time to time and action was taken against the accused on the basis of those complaints. One complaint was also lodged against the brother of accused named Nandkishore. On the basis of report, a Police guard was posted for the protection of Dubey family and offence under section 353 of Indian Penal Code was registered against Nandkishore. He denied the suggestion that Dubey was his friend. He admitted that on 7-10-1991, mother of accused filed a report against Dubey in respect of threatening them. He denied that on 20-8-1991, 19-9-1991 and 21-9-1991 Fendar family lodged any reports against Dubey family. He denied the suggestion that Dubey was his friend. He admitted that on 7-10-1991, mother of accused filed a report against Dubey in respect of threatening them. He denied that on 20-8-1991, 19-9-1991 and 21-9-1991 Fendar family lodged any reports against Dubey family. He also admitted that on the basis of complaint dated 7-10-1991 of the mother of accused, he issued direction to Police Sub-Inspector to make enquiry and take preventive actions against Dubey. As the matter was under enquiry, no offence was registered. On 25-6-1991, Ramnarayan lodged a report against the accused for threatening to kill him in the presence of Police Inspector Mobin and Police Inspector Mobin also lodged a report against the accused in respect of that incident. Police Sub-Inspector Tiwari was ordered to make enquiry and take preventive action against the accused under section 151 of the Code of Criminal Procedure. His statement was recorded by the Crime Branch on 18-11-1991. He has admitted that he stated before police that on 18-4-1991 there was ""Mara Mari"" between accused and Arvind and Ramnarayan intervened and he has beaten accused and Sanjay Jachak with beer bottle. He has stated that there was no question to register any offence against Dubey. Moreover, there was no complaint from anybody in this matter. He also admitted to have stated before the Crime Branch that there was ""Mara Mari"" near Vijayanand Society. He has further admitted that he did not make mention of the chairs in the spot panchanama and he did not attach utensils and chairs due to oversight. He denied the suggestion that he harassed Jachak and Fendar Family by obtaining the reports from Dubey family from time to time. 43. The evidence of P.W. 31 Raju Keche is only on the point that after the incident, P.W. 6 Roma came to his shop in the premises of Vijayanand Society in a frightened condition and informed him that accused is firing at Ramnarayan and asked him to go there. When he went to Mangalmurti Wada, because of the crowd he could not see anything. 44. P.W. 32 Dr. Haribhau Tanbaji Katade is a Professor and Head of Forensic Medicine and Toxicology, Government Medical College, Nagpur. On 11-10-1991, at about 12.10 p.m., he examined Badrinarayan Dubey and found the following injuries on his person : ""1. Rifle fire arm injury situated at right lumber region 1 cm. x 1 cm. 44. P.W. 32 Dr. Haribhau Tanbaji Katade is a Professor and Head of Forensic Medicine and Toxicology, Government Medical College, Nagpur. On 11-10-1991, at about 12.10 p.m., he examined Badrinarayan Dubey and found the following injuries on his person : ""1. Rifle fire arm injury situated at right lumber region 1 cm. x 1 cm. wound is circular with tragged margins, inverted, abrasion collar is present of prolepse of omentum seen. It is wound of entry. 2. Penetrating wound right thigh midthigh anteriorly, ½"" in diameter, oval oozing present, ragged margines, edematus edges are everted. It is suggestive of wound of exit. Peripheral pulsation were felt. 3. Penetrating wound at right lateral mid-thigh ½ cm. in diameter, oval in shape, ragged margines, abrasion collar present around the wound, edges are inverted. It is suggestive of wound of exit. 4. Injury situated left thigh lateral aspect upper 1/3rd, ½cm. in diameter, oval in shape, ragged margine, edges are everted. It is suggestive of wound of exit. 5. Injury situated anteriorly left thigh lower 3rd, oval in shape, ½ cm in diameter, margins are ragged, abrasion collar present, around the wound. Peripheral pulsation were felt, oozing present, it is suggestive of wound of entry. 6. Penetrating wound left side of penis, oval ragged margins, inverted, ½ cm. x ½ cm. penis edematous. Abrasion collar present, around the wound. It is suggestive of wound of entry. 7. Lacerated wound right fore arm inner aspect, 4 cm. x 1 cm. upper 3rd, with 1 cm. x 1 cm. Collapse of lacertated muscles tenderness present, ragged edges, radial pulse present. it is suggestive of wound of exit. 8. Injury situated at right fore arm, lower 3rd, on dorsum surface 1 cm. in diameter, oval shaped, edges are ragged, inverted, oozing present. Abrasion collar present around the wound. It is suggestive of wound of entry. 9. Lacerated wound dorsum of right hand 5 cm. x 1 cm. over the 2nd and 3rd metacorpus under the bone and tend on exposed. Mobili cannot be tested. 10. Abrasion situated at anterior aspect of right leg verticle 16 cm. x 1 cm. 11. Abrasion at right knee 1 cm. x 1 cm. 12. Penetrating wound 1 cm. x 1 cm. situated at left buttock communicated with anus near and verge. It is suggestive of wound of exit. 13. Abrasion left knee ½ cm. x ½ cm. 14. 10. Abrasion situated at anterior aspect of right leg verticle 16 cm. x 1 cm. 11. Abrasion at right knee 1 cm. x 1 cm. 12. Penetrating wound 1 cm. x 1 cm. situated at left buttock communicated with anus near and verge. It is suggestive of wound of exit. 13. Abrasion left knee ½ cm. x ½ cm. 14. Abrasion anterior aspect of left leg ½ cm. x ¾th cm. 15. Abrasion at right great toe ½ cm. x ½ cm. 16. Abrasion situated at front of leg 2 cm. x ½ cm. below the injury No. 14."" Badrinarayan Dubey was referred for X-ray of his body and the X-rays were accordingly taken. At about 12.45 p.m., the patient was operated upon by the Surgeon. This witness was present at the time of operation. He also prepared the operation notes, the details of which are as below: ""The patient was operated under general anaesthesia by right Paramedial incision, abdomen was opened. There was haemoperitoneum. There was a rent 7.5 cms. wide in the mesentric root with a big retroperitoneal haematoma on right side. Haemoperitoneium means, bleeding in the abdominal cavity, rent means tear, Mesentric root means attachment of intestine. There were 10 perforations in ilium. Ilium is the part of intestine. Out of these 10 perforations, 2 were 2.5 cm. in size with intestine transaction and tearing of it mesentric. There was a 7.5 cm. wide rent in mesentry near of Ileo-caecal junction (2.5 cm. away). Communicating with retro peritoneum space. Retroperitoneum haematma was explored after mobilising the ascend in colon. There was a haematoma of 10 cm. x 7.5 cm. sitting over the iliac vessel. Iliac vessel was not injured. Psoas muscle was torn with the rent of 5 cm. x 5 cm. up the tranverse process of shattered. Left 5th lumber vertebra and sacrum bone deep. Lumber 5 transverse psoases was shattering to pieces. There was a 2.5 cm. x 1.5 cm. wound in sacrum anterior aspect. There was no injury to vessels and nerves at right lumber region. Right Kidney was normal. Liver, spleen and visceral organs were normal. Rest ilium including except ilium and jugnunam was normal. Intestinal resection including all the perforation about 1 foot in length were resected and anasgormosis was done in two layers. Mesentric rent was closed. Rent in the psoas was packed with gel foam. Right Kidney was normal. Liver, spleen and visceral organs were normal. Rest ilium including except ilium and jugnunam was normal. Intestinal resection including all the perforation about 1 foot in length were resected and anasgormosis was done in two layers. Mesentric rent was closed. Rent in the psoas was packed with gel foam. After achieving of haemostsis psoas muscle defect and posterior periotoneal flap was closed. After the keeping of drain at retroperitone space, abdomen closed in level. Wound of left penis, case and both the thighs were debrided and locally explored, and they were closed after achieving of Haemostasis. Wound of left natal cleft was explored. And bullet found which is taken out from left sacral space and the wound closed. He proved the injury certificate (Exhibit 170) and also the notes of operation. He also examined the clothes of Badrinarayan i.e. Bengali Shirt, Pyjama, and Pillow cover. All these clothes were blood stained. On examination of clothes, following observations were made : ""A. Bengali Shirt.---It is made up of Terricot, shows the following tear marks--- 1. Irregular tear mark 3 cm. x 1 cm. oblique right front flank of the shirt which is 20 cm. inner to lateral border and 30 cm. above the lower border. Greasing around cut mark. Move towards the outer aspect. It is corresponding to injury No.1. 2. Irregular circular opening at front of right 1 cm. x 1 cm. in size and 16 cm. inner to outer aspect and 9 cm. above the lower border blackening due to greasing was present and outer aspect around the tear mark. 3. 1 cm. x 1 cm. irregular circular opening which is 2 cm. below and 2 cm. outer to tear mark No. 2 shows greasing on inner aspect. 4. Irregular circular opening below the tear mark No. 3 and 5 cm. outer to it and 3 cm. below to it. Blackening due to greasing on outer aspect. Bullet entered to the tear No. 2 and came out from 3 and again entered in the body through tear No. 4 which is corresponding to injury No. 2. 5. Irregular circular opening 1 cm. x 1 cm. at front of right flank, 7 cm. inner to outer border, bengali shirt and ½ cm. above lower border of shirt which is corresponding to injury No. 3. 5. Irregular circular opening 1 cm. x 1 cm. at front of right flank, 7 cm. inner to outer border, bengali shirt and ½ cm. above lower border of shirt which is corresponding to injury No. 3. B-Pyjama : It is made of Terricot which is blood stained and shows the following cut marks : ""1. 1 cm. x 1 cm. irregular opening at front of right side of pyjama 16 cm. below the upper border of waist stripe and 12 cm. inner to outer border. Blackening due to greasing material was present which is more on upper aspect. 2. Irregular, circular opening 1 cm. x 1 cm. at front of right side of pyjama which is 25 cm. below the upper border of waist stripe and 7 cm. inner to outer border (stitched). It is corresponding to injury No. 3. 3. Left side of pyjama at front shows L shape cut mark which is 1 cm. it is 38 cm. below from upper border of waist stripe and 60 cm. in outer inner stitched line. It is corresponding to injury No. 4. 4. Irregular circular marking size ¾ cm. x ¾ cm. at front left side of pyjama which is 50 cm. below from the upper border of waist stripe, and 3.5 cm. outer to inner stitched line, blackening due to greasy material was present around the tear mark. It is corresponding to injury No. 5."" The dead body of Badrinarayan was sent to this witness on 14-10-1991 for post-mortem examination. On external examination of the dead body of Badrinarayan, he found the following injuries: ""1. Oval opening at outer aspect of lower 1/3rd of right forearm, 5 cm. above the wrist joint, outer aspect 1 cm. x. 1 cm. margins were inverted, suggestive of wound of entry. Injury situated at above 96 cm. above the heel. 2. Injury of size 10 cm. x 6 cm. at the inner aspect of middle 1/3rd of right forearm skin was absent and a few muscles, tissues were debrided as a part of treatment. Wound Nos. 1 and 2 were communicating to each other, in between there was communicate fracture of lower 1/3rd radium bone. Hence, wound No. 2 is a wound of exit. Tract is 8 cm. in length. Direction below above. 3. Sutured wound at dorsum of right hand 9 cm. in length. 4. Wound Nos. 1 and 2 were communicating to each other, in between there was communicate fracture of lower 1/3rd radium bone. Hence, wound No. 2 is a wound of exit. Tract is 8 cm. in length. Direction below above. 3. Sutured wound at dorsum of right hand 9 cm. in length. 4. Sutured wound at outer aspect of the base of index finger of right hand. These stitched wound was continue with the injury No. 2. 5. Stitched wound which was situated at the right middle, para-mediam 20 cm. in length which is suggestive of surgical wound. 6. Stitched wound, 3 cm. in length, oblique in direction right lumber region of the abdomen, which is 98 cm. above the heel. Abdomen was opened and tract traced. It was found that stitched wound at alium 10 cm. in length including the mesentry on the both sides involving hole ilium suggestive of resection anastomosis. Stitched wound 7.5 cm. in length at right side of mesentry, 5 cm. above the Iliocecal Junction. Stitched wound at right psoas muscle was stitched. Transverse process of lumber show fracture. There was sacroiliac shows scappolling (gutter type). This came out at posterior surface of upper 1/3rd of sacrum size 2.5 cm x 1.5 cm. x 4 cm. same communicated with injury No. 20. 7. Opening of 2 cm. in length at right flank of abdomen shows rubber corrugated drain tube. 8. Stitched wound at base of left side of penis 2 cm. in length it was explored and show the following findings. Symphysis pubis of left side, lower side show scapolling, tract desected out and it communicating with injury No. 21. Structures are involved symphysis pubis muscle and anorecetral junction. Anal Canal was involved through and through. Length of the tract is 18 cm. 9. Stitched wound 1.5 cm. in length, vertical in direction at front of right thigh middle 1/3rd. The wound was explored and it was opened to injury No. 18. The tract was 12 cm in length only muscle were involved. It was 70 cm. above the heel. 10. Abrasion situated at 1 cm. x ½ cm. at front of right knee. 11. Abrasion at the front of right leg 16 cm. x ½ cm. lower 1/3rd ventricle. 12. Stitched wound at the front at medial of right leg, lower 1/3rd suggestive of surgical venesection, which was 2 cm. in length. 13. above the heel. 10. Abrasion situated at 1 cm. x ½ cm. at front of right knee. 11. Abrasion at the front of right leg 16 cm. x ½ cm. lower 1/3rd ventricle. 12. Stitched wound at the front at medial of right leg, lower 1/3rd suggestive of surgical venesection, which was 2 cm. in length. 13. Stitched wound 1.5 cm. in length front and inner of left thigh lower 1/3rd. 52 cm. above the heel. Wound was explored it was communicate to injury No. 17. Only muscles were involved. Length of tract was 16 cm. Direction below upwards right to left, front to back. 14. Abrasion at front of left leg 4 cm. below the knee ½ cm. x ½ cm. 15. Abrasion at front of left leg, 12 cm. below the knee joints ¾th cm. x. ½ cm. 16. Abrasion at front of left leg, 2cm x ½ cm, 2 cm. below the injury No. 15. 17. Stitched wound 2 cm. in length interior aspect of left thigh mid 3rd. It is above 66 cm. above the heel. It was inter connect with injury No. 13. 18. Stitched wound 2 cm. in length outer aspect of backside mid 1/3rd of right thigh. It was 63 cm. above the heel. It was communicate with injury No. 9. 19. Abrasion at right great toe, ½ cm. x ½ cm. 20. Stitched wound at saceral area 3 cm in length. 21. Stitched wound 1.5 cm in length at inner, lower right glutial region near the anal cleft, 7 cm. below the coccy's. It was connected with injury No. 8. 22. There was palling of skin of scrotum 3 cm. x 3 cm. The age of these injuries were within 2 to 3 days old. All injuries were ante-mortem."" The injuries mentioned in Exhibit 170 corelate to the injuries mentioned in Column No. 17 of the post-mortem report, which are as follows : ""Injury No. 1, Exh. 22. There was palling of skin of scrotum 3 cm. x 3 cm. The age of these injuries were within 2 to 3 days old. All injuries were ante-mortem."" The injuries mentioned in Exhibit 170 corelate to the injuries mentioned in Column No. 17 of the post-mortem report, which are as follows : ""Injury No. 1, Exh. 170 was corresponding to injury No. 6 of Column No. 17 of P.M. Notes, like injury No. 2, with injury No. 9, injury No. 3 with injury No. 18, injury No. 4 with injury No. 17, injury No. 5 with injury No. 13, injury No. 6 with injury No. 8, injury No. 7 with injury No. 2, injury No. 8 with injury No. 1, injury No. 9 with injury No. 3, injury No. 10 with injury No. 11, injury No. 11 with injury No. 10, injury No. 12 with injury No. 21, injury No. 13 with injury No. 14, injury No. 14 with injury No. 15, injury No. 15 with injury No. 19, injury No. 16 with injury No. 16. Injury No. 5 of column No. 17 of P.M. Notes, was due to surgical, injury No. 7 due to drain tube, injury No. 12 was due to venesection, injury No. 20 due to bullet removal, injury No. 22 was palling of skin which was caused due to odema of scrotum. All these injuries were sufficient to cause the death in the ordinary course of nature. Injury No. 6 mentioned in Column No. 17 was individually sufficient to cause the death in the ordinary course of nature. All other injuries were collectively sufficient to cause the death in ordinary course of nature."" He preserved viscera, blood, skin and muscle collected from the injuries. He proved the post mortem report Exhibit 171. He has given the direction of injuries. He has opined that from the direction of Injuries No. 5 and 8 of Exhibit 170, the victim was on the upper level and the assailant was on the lower level at the time of firing. The injuries Nos. 10, 11, 13, 14, 15, 16 can be possible if the injured persons climb the staircase. One bullet was recovered from the body of Badrinarayan. The patient could not survive and was declared dead at 4.15 p.m. on 13-10-1991. In the opinion of Dr. Katade (P.W. 32), the person died due to firearm injury and its complication. The injuries Nos. 10, 11, 13, 14, 15, 16 can be possible if the injured persons climb the staircase. One bullet was recovered from the body of Badrinarayan. The patient could not survive and was declared dead at 4.15 p.m. on 13-10-1991. In the opinion of Dr. Katade (P.W. 32), the person died due to firearm injury and its complication. 45. On the same day i.e. on 11-10-1991 at about 12.15 P.M., he examined Shyamnarayan Dubey. P.W. 32 Dr. Katade found the following injuries on his person : ""1. Penetrating injury at the level of xiphisternum 1 cm. x 1 cm. edges are ragged, inverted obliquely situated, abrasion collar seen, oval shape. It is suggestive of wound of entry. 2. Penetrating injury in mid-auxillary line at left side 8 cm. below and lateral to hipple size 1 cm. x. ½ cm. edges are ragged, oozing present, edges are everted. It is suggestive of wound of exit. 3. Penetrating injury at left shoulder size ¼ cm. x ¼ cm., oozing present. Edges are everted, it is situated at front side, it is wound of exit. 4. Penetrating injury, left side 2.5 cm. posterior and lateral anterior superior iliac spine size 2 cm. x 2 cm. Edges ragged and inverted. It is suggestive of wound of entry. Abrasion collar was present. 5. Penetrating injury with ragged iliac situated at left junction of upper and middle 3rd thigh on anterio middle aspect ¼ cm. x ¼ cm.; oozing was present. Abrasion collar was present, edges were inverted. It was suggestive of wound of entry. 6. Penetrating injury with ragged everted edges situated at left thigh upper 3rd on posterior middle aspect oozing present. Size 1 cm. x 1 cm. It was the wound of exit. 7. Penetrating injury situated on right side of chest 3 cm. below and lateral to nipple at anterior auxillary line, edges were ragged inverted, oblique in direction. Abrasion collar was present. Oval in shape, size 1.5 cm. x 1 cm. It was wound of entry. 8. Penetrating injury in mid-calavicular line right side of the chest, just above 1 cm. of costal margin 1.5 cm. x 1 cm. oblique oval shape abrasion collar was present. Edges were ragged and inverted. It was wound of entry. 9. Penetrating injury on the anterior aspect of right thigh in mid 3rd area, size 1 cm. x 1 cm. 8. Penetrating injury in mid-calavicular line right side of the chest, just above 1 cm. of costal margin 1.5 cm. x 1 cm. oblique oval shape abrasion collar was present. Edges were ragged and inverted. It was wound of entry. 9. Penetrating injury on the anterior aspect of right thigh in mid 3rd area, size 1 cm. x 1 cm. edges were ragged and inverted. It was the wound of exit. 10. Penetrating injury on right thigh size 1 cm. x 1 cm., 5 cm. of the upper margin of the Petella on the lateral aspect. Abrasion collar was present, Edges were inverted. It was wound of entry."" The patient was immediately shifted to X-ray Department for taking X-rays of his body and then sent to operation theatre for explorative leprotomy. At the time of operation also, this witness was present. He has proved the injury certificate (Exhibit 172) and the operation notes. Shyamnarayan Dubey died on 18-10-1991. 46. On 11-10-1991, he performed autopsy on the dead body of Ramnarayan Dubey. He removed the cloth on the (v.o.) and sent the body for X-ray examination at 2.30 P.M. From 2.30 to 4 P.M. he examined the clothes of the deceased. He conducted the post-mortem examination from 4 P.M. to 6.30 P.M. The clothes viz. Bengali shirt, Bandi, Underwear, Pyjama and Chadder were stained with blood. On examination of clothes, the Bengali shirt showed the following cut marks --- ""1. Tear at front of right flap on chest irregular size 3 cm. to 2 cm., 4 cm. away from button strip and 14 cm. below from upper collar. There are only tags of cotton with bloodstains, oblique circular shape, blackening around the tear due to grazy material was present. It is suggestive wound of entry of firearm an it is corresponding to injury No. 1 of column No. 17. 2. Tear at the lower part of the right side of button plate 2.5 cm. x 1 cm. at the base of button plate. It is bloodstained. No corresponding injury seen at banian and the body. Hence it is suggestive of old tear. 3. Tear at front right side of flap 20 cm. below the shoulder plate, 7 cm. inner to outer front stitched line shape of tear is I. A transverse is 0.5 and verticle 1 cm. It is corresponding to injury No. 2 and cut mark of banian No. 2. Hence it is suggestive of old tear. 3. Tear at front right side of flap 20 cm. below the shoulder plate, 7 cm. inner to outer front stitched line shape of tear is I. A transverse is 0.5 and verticle 1 cm. It is corresponding to injury No. 2 and cut mark of banian No. 2. 4. Tear at front of left flap, lower part 23 cm. above the lower margin and 4 cm. inner to stitiched outer stripe size, 1.5 cm. x ½ cm. There is blackening around the tear marked due to greasing circular shape. It is corresponding to injury No. 5 of column No. 17. 5. Tear mark at the outer aspect of front left flap which shape, transverse 2.5 cm. and verticle 3 cm. and 1.5 cm. away from outer left front stitched line and 20 cm. above lower margin. It is corresponding to injury No. 1 of column No. 17. 6. Irregular tear mark below the tear No. 5 (0.5 cm. below) size 3 cm. x 2 cm. it is corresponding to injury No. 9 of column No. 17. 7. Irregular tear mark, front inner aspect of left arm, size 3 cm. x 1.5 cm. blackening around the tear mark at upper 2/3 shows due to greasing i.e. 2 cm. x 1.5 cm. It is 12 cm. below from shoulder stripe and it is outer 5 cm. from the stitched inner line of sleeves circular in shape. It is corresponding to injury No. 12, of column No. 17. 8. Irregular tear mark at back side of right sleeve 3 cm. x 2.5 cm. circular in shape from lower part tear continued for 2.5 cm. It is 16 cm. away from the shoulder stripe line. It is corresponding to injury No. 10 of column No. 17. 9. Irregular tear mark at on back side right half 51 cm. below the upper border and 14 cm. inner to right outer stripe border shape is transverse 2 cm. verticle 1 cm. it is corresponding to injury No. 13 of Column No. 17. On Banyan, there were following cut marks : ""1. Irregular circular tear, size 2 cm. x 1 cm. on right side front 20 cm. below the upper part of collar, 2 cm. away from mid line. It is corresponding to injury No. 1, of column No. 17 and tear mark over the shirt serial No. 1. On Banyan, there were following cut marks : ""1. Irregular circular tear, size 2 cm. x 1 cm. on right side front 20 cm. below the upper part of collar, 2 cm. away from mid line. It is corresponding to injury No. 1, of column No. 17 and tear mark over the shirt serial No. 1. 2. Irregular circular tear mark at front of right side flap 1 cm. x 1 cm. blackening due to greasing material. 30 cm. below the upper stripe and 8 cm. inner to outer stripe border of right side. It is corresponding to injury No. 2 of column No. 17 and tear mark (v.o.) No. 3 of shirt. 3. Irregular circular tear mark, 1 cm. x 1 cm. 40 cm. below the upper shoulder stripe and 4 cm. inner to outer stitched line on back side, right half. It is corresponding to injury No. 13 of column No. 17. 4. Irregular circular opening of 2 cm. x 1 cm., on back side, right half 2 cm. inner to outer stripe and 45 cm. below the upper shoulder stripe."" On pyjama, the following cut marks were found : 1. Irregular opening at the front of right part 2 cm. x 0.5 cm. vertical oblique, 9 cm. below the waist stripe and 9 cm. inner to out right border. Blackening due to greasing seen. It is corresponding to injury No. 3 of column No. 17. 2. Irregular circular opening 1 cm. x 1 cm. front of right part 5 cm. below the waist stripe, 17 cm. inner to right outer border blackening greasing. Shown in front (outer part). 3. Irregular circular opening 1.5 cm. x 1 cm. 0.5 cm. inner to tear mark No. 2 blackening shows on inner part due to greasing material. 4. Irregular circular opening 1.5 cm. x 1 cm. on right front 7 cm. below the upper waist stripe and 24 cm. inner right border. Blackening due to greasing seen on the outer aspect. Tear mark Nos. 2, 3 and 4 are corresponding to injury No. 6 of column No. 17. Bullet entered from tear mark No. 2 and came out from tear mark No. 3 and again entered through tear mark No. 4 and caused the injury to body. It is due to folding of clothe of pyjama. 5. Irregular circular opening at front part of pyjama 13 cm. Bullet entered from tear mark No. 2 and came out from tear mark No. 3 and again entered through tear mark No. 4 and caused the injury to body. It is due to folding of clothe of pyjama. 5. Irregular circular opening at front part of pyjama 13 cm. below the upper waist part and 1.5 cm. away from mid stitched line blackening due to greasing was present. It is corresponding to injury No. 8 of column No. 17 (right side). 6. Irregular circular mark 1 cm. x 1 cm., 15 cm. below the upper stripe and nearer to stitched mid line. Blackening was present due to greasing. It is corresponding to injury No. 9 (right side). 7. Irregular circular mark at left front of pyjama, 1 cm. x 1 cm. 14 cm below the upper waist stripe and 15 cm. inner left outer border. Blackening due to greasing. It is corresponding in injury No. 7 of column No. 17. 8. Irregular circular opening 1 cm. x 1 cm. at front of left 8 cm. below upper stripe (waist) and 7 cm. inner to waist outer stripe blackening due to greasing was present. It is corresponding to injury No. 6 of column No. 17. 9. Irregular opening on the back of left side 1 cm. x 1 cm. 14 cm. below the upper waist stripe, 12 cm. inner to outer stripe of left side. It is corresponding to injury No. 14 of column No. 17. 10. Irregular circular mark, 1 cm. x 1 cm. 1 cm. inner to tear part No. 9 on the left back side suggestive of old tear as there is no tear mark on underpant. 11. Irregular circular mark, 1.5 cm. x 1 cm. on back of left side, 29 cm. below the upper left waist area and 16 cm. inner to left outer border. It is corresponding to injury No. 17 of column No. 17. 12. Irregular opening 2 cm. x 1 cm. back of left buttock area, 3 cm. below upper waist stripe and 3 cm. outer to mid line. It is old tear, as there is no corresponding tear mark or injury to the underpant and body respectively. 13. Irregular circular mark 1.5 cm. x 1 cm. on right half back side, 17 cm. below the upper waist stripe and central stitched line involved in tear mark. below upper waist stripe and 3 cm. outer to mid line. It is old tear, as there is no corresponding tear mark or injury to the underpant and body respectively. 13. Irregular circular mark 1.5 cm. x 1 cm. on right half back side, 17 cm. below the upper waist stripe and central stitched line involved in tear mark. It is corresponding to injury No. 16 of column No. 17. 14. Irregular circular tear mark, 1 cm. x 1 cm. at right buttock area, 13 cm. below upper part of waist belt area and 2.5 cm. outer to mid stitched line. It is corresponding to injury No. 15 of column No. 17. 15. Irregular cut mark, at the right outer border, 3 cm. below the upper stripe. 1.5 cm. x 1.5 cm. inside. There is no any bloodstains and any greasestain and no corresponding cut mark, over the underpant hence it is old tear."" The underwear was having the following tear marks : ""1. Irregular opening mark of right front of underpant 2 cm. x 2 cm. blackening due to greasy material around the tear mark, 7 cm. below upper waist stripe and 3 cm. inner to right outer stripe. It is corresponding to tear mark No. 1 Pyjama. 2. Irregular cut mark 1.5 cm. x 1.5 cm. x 4 cm. below upper stripe and 14 cm. inner to right outer border. It is corresponding to tear mark No. 4 of Pyjama. 3. Irregular cut mark 1.5 cm. x 1.5 cm. circular, on centre, front, stitched area, 11 cm. below the upper waist stripe. It is corresponding to tear No. 5 of pyjama. 4. Irregular tear mark 1 cm. x ½ cm. on the left side front half, near central front stitched, 15 cm. below the upper left stripe. It is corresponding to tear mark No. 6 of Pyjama. 5. Irregular tear mark at left front, 1 cm. x ½ cm., 21 cm. below upper stripe, 13 cm. inner to outer border. It is corresponding to tear mark No. 7 of pyjama. 6. Irregular tear mark 1 cm. x ½ cm. at front of left side 18 cm. below upper stripe, and 4 cm. inner to left outer border. It looks like old tear. 7. Irregular tear mark 4.5 cm. x 1 cm. at upper part of waist stripe on left front half. 6. Irregular tear mark 1 cm. x ½ cm. at front of left side 18 cm. below upper stripe, and 4 cm. inner to left outer border. It looks like old tear. 7. Irregular tear mark 4.5 cm. x 1 cm. at upper part of waist stripe on left front half. It is corresponding to tear No. 8 of pyjama. 8. Irregular tear mark, at left side half 2.5 cm. x 1 cm. and 1 cm. shows tag mark which is separated in two parts of cut mark No. 8. It is 4 cm. below the upper stripe and 6 cm. outer the centre stitched line, it is corresponding to tear mark No. 9 of pyjama. 9. Irregular circular opening 2 cm. x 1 cm. and half cm. below the tear mark No. 8 of underpant. Bullet came out through tear mark No. 9 and entered in lower part of tear mark No. 8 and again came out from upper part of tear mark No. 8. 10. Irregular tear mark at left back 1 cm. x ½ cm., 24 cm. below the upper waist stripe and 10 cm. inner to left outer stripe. It is corresponding to tear mark No. 11 of pyjama. 11. Irregular old tear mark, on left back side 1.5 cm. x 1.5 cm., 6 cm. above the lower border 10 cm. inner to left outer stripe. 12. Irregular circular opening on the back side 1 cm. x 1 cm. mid line involved 15 cm. below upper left waist stripe. It is corresponding to tear mark No. 14 of pyjama. 13. Irregular opening 2 cm. x 1 cm. at left button area, nearing to centre, 19 cm. below the upper waist stripe. 1 cm. away from mid line. It is corresponding to tear mark No. 13 of Pyjama."" He opined that all the clothes had blackening due to greasing and suggestive of entry of bullet in oblique direction. He advised to send all the clothes of the deceased to the Chemical Analyser. On external examination, he noticed the following injuries on the dead body : ""1. Injury at left side of chest, 14 cm. below the clavical, 4 cm. away from the mid line, verticle oblique, size 2 cm. x 1 cm. edges are inverted, abrasion, contusion collar present around the injury size of collar is 4.5 cm. Injury of is above 11 cm. from heel. Injury at left side of chest, 14 cm. below the clavical, 4 cm. away from the mid line, verticle oblique, size 2 cm. x 1 cm. edges are inverted, abrasion, contusion collar present around the injury size of collar is 4.5 cm. Injury of is above 11 cm. from heel. The following structures are involved, opening at the 4th inter costal space, site of sternum, 5th inter costal space, torn. 2 cm. x 1 cm. part of cartilege which was entered inside the cavity. Tear in left lung lower 1/3rd upper lobe, 2 cm. x 5 cm. at margine, with contuses margin 5 cm. x 2 cm. It is through and through from the lung, entered at pericardium. Pericardium (v.o.) shows the opening 2 cm. x 2 cm. It is entered into the left ventrical, 4 cm. above the apex and heart shows 3 cm. x 1 cm. vertical oblique groove which entered into cavity and tract open at back of upper part of left ventricle, 9 cm. above the apex 2 cm. x 1 cm. Tract open at a lower part of left lobe back, margins. 2. 5 cm. x 2 cm. and bullet found impacted in the body of T-11 vertebra, 2 cm. x 2 cm. anterio posterior direction. Length of the tract 20 cm. as the bullet found in the thoracic vertebra. There is no wound of exit direction left to right, below upwards front to back. 2. Injury at right outer flank, edges are inverted 2 cm. x ½ cm. vertical oblique, 7 cm. above the illiac crest (right) and 100 cm. from hip. There is abrasion collar which has more on outer 2/3rd area, suggestive of wound of injury. The tract is open in injury No. 4 which is only involved abdominal muscles. Direction of injury to left above downwards, the tract is 10 cm. in length. 3. Glanching injury at the front of outer aspect of right inguinal area, at illiac crest anterior part 4.5 cm. x 1.5 cm. floor of wound and surrounding tissues shows hardening due to hot gases (fire arm injury). 4. Injury at right illiac fossa size 1 cm. x ½ cm. hardening around the wound, oblique, 5 cm. above the mid inquinal point 85 cm. from heel. It is suggestive of wound of exit, edtes (v.o.) are everted and it is related with injury No. 2. 5. 4. Injury at right illiac fossa size 1 cm. x ½ cm. hardening around the wound, oblique, 5 cm. above the mid inquinal point 85 cm. from heel. It is suggestive of wound of exit, edtes (v.o.) are everted and it is related with injury No. 2. 5. Injury at left illiac Fossa 2 cm. above the anterior superior illiac spine size 2 cm. x 1 cm. transverse oblique abrasion collar present. It is 82 cm. from heel. It is entered in the olevic cavity through abdominal muscles, psoas muscle are involved and entered in the sacrum upper part came out on back side, which is connected with injury No. 13. The tract is 18 cm. structures are involved. Skin, muscle, intestine, vessels, and sacrum bone. Direction left to right and slightly upward. This injury suggestive of wound of entry. 6. Circular opening at the front of right thigh 7 cm. below the inguinal point size, ¾ cm., ¾ cm. contusion collar present. It is suggestive of wound of entry, tract is open on injury No. 17. Wound of entry is above 70 cm. from heel. Length of tract, 15 cm. structures are involved skin, muscles, blood vessels upper 1/3rd of thigh region. Direction front to back slight above downwards. 7. Circular opening, ¾th cm. x ¾ cm. outer aspect of upper 1/3rd left thigh, 12 cm. below from illiac crest. It is 75 cm. above the heel. Abrasion collar was present. It is suggestive of wound of entry. Tract open in injury No. 14. Structures are involved, skin and muscles. The tract is open in injury No. 14 and its length is 17.5 cm. and it is fractured upper 1/3rd of left femur. Direction front to back. 8. Circular opening situated at outer aspect of penis at nearing to base of penis left side upper 1/3rd, 21 cm. x 1 cm. abrasion collar present. It is suggestive of wound of entry. Tract open at Injury No. 15. Total length of tract 16 cm. Tissues are involved penis, muscles, fracture of left public bone, muscle of the back lower half, 86 cm. above the heel. Direction left to right above downwards front to back. 9. Circular opening left side of scrotum, th x ¾ cm. upper 1/3rd of scrotum wall. It is 82 cm. above the heel. The tract is open at Injury No. 16. above the heel. Direction left to right above downwards front to back. 9. Circular opening left side of scrotum, th x ¾ cm. upper 1/3rd of scrotum wall. It is 82 cm. above the heel. The tract is open at Injury No. 16. The length of the tract is 18 cm. Tissues are involved skin, muscle, and lower part of anal canal. Direction is oblique indirect, left to right above downwards front to back. 10. Circular opening, at right arm inner aspect lower 1/3rd 3 cm. above the elbow joint size 2 cm. x 2 cm. there is no abrasion collar, hence it is exit wound. It is communicated with injury No. 19. 11. Abrasion at left side back, supra scapular region, 2.5 cm. x ½ cm. 12. Injury at left arm inner aspect middle 1/3rd size 2 cm. x 1 cm. edges are inverted. It is suggestive of wound of exit and tract was open and bullet was recovered which was embeded in posterior aspect upper part of arm. Total length of tract, 6 cm. structures are involved skin muscles and blood vessel (Branchia). Direction medial to lateral, below upward. 13. Circular opening at sacral region 2 cm x ½ cm. transverse oblique in direction, mid line margin are reverted. It is 85 cm. above from the heel. It is wound of exit, it is inter connected with injury No. 5. 14. Circular opening ¾th cm x ½ cm. over left buttock lower and outer aspect. It is 81 cm. above the heel, edges are everted. It is suggestive of wound of exit and it is inter connected with injury No. 7. 15. Circular opening, 1¾ cm. x ½ cm. over the right buttock lower half. It is above 82 cm. from heel. It is suggestive of wound of exit and it is inter connected with injury No. 8. 16. Circular opening, at gluteal fold right side mid line, size 1.5 cm. x ½ cm. edges are everted. It is 78 cm. above the right heel. It is suggestive of wound of exit and it is inter connected with injury No. 9. 17. Circular opening, at left back of this upper 1/3rd size 2 cm. x 1 cm. inner aspect edges are everted. It is suggestive of wound of exit. It is above 67 cm. above the heel and it is inter connected with injury No. 6. 18. 17. Circular opening, at left back of this upper 1/3rd size 2 cm. x 1 cm. inner aspect edges are everted. It is suggestive of wound of exit. It is above 67 cm. above the heel and it is inter connected with injury No. 6. 18. Abrasion of left outer aspect of flar mid 1/3rd 5 cm. x 3 cm. 19. Injury at the back of right arm middle of 1/3rd outer aspect size 1.5 cm. x ½ cm 15 cm. below the outer end of clavicle, edges are everted, verticle. Abrasion collar was present, it is suggestive of wound of entry. The tract is open in injury No. 10. Structure are involved in skin, muscle, and communicated fracture of lower 1/3rd of humerus, length of tract is 14 cm. Direction back to front, above downward."" He has stated that all the external injuries were ante-mortem. The injuries were fresh and were caused due to rifle fire arm, except injury Nos. 11 and 18. The injuries No. 11 and 18 were caused by hard and rough surface. He has given the distance of the range of the firm arm about 90 cm. and the fire arm injuries over the body were caused by 10 rounds of rifle fire arm. He found three bullets, one from the clothes of the deceased, second recovered from the left arm and the third bullet was recovered from T-11 Vertebra. He opined that the tear marks over the clothes and injuries were caused by the bullets. On internal examination, he found left 4th rib fractured. He opined that all the injuries were sufficient to cause death in the ordinary course of nature. All the injuries except injuries No. 3, 11 and 18 were sufficient individually to cause death in the ordinary course of nature. According to him, Ramnarayan died due to shock and haemorrhage due to intra thoracic and intra abdominal and bleeding from the injuries sustained to heart, lungs and bone of the body due to fire arm injuries. He preseved the viscera, skin and muscle and also collected blood for the purpose of blood grouping. The post mortem report is at Exhibit 168. On the same day, he received a querry vide Exhibit 56 about the number of bullets fired which caused injuries to Ramnarayan. According to him, 9 bullets were fired. The injuries Nos. He preseved the viscera, skin and muscle and also collected blood for the purpose of blood grouping. The post mortem report is at Exhibit 168. On the same day, he received a querry vide Exhibit 56 about the number of bullets fired which caused injuries to Ramnarayan. According to him, 9 bullets were fired. The injuries Nos. 3, 6 and 17 were caused by one bullet. He has also given the directions of the injuries. He opined that the injury Nos. 1, 2, 5 and 19 could be possible while the victim was lying on the ground and injury Nos. 6, 8 and 9 could be caused while the victim was in sitting position. 46. The dead body of Shyamnarayan was sent to him for post-mortem examination on 18-10-1991. He noticed the following external injuries on the body of the deceased : ""1. Stitched wound situated at right side of chest outer and inferior of mammary area. 1.5 cm. in length, 22 cm. below the outer enter of clavicle, 16 cm. away from midline, 1.20 cm. above the right heel. Wound explored and it was inter connected with injury No. 16, bullet entered from right side of chest oblique underneath the sternum, on sternum gutter fracture was seen, then came out from second intercostal space and inter connected with injury No. 16. Glancing injury over the front side of lower part of front lobe of right lung, size 5 cm. x ¼ cm. It shows scooping at left side of second rib. The length of rag is 40 cm., 5th and 6th ribs of right side was fractured. There was irregular opening at 5th intercostal space, 2 cm. x 1 cm. which is oval and oblong in shape. Injury of the lung was partly healed. There was no fresh any bleeding. Only right side of pleural cavity shows back side of body lower part approximately 50 cc. of blood clot in reabsorption stage. 2. Stitched wound at below the Xiphisternum 1.5 cm. in length, 1 cm. below the Xiphisternum transverse in direction, 115 cm. above the heel. Wound explored and it is inter connected with wound No. 6. Lengh of the tract is 18 cm. is obliquely downward outswards and fracture of 6th, 7th ribs at front. There were glancing injuries to the lower part of front of left lower lobe, size is 4 cm. x 1 cm. above the heel. Wound explored and it is inter connected with wound No. 6. Lengh of the tract is 18 cm. is obliquely downward outswards and fracture of 6th, 7th ribs at front. There were glancing injuries to the lower part of front of left lower lobe, size is 4 cm. x 1 cm. x ½ cm. wound is partially healed. There were no any fresh haemorrhage. 3. Stitched wound situated at right para medical incision from 4 cm. below the Xiphisternum upto 2 cm. below umbilical 21 cm. in length. Wound was stitched well, with four tension sutures were given. It is surgical injury. 4. Stitched injury at right hypochondrium 1.5 cm. in length, 30 cm. below the clavicle, 8 cm. from mid line, 105 cm. above the heel. Abdominal wall was opened. They were found stitched wound through and through, at jejenum including mesentry on both sides. 10 cm. in length. Suggestive of anastomosis, injured part reseted out 3 cm. stitched wound at mesentry. Transverse colon was involved with extescoresal and which is connected with injury No. 8. 5. Incised wound 5 cm. x 2 cm. at left side of abdomen from which, transverse colon was kept out which shows injury 2 cm. x 2 cm. on one side and it was encoring by Catheter suggestive of exterosisetion of transverse colon i.e. surgical treatment. 6. Stitched wound 2.5 cm. in length at left infra auxillary area 30 cm. below outer and of clavicle. 18 cm. away from midline and inter connected with injury No. 2. 7. 2.5 cm. in length surgical wound at the left infra auxillary area at 8th intercostal space for keeping drain tube. 8. Stitched would 1 cm. in length at lumbar area which is inter connected with the injury No. 4. 9. Stitched wound 1 cm. in length middle 1/3rd front of right thigh 23 cm. below midinguinel point 52 cm. above the heel, transverse oblique in direction. It is communicated with injury No. 10. Length of the tract is 15 cm. only involved the muscle of thigh. 10. Stitched wound 1 cm. in length transverse oblique lower 1/3rd outer aspect of right thigh, 2 cm. above knee joint 2 cm. outer to knee joint 52 cm. above the heel. It is inter connected with injury No. 9. 11. Stitched wound 1 cm. in length transverse oblique direction 23 cm. only involved the muscle of thigh. 10. Stitched wound 1 cm. in length transverse oblique lower 1/3rd outer aspect of right thigh, 2 cm. above knee joint 2 cm. outer to knee joint 52 cm. above the heel. It is inter connected with injury No. 9. 11. Stitched wound 1 cm. in length transverse oblique direction 23 cm. below the mid inguinal point left front middle 1/3rd of left thigh. 58 cm. above the heel. The tract opened in injury No. 12. Only muscle of the thing involved. 12. 1 cm. x ½ cm. wound situated at upper 1/3rd of the left thigh, 8 cm. below gluteal fold 58 cm. above the heel, which kept open to drain the exudate. 13. 1 cm. stitched wound, 2 cm. outer to left anterior superior, iliac spine 85 cm. above the heel. The tract is inter connected with 15, involving muscle of left buttock. 14. Stitched wound left outer aspect of thigh 18 cm. in length suggestive of surgical intervention. 15. Stitched wound at left backside of thigh upper 1/3rd, 12 cm. in length. It is suggestive of surgical intervention inter connected with injury No. 13. 16. Stitched wound 2 cm. in length, front of left shoulder 2 cm. in length 1 cm. below outer end of left clavical, 130 cm. above heel (left). It is inter connected with injury No. 1. 17. Stitched wound 2 cm. in length at front and outer aspect of 1/3rd right arm suggestive of venesection. 18. Stitched wound 3 cm. in length inner aspect, or right arm upper 1/3rd, suggestive of venesection. 19. Wound of tracheostomy seen."" The injuries mentioned in the injury certificate Exhibit 172 corresponded to the injuries mentioned in the post mortem report as follows : ""Injury No. 1 of Exh. 172 is corresponding to injury No. 2, P.M. Notes of column No. 17. Like injury No. 2 with injury No. 6, injury No. 3 with injury No. 16, injury No. 4 with injury No. 13, injury No. 5 with injury No. 11, injury No. 6 with injury No. 12, injury No. 6 with injury No. 1, injury No. 8 with injury No. 4, injury No. 9 with injury No. 9, injury No. 10 with injury No. 10."" He has also given the age of the injuries. The injury Nos. The injury Nos. 1, 2 and 5 were sufficient to cause death in the ordinary course of nature. According to him, the preson died due to fire arm injury and its complications. He proved his post mortem report Exhibit 173. Two bullets were recovered from the body of Shyamnarayan Dubey. Injury Nos. 1, 7 and 10, according to him, were caused when the victim was at the higher level and the assailant was at lower level and these injuries were possible if the victim was climbing the staircase and the assailant was on the ground and injury No. 8 could be caused while the victim was in a sitting position and the assailant was in a standing position. Injury Nos. 4 and 5 could be caused while the assailant and the victim were on the same level. He has given the range of the fire arm i.e. distance as beyond 90 cm. i.e. 3 feet. The X-Ray plates of the deceased persons were handed over to the police. In the cross-examination, this witness had admitted that balckening appears in the cases of shot gun and in respect of revolver and pistol upto 2 feet. 47. P.W. 33 Santoshkumar Kanhayyalal Verma is the Investigating Officer. In October, 1991, he was working as Police Inspector in Crime Branch, Nagpur. He has investigated into the crime Nos. 389 of 1991 and 264 of 1991 registered against the accused in Police Station, Dhantoli, Nagpur. On 18-10-1991, the Commissioner of Police, Nagpur had ordered the Crime Branch to investigate into these offences and therefore, he received the papers from Dhantoli Police Station on 20-10-1991. As the accused was already arrested, he interrogated the accused and recorded the statements of witnesses. On 20-10-1991, he visited all the places where the accused was hiding and prepared panchanamas of the place Exhibits 61, 62 and 63. On 22-10-1991, P.S.I. Deshmukh brought the articles from Medical College i.e. blood sample of the deceased, viscera, clothes of the deceased, bullet removed from the body of the deceased, skin and muscle taken out from the body of the deceased. he prepared the panchanamas of the clothes of the deceased vide Exh. 37. He again recorded the statements of witnesses and specimen handwriting of the accused was obtained before the panchas vide Exhibit 33. On 24-10-1991 and 25-10-1991 he recorded the Statements of some witnesses. he prepared the panchanamas of the clothes of the deceased vide Exh. 37. He again recorded the statements of witnesses and specimen handwriting of the accused was obtained before the panchas vide Exhibit 33. On 24-10-1991 and 25-10-1991 he recorded the Statements of some witnesses. On 26-10-1991, he sent the articles seized in this case to Bombay. Police Inspector Patil came back from Chandrapur and handed over the statements of witnesses and documents of Umri Potdar sub-police station viz. posting order and Weekly Diary of the accused. On 31-10-1991, he sent the specimen handwriting, weekly diary of the accused and the four letters to the Handwriting Expert for the opinion vide Exh. 40. The Handwriting Expert has given his opinion which is at Exhibit 41. He also collected the copies of chapter cases registered against the accused and his family members on the complaint of Ramnarayan Dubey from Assistant Commissioner of Police, Sitabuldi, Nagpur. He also seized the station diary of Panchagaon Police Station. He received a letter from Ballistic Expert for supply of X-ray plates of deceased persons. Accordingly, he collected the X-ray plates on 4-12-1991 and sent the X-ray plates so also the slipper seized from the spot. According to him, one minute is required for loading the revolver and 5 to 6 seconds are required to fire six cartridges. In the cross-examination, this witness has given some important admissions. He has recorded the statements of some of the relatives of Chitra Jachak which disclose that the accused had come to Nagpur in search of Chitra and he had not filed these statements alongwith the charge-sheet. He has stated that the letter from the City Survey Officer (Exhibit 54) discloses that Kundbhadra Badjatya is the owner of Mangalmurti Wada. He has recorded the statement of Ramchandra Mangalmurti the owner of the Wada. According to him, the statement of Ramchandra Mangalmurti (D.W. 5) discloses that he had not sold the Wada in question to anybody. According to him, the statement of Minakshi Nandanpawar the sister of Mangalmurti does not disclose that Ramnarayan Dubey was getting Rs. Four lakhs to evict Jachak and Fender family from the Wada. According to him, the statement of Ramchandra Mangalmurti (D.W. 5) discloses that he had not sold the Wada in question to anybody. According to him, the statement of Minakshi Nandanpawar the sister of Mangalmurti does not disclose that Ramnarayan Dubey was getting Rs. Four lakhs to evict Jachak and Fender family from the Wada. He has further admitted that from the statement of D.W. 5 Ramchandra Mangalmurti, it is disclosed that if the accused and Chitra Jachak get married, there would be unity and it would be difficult to evict them and that Ramnarayan told him to sell the Wada through him, and that he would evict them. Ramnarayan was abusing the two families and D.W. 5 Mangalmurti in order to pressurise them. He has recorded the statement of Nalini alias Chitra Jachak. He has admitted that Ramnarayan Dube used to quarrel with Fender and Jachak Family and the accused wanted to marry Chitra and that fact was disliked by Ramnarayan and therefore, their relations became strained. He also admitted that it transpired during investigation that Ramnarayan used to give taunt to the accused and his brother Nandkishor and also used to tell them that he would see how they would remain in service. He also admitted that once Ramnarayan Dubey tried to outrage the modesty of Chitra Jachak. He further admitted that Ramnarayan Dubey was a quarrel some person and used to call Shantabai Jachak as a prostitute. He denied that Chitra Jachak and her mother Shantabai were not produced before the Court in order to suppress the true facts. He has stated that their whereabouts were not known. He denied that if there is any blast in the chamber, there would be a jerk and tilting of the revolver. 48. Then the trial Court has examined the Ballistic Expert as a Court Witness Madhukar Asgekar. On 28-10-1991, the officer of the Director, Ballistics. Evidence Forensic Science Laboratory, State of Maharashtra, Bombay received three sealed cloth parcels, six sealed bottles, four sealed lials and four sealed envelopes as per copy sent by Police Inspector, Crime Branch, Nagpur alongwith his forwarding letter dated 26-10-1991. In para 4, he has given the details of the parcels with the Exhibit numbers, in all 84 Exhibits. He has examined the revolver and .455"" calibre revolver cartridges and opined that revolver cartridges were successfully test fired from the revolver Exhibit 1. In para 4, he has given the details of the parcels with the Exhibit numbers, in all 84 Exhibits. He has examined the revolver and .455"" calibre revolver cartridges and opined that revolver cartridges were successfully test fired from the revolver Exhibit 1. Similarly, he has examined total 21 empties and in all 9 live cartridges were test fired. The test firing was done at various distances to find out the effect, such as blackening and powder particles on the target and during test firing, empties and bullets were recovered. He also compared the firing pin impression on 21 empties with test fire cartridges from the revolver Exhibit 1 under his miscroscope and he came to the conclusion that the characteristic features of the firing pin impression on this .455"" calibre revolver empties tally among themselves and with that on the cartridges, cases resulting from the test firing. He also examined the small cartridges with deformed lead bullets and came to the conclusion that the bullets tally among themselves and the bullets test fired from .455"" revolver and the examination showed that all the 16 deformed lead bullets have been fired from the revolver. He also examined the clothes. He found short holes on the clothes. Metallic lead was detected on the peripheries of the short holes. According to him, the close range phenomena such as blackening and powder residues were not observed around the short holes and therefore, he has opined that the bullets were fired on Ramnarayan Dubey beyond the powder range of .455"" revolver i.e. beyond a metre and a half on the basis of test firing. He also examined the clothes of Badrinarayan Dubey. Metallic lead was detected on the peripheries of the short holes on these clothes, but the close range phenomena such as blackening of powder residues around the short holes was not observed. According to him, the bullets were fired on Badrinarayan from the revolver Exhibit No. 1. Similarly, he has given his expert opinion on examination of clothes of Shamnarayan Dubey. From the examination of skin pieces, he has stated that metallic lead and gun shot residues resulting from the firing of ammunition were not detected on the pieces of skin. According to him, the bullets were fired on Badrinarayan from the revolver Exhibit No. 1. Similarly, he has given his expert opinion on examination of clothes of Shamnarayan Dubey. From the examination of skin pieces, he has stated that metallic lead and gun shot residues resulting from the firing of ammunition were not detected on the pieces of skin. From his examination of X-ray plates, he opined that the small irregular opacities observed in the X-ray plates are consistent with fragments have resulted due to fired .455"" revolver bullets as against the bone during their passage through human body. He is cross-examined by the prosecution and he has admitted that blackening on the clothes appeared on account of carbon particle when firing is from close range. He has further admitted that blackening and powder residues were totally absent in all short holes except one short hole on the back side of Exh. 31 i.e. one (Cut) bush shirt of Shyamnarayan and therefore, he has opined that firing must have been beyond 1.50 meter i.e. more than 5 feet. He has stated that the rule known as Inches and Yard rules i.e. one inch spread for one yard is applicable for shot gun where the cartridges containing multiple pellets or short are fired. In revolver, as there is only one bullet projectile i.e. the bullet, there is no case of spreading in cases of firing by the revolver and therefore, this rule is not applicable. He is also cross-examined by the accused. He has confirmed that as per his report, there was no blackening except on the back side of the shirt of Shyamnarayan. He was unable to give the position of the assailant and the victim from the examination of the clothes. He denied that the blackening mentioned in the post mortem report is due to carbon particles. 49. The defence have examined five witnesses. D.W. 1 Rajesh Rajankar was serving as a Junior Clerk in the Chief Judicial Magistrate's Court. From the F.I.R. files maintained by the Court, he has stated that the first information report in respect of the incident dated 11-10-1991 in this case was received in the Court on 14-10-1991 as 12th and 13th October, 1991 were holidays, being Second Saturday and Sunday respectively. D.W. 2 Meena Erawar has stated that the accused was at Kothari for service and was residing just near to her house. D.W. 2 Meena Erawar has stated that the accused was at Kothari for service and was residing just near to her house. Since then she was knowing him. On 8th October, 1991, Chitra came to her and gave the key of her house. At about 1 P.M. on that day, the accused made enquiry about Chitra, with her mother. On 9-10-1991, the accused had taken the search of her house for Chitra. She took tiffin for the accused on 10-10-1991 to his house, but the house of the accused was locked. In the cross-examination, she has admitted that Chitra was having injury on her nose at the time of Ganpati festival, but she did not know how Chitra sustained the injury. 50. D.W. 3 Bhaskar Wanjari has stated that on 10-10-1991, at about 8 to 8.30 p.m., the accused met him in his shop in Auto and requested for a scooter. The accused told him that Chitra left Kothari due to quarrel and therefore, he came to Nagpur to search her. The scooter was not available. The accused told him that he would go to Kothari on the next day morning. 51. D.W. 4 Vijay Bhalerao was working as Probationary Sub-Registrar, Nagpur. He proved the entry at Sr. No. 4129 dated 12th April, 1991 in respect of the sale deed from the Thumb Impression Register bearing the signature of D.W. 5 Ramchandra Mangalmurti. He also produced the xerox copy of the said register Exhibit 203. The xerox copy of the sale deed is also produced which is at Exhibit 204. From the Day Book of which a xerox copy is produced on record, is marked as Exhibit 205 shows the name of the person who presented the document for registration before the Sub-Registrar and the signature on the said register. The document was presented by Gundbhadra Vijaykumar Badjate. 52. D.W. 5 Ramchandra Narayan Mangalmurti, is the owner of Mangalmurti Wada who was residing in the Wada till 9-9-1990. Ramnarayan Dubey was his first tenant since the month of January, 1967. In the year 1971, P.W. 3 Rambhau Fender came in the Wada as a tenant and in July 1969, Jachak family came in the Wada as a tenant. Dubey family was paying rent for on about one year and Fender family paid rent upto 1985. He has stated that Ramnarayan used to keep 5-6 goondas in his room. In the year 1971, P.W. 3 Rambhau Fender came in the Wada as a tenant and in July 1969, Jachak family came in the Wada as a tenant. Dubey family was paying rent for on about one year and Fender family paid rent upto 1985. He has stated that Ramnarayan used to keep 5-6 goondas in his room. He was also threatening and blackmailing him. He was residing in the Wada alone. According to him, Ramnarayan married thrice and he had no respect for woman folk. In between 1966 to 1986, Ramnarayan assaulted him for more than 500 times and damaged his property. He says that during that time, he lodged complaints against Ramnarayan in the Police Station. Ramnarayan was also threatening him if he lodges any more complaints in the police station. He has stated about the love affair in between the accused and Chitra Jachak since the year 1985. Ramnarayan was opposed to this love affair and Ramnarayan's nuisance became more and more thereafter. Ramnarayan always used to tell him that he would not allow the accused to marry Chitra. According to him, Ramnarayan used to abuse including himself and all the tenants, and he used to beat the Jachak family number of times. He used to tell him that he would not allow him to sell the property without his consent and otherwise, there would be danger to his life. He was shown Exhibit 203. He says that he never sold the Wada to Badjatya. He denied his signature on Exhibit 203. He says that he never executed any document in respect of the sale of this Wada in the name of Badjatya. Shrihari Mangalmurti is his brother and Meenakshi Nandanpawar and Meera Franklin are his real sisters. Meenakshi Nandan Pawar issued a public notice in Nagpur Times on 10-4-1993 to the effect that D.W. 5 is not the exclusive owner of the Wada. On 9-12-1990 and 10-12-1990, Advocate Deosarkar issued two public notices in his newspaper in respect of the said property. Meenakshi, Shrihari and Meera filed a civil suit against him for restraining him to sell the Wada Civil litigation is going on. This witness say that he is reknowned astrologer of Nagpur city. On 9-9-1990, there was an assault on him by Sanjay Jachak. An offence under section 307 of the Indian Penal Code was registered against Sanjay Jachak. Meenakshi, Shrihari and Meera filed a civil suit against him for restraining him to sell the Wada Civil litigation is going on. This witness say that he is reknowned astrologer of Nagpur city. On 9-9-1990, there was an assault on him by Sanjay Jachak. An offence under section 307 of the Indian Penal Code was registered against Sanjay Jachak. He admitted that by the end of April, 1991, he came to know about the sale deed Exhibit 204 and on 5-12-1991, he lodged a report in Dhantoli Police Station, Nagpur for forging his signature on the sale deed. According to him, he has not received any rent from the tenants since last 20 years. He has stated that sometimes, the accused used to drink. He has admitted that the police recorded his statement in Crime No. 462 of 1991 and he stated before the police that the accused indulged in romance with Chitra in that room. The accused used to keep the door of that room open. Ramnarayan Dubey formed a Union of tenants in earlier years and also led some of them to the Rent Controller in the year 1971. Ramnarayan also instigated other tenants not to pay the rent to him. He further admitted to be true that he is telling for the first time in the Court that Ramnarayan assaulted him for more than 500 times and damaged his property. 53. The accused has filed 12 documents including the Station Diary in respect of the incident of 20-9-1991, 7-10-1991, 18-4-1991, 5-5-1991, 22-6-1991 and 23-6-1991. These documents are admitted by the prosecution. 54. The accused, in his statement, recorded under section 313 of the Criminal Procedure Code, has set out his defence. In answer to the last question : ""Do you want to say anything more"", he has given a very lengthy answer. In short, in the beginning, he has stated about the members of his family, his condition, qualification, about the owner of the Wada Ramchandra (D.W. 5), about the death of deceased Ramnarayan. According to him, from 1971 to 1980, Ramnarayan was jobless. He was taking meals in the house of Jachak family. He was Dada and leader and many goondas came to him for advice. Ramnarayan was known as ""White Collar Gunda"". Ramnarayan and his friend used to have drinking parties in the wada till late hours. Ramnarayan was also a debauchar. According to him, from 1971 to 1980, Ramnarayan was jobless. He was taking meals in the house of Jachak family. He was Dada and leader and many goondas came to him for advice. Ramnarayan was known as ""White Collar Gunda"". Ramnarayan and his friend used to have drinking parties in the wada till late hours. Ramnarayan was also a debauchar. He was a crooked man. Deceased Badrinarayan and Shyamnarayan were also of the same nature. He has stated about the marriage of Ramnarayan with Gauri and he drove out Gauri 5 or 6 months after the marriage. Ramnarayan also brought another lady namely Chandramukhi from Sagar District of Madhya Pradesh in the year 1988 and he drove her out within 15 days from the Wada. Ramnarayan Dubey and Badrinarayan Dubey started a printing press in the year 1980. Ramnarayan never paid any rent to the owner. In the year 1985, Ramnarayan joined as Associate Editor in ""Nagpur Times"". Ramnarayan married P.W. 6 Roma in the year 1987 and accused used to treat Roma as his elder sister. According to him, on 18-4-1991, P.W. 6 Roma tried to push his father and tried to assault him. Ramnarayan used his position for blackmailing the rich person. Then, thereafter, he has stated about his joining in the Police Department. On 18-3-1991, the accused was sent for training at Nagpur. On 18th or 20th March, 1991, Ramnarayan abused his brother Nandkishore and Sanjay Jachak on the allegation of speaking loudly in Wada. On 12-4-1991, when he was talking with Chitra, her mother and her uncle, at that time, Ramnarayan under the influene of alcohol, threatened him and told him to go to his house and not to speak with Jachak family and like the accused, D.I.G. is his friend and therefore through them he would get him (the accused) suspended. Ramnarayan Dubey also uttered the words that Chitra was the daughter of a prostitute. On 28-4-1991, the accused again came to Nagpur. The Doctor removed his stitches in Medical College Hospital. On 9-10-1991, Chitra was not found in his house at Kothari. On 10-10-1991, after finishing the roll call, he returned home and decided to go to Nagpur for the search of Chitra. He took torch and the suit case with him. On 10-10-1991, he visited the shop of Khandelwal and searched for Chitra and slept in the house of grand-father. On 9-10-1991, Chitra was not found in his house at Kothari. On 10-10-1991, after finishing the roll call, he returned home and decided to go to Nagpur for the search of Chitra. He took torch and the suit case with him. On 10-10-1991, he visited the shop of Khandelwal and searched for Chitra and slept in the house of grand-father. His father came in the house of grand-father and took his suit case at about 7.30 A.M. The accused, Shantabai and his father came in Mangalmurti Wada at about 8.00 to 8.30 A.M. on 11-10-1991. He has stated that he had seen Dubey brothers in Wada. Kokila Raut was on the tap water. After bath, he went upstairs, took his break-fast and then he decided to go to the shop of Khandelwal in order to make enquiry about Chitra. He informed his mother at about 9.30 A.M. that he would return within an hour. His father P.W. 3 was on the ground floor. Then he made enquiry with Khandelwal about Chitra at about 10.30 A.M. He reached Mangalmurti Wada in autorickshaw. He saw from the road and found that his house was looked. Three Dubey brothers were in the Courtyard on chairs and on seeing them near the gate, Ramnarayan Dubey uttered the words : ""vc vk;k gS gjke[kksj"" and also uttered : "",d HkkbZ dks lLisaM fd;k gSA vc bldks Hkh ugh lLisaM djkowaxk] rks esjkHkh uke ugh"" and on seeing him, the three brothers laughed at him. He controlled himself though he got angry. His bath room was locked He wanted to go to urinal and when he was proceeding towards latrine quietly, Ramnarayan again uttered the words : ""vkSjr dks <qa<us vk;k gS lkykA oS';k [kkuses gksxhA"". He stopped there and there only. He got very much angry and was shivering. He lost his control on hearing the words and shouted : ""pwi jgks"". Unknowingly, three Dubey brothers, with the help of chairs and plank, assaulted him and fell him down. His wrist watch fell on the ground floor. Somebody from them, said that he would be taken in upstairs room and that he would finish him. The three Dubey brothers tried to drag him towards their staircase. In the meantime, his service revolver came in his hand through waist. He fired one bullet on one of one of the Dubey brothers. Somebody from them, said that he would be taken in upstairs room and that he would finish him. The three Dubey brothers tried to drag him towards their staircase. In the meantime, his service revolver came in his hand through waist. He fired one bullet on one of one of the Dubey brothers. Eventhough, the three brothers tried to beat him and tried to take him on the upstairs. Thereafter, the bullets went off continuously and then he does not know anything. He was out of control due to anger. He faintly remembers that he was beating pushing. He used to load the revolver with as many bullets as possible in the scuffle. Some live cartridges fell on the ground due to scuffle. Firing was there. At last Shyamnarayan and Badrinarayan ran towards upstair and Ramnarayan was lying near the staircase. Beyond this, he does not remember anything else in Wada. When he regained his senses, he was on Railway track and he did not know where he was going. He felt that it was a dream, which happened in Wada. 55. Thereafter, he was roaming in Khapri area and again came to Mangalmurti Wada. Many persons had gathered there. Somebody said : ""Manohar Fender, Manohar Fender. Beat him"". He tried to rush inside the Wada. He found P.W. 6 Roma Dubey, P.W. 14 Mahesh Dubey and other relatives, friends of Dubey there. Then he again fired twice in air due to fear. Police tried catch him and he ran away. On 16-10-1991, he decided to commit suicide. He got 8 to 9 pages and refile. He decided to commit suicide on the date of his birthday with the revolver. He wrote a letter to the Chief Minister on 16-10-1991. On 17-10-1991, he wrote a letter to his parents, brother and Chitra and then proceeded towards Panchgaon village. There he was caught by the villagers. A perusal of the letter 16-10-1991 (Exh. 42-A) which he has written to the Chief Minister shows that on 10-10-1991, when the accused went to Mangalmurti Wada in the evening, Ramnarayan was sitting in the Courtyard and seeing him, he uttered the words : ""Haramkhor has come"". With an understanding that there would be unnecessarily a quarrel, he slept during that night in the house of his grandfather. Next day, he returned to the Wada, took his bath and went out for work. With an understanding that there would be unnecessarily a quarrel, he slept during that night in the house of his grandfather. Next day, he returned to the Wada, took his bath and went out for work. Since his work was not done and he was required to go to Chandrapur, in a disturbed state of mind, he went to Mangalmurti Wada to collect his suit case. At that time, the three Dubey brothers were sitting in the Courtyard on the chairs and on seeing him, Ramnarayan said in a loud tone ""I have suspended one brother and I would see that this fellow is also definitely suspended"". All the three brothers looked at him and laughed loudly. In the meanwhile, his service revolver got separated from his waist and came in his hand and he shot bullets at all the three brothers and immediately thereafter, ran away from there. He again came back in the said night and fired bullets twice in the air. Since he was in the throng of the people, the police could not fire a bullet at him. He has stated that Ramnarayan Dubey might be an intellectual, but he was a man of mean mentality who could not see the welfare of others and a man of immoral tendencies. All the persons who were with him, were aware of his mean mentality, his immorality and evil propensity. He further stated that he was in love with Ku. Chitra @ Bali Jachak since seven years and now she was his wife. Through Ramnarayan Dubey, false reports have been lodged against his family in the police station and before the superior police officers. Ramnarayan Dubey by virtue of his position as an Editor, gave threats, brought political pressure on his family and time and again, detained him, his younger brother and Sanjay Jachak in the police lock - up. Ramnarayan Dubey was supported by his two brothers to inflict atrocities on the Fender family and they became victim of his furious anger. He has admitted that the act of firing upon Ramnarayan and his two brother has been exclusively committed by him, for which nobody encouraged him and he was not colluded with anybody whatsoever in these killings. This matter is known to everybody and as such, there is no reason to harass his family, relatives and friends. He has admitted that the act of firing upon Ramnarayan and his two brother has been exclusively committed by him, for which nobody encouraged him and he was not colluded with anybody whatsoever in these killings. This matter is known to everybody and as such, there is no reason to harass his family, relatives and friends. He admitted that he is an accused of the police. He would be arrested today or tomorrow or would be killed in police firing. At the end, he requested the person or the police official who would receive this three page letter written by him that he should prepare some copies of the same and send the same to the newspapers, superior police officers and the Mantralaya. 56. Another letter Exhibit 42-B is written by the accused to Bali @ Chitra. In the earlier paras, he has referred to the dreams which he has planned with Chitra and he says that the dream has been completely shattered because of the incident which took place at his hands and as a result, he was unable to move in the society with Chitra as a common citizen. He has further stated that he would be killed in police firing or he would commit suicide. 57. Exhibit 42-C dated 17-10-1991 is addressed to his parents. He has stated that he assaulted Bali @ Chitra severely for two days and on account of fear, she might have left from there. On account of the feeling that he would be killed on account of killings in the police firing or he would commit suicide, he requested them that they alone should take the decision in respect of Bali. At the end, he requested them to excuse him for the sufferances of mental torture, trouble and disrepute because of him. 58. Exhibit 42-D is addressed to Panku and Balu. He has given them advice to behave properly so that his father would get happiness and peace in life. The second para is philosophical one which is reproduced below : ""The end of the quarrel is unfortunate. At the beginning we feel that we have taken revenge, but later on we feel that we have taken revenge on ourselves because for it our family is responsible. Mother, father, brother, sister, wife and children have love for each other. The second para is philosophical one which is reproduced below : ""The end of the quarrel is unfortunate. At the beginning we feel that we have taken revenge, but later on we feel that we have taken revenge on ourselves because for it our family is responsible. Mother, father, brother, sister, wife and children have love for each other. When they get disturbance on account of the word revenge they have to suffer mental trouble. When the person taking revenge could not see his parents, grand father, brothers, sisters and wife this day of Dasera festival also or when above all persons are unable to meet the persons taking revenge then only the man realises the real sorrow."" 59. This is all the prosecution and defence evidence in this case. The learned Counsel for the appellant-accused has not disputed the homicidal death of Ramnarayan Dubey, but he has disputed the homicidal death of Badrinarayan Dubey and Shyamnarayan Dubey. According to the learned Counsel, the bullets are fired mostly on the legs of Shyamnarayan and Badrinarayan and not on the vital parts of the body. Badrinarayan died on 13-10-1991 and Shyamnarayan died on 18-10-1991. It is in the evidence of P.W. 32 Dr. Katade that Badrinarayan and Shyamnarayan died due to bullet injuries also because of the complications. Badrinarayan and Shyamnarayan both were operated upon as soon as they were reached to the hospital. P.W. 32 Dr. Katade has stated that the injuries on the persons at the time of performing operations on Badrinarayan and Shyamnarayan. Dr. Katade has stated that the injuries on the person of Badrinarayan and Shyamnarayan were individually and collectively sufficient in the ordinary course of nature to cause death. In fact, perusal of the Injury Certificates of Badrinarayan and Shyamnarayan show that some of the injuries are on the vital parts of the body. It is the contention of the learned Counsel for the accused that because of operations, there were complications and therefore, it cannot be said that deceased Badrinarayan and Shyamnarayan died only by the bullet injuries received by them. P.W. 32 Dr. Katade is not cross-examined on this point. The medical evidence coupled with direct evidence of P.W. 6 Roma and P.W. 14 Mahesh clearly establishes that Badrinarayan and Shyamnarayan received injuries by the bullets fired by the accused. P.W. 32 Dr. Katade is not cross-examined on this point. The medical evidence coupled with direct evidence of P.W. 6 Roma and P.W. 14 Mahesh clearly establishes that Badrinarayan and Shyamnarayan received injuries by the bullets fired by the accused. The direct evidence of P.W. 6 Roma and P.W. 14 Mahesh that bullets were fired when Badrinarayan and Shyamnarayan were climbing the staircase and going upstairs, is completely corroborated by the medical evidence of Dr. Katade (P.W. 32). Therefore, the prosecution has successfully established that Badrinarayan and Shyamnarayan died a homicidal death. 60. The prosecution has led the evidence about motive that the accused used to make romance with Chitra in an indecent manner openly within the view of the persons living in the Wada and Ramnarayan had objected to the behaviour of the accused. Even sometimes, he tried to convince the accused not to behave in an indecent manner, but the accused still persisted. On this point, there is the evidence of P.W. 5 Alka, P.W. 6 Roma and P.W. 9 Kokila and P.W. 14 Mahesh and the reports lodged by Ramnarayan at Dhantoli Police Station against the accused and his family. During trial, the accused has denied this theory of motive and alleged that Ramnarayan was the brain behind the instances and the false reports lodged against him and his family, as he was accustomed to blackmailing and himself suggested another theory of motive. According to defence, the real motive was the sale of Mangalmurti Wada. None of the families residing in the Wada paid any rent to the owner of the Wada i.e. D.W. 5 Ramchandra Mangalmurti. D.W. 5 through the mediation of Ramnarayan Dubey, wanted to sell the Wada to Badjatya and Ramnarayan used to pressurise D.W. 5 for which he would get Rupees Two to Three Lakhs as a broker and two flats in lieu thereof. Ramnarayan Dubey wanted the tenants including Jachak and Fender Families, to vacate the Wada and to give vacant possession of the Wada to Badjatya. 61. Though the Investigating Officer has recorded the statement of Ramchandra Mangalmurti (D.W. 5) in this crime and though he was cited as a prosecution witness, he was not examined by the prosecution for the reasons best known to the prosecution. It is not that there was no material before the Investigating Officer in respect of the sale of this Wada. Though the Investigating Officer has recorded the statement of Ramchandra Mangalmurti (D.W. 5) in this crime and though he was cited as a prosecution witness, he was not examined by the prosecution for the reasons best known to the prosecution. It is not that there was no material before the Investigating Officer in respect of the sale of this Wada. The prosecution has collected this material because the Investigating Officer P.W. 33 Verma has himself given admission in this respect. 62. The learned A Panel Counsel appearing for State has admitted that there is no pursis filed by prosecution for giving up this witness as his name was not included in the programme of the trial. There is one pursis on record (Exh. 98) dated 7th October, 1993 for giving up four witnesses cited by prosecution. The learned Counsel for the State has submitted that prosecution has not examined this witness because he was not supporting the prosecution. As there is no pursis of the prosecution and there is no statement of the Investigating Officer that this witness is not supporting the prosecution, the contention of the learned Counsel for the State in this regard cannot be accepted. On this point, it can be said that prosecution has suppressed the material witness in trial. 63. Though the motive suggested by accused is not of any assistance to him, moreover it strengthens the case of prosecution and looking to the gravity of the offence neither the prosecution nor the accused has assisted the trial Court properly. It is settled law that when there is direct evidence, the motive pales into insignificance. 64. The learned Counsel for the accused has contended that the prosecution has suppressed the genesis of occurrence. He has submitted that when deceased were sitting on chairs in the Courtyard, something must have led to firing and the direct evidence of prosecution of P.W. 6 Roma and P.W. 14 Mahesh is silent on this point. It is admitted position that P.W. 6 Roma and P.W. 14 Mahesh came in the gallery on upstair after hearing the sound of firing and they have not stated anything as to what happened earlier to the firing. 65. It is admitted position that P.W. 6 Roma and P.W. 14 Mahesh came in the gallery on upstair after hearing the sound of firing and they have not stated anything as to what happened earlier to the firing. 65. The learned Counsel for the State has submitted that at the relevant time there were only three Dubey brothers and the accused and other members of the Fendar Family, Jachak family and Dubey family were not present on the spot. All the three Dubey brothers are dead and therefore there is no witness to show how the incident has started. There is reliable evidence of the presence of P.W. 3 Rambhau, the father of accused, being present at the time of incident on spot, but this witness has not supported the prosecution. It is further submitted by the learned Counsel for the State that had there been any altercation or exchange of words between Dubey brothers and accused, P.W. 6 Roma and P.W. 14 Mahesh, as they were in the vicinity i.e. upstairs from where the ordinary noise of the Courtyard is audible, would have definitely stated in their evidence. The attempt of the State is that there was no exchange of words or any talk between deceased and accused before the firing started. According to prosecution, the incident of firing started without there being any talk or altercation between deceased and accused. There is evidence of P.W. 9 Kokila who has watched the movements of accused at about 9.30 A.M. on the day of incident but she has not stated anything about the talk between Dubey brothers and accused. It is difficult to believe that without there being any talk the incident of firing at once started. Though prosecution cannot be charged of the suppression regarding the genesis of ocurrence, it does not affect the prosecution case as the available witness P.W. 3 Rambhau has not supported the prosecution. But, in all probabilities, there must have been some talk between deceased and accused. 66. As already stated, the learned Counsel for the accused has not argued on the right of private defence, but he has strongly relied upon the defence of ""grave and sudden provocation"". As regards the right of private defence, nothing is suggested in cross-examination of direct witnesses P.W. 6 Roma and P.W. 14 Mahesh. 66. As already stated, the learned Counsel for the accused has not argued on the right of private defence, but he has strongly relied upon the defence of ""grave and sudden provocation"". As regards the right of private defence, nothing is suggested in cross-examination of direct witnesses P.W. 6 Roma and P.W. 14 Mahesh. It has come for the first time in the statement of accused recorded under section 313 of the Code of Criminal Procedure. According to accused, the three deceased brothers with the help of chairs and plank assaulted him and at that time his wrist watch fell on the ground and someone from the deceased said that he should be taken in a room upstairs and they would finish him there and the three Dubey brothers then tried to drag him towards the stair-case. In the meantime, the service revolver came in his hand and he fired one bullet on one of them. In his letters (Exhibits 42-A to 42-D), there is nothing to suggest about this defence. If the accused had been assaulted by chairs and plank, number of injuries like lacerations and contusions are expected on the person of accused. There is evidence of Dr. Mohd. Zakir (P.W. 28) who has examined the accused on 18-10-1991. He found no injuries on the person of accused, except old healed scar over left forearm upper 1/3rd and back over left shoulder blade region. The absence of injuries on the person of accused falsifies this defence of accused. Moreover, this is an after-thought. 67. For the defence of ""grave and sudden provocation"", the learned Counsel for the accused has relied on the following circumstances appearing in the evidence : 1. Violent quarrel was going on at Vijayanand Society - Station Diary Entry (Exh. 24); 2. Spot panchanama (Exh. 154) shows that quarrel has taken place as the articles, including one broken spectacle, were scattered. Live cartridges lying on the spot were seized; 3. First Information Report (Exh. 163) about quarrel and exchange of words ; 4. Seizure of watch (Exh. 11) showing the leather belt of the watch broken at one end ; 5. Abrasions found on the person of deceased Ramnarayan (external injuries Nos. 11 and 18); 6. Similarly, number of abrasions found on the person of deceased Badrinarayan and Shyamnarayan; 7. Accused was having injuries on left side shoulder, left wrist and back; 8. Seizure of watch (Exh. 11) showing the leather belt of the watch broken at one end ; 5. Abrasions found on the person of deceased Ramnarayan (external injuries Nos. 11 and 18); 6. Similarly, number of abrasions found on the person of deceased Badrinarayan and Shyamnarayan; 7. Accused was having injuries on left side shoulder, left wrist and back; 8. Arrest panchanama (Exh. 119) of accused showing old injury mark near elbow and old abrasion injury on left shoulder; and 9. The evidence of P.W. 12 Shri Krishna and P.W. 13 Santosh, the witnesses who have not supported the prosecution. Relying on the aforesaid points, the learned Counsel for the accused has submitted that there is material to show that there was scuffle, quarrel and exchange of words between deceased and accused preceding the firing. 68. Perusal of the copy of Station Diary (Exhibit 24) dated 11-10-1991 shows that at about 11 O'Clock, one lady has given an intimation on phone that violent quarrel was going on at Vijayanand Society and that a person named Pande was shot. The evidence of P.W. 6 Roma is to the effect that she has informed the Police Station that firing was going on and also asked for immediate help. Mrs. Maya Bankar (P.W. 19) has received the phone of P.W. 6 Roma and she has stated that the lady has made enquiry about the Police Inspector Thakur and she informed her that her husband was shot and he was lying and that the firing was near Vijayanand Society and that lady was frightened. The entry of the phone message was taken in the Station Diary (Exh. 24) by Police Head Constable Yusuf on the say of P.W. 19 Mrs. Maya Bankar. On receipt of the phone message, P.W. 19 Mrs. Maya Bankar has immediately contacted the superior Officers and while giving information to Police Head Constable Yusuf, there might have been some communication gap between P.W. 19 Mrs. Maya Bankar and Police Head Constable Yusuf while recording the Station Diary, but the evidence of P.W. 19 Mrs. Maya Bankar is direct on this point which is reliable and, therefore, not much significance can be attached to Station Diary entry (Exh. 24) that there was violent quarrel going on at Vijayanand Society. 69. The first para of Spot Panchanama (Exh. Maya Bankar is direct on this point which is reliable and, therefore, not much significance can be attached to Station Diary entry (Exh. 24) that there was violent quarrel going on at Vijayanand Society. 69. The first para of Spot Panchanama (Exh. 154) is only the reproduction of Exhibit 24 that quarrel had taken place and bullets were fired. It is true that live cartridges were lying on the ground. Similarly, one broken spectacle and one blue white coloured slipper (chappal) smeared with blood were found near the stair-case. It has come in evidence that the broken spectacle and the slipper belonged to Ramnarayan. As many as nine bullets were fired at Ramnarayan and it is just possible that in that firing his spectacle was broken. The live cartridges were lying on the ground and were seized from the spot. The prosecution evidence is that after firing the bullets from the revolver, the accused was loading the revolver again with cartridges. We have to consider the short time in which the whole incident has taken place. The accused must be in haste while loading the revolver and therefore there is possibility of live cartridges lying on the ground. This does not suggest anything about the scuffle. 70. In the First Information Report (Exhibit 163) dated 11-10-1991, at Serial No. 6, it is mentioned : ""As a result there was quarrel and exchange of words between them and during the course of which the accused fired the revolver"". This F.I.R. is recorded by P.W. 30 Police Inspector Thakur. This is recorded on the basis of the Station Diary Entry (Exh. 24) and the report (Exhibit 109) of P.W. 6 Roma. Therefore, the reference regarding the quarrel and exchange of words between the accused and deceased can be ascribed to Station Diary Entry (Exhibit 24) which we have already discussed. 71. It is true that the leather belt of the wrist watch was broken at one end. It is in the evidence of P.W. 6 Roma and P.W. 14 Mahesh that accused followed Badrinarayan and Shyamnarayan while they were going into the room upstair and when they entered the room, P.W. 6 Roma closed the door of the room. The accused tried to open the door and P.W. 6 and P.W. 14 tried to push the door from inside. The accused tried to open the door and P.W. 6 and P.W. 14 tried to push the door from inside. So in that attempt, there is possibility of the belt of wrist watch being broken. It cannot only be ascribed to the scuffle. 72. Much emphasis is laid on the abrasions found on the persons of deceased to show that the abrasions were caused during the scuffle. There are only two abrasions on the person of Ramnarayan (External injuries Nos. 11 and 18). Injury No. 11 is abrasion at left side back, supra scapular region, 2.5 cm. x ½ cm. and injury No. 18 is abrasion of left outer aspect of flank mid one-third 5 cm. x 3 cm. Ramnarayan, after receipt of these injuries, had fallen near the stair case and it is in the evidence of Dr. Katade (P.W. 32) that these external injuries Nos. 11 and 18 could be caused possibly by a fall. Injuries Nos. 10, 11, 13, 14, 15 and 16 on the person of Badrinarayan are on the leg, knee and toe and there is evidence that after receipt of bullets, he went upstairs by climbing the staircase. According to Dr. Katade, there abrasions are possible in his attempt in going upstairs. The learned Counsel for the accused also referred to the tear of clothes of Ramnarayan Dubey: 1. Tear at front of right flap on chest of the bengali shirt ; and 2. Tear at the lower part of the right side of button plate. According to him, tears to clothes were caused because of scuffle. The first tear is suggestive of the wound of entry of firearm and the second tear is suggestive of old tear as there was no corresponding injury as examined by Dr. Katade (P.W. 32). 73. As already discussed, as per the evidence of Dr. Mohd. Zakir (P.W. 28), the accused was not having fresh injuries on his person. He has only referred to old healed scar. In Arrest Panchanama (Exhibit 119) also, after examining the person of accused, an old injury mark was visible near elbow of left hand and an old abrasion injury was visible on his left shoulder. P.W. 28 Dr. Mohd. Zakir is cross-examined about the presence of old healed scar and he has denied that the two healed scars were freshly healed. In Arrest Panchanama (Exhibit 119) also, after examining the person of accused, an old injury mark was visible near elbow of left hand and an old abrasion injury was visible on his left shoulder. P.W. 28 Dr. Mohd. Zakir is cross-examined about the presence of old healed scar and he has denied that the two healed scars were freshly healed. He has also stated that he has not mentioned the cause of injury because the scar was old one. Therefore, the old healed scar mentioned in the Arrest Panchanama (Exh. 119) as well as in the evidence of P.W. 28 Dr. Mohd. Zakir cannot be connected with the incident in this crime. 74. The learned Counsel further tried to rely on the evidence of P.W. 12 Shri Krishna and P.W. 13 Santosh for his theory of scuffle preceding the firing. These two witnesses have not supported the prosecution and they tried to improve the prosecution story. There was attempt by the defence to bring in their evidence the story of some beating, some quarrel and scuffle, but they are cross-examined by prosecution by taking out the omissions from their police statements. Therefore, the evidence of P.W. 12 Shri Krishna and P.W. 13 Santosh is not of any assistance to defence. 75. It is an admitted position that there were chairs in the Courtyard and the three Dubey brothers were sitting on the chairs. Spot panchanama (Exhibit 154) is silent about the chairs, but it is an admitted position that the chairs are not seized. Similarly, there was also one stool in the Courtyard. That is also not seized in this case. It is in the spot panchanama (Exh. 154) and in the evidence of P.W. 27 Madhav that 2-3 wooden planks were lying in the Courtyard. One wooden plank having blood stains was seized. The chairs and stool are not seized probably because no blood stains were detected on those articles. 76. The evidence of Court Witness No. 1 Shri Asgekar, the Ballastic Expert, definitely shows that the accused fired bullets on the deceased at least from a distance of five feet except one firing on the person of Shyamnarayan. Prosecution as well as defence admit that the main target of accused was Ramnarayan and the accused started firing at Ramnarayan in the beginning. Prosecution as well as defence admit that the main target of accused was Ramnarayan and the accused started firing at Ramnarayan in the beginning. To save Ramnarayan, Badrinarayan and Shyamnarayan surrounded Ramnarayan and while they were leaning on the person of Ramnarayan, they sustained injuries and when Ramnarayan was lying near the staircase Badrinarayan and Shyamnarayan went upstairs by the staircase. When the distance of firing is 1.50 metres or 5 feet, as narrated by Court Witness No. 1 Asgekar, which is reliable and trustworthy, this goes against the theory of scuffle. That shows that accused was at a distance of five feet from Ramnarayan Dubey when he fired at Ramnarayan. One bullet which was fired at Shyamnarayan from a close distance shows that while Shyamnarayan was climbing the stairscase and accused following him, he must have fired the bullet or this firing could be in the Courtyard also. 77. The learned Counsel for the accused has further submitted, relying on the statement of accused, that the words uttered by Ramnarayan Dubey to the effect that ""vkSjr dks <qa<us vk;k gS lkykA oS';k [kkuses gksxhA"" provoked the accused and according to him, this is a grave and sudden provocation. The learned Counsel for the State has submitted that even assuming that Ramnarayan uttered those words, still there cannot be grave and sudden provocation. Close perusal of the statement of accused shows that after Ramnarayan uttered these words, he got angry, lost his control and was shivering and shouted ""pwi jgks"". Then there was assault by three Dubey brothers on him and when the three brothers tried to drag him towards the stair-case, at that time he fired from his revolver. In his letters (Exhs. 42-A to 42-D), he has not at all referred to these utterances of Ramnarayan Dubey. In Exhibit 42-A, the letter addressed to the Honourable Chief Minister of State of Maharashtra, he has referred to the utterances of Ramnarayan as ""Haramkhor"" and then ""I have suspended one brother and I would see that this fellow is also definitely suspended"". But there is no reference to the utterances ""vkSjr dks <qa<us vk;k gS lkykA oS';k [kkuses gksxhA"" and ""pwi jgks"". After the incident, the accused was absconding and roaming in the villages. Exhibit 42-A appears to have been written on 16-10-1991 i.e. five days after the incident. But there is no reference to the utterances ""vkSjr dks <qa<us vk;k gS lkykA oS';k [kkuses gksxhA"" and ""pwi jgks"". After the incident, the accused was absconding and roaming in the villages. Exhibit 42-A appears to have been written on 16-10-1991 i.e. five days after the incident. Prosecution and defence both rely on this letter which is in the form of ""Extra-judicial confession"" and admissible in evidence. During these five days from 11-10-1991 to 16-10-1991, it appears that accused had calmed down, he was calm and quiet and at the first opportunity he spoke out his mind in this letter. Considering the personality of Ramnarayan and the evidence of the Investigating Officer Shri Verma (P.W. 33) that Ramnarayan was a quarrelsome person, we think that Ramnarayan might have uttered the words as attributed to him in Exhibit 42-A. The submission of State that without there being any talk between deceased and accused, firing took place is most improbable. Now considering the letters (Exhs. 42-A to 42-D), the defence raised by accused during trial is clearly an after-thought. Therefore, there is no merit in the contention of the learned Counsel for the accused that there was grave and sudden provocation. The learned Counsel for the accused has submitted that the main target of accused was Ramnarayan Dubey. About Ramnarayan, the accused has intentionally fired on him. But because of this defence, his case falls under Exception 1 of section 300 of Indian Penal Code. As regards the injuries on the person of Badrinarayan and Shyamnarayan, he has submitted that they received the injuries accidentally as the accused was firing at Ramnarayan and when Badrinarayan and Shyamnarayan tried to save Ramnarayan at that time they sustained injuries and, therefore, according to him, the accused has not committed any offence under section 302 of Indian Penal Code as regards Badrinarayan and Shyamnarayan. There is no merit in this contention also. As the accused, though a trained Police Officer, has fired on his target intentionally and this is borne out from the evidence of P.W. 6 Roma and P.W. 14 Mahesh that while Badrinarayan and Shyamnarayan were climbing upstairs by the staircase, the accused had fired bullets on them. Therefore, there is clear intention to cause injuries to Badrinarayan and Shyamnarayan. As the accused, though a trained Police Officer, has fired on his target intentionally and this is borne out from the evidence of P.W. 6 Roma and P.W. 14 Mahesh that while Badrinarayan and Shyamnarayan were climbing upstairs by the staircase, the accused had fired bullets on them. Therefore, there is clear intention to cause injuries to Badrinarayan and Shyamnarayan. The defence of ""right of private defence"" and of ""grave and sudden provocation"" thus falls on ground and is not acceptable in the facts and circumstances of this case and therefore the argument of the learned Counsel for the accused that this case falls under Exception 1 of section 300 of Indian Penal Code is rejected. 78. Therefore, from the evidence direct and circumstantial and the material on record, we hold that prosecution has successfully established that the accused is guilty of committing ""culpable homicide amounting to murder"" for killing three Dubey brothers. 79. This takes us to the most important question of sentence. The learned Counsel for the accused has submitted that there are no aggravating circumstances. According to him, the following are the mitigating circumstances : 1. Accused Manohar Fendar, at the time of incident was 29 years of age ; 2. He was working as Police Sub-Inspector; 3. Highly qualified - M.Com., M.Phil.; 4. No bad antecedents ; 5. Not a criminal also ; 6. If allowed to live, he would not be a menace to society ; 7. If chance is given, he can definitely be reformed ; 8. Man of family ; 9. He has repented for his acts ; 10. He was in disturbed state of mind; and 11. He did not assault the wife or son of Ramnarayan Dubey. 80. The learned A Penal Counsel for the State argued, likewise the learned Counsel for the accused, that there are no mitigating circumstances. According to him, the following are the aggravating circumstances : 1. Point blank firing ; 2. Brutal murders ; 3. There was no grudge or no enmity against Badrinarayan and Shyamnarayan ; 4. Illegal use of arms ; 5. Killing for revenge preplanned ; 6. Manner of killing - 19 rounds ; 7. Second incident of 9.30 P.M. of firing two bullets in the air on the date of incident ; 8. Police Officer should behave in a disciplined manner ; 9. Motive ; 10. Accused anti-social ; and 11. Illegal use of arms ; 5. Killing for revenge preplanned ; 6. Manner of killing - 19 rounds ; 7. Second incident of 9.30 P.M. of firing two bullets in the air on the date of incident ; 8. Police Officer should behave in a disciplined manner ; 9. Motive ; 10. Accused anti-social ; and 11. Personality of victims to be considered. 81. The learned Additional Sessions Judge, in paras 96 and 97 of his judgment, has referred to the submissions of the counsel for accused regarding mitigating circumstances about his education, not a criminal, he has repented and accused committed the offence when he lost his self-control and the killing is not for the gain. Then the learned trial Judge has made a reference so eight authorities of Supreme Court. He has considered the personality of Ramnarayan. According to him, the murders were ghastly, committed on helpless persons, the accused being protector of law became the law-breaker, accused has acted in a most cruel manner, he has fired as many as 19 rounds and posed two questions: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and call for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? 82. Then in para 99 of his judgment, the learned trial Judge says : considering the rulings and facts and circumstances, all the factors in the balance-sheet, pros and cons, he is satisfied that even after to the full weightage to all mitigating circumstances, the aggravating circumstances castingly overweighting the former and, therefore, imposed death sentence. 83. In our view, the learned trial Judge has not considered the aggravating circumstances and mitigating circumstances which appear from the evidence and material of this case properly. In fact, the reasons given by the learned trial Judge do not fall in the category of ""special reasons"" to be given as per section 354(3) of the Code of Criminal Procedure. 84. In (Bachan Singh v. State of Punjab)1, reported in A.I.R. 1980 S.C. 898, in para 200 of the judgment, Their Lordships of Supreme Court have quoted Dr. In fact, the reasons given by the learned trial Judge do not fall in the category of ""special reasons"" to be given as per section 354(3) of the Code of Criminal Procedure. 84. In (Bachan Singh v. State of Punjab)1, reported in A.I.R. 1980 S.C. 898, in para 200 of the judgment, Their Lordships of Supreme Court have quoted Dr. Chitale who has suggested the following ""aggravating circumstances"" : ""Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion : (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) xxxxxxxx (d) if the murder is of a person who had acted in the lawful discharge of his duty xxxxx"" In para 201, it is stated that they would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other. In para 204, quoting Dr. Chitale, Mitigating circumstances are given: ""Mitigating circumstances : In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances : (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct"". 85. The learned Counsel for the State has relied heavily on the decision of (Jodha Khoda Rabari and etc. v. State of Gujarat and etc.)2, reported in 1992 Cri. L.J. 3298. According to him, all the relevant decisions of Supreme Court on the sentencing policy are discussed by the Court in the decision (supra). 86. 85. The learned Counsel for the State has relied heavily on the decision of (Jodha Khoda Rabari and etc. v. State of Gujarat and etc.)2, reported in 1992 Cri. L.J. 3298. According to him, all the relevant decisions of Supreme Court on the sentencing policy are discussed by the Court in the decision (supra). 86. In (Tapinder Singh v. State of Punjab)3, A.I.R. 1970 S.C. 1566, it is held that the manner in which five shots were fired at the deceased clearly showed that the offence committed was deliberate and pre-planned. 87. In (Balwant Singh v. State of Punjab)4, A.I.R. 1976 S.C. 230, it has been observed: ""Brutality of the manner in which the crime has been committed, and the helplessness of the victim would certainly be relevant factors, while finding out whether any special reasons exist in the case or not."" The victims in that case were all unarmed and they had not given any provocation. 88. In (Lajar Masih v. State of U.P.)5, A.I.R. 1976 S.C. 653, the Supreme Court observed: ""The crime was committed in a dastardly fashion. No less than four unarmed persons were indiscriminately stabbed when most of them were lying asleep, unawares and helpless. The crime was pre-meditated and pre-planned."" 89. In (Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra)6, A.I.R. 1983 S.C. 594, the Supreme Court found that the appellant acted like a demon showing no mercy to this helpless victims, three of whom were helpless little children and one, a woman. The motive was gain, and the murders were perpetrated in a cruel, callous and fiendish fashion. 90. In (Machhi Singh v. State of Punjab)7, A.I.R. 1983 S.C. 957, Their Lordships have given illustrative cases as to when it can be said that the case is of the 'rarest of rare type' which would warrant inflictions of the extreme punishment of death. In para 34, Their Lordships have stated that in order to apply these guidelines inter alia the following questions may be asked and answered : (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ? In para 35, they observed : ""If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so."" 91. In (Lok Pal Singh v. State of M.P.)8, A.I.R. 1985 S.C. 891, it was contended before the Supreme Court that Lok Pal Singh being only 18 or 20 years of age at the time of incident, he should not be given the maximum penalty of death sentence. The Supreme Court found it unable to accept the contention. Their Lordships said that ""it was a most cruel, heinous and dastardly murder and there was no extenuating circumstance for reducing the sentence of death of imprisonment for life"". 92. Then in (Sevaka Perumal v. State of Tamil Nadu)9, A.I.R. 1991 S.C. 1463, in paras 8 and 9 it is observed as under : ""8. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a gross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the eddifice of order should meet the challenges confronting the society. Friedman in his ""Law in Changing Society"" stated that ""State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society"". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. Friedman in his ""Law in Changing Society"" stated that ""State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society"". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation of sentencing process be stern where is should be, and tempered with mercy where it warrants to be."" It is further observed : ""For instance a murder committed due to deep seated personal rivalry may not call for penalty of death."" In (Mahesh v. State of M.P.)10, A.I.R. 1987 S.C. 1346, the Court observed --- ""It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon."" 9. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. In the decision report in 1992 Cri.L.J. 3298, Jodha Khoda Rabari and etc. v. State of Gujarat and etc., after referring to all the above quoted decisions of Supreme Court, Their Lordships have held that anti-social, hardened criminal or professional killer are the aggravating circumstances. 93. The recent trend in sentencing policy is reformative. The general rule of sentence for murder is ""life imprisonment"" and exception is ""death sentence"". The first thing the Court has to consider is whether the murder is committed with pre-meditation, pre-planning, and whether it is cold-blooded, ghastly and brutal. In this case, the accused being a Police Sub-Inspector at Umri-Potdar, District : Chandrapur, was entitled to receive revolver and cartridges because of his duty. He was given arms and cartridges, prior to his taking of this .455 revolver and cartridges, twice. In this case, the accused being a Police Sub-Inspector at Umri-Potdar, District : Chandrapur, was entitled to receive revolver and cartridges because of his duty. He was given arms and cartridges, prior to his taking of this .455 revolver and cartridges, twice. It is the prosecution case that because he was armed with revolver and cartridges, there was pre-meditation to kill the three Dubey brothers. Considering the evidence that when accused came to Nagpur on 10-10-1991, he had an opportunity to kill Ramnarayan. On the day of incident, also at 9.30 A.M., he had another opportunity to kill the three Dubey brothers, but he had not availed of the same.The explanation given by the State is that since P.W. 9 Kokila was present at 9.30 A.M. cleaning the utensils near the tap, the accused did not want to kill the Dubey brothers before an eye-witness. Had the accused been determined to kill the three Dubey brothers, he would have definitely availed of the opportunity available to him first in point of time and he would not have cared whether there were eye-witnesses to the incident or not. Therefore, we think that there is no pre-meditation in these killings. The accused cannot be termed as anti-social. He is neither a hardened criminal nor a professional killer. The accused has admitted that he has taken revenge by killing the three Dubey brothers. 94. Considering all the aggravating and mitigating circumstances, we think that the mitigating circumstances outweigh the aggravating circumstances in this case and, therefore, we do not accept the Death Reference. Death Reference is thus rejected. However, we maintain the conviction of the accused both under sections 302 of Indian Penal Code and 27(1) of Arms Act. We reduce the sentence of death penalty to that of R.I. for life for offence punishable under section 302, I.P.C. but maintain the sentences imposed upon the accused for offence punishable under section 27(1) of Arms Act. 95. In the result, Reference under section 366 of Code of Criminal Procedure in Criminal Confirmation Case No. 2 of 1993, for confirmation of Death Sentence, imposed upon the respondent-accused Manohar s/o Rambhau Fendar, by the learned Additional Sessions Judge, Nagpur, vide his judgment and order dated 14-12-1993, in Sessions Case No. 868 of 1991, is rejected. 95. In the result, Reference under section 366 of Code of Criminal Procedure in Criminal Confirmation Case No. 2 of 1993, for confirmation of Death Sentence, imposed upon the respondent-accused Manohar s/o Rambhau Fendar, by the learned Additional Sessions Judge, Nagpur, vide his judgment and order dated 14-12-1993, in Sessions Case No. 868 of 1991, is rejected. However, Criminal Appeal No. 6 of 1994 preferred by appellant-accused Manohar Fendar is partly allowed, maintaining the conviction of appellant-accused both under sections 302, I.P.C. and 27(1) of Arms Act and modifying the sentences as under : (i) The sentence of death penalty is reduced to that of Rigorous imprisonment for life for offence punishable under section 302, I.P.C. ; (ii) The sentences imposed upon the appellant-accused Manohar s/o Rambhau Fendar by the learned Additional Sessions Judge, Nagpur, for offence punishable under section 27(1) of Arms Act are maintained ; and (iii) Both the sentences are directed to run concurrently. Per R.M. LODHA, J. :---I agree with the conclusions of conviction and sentence just arrived at by my learned Brother, Ghodeswar, J. The overwhelming evidence which has come on record conclusively established guilt of the accused beyond reasonable doubt under section 302 of the Indian Penal Code and section 27(1) of the Arms Act. Learned Brother Ghodeswar, J., has exhaustively and minutely dealt with the same and no further discussion is needed by me on that score. However, marathon forensic debate which continued for more than two weeks compels me to deal briefly on the question of sentence. 97. Sentencing exercise is not a computer machine. Complex human problems and diverse human beings, differently shaped and differently circumstanced react differently in given situation. The law gives the discretion to the Court and the sentencing discretion cannot be used in the straight jacket formula. For the offence under section 302 of the Indian Penal Code, life imprisonment is a rule and death penalty could only be awarded in rarest of rare cases, for the special reasons, which are special in the facts and circumstances of a given case. By special reasons in the context of section 354(3) Cr.P.C. are meant the compelling reasons. The proportionality between the offence and death penalty has to be judged by reference to various factors and adverting to various questions and then appropriate sentence to be imposed, needs to be choosen. By special reasons in the context of section 354(3) Cr.P.C. are meant the compelling reasons. The proportionality between the offence and death penalty has to be judged by reference to various factors and adverting to various questions and then appropriate sentence to be imposed, needs to be choosen. It was with this back-ground that we asked myriad questions to the Public Prosecutor as well as the learned Counsel for the defence viz. was the offence committed without pre-meditation or was it after due deliberation? What was the motive for the crime? Was it for gain? Was the murder committed under some stress, emotion or otherwise, or under the disturbed state of mind? What is the back-ground of the offender? Is he hardened criminal? What is his social and economic status? What is the level of his education or of the intelligence? Do his actions betray a particularly callous indifference towards the welfare of society or is the offender so perpetually at war with the society that there is no scope of reformation or the accused is menace to the society? 98. In the alternative of life or death, 'A' Panel counsel Mr. Deshpande appearing for the State describes the triple murder committed by offender Manohar Fendar, ""gruesome"", ""cruel"", ""ghastly"", ""cold blooded"", ""premeditated and pre-planned"", ""motivated"", ""disbolically"" conceived and cruelly executed"". He submits that the accused used service revolver and fired on innocent, un-armed and helpless Dubey brothers. The manner in which 19 shots were fired on three Dubey brothers exhibits the total determination of the accused to do away with the lives of three persons. According to Mr. Deshpande, the accused being a police official, was expected to show discipline, but instead of law protector, he became the law breaker. Mr. Deshpande terms the crime committed by the accused full of horror and terror. Mr. Deshpande also submits that the nature of crime committed by accused was of anti-social character and victims belonged to same family and fairly a good status inasmuch as one of them was Resident Editor of local news paper 'Nagpur Times' and the other brother Shyamnarayan was connected with another news paper 'Naya Khun'. According to him, there are no mitigating circumstances in favour of accused and, therefore, the aggravating circumstances aforesaid warrant the capital punishment to the accused. 99. According to him, there are no mitigating circumstances in favour of accused and, therefore, the aggravating circumstances aforesaid warrant the capital punishment to the accused. 99. The learned Counsel for the defence on the other hand submits that in fact there are no aggravating circumstances and none of the circumstances cited by Mr. Deshpande could be described as aggravating circumstances. According to the defence counsel, there are many mitigating circumstances warranting lesser punishment in favour of accused. He submits that the crime was committed by the accused in disturbed state of mind and on the provocation by the deceased Ramnarayan Dubey. Mr. Daga submits that accused is young man who was 29 years old at the time of commission of crime. He is qualified person having degrees of M. Com. and M. Phil. and there is no bad antecedent and criminal back-ground. According to Mr. Daga accused is neither a professional criminal nor the crime was committed for gain, and for his mis-deeds he has repented himself and if he is allowed to live, he would not be menace to society. Mr. Daga also submits that though three persons have died in the incident, who were real brothers, but the accused did not assault the wife and infant child of the deceased who were there. Thus, Mr. Daga submits that no special reasons exist in the present case for awarding the death sentence to the accused Manohar Fendar. 100. Before answering the aforesaid questions and to arrive at a conclusion of sentence, it may be stated that in India the sentence of death on Statute Book, for some offences and in circumstances where it may be thought necessary to award this extreme penalty, has been retained. After amendment of the Criminal Procedure Code in the year 1973, there is a clear shift from sentence of death to lesser sentence of life imprisonment. In view of the principles laid down in Bachan Singh's case (supra) and Machhi Singh's case (supra), death sentence is now awarded in rarest of rare cases. The crime to receive death sentence must be of an uncommon nature in which even after giving maximum weightage to the mitigating circumstances, the Court must be of opinion that sentence of imprisonment for life is inadequate. The crime to receive death sentence must be of an uncommon nature in which even after giving maximum weightage to the mitigating circumstances, the Court must be of opinion that sentence of imprisonment for life is inadequate. The option has to be exercised bearing in mind that life imprisonment is the rule and death sentence to be only an exception which can be restorted to only when life sentence is found altoghether inadequate. While deciding the question of imposing death sentence, along with the circumstances of crime the circumstances of the offender also have to be taken into account. All the aggravating and the mitigating circumstances have to be drawn up giving full weightage to the mitigating circumstances in striking the balance before exercising the option. 101. Adverting to the scene of crime before exercising the option, it may be noted that after 5/6 years of love affairs, accused Manohar Fendar married Chitra Jachak on 28-8-1991. P.W. 3 Rambhau Fendar, father of the accused has stated that on 28-8-1991 accused married with Chitra and after the marriage, Chitra was residing with accused at Umri Potdar Sub-Police Station. It has also come on record that on 8-10-1991 Chitra Jachak had left the house of accused at Umri Potdar without intimating him because of the quarrel which took place between them. The love of accused for Chitra can be inferred from his letter dated 17-10-1991 (Exh. 42-B) wherein he stated, ""Due to fear of beating at my hands, your coming to Nagpur from Kothari without informing me or anybody else and hence my coming to Nagpur in your search, has resulted into tragedy of our lives, Dream of us both has been completely shattered due to that because of my coming to Nagpur, the said incident took place at my hands as a result of which at present, I am unable to move in the society with you, as a common citizen. Had I not been worried about you, I would have definitely committed suicide uptill now. But I had come to Nagpur in your search. Now it is my only earnest desire to see your face, may it be for once and I am presently trying for it"". Love for Chitra brought accused Manohar Fender to Nagpur in her search on 8-10-1991. On that day, he could not find Chitra in Nagpur and that disturbed him. But I had come to Nagpur in your search. Now it is my only earnest desire to see your face, may it be for once and I am presently trying for it"". Love for Chitra brought accused Manohar Fender to Nagpur in her search on 8-10-1991. On that day, he could not find Chitra in Nagpur and that disturbed him. He went back to his place of posting. On 10-10-1991, the accused again came to Nagpur and visited Mangalmurti Wada where his parents as well as Chitra's mother were residing and he did not find Chitra there. Obviously, when accused could not find Chitra for three days, it caused mental and emotional disturbance to him and he was under mental stress and strain. Chitra had left him in lurch and again on 11-10-1991 he went to search Chitra in the morning and went to the shop of Mr. Kailesh Khandelwal (P.W. 4) where Chitra used to serve previously and there also accused did not find Chitra. P.W. 4 Kailesh Khandelwal has stated that on the day of incident i.e. 11-10--1991 about 10.00 a.m. he was in his shop and accused came to his shop and made enquiry about Chitra and he (Kailesh Khandelwal) told the accused that she had not come. It is, therefore, well established on record that right from 8-10-1991 since the day Chitra left the accused who was posted at Umri Potdar, the accused had been moving from piller to post in search of Chitra upto 11-10-1991 at 10.00 a.m. and, therefore, he was in extreme disturbed state of mind. As is borne out from letter (Exhibit 42-A) which is written by accused on 16-10-1991 before his arrest, the accused went to Mangalmurti Wada after meeting Kailesh Khandelwal and he had written therein, ""Since my work was not done and since I was required to go to Chandrapur immediately in disturbed State of mind I went to Dhantoli to collect my suit case. At that time R.N. Dubey, his elder brother Badrinarayan Dubey and younger brother Shyamnarayan Dubey, these three, were sitting in the Courtyard in the chairs. As soon as I was seen at the gate of the mansion, R.N. Dubey said in such tone audible to me, ""I have suspended one brother and I would see that this fellow is also definitely suspended"". As soon as I was seen at the gate of the mansion, R.N. Dubey said in such tone audible to me, ""I have suspended one brother and I would see that this fellow is also definitely suspended"". Immediately after speaking to this effect all the three looked at me and laughed loudly. In the meanwhile, my service revolver got separated from my waist and came in my hand, and I shot bullets at all the three brothers, and immediately thereafter ran away from there..."" It has thus come on record that at the time of commission of crime, the accused was in extreme disturbed state of mind. The letters (Exhibits 42-A, 42-B, 42-C and 42-D) written by the accused prior to his arrest are relied on by both the sides viz. the prosecution as well as defence in support of their respective arguments. One thing is definitely clear that deceased R.N. Dubey provoked the accused when he arrived at Mangalmurti Wada in a disturbed state of mind having not found Chitra by stating, ""I have suspended one brother and I would see that this fellow is also definitely suspended"". This provocation might not be sufficient to fall in the category of sudden and grave provocation to bring the accused in Exception-I to section 300 of the Indian Penal Code, but in any case, so far as the question of sentence is concerned, it is a mitigating circumstance and has to be given full weightage. 102. It is also apparent from the letter (Exh. 42-A) written by accused to the Chief Minister, exhibit 42-B written by him to Chitra on 17-10-1991, Exh. 42-C letter written by accused to his parents dated 17-10-1991 and Exhibit 42-D a letter written by accused to his brothers on 17-10-1991 prior to his arrest on 18-10-1991 that he has tried to clean breast himself by confessing the crime committed by him. Repentance dawned on him. In his letter (Exhibit 42-B) addressed to Chitra Jachak, he has stated, ""Either I will be killed in Police firing or I will commit suicide. If at all I remain alive, I will go away to a very distant place. If I get an opportunity to remain alive and lead a good life by going away I will definitely take you with me and at that time, we will try again to materialise our former dream. If at all I remain alive, I will go away to a very distant place. If I get an opportunity to remain alive and lead a good life by going away I will definitely take you with me and at that time, we will try again to materialise our former dream. But today I am feeling that the dream of doing away to a distant place will be a dream only because it is not an easy task to escape from the clutches of police. Still I am attempting (for it) because of you and our dear Meenakshi (if she is in womb) so that your and her life may be saved from being ruined..."" While addressing letter to his brothers on 17-10-1991 (Exhibit 42-D), the accused has stated, ""In case I remained alive I would definitely meet you sooner or later. But now you should not give trouble to mother, father and grand-father. Our mother and father suffered too much hardship for we four brothers and one sister; but he did not receive the fruit of the same as yet. He neither wants money nor anything. He only wants happy and satisfactory life of his children. Hence you should behave in such a way that he would get happiness and peace in his remaining life"". The accused in his letter to his parents dated 17-10-1991 (Exh. 42-C) has expressed, ""You taught me too much and spent a lot of amount over the same and other things. You suffered hardships for my happy life, but I could not fulfil your any type of expectations. You both were having only one desire that I should lead my remaining life happily with Bali @ Nalini. But on account of the killings committed by me on 11-10-1991, I could not fulfil this desire also, because at present, I cannot behave as a common man in the society."" 103. These letters (Exhs. 42-B, 42-C and 42-D) have been written by the accused on 17-10-1991, before his arrest, are not tutored and reflect the repentance expressed by the accused and also that he would reform if he gets an opportunity to remain alive. Expression of sincere repentance is a most powerful weapon, wielding which a person can get exonerated from the consequences of his misdeeds even of a grave nature. Expression of sincere repentance is a most powerful weapon, wielding which a person can get exonerated from the consequences of his misdeeds even of a grave nature. An act of killing three persons was undoubtedly sinful, but confessing it with deep regret and repentance and the pious wish to lead good life if permitted to live, is definitely again a mitigating circumstance and deserves to be given full weightage. 104. The Prosecution has not led any evidence nor could show from the material that there is no probability that the accused could be reformed and rehabilitated. In Bachan Singh's case (supra), the Apex Court has held that probability that the accused would not commit criminal acts of violence as would constitute continuous threat to the society and the possibility that the accused can be reformed and rehabilitated, are undoubtedly relevant mitigating circumstances and must be given great weight in the determination of sentence. Though there is no evidence from the side of prosecution that accused cannot be reformed and rehabilitated and that accused would commit criminal acts of violance as would constitute a continuing threat to the society, from the evidence which has already come on record and referred to hereinabove, shows that there is every possibility and probability for the accused being reformed and rehabilitated if he is allowed to live. These again are the mitigating circumstances in favour of the accused and have to be given due weight. It is also undisputed that the accused is well qualified person having M.Com. and M. Phil degrees and was young man of 29 years at the time of commission of offence. The accused is not a hardened criminal nor has committed the crime for gains nor the accused is a professional criminal. It is true that deceased Ramnarayan Dubey had lodged few chapter cases against the accused and a police guard was posted to maintain law and order situation at the Wada. At the same time, it has come on record that a complaint was filed against deceased Ramnarayan Dubey also on 7-10-1991 by the mother of accused in respect of threatening them. P.W. 30 Deonathsingh Thakur has admitted that on 7-10-1991, mother of the accused filed a report against Dubeys in respect of threatening them. At the same time, it has come on record that a complaint was filed against deceased Ramnarayan Dubey also on 7-10-1991 by the mother of accused in respect of threatening them. P.W. 30 Deonathsingh Thakur has admitted that on 7-10-1991, mother of the accused filed a report against Dubeys in respect of threatening them. He further admitted that on the basis of the complaint dated 7-10-1991, he issued directions to the Police Sub-Inspector to make enquiry and take preventive actions against Dubeys. He also admitted that the matter was under enquiry and, therefore, the offence was not registered. Thus, it appears that there was dispute going on between the two tenants of Wada i.e. the family of Dubey and family of accused and both of them sought to claim supremacy over the others. This cannot be said to be menace to the social order, but a specific co-tenant's feud. The accused cannot be said to be youth of uncontrollable violance having propensities against community. 105. It is true that the accused has shot at three persons who were brothers and belonged to one family, but counting the casualties cannot be conclusive of awarding death sentence and that by itself would not make out a special reason justifying the extreme penalty. The intention of the accused to kill these three brothers has been held to be proved, but at the same time, for the reason which have already been given by my learned Brother, Ghodeswar, J., it was not premeditated. The accused was armed with revolver and cartridges since 23-8-1991 and had various occasions to terminate the lives of Dubey brothers, had he so pre-planned and pre-meditated. But as stated above, on the fateful day at the time of commission of crime, the accused was in deep anguish and extreme disturbed state of mind since he could not find his missing wife Chitra for three days and in that emotional, mental stress and strain, the deceased Ramnarayan Dubey provoked him resulting in fire from the accused and as a consequence thereof death of three persons occurred. Despite the presence of Roma Dubey wd/o Ramnarayan Dubey and his infant child Aditya, the accused did not assault them. 106. Though the accused is guilty of triple murder and has used official revolver which is shocking, regrettable and indeed terrible, but it was not pre-meditated and pre-planned. Despite the presence of Roma Dubey wd/o Ramnarayan Dubey and his infant child Aditya, the accused did not assault them. 106. Though the accused is guilty of triple murder and has used official revolver which is shocking, regrettable and indeed terrible, but it was not pre-meditated and pre-planned. It was committed in a disturbed state of mind, further aggravated by provocation. Altercation at the time of extreme disturbed state of mind although attended with cruelty, young and maleable age, reasonable prospects of reformation and the fact that the offender is not a habitual murderer or given to chronic violance, are indeed mitigating circumstances. 107. Now, coming to the next factor as to whether the commission of crime by offender Manohar Fendar was motivated, the prosecution has sought to spell out motive of the crime by heavily relying upon the statement of P.W. 6 Roma wd/o deceased Ramnarayan Dubey wherein she stated, ""The accused and Chitra Jachak were performing their romance in the Courtyard of the Wada. They used to behave indecently. My husband Ramnarayan Dubey tried to convince the accused and Chitra Jachak to behave properly and not to perform romance openly. The accused was not in a mood to listen to my husband. Inspite of convince the accused and Chitra Jachak were behaving indecently in the Wada. In the year 1991, the accused and Chitra Jachak were performing their romance openly in the Wada, my husband Ramnarayan Dubey tried to convince them. However, the accused threatened to kill and abused him. My husband lodged a report in writing in Dhantoli Police Station"". If this statement of P.W. 6 Roma Dubey is considered in the light of the admitted facts that accused married Chitra Jachak on 28-8-1991 and after marriage Chitra was residing with accused at Umri Potdar Sub-Police Station, it would be apparent that the said motive attributed to the accused could not be a motivating factor for commission of crime. As observed above, on 10-10-1991 the accused came to Nagpur and visited Mangalmurti Wada for searching Chitra who had left the matrimonial home of the accused on 8-10-1991 without telling him. The accused stayed in Nagpur on 11-10-1991 also to search for Chitra and at about 10.00 a.m. went to the shop of Mr. Kailesh Khandelwal (P.W. 4) where Chitra used to serve previously and there also the accused did not find Chitra. The accused stayed in Nagpur on 11-10-1991 also to search for Chitra and at about 10.00 a.m. went to the shop of Mr. Kailesh Khandelwal (P.W. 4) where Chitra used to serve previously and there also the accused did not find Chitra. Thus, the visit of accused to Nagpur on the fateful day was not motivated for commission of crime which he did on 11-10-1991. Therefore, it can safely be held that the commission of crime by the accused was not motivated and in any case the motive for the crime was not for gain. 108. Mr. Deshpande, 'A' panel counsel appearing for the State strenuously urged before us that accused was police official and he misused his service revolver and the cartridges supplied to him which was very strong aggravating circumstance against the accused. According to Mr. Deshpande being a police official, the accused was expected to behave with discipline whereas his action and commission of crime has shocked the society. It is true that accused was Police Sub-Inspector and was expected to behave in a more disciplined and restrained manner and use of official fire-arms was highly regretable, but at the same time, while considering the serverity of crime, it cannot be forgotten that accused was confirmed in the police cadre hardly few months back and perhaps he could not attain the maturity expected of a Police Sub-Inspector. This is certainly an aggravating circumstance, but not of gravest kind and has to be weighed against mitigating circumstances. 109. Yet another aggravating circumstance pointed out by Mr. Deshpande which needs to be considered is the personality of victims, that the victims belonged to a family having good status in the society inasmuch as one of them was Resident Editor of local news paper ""Nagpur Times' and the other brother Shamnarayan was connected with another news paper 'Naya Khun' and murder of people of high status warrants extreme sentence. Both the family of the accused, Ramnarayan Dubey and his another brother Badrinarayan Dubey were staying in Mangalmurti Wada as tenants. D.W. 5 Ramchandra Mangalmurti, owner of the Mangalmurti Wada who was also cited as witness by prosecution but not produced by it and produced by defence has stated, ""Ramnarayan Dubey used to keep 5-6 goondas in his room. Ramnarayan Dubey was also threatening me and black-mailing me. D.W. 5 Ramchandra Mangalmurti, owner of the Mangalmurti Wada who was also cited as witness by prosecution but not produced by it and produced by defence has stated, ""Ramnarayan Dubey used to keep 5-6 goondas in his room. Ramnarayan Dubey was also threatening me and black-mailing me. The other tenants used to leave the premises due to the nuisance of Dubey. I was alone residing in the Wada. R.N. Dubey married for thrice and he had no respect to woman folk...."" In his cross-examination said witness Ramchandra Mangalmurti has stated, ""Mr Dubey, formed a Union of tenants in earlier years and also led some of them to Rent Controller in the year 1971. R.N. Dubey, instigated the other tenants not to pay the rent to me..."" Even if much credibility cannot be given to this witness, D.W. 5 Ramchandra Mangalmurti, it can be observed that personality of Ramnarayan Dubey and Shamnarayan Dubey could not be said to be of much help to prosecution while considering the aggravating circumstances referred to by Mr. Deshpande. 110. All in all, the crime committed by the accused Manohar Fendar is rare, but not rarest of rare, is grave, but not gravest of grave. By putting the mitigating circumstances in one pan of the balance of sentence and the aggravating circumstances in the other pan, scale tilts in favour of mitigating circumstances after giving them maximum and full weightage. On consideration of all circumstances in the light of settled law and propositions, and taking into account the answers to the questions posed by us hereinabove, the circumstances of the case do not warrant the extreme punishment. We do not find there is anything uncommon which renders sentence of life imprisonment inadequate. The circumstances of crime are not such that there is no alternative but to impose death sentence even after recording maximum weightage to the mitigating circumstances which speak against the offender. In the circumstances, therefore, the interest of justice would be met if the death sentence imposed against accused Manohar Fender is reduced to sentence of imprisonment for life. 111. Before I close, a word about number of decisions cited at the bar by both the learned Counsel, ""Criminal cases do not fall into the set behaviouristic patterns. Even with a single category offence, there are infinite unpredictable and enforceable variations. No two cases are exactly identical. 111. Before I close, a word about number of decisions cited at the bar by both the learned Counsel, ""Criminal cases do not fall into the set behaviouristic patterns. Even with a single category offence, there are infinite unpredictable and enforceable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculas. Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of facts."" Order In the result, the conviction of accused Manohar Fender under section 302 of the Indian Penal Code and section 27(1) of the Arms Act, is maintained. The sentence of death is reduced to one of imprisonment for life for the offence under section 302 of the Indian Penal Code. The accused is sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000/- and in default of payment of fine, a further rigorous imprisonment for three months for the offence punishable under section 27(1) of the Arms Act. Both the substantive sentences to run concurrently. The appeal of the accused Manohar Fender and the Reference under section 366 of the Code of Criminal Procedure are accordingly disposed of in terms aforesaid. Appeal allowed. *****