D. S. ZOTING, J.:- Since Confirmation Case No.1 of 2005 and Criminal Appeal No. 543 of 2005 arise out of the same set of facts and are directed against the judgment and order dated 30th September, 2005 passed by the Additional Sessions Judge, Bhandara, we are disposing them off by one judgment. Through his judgment dated 30th September, 2005 passed in Sessions Trial No.28 of 2001, the Additional Sessions Judge, Bhandara convicted and sentenced accused Shripat Shivram Gaikwad for offence punishable under Section 302 of the Indian Penal Code to death penalty to be hanged by the neck till he is dead. The accused has been further convicted and sentenced for offence punishable under Section 307 of the Indian Penal Code to undergo imprisonment for life. Confirmation Case No.1 of 2005 arises from the statutory reference made by the Additional Sessions Judge, Gondia under Section 366 Cr.P.C. for confirmation of the death sentence of Shripati Shivram Gaikwad. Criminal Appeal No.543 of 2005 has been preferred by the accused Shripati Shivram Gaikwad against his convictions and sentences on the aforesaid two counts. The accused who was working as Police Naik in the State Reserve Police Force (for short, "SRPF") has been prosecuted for having committed murders of five persons and injuring twelve persons by indiscriminately opening fire with his 7.62 mm Self Loading Rifle (for short, "SLR") on the night of December 18, 2000 at village Keshori, Tahsil Arjuni Morgaon, District Gondia. 2. The prosecution case may be briefly stated as under: Village Keshori, a naxalite affected village comes under the jurisdiction of Police Station, Arjuni (Morgaon). An Armed Out-post (for short, the "AOP") has been established to tackle with the menace of naxalites where SRPF camps are deputed. The incident occurred on Monday, the 18th December, 2000 which was a weekly bazar day. Two women, namely, Pushpa (PW-1) and Pratima (PW-2) who are residents of Rajoli had been to village Keshori for weekly market. After finishing shopping at the weekly market, they were waiting for bus at Bus Stand, Keshori at about 07.00 pm. At that time, some 10-12 boys who, after noticing these two women, started addressing them in a vulgar language by asking them to give sexual favour. They threw torch light on their faces. One Kondhu Choudhari and Anandrao Jambhulkar who are also residents of village of these two ladies came to the Bus Stand. At that time, some 10-12 boys who, after noticing these two women, started addressing them in a vulgar language by asking them to give sexual favour. They threw torch light on their faces. One Kondhu Choudhari and Anandrao Jambhulkar who are also residents of village of these two ladies came to the Bus Stand. They asked the said boys as to why they were abusing the women. They tried to convince those boys, but the boys were not in a mood to hear anything from these two persons. Therefore, these two persons took the ladies to Keshori AOP where the act of those boys was narrated to Prakash Landge (PW -8) who was in-charge of AOP. PW-8 Prakash Landge immediately sent some of his policemen, viz. P. C. Ghurpude, B/No. 1931, P. C. Pardhi, B/No. 1932, P.C. Patle, B/No. 805 and P. C. Shende, B/No. 1850 to accompany the said women upto the Bus Stand and also instructed them to bring those boys. Policemen accordingly took those women to the Bus Stand. By that time, bus reached at the Bus Stand and the two women boarded the bus. When the policemen heard that one Dhanraj Waghade used filthy language with respect to those women, they accosted him, but he behaved arrogantly with police and, therefore, one of the policemen slapped him. They were about to bring him to AOP, but they could not bring him due to intervention from some villagers. Said police constables when returned to the AOP, they were followed by mob of 200-300 persons who were raising shouts. They were demanding custody of policeman who slapped Dhanraj Waghade. PW8 Prakash Langde, Head Constable and PSI Bajrang Pandharwade (PW-10) who was Commandant of Platoon No.3 tried to convince the mob by asking the persons to lodge written report against the said policeman so that they can initiate action against him. However, the mob was adamant on its demand. Somehow 34 persons including said Dhanraj Waghade and his brother agreed and came inside the AOP where PW-8 Prakash Langde started recording the report. These facts are fairly established from the prosecution evidence given by two women, PW -8 Prakash Langde and PW 10 Bajrang Pandharwade and it is not disputed by the appellant (hereinafter referred to as the "accused"). 3. Thereafter, firing episode at Keshori AOP had taken place. The mob outside was still furious. These facts are fairly established from the prosecution evidence given by two women, PW -8 Prakash Langde and PW 10 Bajrang Pandharwade and it is not disputed by the appellant (hereinafter referred to as the "accused"). 3. Thereafter, firing episode at Keshori AOP had taken place. The mob outside was still furious. It was abusing and throwing stones and soil etc. towards AOP. There is a compound wall around the AOP. There is a gate towards northern side at the north-west comer of the compound. The length of the compound in east-west direction is 270 whereas the width north-south in direction is 181. Height of the compound is 5'.8". There were four sentry posts (morchas) at 4 comers of compound wall. Sentry Post No.1 was situated near the leftside of the gate. Towards right side of the gate, there was Sentry Post No.2. Sentry Post No.3 was deployed behind Sentry Post No.2 and Sentry Post No.4 behind Sentry Post No.1. There were emergency Sentry points between two Sentry Posts (Morchas). Mob was increasing and hence Sentry rang 'stand-to-bell' to alert his companions. Immediately all the jawans took their respective positions (morchas) with their arms and ammunitions. The tale-telling awful events commenced thereafter. It is alleged that the accused at that particular time (at about 09.50 pm) in ruthless and unruly manner opened fire with his 7.62 mm SLR and fired eight rounds which resulted in instantaneous death of five persons, viz. - (1) Shamim Khan Mehtabkhan Pathan; (2) Sampat Mukhru Nimkar, (3) Vishwanath Madhu Madavi (4) Kashinath Gopinath Shende and (5) Dharma Rajaram Shende and injuring twelve persons, viz. (1) Shama Mansaram Samarit, (2) Khushal Wasudeo Nakade, (3) Anil Mahadeo Samarit, (4) Bhupendra Tarachand Meshram, (5) Kishor Vishwanath Madavi, (6) Mukunda Wasudeo Samarit, (7) Pandhari Karuji Kashiwar, (8) Deonath Wasudeo Samarit, (9) Bhojraj Kalangu Dike, (10) Deepak Namdeo Gahane, (11) Jamil Khan Ahmed Khan Pathan, and (12) Eknath Gosu Madavi. On hearing the sound of firing, Prakash Langde (PW-8) and Bajrang Pandharwade (PW-10) came out from the AOP and enquired as to who had opened fire, upon which accused said that he opened fire by triggering eight bullets from his SLR. When the two police officers went outside the gate of compound, they noticed some persons lying in a pool of blood. With the help of people, the injured persons were shifted to the hospital. When the two police officers went outside the gate of compound, they noticed some persons lying in a pool of blood. With the help of people, the injured persons were shifted to the hospital. Looking to the gravity and seriousness of the crime, the Additional Director General of Police (Crime Branch) entrusted the investigation to PW-23 Sureshsingh Gaur, the then Dy Superintendent of Police (CID). PW-22 Khemraj Kukde, the then Police Inspector (CID) assisted PW-23 Sureshsingh Gaur in conducting the investigation. They recorded the statements of witnesses and tendered as many as 163 documents on record to substantiate the charges. The dead bodies were referred to Medical Officer PW-5 Dr. Khobragade for post-mortem examination. He conducted autopsy on the dead bodies of five persons. PW9 Dr. Kapgate, Medical Officer examined and treated all twelve injured persons and issued the injury certificates along with Anatomical diagrams showing the parts over which there were injuries. The certificates and the diagram are at exhibits 140 to 161. He opined that all these injuries were caused by fire arm and the injuries were grievous in nature. During the investigation, the clothes of the victims were attached. Similarly, the SLR was attached from the accused. The cartridges which were lying on the spot from where the rounds were fired. Cartridges which were eight in number, were collected and attached under the seizure panchanama. The seized articles were sent to the Chemical Analyser. Reports from the Chemical Analyser and the Ballistic Expert were received. The Government accorded sanction to prosecute accused vide exhibit 222. After completing investigation, accused was charge-sheeted for the offences punishable under Sections 302 and 307 of the Indian Penal Code in the Court of Judicial Magistrate, First Class, Arjuni Morgaon. 4. Offences under Sections 302 and 307 of the Indian Penal Code are exclusively triable by the Court of Sessions. Therefore, the learned Judicial Magistrate, FC, Arjuni Morgaon, committed the case to the Court of Sessions on 23.3.2001 for trial according to law. Accused was produced before the Sessions Court. Charge under Sections 302 and 307 IPC was framed against the accused. It was read over and explained to the accused. He pleaded not guilty and claimed to be tried. His defence is not one of total denial, but he met the prosecution story to some extent. Accused was produced before the Sessions Court. Charge under Sections 302 and 307 IPC was framed against the accused. It was read over and explained to the accused. He pleaded not guilty and claimed to be tried. His defence is not one of total denial, but he met the prosecution story to some extent. His defence, as revealed from the cross-examination as well as from his statement under Section 313 Cr.P.C. is that he opened fire from his SLR, but it was pursuant to the order given by his commandant PW-10 Bajrang Pandharwade. Accused has filed his Written Statement at exhibit 242. In his Written Statement he stated that on that day he was deputed as an armed police guard along with his companions at AOP, Keshori. At about 09-10 p.m., a mob of 700-900 people unlawfully assembled in front of the AOP which, according to him, was riotous mob and the members of the assembly were abusing the policemen and some were trying to scale the compound wall of AOP to get inside and by that time there was 'bell to stand' and therefore, SRPF jawans took their respective positions with their arms and ammunitions. He was asked by PW-10 Bajrang Pandharwade to stand at a particular point and PW -8 Prakash Langde checked the positions of all the jawans. Thereafter some members of the mob shouted and tried to snatch away his SLR and, therefore, he allegedly informed it to PW-10 Bajrang Pandharwade. PW-10 Bajrang Pandharwade thereupon asked the accused to open fire by saying that he should not allow his rifle to go in the hands of mob as there is possibility of naxalites in the mob. Thus, according to him, under such circumstances, he opened fire, in order to protect his weapon as well as to protect his companions. He further stated that when people started running helter skelter, he stopped the fire. Thereafter PW-10 Bajrang Pandharwade took his SLR and he was asked to sit in tent. According to him, since some people were injured in the said firing, PW 10 Bajrang Pandharwade himself opened fire in air and by giving false information to the superiors, falsely implicated him in this case. He has adduced evidence of Baliram Dinkar Kadam, Naik in SRPF (DW1) in his defence. 5. According to him, since some people were injured in the said firing, PW 10 Bajrang Pandharwade himself opened fire in air and by giving false information to the superiors, falsely implicated him in this case. He has adduced evidence of Baliram Dinkar Kadam, Naik in SRPF (DW1) in his defence. 5. Pursuant to the notice under Section 294 Cr.P.C., the defence was called upon to either admit or deny the genuineness of the documents. The accused has admitted almost all material documents referred to in the list (exhibit 28) and as such, documents which have been admitted, can be read in evidence. The admitted documents consist of Inquest Panchanamas, Post-mortem Reports, Injury Certificates, Seizure of clothes of victims, Blood Samples of victim, Medico-legal Certificates, FIR and Printed FIR (exhibits 137 and 138), Map of Spot, Seizure Panchanama of SLR and eight cartridges, Arrest Panchanama, C.A. Reports of blood of accused, C.A. Report of clothes and C.A. Report regarding bullet fired from SLR. (List of admitted documents is referred to in paragraph 10 of the Trial Court's judgment). 6. During trial, as many as 23 witnesses have been examined by the prosecution in support of its case, as under: I. Direct Evidence: Police Officers - 1/ H.C. Prakash Landge (PW-8) 2/ PSI Bajrang Pandharwade (PW-10) 3/ Police Naik Ganpati Shinde (PW-4) (B) Police Patil : Nanaji Laxman Pendam (PW -7). © Injured witnesses: 1/ Khushal Wasudeo Nakade (PW-11) 2/ Kishor Vishwanath Madavi (PW-12) 3/ Pandhari Karuji Kashiwar (PW-14) 4/ Bhupendra Tarachand Meshram (PW15) 5/ Bhojraj Kalangu Dike (PW-16) 6/ Deepak Namdeo Gahane (PW-18) 7/ Jameel Ahmadkhan Pathan (PW-18) 8/ Anil Mahadeo Samrit (PW-20) II. Evidence on incident at ST Stand: 1/ Pushpa Shivlal Gaikwad (PW-1) 2/ Pratima Pralhad Sangole (PW-2) 3/ Raju Motiram Shikhrame (PW-3) (hostile). III. Medical Evidence: 1/ Dr. Guruprakash Khobragade, Medical Officer (PW-5) 2/ Dr. Chhaya Kapgate, Medical Officer (PW - 9) IV. Formal witnesses: 1/ Charandas Sahare, Revenue Circle Officer (PW-13) (Drawn map of scene of offence. 2/ PSI Jayesh Bhandarkar (PW-21) (He arrested accused and referred him to Medical Officer). V. Panchas : 1/ Sanjay Haribhau Badwaik (PW -6) 2/ Narayan Laxman Ghatbandhe VI. Investigating Officers: 1/ PI Khemraj Bakaram Kukde 2/ Sureshsingh Gaur, Addl. S.P. (PW-23) 7. Formal witnesses: 1/ Charandas Sahare, Revenue Circle Officer (PW-13) (Drawn map of scene of offence. 2/ PSI Jayesh Bhandarkar (PW-21) (He arrested accused and referred him to Medical Officer). V. Panchas : 1/ Sanjay Haribhau Badwaik (PW -6) 2/ Narayan Laxman Ghatbandhe VI. Investigating Officers: 1/ PI Khemraj Bakaram Kukde 2/ Sureshsingh Gaur, Addl. S.P. (PW-23) 7. After hearing the arguments advanced by both the parties and considering the evidence on record, the Trial Judge held that the accused committed murders of five persons and injured twelve persons by indiscriminately opening fire with his 7.62 mm SLR at the running mob who, after hearing the sound of fire, started running helter skelter to save their lives and thereby holding the accused guilty of offences punishable under Sections 302 and 307 of the Indian Penal Code and after depicting balance-sheet of aggravating and mitigating circumstances sentenced the accused to death penalty to be hanged by the neck till he is dead and further convicted and sentenced him for an offence punishable under Section 307 of the Indian Penal Code to undergo imprisonment for life. 8. Being aggrieved by the said judgment and order passed by the Trial Court, the accused has challenged the same before this Court by filing appeal. Statutory reference is made by the learned Trial Judge under Section 366, Cr.P.C. for confirmation of the death sentence. 9. We have heard the arguments advanced by Mr. M. R. Daga, learned counsel for accused and Mr. S. G. Loney, learned Additional Public Prosecutor appearing on behalf of the State. 10. After perusing entire material on record and bestowing our anxious consideration, we have reached the conclusion that the Reference made by the Additional Sessions Judge, Bhandara for confirmation of death sentence of the appellant for the offence under Section 302 of the Indian Penal Code deserves to be rejected and Criminal Appeal No.543 of 2005 preferred by the accused warrants to be partly allowed inasmuch as in our judgment, the accused deserves to suffer imprisonment for life for the offence under Section 302 of the Indian Penal Code and not that of death imposed on him by the Trial Court therein. We also further hold that the conviction and sentence passed by the Trial Court for offence under Section 307 of the Indian Penal Code deserves to be confirmed. 11. We also further hold that the conviction and sentence passed by the Trial Court for offence under Section 307 of the Indian Penal Code deserves to be confirmed. 11. As regards the offence under Section 307 of the Indian Penal Code, it is to be added that the prosecution has proved from direct evidence of injured witnesses supported by the medical evidence given by Dr. Kapgate (PW-9) that the injured witnesses survived as bullets did not hit their vital part of body else they would have met with the same fate as met by five deceased persons. Thus, from facts and circumstances, accused could be attributed with full knowledge that if he by the act of firing would caused death of those twelve persons, he would have been guilty of murder. 12. The fact that deceased persons named in paragraph 3 of this judgment died unnatural death on 18.12.2000 due to injuries sustained by them at the time of incident of firing, has not come to be disputed by or on behalf of the accused as he has fairly admitted the post-mortem reports and anatomical diagrams showing bullet injuries on particular parts of body of each deceased person. Dr. Khobragade (PW-5) opined that cause of death of each deceased is severe bleeding due to rupture of a particular vital organ described in the postmortem report due to bullet injury. This evidence is not challenged by the accused in the cross-examination of said Medical Officer. Thus, having regard to all this evidence of incontrovertible nature, there cannot be any doubt in this case that the above referred five persons met with homicidal death. Similarly, the fact that 12 persons whose names are referred to in para 3 above received bullet injuries, as described in the injury certificates coupled with the anatomical diagrams showing bullet injuries on the particular part of body of each injured, has not come to be disputed in any manner by Of on behalf of the accused. 13. The vital question that arises for consideration is, whether the prosecution succeeded in proving that the accused alone opened fire and as such, he is responsible for the homicidal death of five persons and for causing the bullet injuries to twelve persons referred to above including injured witnesses. The injured witnesses gave evidence that they were present at the time of firing episode and received bullet injuries. The injured witnesses gave evidence that they were present at the time of firing episode and received bullet injuries. However, according to them, they were far away from the AOP and on hearing the sound of fire, people started running helter skelter and hence they could not see as to who fired rounds. However, from their evidence, it is fairly established that they received the bullet injuries as described in the injury certificates issued by Medical Officer Dr. Kapgate (PW-9) genuineness of which is admitted by the accused. As already pointed out, the injured witnesses were far away from the place of firing and as such, they could not see who fired bullets. However, there is evidence of the companions of the accused who witnessed the occurrence. 14. It is to be noted at the outset that the defence of the accused is not one of total denial, but he admitted in his Written Statement (exhibit 242) the episode of firing to the extent that he fired 3-4 rounds only as a result of which people fell down and started running helter skelter. According to him, he fired these rounds as PW-10 Bajrang Pandharwade, Commandant ordered him to fire the bullets. Therefore, it is to be seen, what Commandant Bajrang Pandharwade (PW -10) and HC Prakash Landge (PW-8) say about the occurrence. 15. H.C. Prakash Landge (PW-8) gave evidence that he being in-charge of AOP, Keshori, took roll call on 18.12.2000 at 8.00 pm and 'Stand-to' was closed at 8.15 pm. In the usual manner, he warned everyone to be alert. SRPF personnel were supposed to be armed with their weapons round the clock as they may be required to use the weapon against the naxalites at any moment. He gave evidence that one Pushpa (PW-1) who is resident of Rajoli came to the AOP and informed him that some persons of village Keshori addressed her in a vulgar language when she was standing at the Bus Stop and they were trying to offer her Rs.50/- to give sexual favour. She requested him to send some policemen. Therefore, he sent Police Constables Ghurpude, Pardhi, Patle and Shende with her and they returned at about 9.00 pm. He heard a commotion just behind those policemen. Therefore, he along with PSI Pandharwade proceeded towards that direction and noticed mob of about 100-150 persons outside the gate of AOP. She requested him to send some policemen. Therefore, he sent Police Constables Ghurpude, Pardhi, Patle and Shende with her and they returned at about 9.00 pm. He heard a commotion just behind those policemen. Therefore, he along with PSI Pandharwade proceeded towards that direction and noticed mob of about 100-150 persons outside the gate of AOP. He further stated that he enquired with the mob and some of them said that they want policeman who had beaten their man. On such grievance, he advised them to lodge report. However, they were not ready to listen. He further stated that crowd of the mob was increasing. At that time, sentry duty SRP Constable gave 'signal of bell' and all the police personnel took positions over the points they were deployed. He gave wireless call to PSO, Bhandarkar of Arjuni Morgaon. He further stated that thereafter he along with PSI Pandharwade again came to the gate of AOP and attempted to convince the members of mob and at that time, Dhanraj Waghade and three persons entered into the Police Station to lodge report. However, members of the mob were still shouting and abusing. In his cross-examination, he admitted that members of mob were throwing stones and soil towards the Police Chowky (AOP) and the mob was not in a mood to get convinced. He noticed mob ransacking the things. As Dhanraj along with some persons wanted to lodge report, he came to the office and started scribing report. At that time he heard sound of gun-fire. Hence he came out of the building and asked as to who had fired. At that time, PC Gaikwad (accused) said that it was he who had fired bullets from his SLR. He further deposed that the accused fired eight rounds. He also stated that when he came out of the AOP, he found 7-8 persons lying in a pool of blood. He admitted that seeing the situation, prior to episode of firing 'stand-to-call' was given. He further admits that 'stand-to-call' is given only when there is some imminent danger and for the purpose of giving the said call, no prior permission or orders are necessary and the said call was given at 9.00 pm and the incident of firing had taken place at 09.50 pm. He further admits that 'stand-to-call' is given only when there is some imminent danger and for the purpose of giving the said call, no prior permission or orders are necessary and the said call was given at 9.00 pm and the incident of firing had taken place at 09.50 pm. He stated that when he came out of the gate, he noticed that some people had died due to bullets fired by the accused without there being any order and on his own volition. Therefore, he registered offences punishable under Sections 302 and 307 of the Indian Penal Code against the accused on the basis of written report lodged by him which is at exhibit 137 and thereafter prescribed FIR was also written which is at exhibit 138. What he stated in his deposition finds corroboration in his complaint at exhibit 137 and prescribed FIR (exhibit 138). It is to be noted that no where in the cross-examination of this witness any suggestion is given to him that PSI Pandharwade (PW -10) ordered the accused to fire. 16. This brings us to consider the evidence of PSI Pandharwade (PW-I0) who was commandant of Platoon No.3 at Keshori AOP. He stated that 25 police personnel were working under his control at the said AOP. He narrated the events which took place since the time PW -1 Pushpa came to AOP to lodge report till the time police constables returned to AOP after rendering help to her. According to him, said police constables were followed by a mob of 200-300 persons who were raising shouts and were demanding custody of police constable who assaulted their man. He further stated that those persons were trying to scale the wall and gate of AOP and were pelting stones towards the AOP. Therefore, he and HC Prakash Landge (PW -8) advised them to lodge report against the concerned police personnel so as to take action against them as per law. But they were not in a mood to listen. However, 2-3 persons came inside the AOP to lodge report and, therefore, HC Langde went inside the police chowky (AOP) to reduce report in writing. At that time when he (PW-I0 Pandharwade) was about to make a wireless call to his superiors for seeking more force to meet with the situation, he heard sound of fire. However, 2-3 persons came inside the AOP to lodge report and, therefore, HC Langde went inside the police chowky (AOP) to reduce report in writing. At that time when he (PW-I0 Pandharwade) was about to make a wireless call to his superiors for seeking more force to meet with the situation, he heard sound of fire. When he came out and enquired as to who had opened fire. On this enquiry accused Shripati Gaikwad replied that he fired bullets. He (witness) immediately took away rifle and ammunitions from accused. He checked arms and ammunitions of each of the Jawans and noticed that except accused Shripati Gaikwad's SLR, no other fire-arm had been used. He found 8 empty catridges lying by the side of Sentry Post No.2 where the accused was standing. In his cross-examination he admitted that as the crowd was increasing constable Kadam, (who has been examined as DW -1) who was occupying Sentry Post No.1 rang the bell of 'stand-to'. He does not whisper a word that he issued any order of firing. Moreover, in his cross-examination he categorically denied that he was standing by the side of accused and he ordered the accused to open fire. After the episode of firing, this witness sent report on the same day to Superintendent of Police, Gondia and said report is at exhibit 164. Though this witness denied that when he enquired with the accused about the cause of firing the accused told him that some persons were trying to snatch his rifle, but there is reference to that effect in his report and as such. except this contradiction, there is nothing which has come out in the cross-examination to shatter the testimony of this witness. 17. The next witness Ganpati, P.C. (PW-4) who was present at Sentry Post No.2 at the time of occurrence, narrated the identical story as narrated by the above-referred two witnesses. He stated that he heard the sound of fire from rifle. He deposed that thereafter there was a sound of bell for 'stand-down'. He further stated that PSI Pandharwade enquired as to who had fired the rounds on which accused Shripati Gaikwad answered that he fired because the members of mob were trying to snatch his rifle. He is important witness being deployed at Sentry Post No.2 by the side of which accused was occupying his position. He further stated that PSI Pandharwade enquired as to who had fired the rounds on which accused Shripati Gaikwad answered that he fired because the members of mob were trying to snatch his rifle. He is important witness being deployed at Sentry Post No.2 by the side of which accused was occupying his position. He does not say about the presence of Platoon commandant PW -10 Bajrang Pandharwade near the accused at the time of firing nor there is suggestion to this witness that PSI Bajrang Pandharwade ordered the accused to fire. Therefore, the defence of the accused that in pursuance of the order given by Platoon Commandant Bajrang Pandharwade (PW -10) he fired bullets does not at all appear probable and conclusion can be safely drawn that he opened fire without any order from the superior officer, but he opened fire on his volition. 18. Next witness is Nanaj Laxman Pendam (PW -7) who claimed that he was present when the episode of firing took place. He stated that he heard 4-5 sounds of firing. His evidence reveals that he put forward altogether different story as regards the actual occurrence which is neither the case of prosecution nor the defence story. Whatever he might have stated in his statement recorded under Section 161(3) Cr.P.C. during investigation, when he came in witness box to depose on oath he underwent a complete metamorphosis and put forward altogether different story. His evidence suffers from large number of material contradictions. The story narrated by him in his police statement which is consistent with the prosecution case is denied by him. The contradictions in his evidence are marked as "A, B, C, D". What he states does not find support from deposition of any of the witnesses. In view of the material contradictions in his statement, he failed to inspire any confidence and as such, his statement needs to be ignored. 19. The defence witness DW-1 Kadam examined by the accused is also an eyewitness. He was working as Naik in SRPF at Keshori AOP. It is to be noted that he is the person who was posted at Morcha No.1 from 08.00 pm to 10.00 pm. According to him, a mob of 200-250 approached the AOP and it was demanding custody of police constable. He was working as Naik in SRPF at Keshori AOP. It is to be noted that he is the person who was posted at Morcha No.1 from 08.00 pm to 10.00 pm. According to him, a mob of 200-250 approached the AOP and it was demanding custody of police constable. He stated that the members of mob were abusing police and pelting stones towards the AOP and, therefore, he rang the 'bell-to-stand' in order to call his companions to attend their respective positions immediately with their arms. According to him, commandant Pandharwade (PW-10) came near the gate and requested some 4-5 members of the mob to lodge report, but there was gradual increase in the mob hence; Shri. Pandharwade checked positions of each jawan at respective point. At that time, members of mob were trying to scale the wall and gate of the police chowki in order to make entry in the police chowki. He further stated that they had ransacked the kitchen and bathing place which are situated beyond the area of the compound of the AOP and at that time he heard voice of the accused from a distance of 10-12 feet making a grievance that people were trying to snatch his rifle. According to him, Pandharwade said that something is required to be done to save property and life. He is not in a position to say whether PW-I0 Pandharwade accompanied with HC Landge went inside the AOP to scribe report. However, it is fairly established from the evidence of other witnesses that they had gone to the office of AOP to scribe the report. He does not say that PW -10 Pandharwade ordered to open fire. He stated that he might have ordered to open fire. It is to be noted that the disturbance was going on near Morcha No.1 where this witness was performing duty. Had PW -10 Pandharwade ordered to open fire, this witness would have definitely heard such order. Not a single Police Officer who has been examined, stated that PW 10 Pandharwade ordered to open fire and, therefore, suspicion raised by this witness that Pandharwade might have ordered to open fire, is without any basis and does not in any way help the accused as there is no positive statement from this witness about the order of firing by PW -10 Pandharwade. It is to be noted that this witness is under suspension and, therefore, possibility of showing such suspicion on PW -10 Pandharwade on the basis of guesswork cannot be overruled. 20. Thus, assessing the entire evidence as regards the episode of firing incident, it is clear that no order to open fire was issued by commandant Pandharwade (PW10) and/or AOP in-charge Landge (PW-8) and the accused opened fire at his volition which is fairly established from the above discussion. Moreover, the accused has not disputed that he opened fire. He disputed the prosecution story that he fired eight rounds. According to him, he fired only 3-4 rounds. It is well-settled that the Court can rely and take into consideration the admission of the accused given in his statement under Section 313, Cr.P.C. In this regard if any authority is needed, it is found in the decision of the Division Bench of this Court in State of Maharashtra Vs. Shivaji Anandrao Chede reported in 2002(4) Mh.L,J.201 : [2002 ALL MR (Cri) 1908]. The said decision is based on settled position of law regarding admission/confession made by accused in his statement under Section 313, CLP.C. as reiterated in several decisions of the Apex Court including State of Maharashtra Vs. Sukhdev Singh reported in AIR 1992 SC 2100 . 21. Now, it is to be seen whether the accused has fired only four rounds as disclosed by him or eight rounds, as contended by the prosecution. In this regard the defence witness Kadam stated that each of them is provided with SLR with one hundred rounds. PC Morey (PW4) stated that every constable is provided with 7.62 mm SLR with hundred rounds and every rifle has its number carved on the Butt and this fact is not disputed by the accused. As soon as PW -10 Bajrang Pandharwade heard sound of fire, he came out and enquired as to who fired. At that time, accused disclosed that he opened fire. PW-I0 Pandharwade stated that he checked arms and ammunitions of each jawan and noticed that except accused's SLR no other fire-arm had been used and by the side of Sentry Post No.2 where the accused was standing, he found eight empty cartridges of bullet. PW -10 Bajrang Pandharwade thereafter seized SLR from the accused and eight empty cartridges lying there. He reported the matter to Company Commandant in writing. PW -10 Bajrang Pandharwade thereafter seized SLR from the accused and eight empty cartridges lying there. He reported the matter to Company Commandant in writing. His report is at exhibit 164. The SLR seized from the accused bears Butt No.127 which is at Article A whereas empty cartridges are Article B. In his report, there is specific mention that while checking, out of 100, only 92 bullets were found in possession of the accused whereas not a single bullet was found short, in possession of other jawans. The arms, ammunitions and empty cartridges seized from the accused were sent to the Assistant Chemical Analyser and Ballistic Expert. Report of said Expert is at exhibit 225. The examination of SLR reveals that the said SLR was in working condition. Residue of fired ammunition-nitrite was detected in the barrel washings of the rifle. The report indicated that the rifle was used for firing prior to its receipt in the laboratory. Random selected one 7.62 mm long rifle cartridge was successfully test fired from the said rifle. The empty cartridges which were eight in number, have been conclusively proved to be fired from the same rifle on the basis of the characteristic features of the firing pin impression and the characteristic ejector mark on the empties which Were forwarded to the Expert. Thus, it has been conclusively established by the prosecution that it was the same weapon used by the accused in opening the fire at the relevant time which resulted into the death of five persons as well as injuries to 12 persons. 22. It is submitted by the learned counsel for accused that in all seventeen persons were injured in the episode of the firing and it is alleged that only eight rounds were fired from the SLR by the accused. He further submitted that it is not possible that 17 persons would be injured with only eight bullets. He further submitted that under such circumstances, it is possible that some other police constable also must have fired bullets and the accused alone should not be blamed. 23. In this regard Mr. He further submitted that it is not possible that 17 persons would be injured with only eight bullets. He further submitted that under such circumstances, it is possible that some other police constable also must have fired bullets and the accused alone should not be blamed. 23. In this regard Mr. Loney, learned APP submits that 7.62 mm SLR is a very effective and powerful weapon and it is used mainly in Infantry and Para-military Forces and the bullet fired from such powerful weapon if hits a person can pass through and through the injury and can cause injuries to several persons. Thus, according to him, a single bullet can cause injuries to several persons. He has drawn our attention to injuries received by the deceased persons as well as injured persons. 24. It is to be noted that injured witnesses Pandhari (PW-14) and Deepak (PW18) categorically stated that when the bullet hit them, it passed through and through the injury. Evidence of Dr. Khobragade who conducted autopsy on the deceased persons reveals that out of five deceased persons, bullet was found imbedded in the wound of deceased Kashinath only and examination of other deceased persons viz. Shamim, Vishwanath and Dharma revealed entry wound and the exit wound with the bullet indicating that the bullet passed through the exit wound and such bullet which passes through and through the body of a person if hits another, can cause injury and, therefore, under such circumstances, there cannot be any doubt in this case that eight bullets are responsible for causing injuries to 17 persons especially as there is absolutely no evidence to show that any other policeman fired bullets from their rifles. Thus, an over-all consideration of facts and circumstances and the important features noticed by us lead us to a conclusion that the accused alone is responsible for causing death of five persons and causing injuries to 12 persons as referred to above. 25. Coming to the plea of the accused, Mr. Daga, learned counsel for the appellant submitted that the prosecution evidence reveals that there was a mob of more than 300 persons in front of the AOP. Some of the members of the mob were pelting stones and soil towards the AOP and some persons were trying to scale compound wall. 25. Coming to the plea of the accused, Mr. Daga, learned counsel for the appellant submitted that the prosecution evidence reveals that there was a mob of more than 300 persons in front of the AOP. Some of the members of the mob were pelting stones and soil towards the AOP and some persons were trying to scale compound wall. He further submitted that some persons ransacked bathing place and kitchen which is a public property and the mob was not in a position to pay any heed to the request made by PW -8 Prakash Landge and PW-10 Bajrang Pandharwade. He further submits that the mob was furious and they wanted the custody of police constable who assaulted their man and, therefore, under such circumstances, there was order of 'stand-to' and the commandant had informed Police Station, Arjuni Morgaon to send more police force to meet the situation. He further submitted. that some of the members of the mob were trying to snatch rifle from the hands of accused as revealed from the evidence of DW-1 Kadam and PW -4 Ganpati Shinde who heard the words uttered by the accused and as such, under the circumstances, the accused was justified to open fire in exercise of his right of private defence to protect his life, so also, the lives of other police personnel and the public property. He, thus, contended that the accused cannot be said to have committed any offence. He further contended that if it is found that the accused exceeded right of private defence, then his act would fall under Exception 3 of Section 300 of the Indian Penal Code and his case would not fall under Section 302, but under Section 304, Part-II of the Indian Penal Code. 26. Per contra, Mr. Loney, learned APP submitted that not a single police constable out of 25 deployed at the respective points in the AOP received a single injury though it is alleged that the mob pelted stones towards AOP. He further submitted that it is not the case of defence that members of the mob were armed with weapons and there is no material to show that they caused injury to any policeman. It is also not in evidence that they damaged AOP. He further submitted that it is not the case of defence that members of the mob were armed with weapons and there is no material to show that they caused injury to any policeman. It is also not in evidence that they damaged AOP. A trifle act of the mob of more than 300 persons ransacking bathing place near hand pump and kitchen cannot give rise to apprehension of danger to life and property and compel a police officer to exercise right of private defence. He further pointed out that though there were in all 25 policemen deployed at their respective points in the premises of the AOP, there is no allegation that weapon from any policeman was snatched or attempt to snatch rifle was made by any member of the mob. He further pointed out that the accused opened fire at his own volition, however, when the commandant enquired with the jawans as to who opened fire, the accused while admitting that he opened fire put forward a false defence that the members of mob were trying to snatch his rifle. 27. We have given a thoughtful consideration to the above submissions advanced by both the parties and we find that though the villagers came to the AOP in large number and some of them were demanding custody of police constable who assaulted their man, they were not armed with any weapons; they had not used any weapon against any policeman deployed in the premises of the AOP nor there is any evidence to show that they made any attempt to set the AOP on fire. The stand taken by the accused that some members of the mob were trying to snatch his rifle and, therefore, he opened fire also does not appear to be probable, because in that circumstance, he would have fired shot at a very close distance from him so as to prevent snatching of rifle. It is to be noted that all the victims were lying at a long distance of not less than 75-80 feet away from the compound wall as disclosed in the panchanama of spot as well as map of scene of offence (exh.170) which are the documents not seriously disputed by the accused. Therefore, the said defence deserves to be rejected. It is to be noted that all the victims were lying at a long distance of not less than 75-80 feet away from the compound wall as disclosed in the panchanama of spot as well as map of scene of offence (exh.170) which are the documents not seriously disputed by the accused. Therefore, the said defence deserves to be rejected. A stray incident of ransacking of kitchen and bathing place near hand-pump to express their anger cannot be said to be good and reasonable ground to open fire. It is to be noted that DW1 Kadam examined by the accused in his defence in his cross-examination has fairly admitted that situation was not such which required firing. It is to be noted that he was posted in Morcha No.1 where there was more disturbance as compared to other Morcha points. It has come in evidence of PW-4 Ganpati Shinde that mob had gathered in front of Morcha No.1. DW-1 Kadam admitted that he was the person who was disturbed by the mob first. Thus, DW-1 Kadam was placed in the same situation in which accused was placed. On the contrary, it can be said that DW-1 Kadam was facing more disturbance at Morcha No.1 as compared to police constables deployed at the other places, but he did not open fire. Thus, there appears no justification to open fire at the mob and if the accused states that there was reasonable apprehension to his life, so also, the lives of other police constables, he did not take any steps firstly to warn the mob. He had not fired bullets in the air to disperse members of mob. On the contrary, he directly opened fire, thereby bullets hit at the upper part of he body of deceased persons and injured pen .ms which clearly indicate that the accused did not even care to fire bullets on lower portion i.e. leg to show that he had used the reasonable force by way of last resort after taking sufficient steps and precaution by giving warning and by firing shots in air. Had he done so, the persons from the mob would not have met the fate of death and sustaining grievous injuries endangering their lives. Therefore, under such circumstances, the plea as regards exercise of right of private defence appears to be devoid of any merit and deserves to be rejected. 28. Had he done so, the persons from the mob would not have met the fate of death and sustaining grievous injuries endangering their lives. Therefore, under such circumstances, the plea as regards exercise of right of private defence appears to be devoid of any merit and deserves to be rejected. 28. We find that the Trial Court has considered all these aspects and has rightly rejected the plea of right of private defence raised by the accused. Considering facts and circumstances and evidence on record, the case of accused does not fall under Exception 2 or Exception 3 of Section 300 of the Indian Penal Code so as to bring the case out of the purview of Section 300 of the Indian Penal Code. 29. Mr. Daga, the learned counsel for appellant/accused submitted that the accused is member of SRPF employed on active duty and as such, he gets protection under the provisions of Section 11(2) of the Bombay State Reserve Police Force Act, 1951. Sectiol1 11 of the said Act reads as under :- "11. Reserve Police Officers to be deemed to be in charge of police station, circumstances under which reserve police officer entitled to use force:- (a) When employed on active duty at any place under sub-section (1) of section 10, the senior reserve police officer of highest rank not being lower than that of a Naik present shall be deemed to be an officer-in-charge of a Police Station for the purposes of Chapter IX of the Code of Criminal Procedure, 1898. (2) Notwithstanding anything contained in sections 100 and 103 of the Indian Penal Code, a reserve police officer employed as aforesaid may, when there is reasonable apprehension of assault on himself or any reserve police officer or damage or harm to any property or person which or whom it is his duty to protect, use such force to the wrong doer or assailant as may be reasonably necessary even though the use of such force may invoke risk of death of the wrong doer or assailant or any other person assisting such wrong doer or assailant". (Emphasis supplied by us). We have gone through the provisions of Section 11 of the Act referred to above. It is to be noted that the accused was a Naik whereas PW-10 Pandharwade was commandant of the Platoon. (Emphasis supplied by us). We have gone through the provisions of Section 11 of the Act referred to above. It is to be noted that the accused was a Naik whereas PW-10 Pandharwade was commandant of the Platoon. Thus, he (PW -10 Pandharwade) being senior reserve police officer of highest rank shall be deemed to be an. officer in charge of the AOP and the accused being his subordinate cannot be said to be senior reserve police officer nor he can be said to be an officer in charge of the AOP. While considering the right of private defence, we have already pointed out that the force used by the accused cannot be said to be a reasonable and necessary force in the situation and at any rate, the act of opening fire at the unarmed members of the mob cannot and does not bring the case to extend the protection given under Section 11 of the said Act to the reserve police officer to exonerate him from the charge which he faces. Therefore, we do not find any substance in the contention raised by Mr. M. R. Daga in this regard on behalf of the accused. 30. This brings us to consider as to what offence is proved to have been committed by the accused. In other words, the crucial question is, as to which was the appropriate provision to be applied viz. Section 302, Section 304, Part-I or Section 304, Part-II of the Indian Penal Code. Following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 Section 300 A person commits cul- Subiect to certain exc pable homicide if the eptions, culpable hom act by which the death icide is murder if the is done- by which the death caused is done - INTENTION (a) with the intention (1) with the intention of death; or of causing A person commits (2) with the intention Culpable homicide of of causing such bodily The act by which the injury as the offender Death caused is done knows to be likely to cause the death of the person to whom the harm is caused. or (b) with the intention (3) with the of causing such bodily intention of causing injury as is likely to bodily injury to cause death; or any person and the bodily injured intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (c) With the knowle- (4) with the knowledge dge that the act is that the act is soimmi- cause death. nently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. Clause (a) of Section 299 corresponds with Clause (1) of Section 300. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. Clause (c) of Section 299 corresponds (a) with the intention of death; or A person commits culpable homicide of the act by which the death caused is done- (b) with the intention of causing such bodily injury as is likely to death; or with Clause (4) of Section 300. (The words underlined mark the differences between culpable homicide and murder). In the scheme of IPC culpable homicide is genus and 'murder' its specie: All 'murder' is 'culpable homicide' but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first deree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest amongst the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 31. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest amongst the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 31. On perusal of Sections 299 and 300 of the Indian Penal Code stated in the above tabular form, it would be clear that unless the case falls within one of the exceptions to Section 300 of IPC, the culpable homicide is murder if it falls under clause (a) of Section 299 and clauses (1) to (4) of Section 300 and as such, it is culpable homicide of first degree, the gravest form of culpable homicide which is defined in Section 300 of the Indian Penal Code as murder. If culpable homicide falls under clause (2) of Section 299, it will amount to culpable homicide not amounting to murder punishable under Section 304, Part-I of the Indian Penal Code and if the culpable homicide falls under clause (3) of Section 299 of the Indian Penal Code, it amounts to culpable homicide not amounting to murder, punishable under Section 304, Part-II of the Indian Penal Code. 32. Now, it is to be seen, whether the facts proved constitute offence of culpable homicide of first degree; second degree or third degree. It is not disputed that the accused had no motive to commit murder of anybody. He had not aimed the rifle at any particular person. He had no enmity with the deceased persons or the injured persons. The mob started disturbance in front of AOP by demanding policeman (who assaulted their man) in their custody and started raising shouts and some members were trying to scale the compound wall. From the facts and circumstances, the accused could not be attributed with intention of causing death. The "intention" in any form as referred to in clauses (1) to (3) of Section 300 is absent and, therefore, these three clauses of Section 300 are not applicable. This brings us to consider whether the case falls under clause (4) of Section 300 of the Indian Penal Code. Clause (4) of Section 300 requires the know ledge in a very high degree of probability. This brings us to consider whether the case falls under clause (4) of Section 300 of the Indian Penal Code. Clause (4) of Section 300 requires the know ledge in a very high degree of probability. The following factors are necessary : (i) that the act is imminently dangerous; (ii) that in all probability it will cause death or such bodily injury as is likely to cause death; and (iii) that the act is done without any excuse for incurring the risk. Clause (4) of Section 300 is usually applied where the act of offender is in general disregard for human life and safety. This clause applies only to a case of dangerous action. without intention to cause specific bodily injury to any person. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of any particular person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act approximates to a practical certainty. Such knowledge on the part of offender must be of a highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury, as aforesaid. In the present case, the accused without any order from superior indiscriminately opened fire with his 7.62 mm SLR which is a very powerful and dangerous weapon, at the mob of 300-400 persons and as such, by his act he could be attributed with the knowledge that his act is so imminently dangerous that it must in all probabilities cause death and such bodily injury as is likely to cause death. It is to be noted that by his act of firing shots from his SLR, five persons died and twelve persons sustained injuries due to bullets and as such, the case is squarely covered by clause (4) of Section 300 of the Indian Penal Code. So far as the offence under Section 307 of the Indian Penal Code is concerned, the prosecution has also proved from direct evidence of injured witnesses supported by medical evidence given by Dr. Kapgate (PW9) that the injured witnesses survived as bullet did not hit their vital part, else they would have met the same fate as met by five deceased persons. Kapgate (PW9) that the injured witnesses survived as bullet did not hit their vital part, else they would have met the same fate as met by five deceased persons. Thus, from the facts and circumstances, the accused could be attributed with full knowledge that if he by the act offiring would have caused death of these twelve persons, he would have been guilty of murder. Thus, so far as twelve injured persons are concerned, prosecution has succeeded in proving the offence punishable under Section 307 of the Indian Penal Code. 33. Next question to which we address ourself is, as to whether learned Trial Court was justified in sentencing appellant to death for the offence punishable under Section 302 of the Indian Penal Code and this is the area which is hotly disputed and contested by the learned counsel for the parties. Whereas Mr. Daga, learned counsel for the accused strenuously urged that instant case does not warrant imposition of death penalty, Mr. S. G. Loney, learned APP with comparable vehemence urged that it did warrant death penalty. 34. In support of their contentions, both parties relied upon some decisions. As regards the cases relied upon by the learned Counsel for the Appellant, reference may be made to following two cases: - [1] Ram Pal Vs. State of Uttar Pradesh [ AIR 2003 SC 4168 ], and [2] State of Maharashtra Vs. Manohar Fendar [ 1996(1) Bom.C.R. 563 ]. As regards the first case, namely Ram Pal's case [supra], the incident in question has prematurely terminated the life of21 people. It is held that number of deaths cannot be the sole criterion for awarding the maximum punishment of death. Death Penalty may be the appropriate sentence even for a single murder. It would not necessarily mean that in every case of multiple murders death penalty has to be normal punishment. As regards the second case, namely State of Maharashtra Vs. Manohar Fendar [supra], Police Sub-Inspector was the accused, and he committed triple murders by service pistol. Nineteen shots were fired. Sessions Court awarded death sentence. The Division Bench of this Court reduced it to one of the imprisonment for life for the said offence punishable under Section 302, Indian Penal Code. 35. Manohar Fendar [supra], Police Sub-Inspector was the accused, and he committed triple murders by service pistol. Nineteen shots were fired. Sessions Court awarded death sentence. The Division Bench of this Court reduced it to one of the imprisonment for life for the said offence punishable under Section 302, Indian Penal Code. 35. In so far as the cases relied upon by learned Additional Public Prosecutor are concerned, a reference may be made to the following cases :- [1] Shri. Ram and others Vs. State of Uttar Pradesh and others [AIR 1998 SC 49], and [2] Karan Singh and another Vs. State of Uttar Pradesh [ (2005)6 SCC 342 ]. In the first case, i.e. Shri. Ram and others [supra], the Supreme Court awarded death sentence for committing mass murders in most barbaric manner, i.e., three head severed, innocent boy of 10 years' old was roasted alive and as such the Apex Court held that the case would squarely fall within the ambit of rarest of rare case. In the second case, namely Karan Singh [supra], two accused chased deceased persons and butchered five of them with axe and other weapons in very dastardly manner. Accused after killing three of them even went to the house of deceased and killed two children who were in no way involved with the alleged property dispute with the appellants, indicating that they wanted to exterminate the whole family. Under such circumstances, it was held by the Apex Court that the death sentence imposed on the accused was liable to be confirmed. 36. As regards the number of other decisions cited at the bar by both the counsel, we have to say that the those 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. 37. The question whether or not death serves any penalogical purpose is a difficult, complex and intractable issue. In this regard, observations made by this Court at para 97 in the case of State of Maharashtra Vs. Manohar Fendar [ 1996(1) Bom.C.R. 563 ] are very relevant. Para 97 thereof runs as under :- "97. 37. The question whether or not death serves any penalogical purpose is a difficult, complex and intractable issue. In this regard, observations made by this Court at para 97 in the case of State of Maharashtra Vs. Manohar Fendar [ 1996(1) Bom.C.R. 563 ] are very relevant. Para 97 thereof runs as under :- "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 straightjacket 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 chosen. It was with this background that we asked myriad questions to the Public Prosecutor as well as the learned Counsel for the defence viz. Was the offence committed without premeditation 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 background 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?" 38. As regards the punishment for offence of murder punishable under Section 302, Indian Penal Code, the rival stands taken by parties need careful consideration. Guidelines to be borne in mind while awarding death sentence have been considered and laid down by Apex Court in number of cases. But for the purpose of deciding this appeal, it would suffice to refer to the decision of Supreme Court in Bachan Singh Vs. Guidelines to be borne in mind while awarding death sentence have been considered and laid down by Apex Court in number of cases. But for the purpose of deciding this appeal, it would suffice to refer to the decision of Supreme Court in Bachan Singh Vs. State of Punjab [ AIR 1980 SC 898 ] and Machhi Singh Vs. State of Punjab [ AIR 1983 SC 957 ]. These guidelines are reiterated by Supreme Court in several decisions. In this regard, reference may be made to the latest decision of Supreme Court in Simon & others Vs. State of Karnataka [ (2004)2 SCC 694 : 2004 ALL MR (Cri) 1171 (S.C.)]. In this case, Supreme Court reiterated the guidelines issued in above referred two cases at Paras 29 to 33 as under:- "29……In Bachan Singh case it was emphasized that for ascertaining the existence or absence of "special reasons", the court must pay due regard both to crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. Moreover often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. The Constitution Bench said that though all murders are cruel but cruelty may vary in its degree of culpability and it is only then the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. 30. The Constitution Bench said that though all murders are cruel but cruelty may vary in its degree of culpability and it is only then the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist. 30. In Bachan Singh, case some of the aggravating circumstances in which the court may impose penalty of death in its discretion noticed are (SCC p. 749, para 202): "(a) if the murder has been committed after previous planning and involves extreme brutality; or (b)if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed - (i) while such member or public servant was on duty; or (ii)in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code. 31. Some of the mitigating circumstances, the court shall take into account in the exercise of its discretion that are noticed in Bachan Singh case are: (SCC p. 750, para 206) "(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 sentence 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. (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." 32. None of the aforesaid circumstances can be taken into consideration in isolation. The circumstance of duress or domination of another person is required to be taken into consideration as a relevant circumstance but that has to be considered on the facts of a particular case while considering and balancing all other aggravating and mitigating circumstances. That alone is not the determining factor. 33. In Machhi Singh Vs. State of Punjab this Court has observed that one of the categories of rarest of rare case may be when the collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. Further, when the crime is enormous in proportion. For instance, when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality are committed. It was observed that in order to apply the guidelines, inter alia, the following questions may be asked and answered: (SCC p. 489, para 39) "(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? The Court further said: (SCC p. 489, page 40) "40. (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? The Court further said: (SCC p. 489, page 40) "40. 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 herein above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so"." 39. Thus, 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 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 resorted to only when life sentence is found altogether 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. 40. Now, we would like to depict a balance-sheet of aggravating circumstances and the mitigating circumstances. Aggravating circumstances: [a] Killing the villagers by S.R.P.F. Jawan, who is deputed to protect the villagers in the Naxalite-affected area is a rare case. [b] Mass killing of the villagers by S.R.P.F. Jawan knowingly. [c] The accused is a trained S.R.P.F. Jawan having 25 years of experience. He did fire one after another total eight rounds from his powerful self-loading rifle on the unarmed villagers, causing murders of five persons. [d] The accused fired eight rounds on the villagers mostly on their back when they were running away. [e] The life protector committed murders of villagers and as such the crime is uncommon. 41. Referring to these aggravating circumstances, the learned Additional Public Prosecutor contended that mass killing of villagers is the rarest of the rare case. [d] The accused fired eight rounds on the villagers mostly on their back when they were running away. [e] The life protector committed murders of villagers and as such the crime is uncommon. 41. Referring to these aggravating circumstances, the learned Additional Public Prosecutor contended that mass killing of villagers is the rarest of the rare case. He further contended that the act of the accused is nothing but an extremely brutal, grotesque, diabolical, revolting and dastardly manner, so as to arouse intense and extreme indignation of the community, which renders sentence of life imprisonment inadequate, and calls for a death sentence. He further contended that the collective conscience of community is so shocked that it will expect the holders of the judicial power centre to inflict a death penalty. Mitigating circumstances: [i] There was a mob in front of the Police Chowky, and in the mob, there were some persons who teased the two ladies and wanted sexual favour from them and behaved with the ladies indecently. Some members of the assembly were supporting such persons. [ii] The mob wanted custody of the Police Constables who helped the two ladies to reach them at the bus stand and to board the bus for going to their village. They wanted to take the policeman in their custody under the pretext of trifle ground that the police constable slapped the miscreant. [iii] The members of the mob were shouting and abusing the policemen and pelting stones and soil and ransacking the kitchen and bathing place of the policemen situated near the wall of the Police Chowky. Burning electric bulb was also broken by them. [iv] Accused being a S.R.P.F. Person was supposed to be armed with weapons round the clock, as S.R.P.F. Persons can be required to use S.L. Rifle against Naxalites at any moment. [v] Circumstances revealed that the accused was in a disturbed state of mind, and unable to understand what to do to tackle the situation, and under such circumstances, he took his own decision to open fire under the mistaken belief that he is justified to open fire. [vi] Crime was registered for forming an unlawful assembly against the members of the mob before registration of crime against the accused, as deposed to by PW -8 - Head Constable Landge. [vii] Crime committed by accused was not preplanned or pre-meditated. [vi] Crime was registered for forming an unlawful assembly against the members of the mob before registration of crime against the accused, as deposed to by PW -8 - Head Constable Landge. [vii] Crime committed by accused was not preplanned or pre-meditated. [viii] No motive, no enmity against the victims of firing. [ix] No intention. [x] No bad antecedents. [xi] Not a criminal also. [xii] If allowed to live, he would not be a menace to society. [xiii] If chance is given, he can definitely be reformed. 42. The learned trial Judge at para 84 of the judgment mentioned the aggravating and the mitigating circumstances. It is to be noted that perusal of the above paragraph reveals that he has referred to only one mitigating circumstance viz., the members of the mob were shouting, abusing policemen and pelting soil, stones etc. As already noted by us, there are many other mitigating circumstances which are referred to in paragraph 41 of this judgment. It appears that the trial Judge has lost sight of those other mitigating circumstances. The learned Judge has at para 83 of the Judgment observed that the accused being well trained armed person in uniform holding the post of policeman who was in a dominating position of trust, misused his position as a protector of law and fired indiscriminately by aiming at the members of mob by triggering his SLR for as many as eight times. It is further observed that man of such propensity cannot be reformed. According to him, the circumstances of crime as well as the offender are such that there is no alternative but to impose the death sentence, even after according maximum weightage to the mitigating circumstances. 43. In our view, the learned trial Judge has not considered the aggravating circumstances and mitigating circumstances which appear in evidence and the material on record 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 the provisions of Section 354 (3) of the Code of Criminal Procedure. 44. It is to be noted that 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. 44. It is to be noted that 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 the 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 such evidence from the side of the prosecution that accused cannot be reformed and rehabilitated and that the accused would commit criminal acts of violence as would constitute a continuing threat to the society, the evidence which has already come on record shows that there is every possibility and probability for the accused being reformed and rehabilitated if he is allowed to live. It is to be noted that accused is not a hardened criminal or anti-social person and it cannot be said that he would be menace to the social order. The accused cannot be said to be a person of uncontrollable violence having propensities against community. 45. We have mentioned the aggravating and mitigating circumstances at para 40 & 41 of this judgment and upon taking an overall global view of all the circumstances, we think that the mitigating circumstances would outweigh the aggravating circumstances in this case. Firing at the mob which came to Police Station for beating policeman and pelting stones cannot be said to be uncommon and rarest of rare case which renders imprisonment for life inadequate and calls for a death sentence. 46. All in all, the crime committed by the accused 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 herein above, 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. 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 herein above, 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 is reduced to sentence of imprisonment for life. ORDER [a] In the result, the Reference under Section 366 of Criminal Procedure Code, in Criminal Confirmation Case No.1 of 2005, for confirmation of death sentence imposed upon the accused-Shripati s/o. Shioram Gaikwad by the learned Additional Sessions Judge, Bhandara, in Sessions Case No.28 of 2001 is rejected. However, Criminal Appeal No.543 of 2005 preferred by the Appellant-accused is partly allowed. [b) Conviction of the accused Shripati s/o. Shioram Gaikwad for the offence punishable under Section 302, Indian Penal Code, is maintained. The sentence of death is reduced to of one Imprisonment for Life for offence punishable under Section 302, Indian Penal Code. [c] The conviction and sentence passed against the accused for offence punishable under Section 307 of Indian Penal Code stands confirmed. [d] Both the substantive sentences shall run concurrently. [e] Appeal of the accused and the Reference under Section 366 of Criminal Procedure Code are accordingly disposed of in the terms aforesaid. Order accordingly.