1. Aggrieved by the conviction recorded under Section 302 of the Ranbir Penal Code (RPC, `for short) for committing the murder of his Platoon Commander Shri Harvinder Thakur, Sub Inspector No. 680501174, and colleague P.A. Naidu, Constable No. 930870154 of C. Company, And the Sentence of Imprisonment for life and a fine of Rs. 5000/-, Balbir Singh, Constable No. 911150882 of C. Company, 87-Bn of the Central Reserve Police Force, the appellant, has approached the court by his Appeal, seeking acquittal and quashing of the conviction and sentence recorded by the Sessions Judge, Budgam vide his judgment and order of October 26, 2007 and November 6, 2007 respectively. 2. Learned Sessions Judge, Budgam too has made Reference for confirmation of the Sentence awarded to the appellant. 3. Appellants Criminal Appeal No. 01/2008 and learned Sessions Judges Reference No. 12/2007 have been heard together. Facts: 4. Facts leading to the Criminal Appeal and Confirmation Reference may be stated thus: - 5. Appellant was posted on 08.01.2001 on security duty at the residence of Shri Ghulam Nabi Azad, former Union Minister, at Hyderpora, Bypass Srinagar, with other personnel of his Battalion when between 1930 hours to 2000 hours, with intention to commit murder, he opened fire with his Self Loading Rifle (SLR), on his Platoon Commander Harvinder Thakur and colleague Constable P.A. Naidu, critically injuring the Platoon Commander, and killing P.A. Naidu on spot. The Platoon Commander too succumbed to the injuries while on way to the hospital. The appellant thereafter ran away from the place of occurrence leaving behind his SLR, but was later arrested by the Police from the house of a civilian residing nearby. 6. According to the prosecution story, as unfolded during the trial of the case is, that irked over the short supply and distribution of meat to the Jawans, the appellant had opened fire with his SLR, hitting his Platoon Commander and a fellow constable. He had quarreled with other colleagues too before the occurrence and had even `Cocked his rifle. He was, however, cooled down and sent to his room by his colleagues. He is stated to have quarreled with one of the colleagues in the room too for the second time and had thereafter opened fire with his SLR killing the Platoon Commander and Constable Naidu. 7. He was, however, cooled down and sent to his room by his colleagues. He is stated to have quarreled with one of the colleagues in the room too for the second time and had thereafter opened fire with his SLR killing the Platoon Commander and Constable Naidu. 7. The Final Police Report filed under Section 173 of the Code of Criminal Procedure, was committed by learned Chief Judicial Magistrate, Budgam to the Court of Sessions, where, on being charged under Section 302 RPC, the appellant had claimed to be tried. 8. The prosecution examined fourteen (14) out of sixteen (16) listed witnesses, to prove its case both by Direct and Indirect evidence. The Direct evidence is supplied by two eye witnesses, PWs 1&2, Havaldars Shiv Bolay Yadav and M.R. Sakia. The Indirect, circumstantial evidence comprises of PWs 3 to 5, Constables D.S. Rao, D. Panigrahi and V.R. Tandy, who reached on the spot immediately after the occurrence and had seen the accused running away and jumping over to the neighboring civilian house, seizure of the SLR of the appellant from the spot and the spent cartridges and the cartridge cases of the ammunition issued to the accused. 9. That apart, the prosecution evidence includes the statements of the Assistant Commander C. Company, CRPF who had arrived on spot immediately after the occurrence and Dr. Bakhtiar Asif, who had examined the accused, besides the testimony of the Ballistic experts of the FSL, who had examined the seized SLR and cartridge cases, the Doctor, who had conducted the Post-mortem of the dead bodies, the Investigating police officer and the Forensic Science Laboratory and Post mortem reports. 10. Appellant has been found guilty of committing the murder of the Platoon Commander Harvinder Thakur and Constable P.A. Naidu, on appreciation of the prosecution evidence and sentenced to Imprisonment for life and a fine of Rs. 5000/- by the Learned Sessions Judge, Budgam. 11. The Criminal Appeal and the Confirmation Reference have thus arisen in the background of above factual matrix. Appellants submissions: 12. 5000/- by the Learned Sessions Judge, Budgam. 11. The Criminal Appeal and the Confirmation Reference have thus arisen in the background of above factual matrix. Appellants submissions: 12. Appellants learned counsel opened his case by questioning the impugned judgment, saying that non production of the Doctor who had conducted the Post mortem of the deceased, delay of about one month in sending the spent cartridges and the SLR to the Ballistic Expert by the police, and the prejudice that had been caused to the appellant by trial courts omission to adjourn the case after examining him under Section 342 of the Code of Criminal Procedure, to provide him sufficient time to make up his mind to lead defense evidence, was fatal to the prosecution case. 13. When confronted with the position emerging from the records that one of the Doctors, PW-13 Dr. Abdul Gaffar, who had conducted the Post-mortem examination of the dead bodies of Harvinder Thakur and P.A. Naidu had been examined by the prosecution, who had proved the Post-mortem report EXPWM-II, and that there was overwhelming evidence on records of those prosecution witnesses who had seen the appellant firing from his SLR and thereafter running away from the place of occurrence, and even one of the witnesses PW-Shiv Bolay Yadav had tried to catch hold of him, who, being stout and powerful than the witness, had, however, succeeded in running away from the place of occurrence, appellants learned counsel fairly submitted that he would not question the finding of the learned Sessions Judge insofar as it finds the appellant responsible for indulging in firing from his SLR and killing the Platoon Commander and Constable Naidu on 08.01.2001 when he along with others were on security duty at the residence of Shri Ghulam Nabi Azad at Hyderpora Bypass, Srinagar, and would restrict his submissions, in the Appeal, only to urge that in the given facts and circumstances of the case, the appellant can not be held guilty of the offense punishable under Section 302 RPC and can, at the most, be said to have committed offense punishable under Section 304 RPC, in that, he had neither any motive nor intention to commit the murder of his Platoon Commander and Constable Naidu, additionally because he was under the influence of liquor and was thus unable to comprehend the fallout of his act of indulging in firing. 14. 14. Learned counsel submitted that the appellant deserves lesser punishment because his act, though had resulted in the death of two persons, was not intentional. 15. Learned counsel did not press his plea that the appellant had been prejudiced by the trial courts omission to provide him sufficient time to decide as to whether or not he would like to lead the defense evidence, in view of the fact, that not only the appellant but his counsel too had, by their separate recorded statements, opted not to lead any evidence in defense. 16. Learned counsel placed reliance on the decision rendered by Honble Supreme Court of India in Vineet Kumar Chowhan Vs State of UP, Appeal (Crl.) 35 of 2006 on December 14, 2007 to support his submission that the appellants conviction under Section 302 was unwarranted. States response: 17. Meeting appellants counsels submissions for converting the conviction into one under Section 304 RPC, and accordingly awarding lesser punishment to the appellant, learned State counsel submitted that appellants act of indulging in firing and killing two persons amounted to murder punishable under Section 302 RPC, and, looked from any angle, the appellants act would not amount to Culpable homicide not amounting to Murder. Learned counsel referred to illustration-(d) appearing in Section 300 of the RPC to support his submission. 18. We have perused the records, the resume of the statements of the prosecution witnesses and considered the submissions of learned counsel for the parties, in the light of the provisions of Sections 299 and 300 RPC besides the Case Law cited at the Bar. Discussion: - 19. The evidence led by the prosecution in the case, is overwhelming and consists of those persons of `C Company of 87-Bn of the Central Reserve Police Force, who had seen the appellant resorting to firing by the SLR issued to him, pursuant to his agitation over short supply and distribution of meat to the Force Jawans and altercation with the Mess Commander, killing his Platoon Commander Harvinder Thakur and fellow Constable P.A. Naidu, and thereafter running away from the place of occurrence, whose presence on spot has been duly proved. The Prosecution evidence further demonstrates that even before indulging in the firing, the appellant had quarreled with his colleagues and even cocked his rifle, but the situation had been controlled with the intervention of the colleagues. The Prosecution evidence further demonstrates that even before indulging in the firing, the appellant had quarreled with his colleagues and even cocked his rifle, but the situation had been controlled with the intervention of the colleagues. That apart even before actually opening fire from his SLR, the appellant had quarreled with PW-5, Constable V.R. Tandy too, when he was in his room. 20. Perusal of the prosecution evidence and proof of the documents produced along with the Final Police Report indicates that the view taken by the learned Sessions Judge in recording his finding that, irked over short supply and distribution of meat to Force Jawans and his altercation with Mess Commander, the appellant had indulged in firing, killing the Platoon Commander and Constable P.A. Naidu, as a result of the injuries which they had received from the bullets fired by the appellant, is well merited which does not warrant any interference in Appeal and appellants learned counsel was right in not questioning the findings. 21. Accordingly, confirming the findings of fact, we shall now examine as to what offence has the appellant committed by resorting to firing resulting in the killing of the Platoon Commander and Constable P.A. Naidu, for no fault of theirs. 22. Before examining the question aforementioned, reference needs to be made to the statement of PW-9 Dr. Bakhtiar Asif, who had examined the appellant on 08.01.2001 at SMHS Hospital, Srinagar. 23. According to the statement of PW9- Dr. Bakhtiar Asif, the appellant had been found to have consumed 125 ml of alcohol; but was in his senses. 24. Looking to the events preceding the occurrence when the appellant had cocked his rifle for firing, his post occurrence conduct of running away from the place of occurrence and even freeing himself from the hold of PW1- Shiv Bolay Yadav, who had tried to catch hold of him, in the light of the statement of PW 9- Dr. Bakhtiar Asif that the appellant, despite having taken liquor was in his senses, We do not find any material on records to accept the appellants counsels submission that the appellant was not in his senses and could not have known the consequences of his act of firing because he had consumed liquor before the occurrence. 25. Bakhtiar Asif that the appellant, despite having taken liquor was in his senses, We do not find any material on records to accept the appellants counsels submission that the appellant was not in his senses and could not have known the consequences of his act of firing because he had consumed liquor before the occurrence. 25. Before coming to a conclusion as to what offense had the appellant committed in firing from his SLR, regard needs to be had to the provisions of Sections 299 and 300 of the RPC to focus attention on the language used in these two Sections, so that true nature of the offense committed by the appellant was ascertained. 26. The first and foremost thing which is required to be seen is as to whether or not the act of the offender falls within the ambit of Section 299 RPC. If it so falls within the parameters of Section 299, a further enquiry needs to be made as to whether the act complained of, falls in any of the clauses i.e., Clauses Firstly to Fourthly appearing in Section 300 of RPC. 27. If the offense falls in any of these clauses, and is not covered by Exceptions 1 to 5, appearing in Section 300, it will be MURDER as contemplated by Section 300 RPC, punishable under Section 302 RPC. 28. If the act is such, which is caused with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the act is likely to cause death, And does not fall within the ambit of clauses firstly to fourthly appearing in Section 300 RPC, it will NOT be Murder and the offender would be liable to be convicted under Section 304, Part-I RPC. However, if the act is such, which has been committed with the knowledge that the act is likely to cause death, the offender would be liable to be convicted and punished under Section 304, Part-II RPC. 29. At this stage regard needs to be had to the provisions of Sections 299 and 300 RPC along with the illustrations appearing thereunder, which read thus: - "299. 29. At this stage regard needs to be had to the provisions of Sections 299 and 300 RPC along with the illustrations appearing thereunder, which read thus: - "299. Culpable homicide Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Illustrations (a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide. (b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing it to be likely to cause, Zs death induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide. (c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or cause death by doing an act that he knew was likely to cause death. Explanation 1. - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.-The causing of the death of a child in the mothers womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth though the child may not have breathed or been completely born. "300. Explanation 3.-The causing of the death of a child in the mothers womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth though the child may not have breathed or been completely born. "300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--- Secondly-if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or - Fourthly--- If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder. b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies inconsequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, give him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death. c) A intentionally gives Z a sword-cut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. c) A intentionally gives Z a sword-cut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Zs death. d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not had a premeditated design to kill any particular individual. Exception I. - When culpable homicide is not murder-Culpable is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos First-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly-That the provocation is not given by anything done in obedience to the law or by a public servant in the lawful exercise of the powers of such public servant. Thirdly- That the provocation is not given by any thing done in the lawful exercise of the right of private defence. Explanation. -- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. 30. Perusal of the provisions of the RPC, extracted hereinabove, leave no manner of doubt that the appellants act of firing six shots from his loaded SLR on his Platoon Commander and Constable P.A. Naidu, injuring their vitals including Cranium, as a result whereof the brain matter had come out, killing both of them as a result of the injuries they had received from the shots fired through his SLR, amounts to Culpable Homicide, regardless of the fact that the appellant may not have any pre-meditated design to kill them, in that, while resorting to firing, the appellant had known that his act was so eminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and had resorted to firing without any excuse for incurring the risk of causing death and bodily injuries. 31. 31. The appellants act is not covered by the Exceptions appearing in Section 300, And in such view of the matter, the act committed by him, resulting in the death of his Platoon Commandeer and Constable P.A. Naidu, would be Murder punishable under Section 302 RPC, as explained in Illustration (d) appearing under Section 300 of the RPC. 32. Appellants counsels submission that appellants act would amount to culpable homicide not amounting to murder, is, in view of the above discussion, held unsustainable, and is, accordingly, rejected. The judgment cited by the learned counsel is distinguishable and has no application to the facts of the present case. 33. For all what has been said above, we are satisfied that the learned Sessions Judge, Budgam has properly appreciated the evidence and his findings, judgment of conviction and order of Sentence do not call for any interference in appeal. 34. Accordingly, accepting Confirmation Reference No. 12/2007 and confirming the sentence awarded by the learned Sessions Judge, Budgam, appellants Appeal is dismissed.