Judgment : (Delivered by Hon'ble Arvind K. Tripathi, J.) 1. The present capital appeal no.1251 of 2015 connected with reference no.01/15 for confirmation of capital punishment awarded by the judgment and order dated 30.3.2015 passed by Sessions Judge, Farrukhabad is against the same judgment hence both the cases are being considered and decided by a common order. 2. The present capital appeal has been preferred challenging the validity of the judgment and order of conviction and sentence dated 30.3.2015 in S.T. No.5/15 arising out of case crime no.783 of 2014 under section 302, 506 IPC, P.S. Kotwali Farrukhabad, District Farrukhabad and S.T. No.6/15 arising out of case crime no.784 of 2014, under section 25/27 Arms Act, P.S. Kotwali Farrukhabad, District Farrukhabad by which appellant was convicted and sentenced for death punishment under section 302 IPC subject to confirmation by the High Court, under section 506 IPC for two years rigorous imprisonment with fine of Rs.10,000/- in default of payment of fine 3 months rigorous imprisonment, under section 25 Arms Act for three years rigorous imprisonment with fine for a sum of Rs.5,000/- in default of payment of fine two months additional rigorous imprisonment, under section 27(1) Arms Act two years four month rigorous imprisonment with fine of Rs.5,000/- in default of payment of fine two month rigorous imprisonment. Further direction was that all the sentence shall run concurrently. It was further directed that half of the amount of penalty if deposited should be given to the dependent of the deceased Inspector. 3. The reference was sent by the trial judge to this Court for confirmation of death punishment under section 302 IPC in view of the provision of Chapter IX Rule 64 General Rule (Crl.). 4. Mr. Vinod Kumar Srivastava, Advocate, argued the case on behalf of appellant, learned Government Advocate Mr. Akhilesh Singh assisted by Mr. A. N. Mullah and Mr. Chandrajeet Yadav and Mr. N. K. S. Yadav, learned Additional Government Advocates appeared on behalf of State, Mr. Ajeet Kumar Singh appeared on behalf of complainant. 5. We heard appeal on 9.12.2015, 15.12.2015, 21.12.2015 and on 18.1.2016 judgment was reserved on 18.1.2016. 6. Akhilesh Singh assisted by Mr. A. N. Mullah and Mr. Chandrajeet Yadav and Mr. N. K. S. Yadav, learned Additional Government Advocates appeared on behalf of State, Mr. Ajeet Kumar Singh appeared on behalf of complainant. 5. We heard appeal on 9.12.2015, 15.12.2015, 21.12.2015 and on 18.1.2016 judgment was reserved on 18.1.2016. 6. The brief facts of the case is that first information report was lodged and registered at case crime no.783 of 2014, under section 302, 506 IPC, P.S. Kotwali Farrukhabad, District Farrukhabad and regarding the recovery of the country-made pistol from the spot case was registered at case crime no.784 of 2014 under section 25/27 Arms Act, P.S. Kotwali Farrukhabad, District Farrukhabad. 7. The first information report was lodged by S.S.I. Harishchandra Singh on 29.11.2014 at 6.45 P.M. According to first information report and G.D. No.38 at 15.45 O' Clock of P.S. Kotwali, Farrukhabad, Sub Inspector Harishchandra Singh with Constable 627 Ashok Kumar, Constable 673 Vijay Shanker Rai, Constable 696 Vijay Kumar, Inspector Incharge Sri Rajkumar Singh by Government Jeep No.UP 76-G-0114 with Constable driver Manoj Kumar proceeded for search of accused appellant Pappu @ Chandra Kumar son of Thakuri Prasad R/o Village Bag Lakula, P.S. Kotwali Farrukhabad, District Farrukhabad after getting information regarding his presence at his house from where riksha was being operated. The police party reached for his arrest and for further action at village Bag Lakula and accused Pappu @ Chandra Kumar was known to Sub Inspector Harishchandra and Constable. At about 16-10 O' Clock jeep was stopped in front of his 'Riksha House' they raided the house, however, suddenly seeing the police party in dress, the accused appellant came out from the house and tried to run away. When In-charge Inspector Sri Rajkumar Singh and other police personnel proceeded to catch accused appellant and he was asked to stop but he took out his countrymade pistol pointing towards Inspector Incharge and warned not to arrest him otherwise they have to face the consequences. However, Inspector Incharge Sri Rajkumar Singh encouraged the police personnel and challenging appellant Pappu @ Chandra Kumar, proceeded towards him, who warned not to arrest him otherwise he would shoot. The Inspector Incharge Rajkumar Singh directed to arrest accused appellant by surrounding him as he was alone. The police personnel proceeded towards appellant. However, Inspector Incharge Sri Rajkumar Singh encouraged the police personnel and challenging appellant Pappu @ Chandra Kumar, proceeded towards him, who warned not to arrest him otherwise he would shoot. The Inspector Incharge Rajkumar Singh directed to arrest accused appellant by surrounding him as he was alone. The police personnel proceeded towards appellant. As soon as informant and police personnel proceeded towards appellant to apprehend him he directly shot at Inspector Incharge Sri Rajkumar Singh with countrymade pistol causing fire-arm injury on his chest, who after a little stagger fell down in varanda towards east. When accused appellant Pappu @ Chandra Kumar tried to re-load the countrymade pistol the informant and police personal ran towards him and without giving any opportunity to re-load the countrymade pistol caught him at about 4.15 P.M. after using necessary force and during that period countrymade pistol slipped and fell down from his hands. The appellant was tied with gamksha (a piece of cloth used as towel) and his custody was handed over to Constable Ashok Kumar, Vijay Shanker Rai and Vijay Kumar. Thereafter, informant S.S.I. took injured Inspector Incharge Sri Rajkumar Singh by government jeep for treatment to Dr. Ram Manohar Lohiya Hospital. The information was also given to control room to send additional force at the place of occurrence. The Incharge Inspector Sri Rajkumar Singh was taken to emergency room, where he was examined by doctor present there and was declared dead. After getting information Sub Inspector Sri Chhail Kumar Incharge Chouki residential colony and Tiger along-with constable leaving constable Lalaram and Suresh Baboo reached at the place of occurrence. When S.S.I., Harish Chand returned to the place of occurrence he found accused appellant in safe custody of the constables. The countrymade pistol was also lying there. Nobody had touched the countrymade pistol. Due to firing terror was created and old aged persons had run away even leaving their houses unlocked. The law and order was disturbed due to that incident. The independent witnesses were not available at that time on the spot and number of police personnel including Incharge Kotwali Fatehgarh, Sri R. P. Yadav, Incharge Kotwali Mau reached there with police force. The police force was deployed to control the situation and to maintain law and order. The official of the village unit took the finger print of the countrymade pistol. The countrymade pistol was taken into police custody. The police force was deployed to control the situation and to maintain law and order. The official of the village unit took the finger print of the countrymade pistol. The countrymade pistol was taken into police custody. After search of accused appellant four 12 bore cartridges were recovered from packet of his 'Paint' and in the countrymade pistol one empty cartridge was found but brass head was found missing. Since he had no license of that pistol hence with compliance of order of the Apex Court and National Human Rights Commission he was arrested. The recovery memo was prepared and subsequently the information was given to his family members. He was challaned under section 307, 506 and 302, 506 IPC and 25/27 Arms Act. The recovery memo was prepared. The recovery memo was explained and one copy of the recovery memo was given to accused Pappu @ Chandra Kumar. When villagers ran for rest and shelter after incident they left their shoes and chappal near place of occurrence, which was also recovered and recovery memo was prepared on 30.11.2014. The blood stained earth and, sample of plain earth were also taken and kept in two separate jars. The recovery memo was prepared on 30.11.2014. The recovery memo of one gamchha was also prepared on 30.11.2014 by which hand of the appellant was tied. After panchayatnama was prepared the dead body was sent to mortuary for post-mortem examination. The post-mortem examination of body of the Inspector deceased Sri Rajkumar Singh was conducted on 30.11.2014 at 4.45 A.M., which was completed at about 5.20 A.M. The following ante-mortem injury were found on body of deceased Rajkumar Singh:- (i) Fire-arm wound of entry 3.5 x 3.0 cm. over front of chest mid sternal region 11.0 cm. below sternal notch. Margin inverted lacerated echymosed, charred blackend wound in chest, cavity deep. On dissection sternum fractured, aorta and upper part of heart left pleura and lung found lacerated. Chest cavity full of blood. One Tikli, beding piece-1 (plastic) and 13 small pellets recovered from chest cavity, pleura, lung and heart. The direction was front to back towards left and down wards. (ii) abrasion 1.5 x 1.0 cm over front of right knee. The cause of death according to opinion of doctor was shock and haemorrhage as a result of ante mortem fire-arm injury. One Tikli, beding piece-1 (plastic) and 13 small pellets recovered from chest cavity, pleura, lung and heart. The direction was front to back towards left and down wards. (ii) abrasion 1.5 x 1.0 cm over front of right knee. The cause of death according to opinion of doctor was shock and haemorrhage as a result of ante mortem fire-arm injury. The recovery of head of empty cartridge was absent and as such there was no mark found to compare regarding firing from the countrymade pistol. 8. After completing the formalities and obtaining the sanction the charge-sheet was submitted in case crime no.783/14 and 784/14, under section 302, 506 IPC and under section 25/27 Arms Act respectively. 9. The case was committed to the court of sessions. The charges were framed by the trial court under section 302 and 506 IPC on 6.1.2015 and under section 25/27 Arms Act on the same day. The charges were read-over and explained. The accused appellant denied the charges and pleaded to be tried. 10. The prosecution in order to prove its case examined six witnesses, P.W. 1 Sub Inspector Harishchandra Singh, who was informant, P.W. 2 Constable Vijay Shanker Rai, P.W. 3 Constable Ashok Kumar, P.W. 4 Rajendra Prasad Chaudhary, who prepared the panchayatnama, P.W. 5 Dr. Deepak Katariya, who conducted the post-mortem examination on body of deceased Inspector Rajkumar Singh, Inspector Mr. R. P. Yadav, Investigating Officer was examined as P.W. 6. After the evidence was closed by the prosecution statement of accused Pappu @ Chandra Kumar was recorded under section 313 Cr.P.C. He denied the allegation but no evidence was adduced in defence though according to accused appellant when raid was conducted by the police on 29.11.2014 he did not come out from his house. A number of persons had gathered there and from among them it appears that someone fired at the Inspector Incharge Sri Rajkumar Singh and after throwing his countrymade pistol he might have succeeded to run away. Subsequently he was apprehended from house and showing the recovery of countrymade pistol he was falsely implicated and challaned in the present case. 11. Learned counsel for the appellant submitted that since there was a police force hence it was unnatural that appellant would come out from the main door of the house and would try to run away. Subsequently he was apprehended from house and showing the recovery of countrymade pistol he was falsely implicated and challaned in the present case. 11. Learned counsel for the appellant submitted that since there was a police force hence it was unnatural that appellant would come out from the main door of the house and would try to run away. It appears that fire-arm injury was caused by any unknown person to deceased Inspector Sri Raj Kumar Singh. His body was also not found near the main door of the house rather his dead body was found in Varanda opposite side to the Riksha House of the appellant. According to prosecution case appellant shot fire from countrymade pistol causing fire-arm injury on chest of deceased Inspector Incharge Raj Kumar Singh. He was apprehended on the spot and while trying to arrest him his pistol fell down. The recovery of the pistol was shown from the spot. Subsequently it was found that head of cartridge was missing hence it appears that recovery of countrymade pistol was planted because if it was recovered from the spot then prosecution failed to explain how the head of cartridge was found missing. No blood was found from place B and C. As according to site plan deceased Inspector Rajkumar Singh was shot at, at place B and he fell down after fire-arm injury at place C that is varanda of the house of one Laxman. If according to prosecution appellant shot fire from the place of D at deceased Inspector Rajkumar Singh, who was at place B and he fell down at place C then the blood should have been recovered from the place in between B to C but no blood stains found in between B and C, this also creates doubts regarding the prosecution story that while he was present at place B in front of the Riksha house of the appellant, he shot fire at him. He further submitted that it appears that the finger print taken from the countrymade pistol was also not tallying with the finger print of the appellant hence the same was not placed before the trial court. However, according to prosecution story deceased along-with police force came for search and arrest of the appellant in case crime no.777 of 2014, under section 307, 506 IPC. However, according to prosecution story deceased along-with police force came for search and arrest of the appellant in case crime no.777 of 2014, under section 307, 506 IPC. There is no material on record before the trial court to show that the appellant was named accused or wanted in the said crime number 777/14. The criminal history of the 22 cases was shown against the appellant by the prosecution, however, there was only four cases in which appellant was involved. In all the cases he was implicated by the police though he was not named. He further submitted that in fact appellant was inside his 'Riksha house' and after some unknown person caused fire-arm injury appellant was apprehended and showing alleged recovery of countrymade pistol he was falsely implicated in the present case. Learned counsel for the appellant also submitted that there is no evidence that deceased Inspector Rajkumar Singh proceeded for search and arrest of the appellant after making entry in the general diary. Had the deceased gone for search and arrest of the appellant he would have gone with his service pistol but the same was not found with the dead body. Learned counsel for the appellant further submitted that according to P.W. 4 the then tehsildar Rajendra Prasad Chaudhary, who prepared panchayatnama got information on telephone from A.D.M. at 3.45 P.M. about death of Rajkumar, at that time he was on duty at tehsil Sadar and after getting information he went to Lohiya Hospital. According to prosecution case the incident took place on 4.15 P.M. hence it appears that the incident had already taken place before the 3.45 P.M. and no such incident took place as alleged by the prosecution at 4.15 P.M. in which allegation was made against the appellant that he shot fire causing fire-arm injury on chest of deceased Inspector Rajkumar Singh. These circumstances clearly show that he has received injuries before 3.45 P.M. caused by any other unknown person, however, since appellant was present in his rikshaw house hence he was implicated in the present case and not only he was challaned but without reliable evidence he has been convicted and sentenced by the trial court. The prosecution failed to prove the case beyond reasonable doubt and as such appellant is entitled to be acquitted. 12. The alternative prayer of learned counsel for the appellant is on quantum of sentence. The prosecution failed to prove the case beyond reasonable doubt and as such appellant is entitled to be acquitted. 12. The alternative prayer of learned counsel for the appellant is on quantum of sentence. He submitted that in view of the facts of this case it would not be covered under the category of rarest of rare cases because even if the prosecution case is believed police party surrounded the 'Riksha House' of the appellant and just to save himself he tried to run away from the spot and when he was caught hold by the police personnel there was apprehension that they might cause injury to him hence just in self defence he shot fire without any intention to kill Inspector Incharge Rajkumar Singh, but incidentally due to the fire-arm injury, Inspector succumbed to the injury caused on the chest. According to prosecution case, he was present at the place B and the dead body was found at place C that is varanda of Laxman so while moving from place B he might have received the fire-arm injury and in view of the fact and circumstances death penalty is disproportionate to the allegation made against the appellant and as such the same is liable to be set aside. The reference is accordingly liable to be refused and minimum punishment prescribed for the offence be awarded to the appellant to meet the ends of justice. 13. Learned AGA vehemently opposed argument advanced on behalf of appellant. He further submitted that there is no reason of false implication. This has been admitted by the appellant in his statement that police force was present outside his 'Riksha House' and he has also admitted his presence inside his 'Riksha House'. The defence that any other person might have caused injury is without any basis. No evidence has been adduced by the defence to show that the incident took place otherwise and not as stated by the prosecution. The defence that any other person might have caused injury is without any basis. No evidence has been adduced by the defence to show that the incident took place otherwise and not as stated by the prosecution. The appellant was apprehended on the spot after he shot fire and before he could re-load the countrymade pistol for second fire and when there was some scuffle to nab him, his countrymade pistol fell down and due to that it appears that the head of cartridge got detached from the plastic body of the cartridge and countrymade pistol and it was not found near the pistol or inside the pistol, hence merely on that ground the arrest of the appellant, firing at deceased Inspector and recovery from the spot is not liable to be disbelieved. He also submitted that as far as statement of the then tehsildar, who performed panchayatnama, with regard to the information given by ADM is concerned, it appears that it was a typographical mistake, however, he reached in the hospital at about 4.30-5.00 P.M. and according to prosecution case itself after incident immediately deceased Inspector Rajkumar Singh was taken to hospital and reached in the hospital at about 4.25 P.M. and he was taken by stretcher in emergency ward. After he was examined by the doctor he was declared dead. Even according to Investigating Officer in his statement mentioned that he get information at about 2.30 P.M. which shows negligence on part of the Investigating Officer himself or it was a typographical mistake because the same should have been 4.30 P.M. and the investigation was handed over to the Station Officer, P.W. 6 R. P. Yadav on the same day at about 6.45 P.M. i.e. on 29.11.2014 The FIR was registered at 6.45 P.M. because firstly injured Inspector was taken to hospital and thereafter, FIR was registered. After FIR was lodged and registered the investigation was handed over to the I.O., P.W. 6 and in the morning on pointing out of informant he prepared site plan on 30.11.2014 at about 6.00 A.M. The blood was found in veranda and on the walls. The deceased Inspector was having his service revolver in his hand, which was handed over to the driver. The deceased Inspector was having his service revolver in his hand, which was handed over to the driver. The pistol of deceased Inspector was given by S.S.I. Harishchandra to driver Manoj Kumar in presence of P.W. 2 Constable Vijay Shanker Rai hence it is incorrect that the Inspector deceased, who went for search of appellant was not having his pistol. Further when he proceeded for search and arrest of the appellant in case no.777/14 along-with police force by government jeep the G.D. entry was made at 3.45 P.M. as G.D. No.38, which was written by the deceased Inspector Rajkumar Singh himself and G.D. entry was placed before the court concerned and the same was approved and as such it is incorrect that he has not proceeded for search of the appellant or incident took place before 3.45. The criminal history of two cases was placed before the trial court and in one of the case appellant was sentenced for life imprisonment against which appeal was preferred before the High Court and he was on bail when present incident took place. The learned Government Advocate further contended that appellant was life convict. The Sub Inspector was on official duty and during that appellant shot fire at him causing his death. In view of the judgment and the law laid down by the Apex Court in case of Bachan Singh Vs. State of Panjab connected with other petitions 1980 SCC Crl. 580, which was followed in subsequent cases including 2015 (88), ACC 283 SC Mofil Khan and another Vs. State of Jharkhand, the trial court rightly awarded capital punishment. 14. In case of Bachan Singh Vs. State of Punjab (supra) considering the imposition of death penalty the standards and norms restricting the area of imposition of death penalty indicated by the Apex Court as aggravating and mitigating circumstances, which are quoted hereinbelow;- "202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia, in general, and Clauses 2(a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia, in general, and Clauses 2(a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances": "Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) 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. 203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other, 204. In Rajendra Prasad, the majority said: "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)." Our objection is only to the word "only". In Rajendra Prasad, the majority said: "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)." Our objection is only to the word "only". While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and society, public order and the interests of the general public, may provide "special reasons" to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302, Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its 'ethos'; nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302, Penal Code, fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of West Bengal, which follows the dictum in Rajendra Prasad. 205. In several countries which have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of 'murder' or its further classification. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of "aggravating circumstances" which may form the basis of 'special reasons' in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree. 206. Dr. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of "aggravating circumstances" which may form the basis of 'special reasons' in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree. 206. Dr. Chitaley has suggested these mitigating factors: Mitigating circumstances:- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct." 15. The judgment of the Constitutional Bench holding the constitutionality of the death penalty contained under section 302 IPC was considered subsequently and followed by the Apex Court in the case of Mofil Khan Vs. State of Jharkhand (supra), which is quoted hereinbelow:- 18. "This Court in the aforesaid decisions has evolved the doctrine of "rarest of the rare" case and put it to test via the medium of charting out the aggravating and mitigating circumstance in a case and then balancing the two in the facts and circumstances of the case. As a norm, the most significant aspect of sentencing policy is independent consideration of each case by the Court and extricating a sentence which is the most appropriate and proportional to the culpability of the accused. It may not be apposite for the Court to decide the quantum of sentence with reference to one of the classes under any one of the head while completely ignoring classes under other head. It may not be apposite for the Court to decide the quantum of sentence with reference to one of the classes under any one of the head while completely ignoring classes under other head. That is to say, what is required is not just the balancing of these circumstance by placing them in separate compartments, but their cumulative effect which the Court is required to keep in its mind so as to better administer the criminal justice system and provide an effective and meaningful reasoning by the Court as contemplated under section 354 (3) Code while sentencing. The following broad heads have been culled out by the successive judgments of this Court. "Aggravating Circumstances: 1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. 2. The offences was committed while the offender was engaged in the commission of another serious offence. 3. The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. 4. The offence of murder was committed for ransom or like offences to receive money or monetary benefits. 5. Hired Killings. 6. The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. 7. The offence was committed by a person while in lawful custody. 8. The murder or the offence was committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another, for instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Code of Criminal Procedure. 9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. 10. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. 11. 10. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person. 11. When murder is committed for a motive which evidences total depravity and meanness. 12. When there is a cold blooded murder without provocation. 13. The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society. Mitigating Circumstances: 1. The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course. 2. The age of the accused is a relevant consideration but not a determinative factor by itself. 3. The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated. 4. The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. 5. The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. 6. Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime. 7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused. While determining the questions relatable to sentencing policy, the Court has to follow certain principles and those principles are the load star besides the above considerations in imposition or otherwise of the death sentence. Principles: 1. The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence. 2. While determining the questions relatable to sentencing policy, the Court has to follow certain principles and those principles are the load star besides the above considerations in imposition or otherwise of the death sentence. Principles: 1. The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence. 2. In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice. 3. Life imprisonment is the rule and death sentence is an exception. 4. The opinion to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances. 5. The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime." 19. We remind ourselves that the doctrine of "rarest of rare" does not classify murders into categories of heinous or less heinous. The difference between two is not in the identity of the principles, but lies in the realm of application thereof to individual fact situations. Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a three-fold purpose-punitive, deterrent and protective. 45. The crime test, criminal test and the "rarest of the rare" test are certain tests evolved by this Court. The tests basically examine whether the society adhors such crimes and whether such crimes shock the conscience of the society and attract intense and extreme indignation of the community. The cases exhibiting pre-meditation and meticulous execution of the plan to murder by leveling a calculated attack on the victim to annihilate him, have been held to be fit cases for imposing death penalty. Where innocent minor children, unarmed persons, helpless women and old and infirm persons have been killed in a brutal manner by persons in dominating position, and where after ghastly murder displaying depraved mentality, the accused have shown no remorse, death penalty has been imposed. Where innocent minor children, unarmed persons, helpless women and old and infirm persons have been killed in a brutal manner by persons in dominating position, and where after ghastly murder displaying depraved mentality, the accused have shown no remorse, death penalty has been imposed. Where it is established that the accused is a hardened criminal and has committed murder in a diabolic manner and where it is felt that reformation and rehabilitation of such a person is impossible and if let free, he would be a menace to the society, this Court has not hesitated to confirm death sentence, many a time, in cases of brutal murder, exhibiting depravity and callousness, this Court has acknowledged the need to send a deterrent message to those who may embark on such crimes in future. In some cases involving brutal murders, society's cry for justice has been taken note of by this Court, amongst other relevant factors. While deciding whether death penalty should be awarded or not, this Court has in each case realizing the irreversible nature of the sentence, pondered over the issue many times over. This Court has always kept in mind the caution sounded by the Constitution Bench in Bachan Singh case (supra), that Judges should never be blood thirsty but wherever necessary in the interest of society identify the rarest of rare case and exercise the tougher option of death penalty. 16. In view of the facts and circumstance of the present case and the law laid down by the Apex Court it is well settled that while considering the gravity of offence awarding maximum punishment in case of rarest of rare cases tests basically to examine whether such crime shocking conscience of the society and attract extreme punishment to promote respect of law to provide just punishment for the offence. In view of the aforesaid discussion considering the facts and circumstance of the present case and in the light of the judgment of the Apex Court considering the aggravating circumstances and mitigating circumstances, it is clear that appellant has committed murder to prevent a person, who was discharging his duty for search and arrest of the appellant and he was a life convict in one case apart from other criminal cases pending against him in two cases. He was convicted and sentenced awarding sentence already undergone hence there is no possibility of reform and rehabilitation and as such not only the prosecution proved the case beyond reasonable doubt but the present case is covered under the category of rarest of rare cases hence rightly appellant was convicted and sentenced for death sentence. The appeal is liable to be dismissed and the reference is liable to be allowed approving the death penalty. 17. In case of Gopal Singh Vs. State of Uttarakhand 2013 (7) SC 4 it was held by the Apex Court that "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence." 18. In case of Guru Basavaraj @ Bennesettapa Vs. State of Karnataka 2012 (8) SCC 734 the Hon'ble Apex Court held that "sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. 19. In case of Jameel Vs. State of U.P. 2010 (12) SCC 532 the Supreme Court held that the "punishment must be appropriate and proportional to the gravity of the offence committed." 20. In case of Ahmed Hussein Vali Mohammed Saiyed and another Vs. State Of Gujarat (2009) 7 SCC 254 it was held by the Supreme Court "The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong." 21. In case of Ravji @ Ram Chandra Vs. State of Rajasthan 1996 (2) 175 SCC it was held by the Apex Court that "It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong." 22. In case of Sevaka Perumal, etc. vs State Of Tamil Nadu (1991) 3 SCC 471 the Hon'ble Supreme Court held that "Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance. It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc." 23. In the present case, it is clear that not only there was criminal cases pending against the appellant but also in some of the cases he was convicted. It is admitted case that in one of the cases he was convicted and sentence of life imprisonment was awarded against which appeal is pending and he was on bail. When in that case he was on bail obviously during this period once again offence was committed by him. When police force went there for discharge of official duty to apprehend him then to evade the arrest he not only tried to escape but also shot fire at deceased Inspector, who died on the spot after receiving the fire-arm injury. When in that case he was on bail obviously during this period once again offence was committed by him. When police force went there for discharge of official duty to apprehend him then to evade the arrest he not only tried to escape but also shot fire at deceased Inspector, who died on the spot after receiving the fire-arm injury. In view of the aforesaid discussion while considering the case for conviction and sentence the nature and gravity of the crime has to be considered for awarding appropriate and adequate punishment in criminal case. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed by the offender not only against the individual victim but also against the society. Hence it is the duty of every court to award appropriate sentence having regard to the nature of the offence, aggravating and mitigating circumstance and the manner in which it was executed or committed by the offender. 24. In view of the facts and circumstance, it is clear that offence committed by the appellant has shocked the conscience of the society hence it attracted extreme punishment, which is necessary to promote respect for law to provide just and appropriate punishment for crime and the case is covered under the category of rarest of rare case. 25. In view of the aforesaid discussion, considering the gravity of offence, aggravating and mitigating circumstance, the trial court has rightly awarded capital punishment hence the reference made by the sessions court is hereby allowed. The sentence awarding death penalty is hereby confirmed. 26. Accordingly, the appeal filed against the impugned judgment of conviction and sentence is hereby dismissed. 27. However, the execution of sentence shall remain suspended for the period of limitation to prefer special appeal before the Supreme Court. ——————