JUDGMENT
L.C. Bhadoo, J.
1. Accused/appellant Komal Prasad Pandcy was tried by the Second Additional Sessions Judge, Mungeli, District Bilaspur in Sessions Trial Nos. 326/99, 330/99 and 331/99 for the commission of the offences punishable under Section 302 of the Indian Penal Code and Section 23(1B)(h) read with Section 4 of the Arms Act for committing the murders of Shanti Bai, her husband Raghuvcr Prasad Pandcy and her son Ashutosh Pandcy. The learned Additional Sessions Judge by his judgment dated 17th April, 2002 after holding the accused guilty of the offences under Section 302, IPC and Section 25(1B)(b) read with Section 4 of the Arms Act in each of the three cases sentenced him to death for the offences under Section 302, IPC and to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for 2 months for the offence under Section 25(1B)(b) read with Section 4 of the Arms Act.
2. Criminal Appeal No. 646 of 2002 has been filed by the ac
cused/appellant Komal Prasad Pandey against the conviction and sentences
passed against him by the Second Additional Sessions Judge in Sessions Trial No. 326/99 in respect of the commission of the murder of Shanli Bai. On the
other hand, the learned Additional Sessions Judge has made the Reference No. 4 of 2002 to this Court for confirmation of the death sentence imposed by
him on the accused.
3. This judgment shall dispose of the aforesaid Appeal filed by the
accused and the Reference made by the learned Second Additional Sessions
Judge.
4. The houses of the accused and the family of deceased Shanti Bai are adjacent to each other, even their courtyard is common i.e., without any partition wall. Entry to the house of deceased family is through the common gate and courtyard which is in front of the house of the accused. The father of the accused namely Ramanand Pandey and deceased Raghuvcr Prasad Pandcy were cousin brothers.
5. The prosecution story in brief is that on 13th June, 1999 at about 9 a.m. in Village Badra (Brahmin) within the limits of Police Station, Patharia the accused Komal Prasad Pandcy committed the murder of Ashulosh Pandey in the courtyard of his own house assaulting him with a sword, thereafter at 9.05 a.m., he committed the murder of Raghuvar Pandcy at the Ramsagar Pond with the same sword, and at 9.10 a.m. he committed the murder of Shanti Bai near the house of one Vijay Kumar with the same sword.
6. At 13.30 p.m. Smt. Ratna Pandcy, wife of deceased Ashutosh Pandcy lodged report at the Patharia Police Station with the allegations against accused Komal Prasad Pandcy that she was residing at Village Badra (Brahmin) and she was a house wife. On that day in the morning she was cooking food. Her husband Ashutosh Pandcy and father in law Raghuvar Pandey had gone to take bath at the Ramsagar Pond. Her mother-in-law has gone to the house of Vijay Sharma to watch “Krishna serial” on the television after asking
her to cook vegetable. At about 9 a.m. when her son Sunny was not found, in search of him she went on the terrace of the house and saw her son aged about 1 1/2 year was playing on the terrace. All of a sudden she heard the sound (Bhad) of falling something. When she looked towards the side from where the sound was heard she saw that Komal Prasad Pandey was assaulting her husband in his courtyard with a sword and her husband was lying on the ground. His neck was cut. Seeing her husband in a pool of blood and injured condition she became perturbed. She took her son with her, she stepped down from the terrace and entered inside the kitchen. Thereafter she became unconscious. After some time when she regained consciousness, she started crying and called villagers for help and to call her father-in-law and mother-in-law as Komal Prasad Pandey had murdered her husband with a sword. Then Varun and Gukhram told her that her father-in-law Raghuvar Prasad has been murdered at the pond and her mother-in-law Shanti Bai has also been murdered in front of the house of Vijay Pandey by Komal Prasad Pandey by assaulting them with sword. The families of the deceased and accused Komal Prasad Pandey were on inimical terms. 15 days prior to the date of incident Komal Prasad Pandey quarreled with her in-laws and two days prior to this incident Komal Prasad Pandey and his brother Ashok had given threats to kill her family members. Komal Prasad Pandey was suspecting that her family members were practicing witchcraft and on account of that he has committed the murder of her husband, father-in-law and mother-in-law with a sword, wherever they wore found.
7. R. Tigga, Station House Officer of Police Station, Patharia registered Criminal Case No, 27/99 for the offence punishable under Section 302 of the IPC vide FIR (Ex. P-2) and thereafter he reached the scene of occurrence. He issued notices (Ex. P-10 and Ex. P-10-A) to the witnesses for preparation of the panchnama of the dead body of Shanti Bai and prepared panchnama (Ex. P-l 1) in presence of the witnesses. The dead body of Shanti Bai was got photographed which are Ex. P-A, B and C. The dead body was sent for post-mortem examination to the Primary Health Center, Patharia and a requisition (Ex. P-3) in this regard was sent along with Dilip Kumar. On the same day the plain soil, blood stained soil and 13 broken pieces of bangles stained with blood were seized under memo (Ex. P-5). On 14th of June during the investigation accused Komal Prasad Pandey gave memorandum (Ex. P-18) in presence of witnesses Kailash and Vijendra that he has kept the blood stained sword concealed in his house. After preparation of Ex. P-18, the accused took the Investigation Officer and the witnesses to his house, took out the sword from his house, which was recovered under Ex. P-19, which bears the signature of the accused and witnesses. The sword is Article F. On 14-6-1999 on production by the accused the blue coloured T- Shirt and a purple coloured pant stained with blood were seized under Ex. P-20 which arc Articles E-1 and E-2. On 15-6-1999 the accused was arrested under arrest memo (Ex. P-21). On 2-7-1999 the sealed packets were seized on production by Dilip Kumar under Ex. P-4. The sword Article F was sent to the doctor on 12-7-1999 under Ex. P-7-A. The doctor’s report is Ex. P-9-C. Thereafter sword and other articles were sent for chemical examination to the Forensic Science Laboratory, Sagar through Superintendent of” Police, Bilaspur vide Ex. P-22. The report (Ex. P-16) was received from the Forensic Science Laboratory, Sagar and Scrologist report (Ex. P-17) was received. Patwari prepared the site plan (Ex. P-6-A) and after completion of the investigation the charge-sheet was filed against the accused/appellant in the Court of Judicial Magistrate First Class, Mungcli, who in turn committed the case to the Court of Sessions Judge, Bilaspur, from where the learned Second Additional Sessions Judge received the case on transfer.
8. Learned Second Additional Sessions Judge after perusal of the records reached the conclusion that there was sufficient material to frame charges under Section 302 of the IPC and Section 25 of the Arms Act. Accordingly he framed the charges against the accused for the offences punishable under Section 302 of the IPC and Section 25 of the Arms Act. The accused denied the charges and claimed to be tried.
9. The prosecution in order to prove the offences against the accused/appellant examined in all 13 witnesses. The statement of the accused was recorded under Section 313 of the Cr.PC in which he denied the evidence of the prosecution witnesses and stated that he had not threatened the family members of the deceased. He was not present in the village on the fateful day. He has not killed Shanti Bai and he has been falsely implicated in the case. He was arrested on 13-6-1999. The sword and clothes were not recovered at his instance. Witness Vijay Kumar was keeping animosity against him. He is innocent.
10. After hearing the arguments of the learned Additional Public Prosecutor Shri Akhil Mishra and learned Counsel for the accused/appellant Shri A.R. Sav, and after believing the evidence of the prosecution, the learned Additional Sessions Judge convicted and sentenced the accused/appellant for the commission of offences under Section 302, IPC and Section 25(1B)(b) read with Section 4 of the Arms Act, as aforesaid.
11. We have heard Shri K.A. Ansari, learned Counsel for the accused/appellant and Shri Ashok Kumar Verma, learned Deputy Advocate General for the State.
12. As far as the nature of death of Shanti Bai being homicidal is concerned the learned Counsel for the accused/appellant has not disputed this fact. Dr. Anil Gupta (P.W. 4) in his evidence has stated that on 14th June, 1999 he conducted the autopsy on the dead body of Shanti Bai at 9.30 a.m. On examination following injuries were found on the body of Shanti Bai:–
(i) Incised injury over left side of tact 12 cm x 3.5 cm x 4 cm situated from 4 cm below the left car lobule and extends up to left angle of mouth. Margins of the wound are clear cut and regular blood clot present over wound. Injury cutting the skin, fascia, muscles and left mandible with blood vessels. (ii) Incised injury over left side of fact size 7 cm x 2.5 cm x .5 cm situated from adjacent to lobule of left ear and extends interiorly over front of face. Margins of the wound arc clear cut and regular blood clot present over wound injury cutting the skin, fascia muscles and left maxillary bone of left check with blood vessels. (iii) Incised injury over front of right side of abdomen situated just below the right side of chest. Si/c 5 cm x 2.5 cm at centre x 3 cm wound is penetrating abdominal cavity. Abdominal organs are blood stained. Margins of the wound are clear cut and regular. Blood clot present over wound. 13. Dr. Anil Gupta (P.W. 4) has further stated that in his opinion on account of excessive bleeding from injury numbers 1, 2 and 3 Shanti Bai died. All the three injuries were ante mortem in nature and death was homicidal in nature. 14. Witnesses Babulal (P.W, 6) and Vijay Sharma (P.W. 7) have stated in their evidence that accused Komal Prasad Pandcy assaulted the deceased with a sword and on account of that she died. 15. In view of the above evidence of the doctor and the eye-witnesses it is established that the death of Shanti Bai was homicidal in nature.
16. As far as motive behind the crime is concerned, Smt. Ratna Pandey (P.W. 1) has stated in her evidence that for last 10 years the accused and his family were suspecting his father-in-law that he was practicing witchcraft and four days prior to the date of incident the accused and his brother Ashok threatened that “you people arc practicing witchcraft” therefore, they will teach them a lesson by cutting them into pieces. Therefore, in view of this evidence it is proved that the motive behind the crime was that whole family of the accused was suspecting Raghuvar Prasad Pandcy to be a witchcraft and they were having this suspicion for last 10 years and on account of that some quarrel also took place between the family of the accused and the family of the deceased, and the accused threatened the deceased family to kill them. Therefore this was the motive behind committing the three brutal and heinous murders.
17. Coming to the question of involvement of the accused/appellant in committing murder of Shanti Bai is concerned, there are two eye-witnesses to the incident namely, Babulal (P.W. 6) and Vijay Kumar (P.W. 7). Babulal (P.W. 6) has stated that 13-14 months back in the morning at about 9 a.m. he was sitting on the veranda of his house with Vijay Sharma, at that time accused Komal came from the east side of the street and assaulted Shanti Bai with a sword. At that time Shanti Bai was going to the residence of Vijay to watch T.V. Before she could reach the house of Vijay, Komal murdered her. He had seen only one assault given by the accused on Shanti Bai. Thereafter he could not see the assault and ran away. At a distance of 20-25 hands Bodhin Bai was present. Later on he came to know that all the three, i.e,, Shanti Bai, Ashutosh Pandey and Raghuvar were murdered by Komal.
18. Vijay Kumar (P.W. 7) has stated that he along with Babulal was sitting in his verandah and they were chitchatting. Shanti Bai was coming to his residence to watch T.V. By the time she covered two meters distance from her house accused Komal Prasad came from the pond side and assaulted Shanti Bai with a sword. Second time again he assaulted Shanti Bai with sword and Shanti Bai fell down. The accused assaulted her 5-6 times. He was sitting till last assault, but Babulal left the site after one assault. Counsel for the accused argued that Vijay Sharma (P.W. 7) has stated that he and Babulal both were sitting on his verandah, whereas Babulal (P.W. 6) has stated that he and Vijay Sharma were sitting in his verandah. Therefore, in view of this contradiction their presence at the site of occurrence is doubtful and they are the tutored witness. Simply for this contradiction the evidence of both these witnesses can not be discarded because in the cross-examination nothing has come out which makes the evidence of these witnesses unbelievable.
19. In the cross-examination Vijay Sharma (P.W. 7) has stated that he told the police that he was sitting in the verandah of Babulal. Looking to the totality of the circumstances and the evidence available we are of the opinion that it is not possible to disbelieve the presence of these two witnesses because their presence at the scene was natural. The house of Babulal (P.W. 6) is in front of the house of Vijay Sharma (P.W. 7) which is just near the scene of occurrence where Shanti Bai was murdered. This is apparent from the site plan (Ex. P-6) prepared by the Patwari and (Ex. P-24) prepared by the police. The time of incident is 9.10 a.m. in morning, therefore their presence at their residence is natural. Merely on the basis of the contradiction regarding their place of sitting, their presence and evidence can not be discarded.
20. Smt. Ratna Pandey (P.W. 3) has stated that her mother-in-law had gone to the house of Vijay Sharma to watch T.V. Ramashankar Pandey (P.W. 11) has stated that vide Ex. P-5 plain soil and blood stained soil as well as the broken pieces of bangles were recovered from the scene of occurrence.
21. Therefore in view of the above evidence of the eye-witnesses and the circumstantial evidence it is proved that the accused Komal Prasad Pandey assaulted Shanti Bai with a sword.
22. Now coming to the question of recovery of sword at the instance of the accused from his house is concerned, R. Tigga (P.W. 13) Investigating Officer has slated that on 14th June, 1999, on enquiry the accused gave information that he has kept the weapon of the offence, i.e., blood stained sword concealed in his house. The memorandum is Ex. P-18-C, original of which is on the record of the file of S.T. No. 330/99, which bears the signature of the accused and the witnesses Kailash and Vijendra. Pursuant to this information, the accused took them to his house, he brought the sword from his house, and the same was seized under Ex. P-19-C the original of which is on the record of the file of S.T. No. 330/99, which bears the signature of the accused himself and witnesses Kailash and Bijendra. The recovered sword is Article F. Kailash (P.W. 12) has corroborated the above evidence of this witness (P.W. 13) and stated that when the police was enquiring about the murder of three persons, the accused gave information that the weapon, which he used, was kept in his house. On this the Investigating Officer prepared the memo (Ex. P-18) which bears his signature from A to A. Thereafter the accused took the police and witnesses to his house and after opening the lock by a key, he brought a sword from inside the house which was stained with blood. Front portion of the sword was bent. Article F is the same sword, which was recovered.
23. Learned Counsel for the accused submitted that the recovery of the sword at the instance of the accused is doubtful because this recovery is fake for the reasons that no person of ordinary prudence will keep a weapon of offence in his house. We do not find any substance in this argument of learned Counsel for the accused for the reason that it is very difficult to read the mind of an accused and it is not possible to imagine as to what made him to keep the weapon in his house. Reading the mind of an accused amounts to entering into an area of imagination without any further circumstance. The contention of the learned Counsel can not be accepted, because at the time of the incident parents of the accused were not in the house for last 15 days. They had gone to the other village and the accused was all alone in the house. Since the sword belongs to the accused there is nothing abnormal which makes it doubtful that the accused would keep the sword in his house. More over nothing has come out in the cross-examination of Kailash and the Investigating Officer which makes the recovery doubtful. Therefore, it is proved that the sword was recovered at the instance of the accused from his house. As far as the recovery of the clothes from the accused is concerned the accused himself produced his T-Shirt, pant and the same were taken into the possession under Ex. P-20, and it is not the defence of the accused that these clothes do not belong to him.
24. Learned Counsel for the accused further submitted that there is no report to the effect that human blood was found on the clothes of the accused and on the sword, therefore, the accused can not be connected with murder of Shanti Bai by this recovery. As per the chemical examination report (Ex. P-25) the clothes of the accused and the sword were found stained with blood. However, as per the report (Ex. P-26) of the Serologist the origin of the blood and the blood group could not be detected as the blood on these articles was found to he disintegrated. It would have been a different situation if the accused could be connected with the commission of the crime only on the basis of recovery of the weapon of offence, but in this case, apart from the recovery, there are eye-witnesses to the incident who had seen the accused assaulting the deceased with sword (Article F). Dr. Anil Gupta (P.W, 4) has also stated that on 19-7-1999 he examined the sword (Article F) and in injury Nos. 1, 2 and 3 which were found on the body of the deceased could have been caused by this sword. He gave his report (Ex. P-9-C). Therefore, in view of the above evidence of the Dr. Babulal and Vijay Sharma and in view of the recovery of the sword at the instance of the accused, it stands proved that the sword (Article F) was used by the accused in assaulting the deceased Shanti Bai and the blood was found on his clothes. Therefore, the recovery of clothes and the sword also connects the accused with the murder of Shanli Bai.
25. As far as the offence under Section 25(1B)(b) read with Section 4 is concerned learned Counsel has not argued anything on this point. Even otherwise the recovery of sword which was used for the murders is proved against the accused. The accused has not produced any license for keeping the sword with him and as per the Notification issued by the Govt. of M.P. No. 6312-6552-11-20 (1), dated 22nd November, 1974 it was prohibited to keep such arms without valid license. Therefore, this offence is also stands proved.
26. In view of the foregoing reasons, we are of the opinion that the prosecution has established the case beyond reasonable doubt that the accused is the person who assaulted deceased Shanti Bai with the sword (Article F) and committed her murder in the morning of 13-6-1999. The learned Additional Sessions Judge after placing reliance on the prosecution evidence held the accused/appellant guilty of the commission of the murder of Shanti Bai and for keeping the sword in his possession without any valid license. We do not find any reason to interfere with the findings recorded by the learned Trial Court.
27. Now coming to the question of sentence awarded to the accused/appellant, learned Counsel for the accused/appellant submitted that this is not a case which falls within the category of rarest of rare case. The accused belongs to a very poor family and there is no antecedent of the accused that he is a man of criminal background. Moreover, he is a young boy and it appears that under the emotions the accused has committed this heinous crime because his family was suspecting that the family of the deceased persons was practicing witchcraft and thereby they were sending evils to them and their lives became miserable. Counsel further submitted that in Chhattisgarh state in the rural areas the illiterate and backward population is inhabitating where the old superstitions are prevailing that certain persons are practicing witchcraft and they can harm others by practicing witchcraft. He submitted that one of the reasons for commission of crimes in the villages in such superstitions, beliefs prevalent among the villagers. He placed reliance on the judgment of the Supreme Court in Bachhitar Singh and Anr. v. Stale of Punjab, reported in 2002 AIR SCW 4061.
28. On the other hand, Shri Ashok Verma, learned Dy. Advocate General, submitted that three cold blooded, brutal and ghastly murders have been committed by the accused and on account of that the whole village was terrified. Therefore, in order to send a message it is necessary that the accused is awarded with capital punishment. Therefore, the sentence of death awarded by the learned Trial Court is correct. He placed reliance on the judgment of the Supreme Court in Ravi alias Ram Chandra v. State of Rajasthan, reported in 1996 Cr.LR (SC) 24.
29. In order to appreciate the arguments advanced by the learned Counsel appearing for the parties, the relevant law on the point is Section 354(3) of the Criminal Procedure Code which lays down that “when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence’. This section has been interpreted by the Hon’blc Apex Court time and again in many cases and the general rule which has been laid down by the Hon’ble Apex Court is that ‘life imprisonment’ is rule and ‘death penalty’ is an exception, i.e., the death penalty can be awarded in the exceptional cases only. The landmark judgment on this point is Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684, in which Hon’ble Apex Court after considering all the aspects and constitutional validity of this provision laid down that (i) the extreme penalty of death should not be inflicted except in the gravest cases of extreme culpability, (ii) before opting for the death penalty the circumstances of the ‘offender’ also required to be taken into consideration along with the circumstances of the crime, (iii) life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether insufficient punishment having regard to the relevant circumstances of the crime, (iv) a balance sheet of the aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. Hon’ble Apex Court also referred to the aggravating circumstances in Para 202 of the judgment and mitigating circumstances in Para 206 of the judgment. This judgment was again considered in the case of Machhi Singh and Ors. v. State of Punjab, reported in (1983) 3 SCC 470, in which the principle of rarest of rare case was again reiterated and it was held that the death sentence can only be inflicted in case where the murder was cold blooded, calculated and gruesome multiple murders as a reprisal in a family feud and in which the collective conscience of the community is so shocked, that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community; when the murder is committed for a motive which evinces total depravity and meanness e.g., murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis-a-vis whom the murder is in a dominating position or in a position of trust or murder is committed in the course of betrayal of a mother land, when murder of a member of a scheduled caste or minority community etc., is committed not for personal reason but in circumstances which arouse social wrath or in cases of bride burning or dowry deaths or when whose murder is committed is an innocent child or a helpless woman or old or infirm person.
30. Again in the case of Allauddin Mian and Ors. v. State of Bihar, reported in (1989) 3 SCC 5, Hon’ble Apex Court considered Section 354(3) of Cr.PC and reiterated the principles laid down in earlier decisions and held that holding the reasons for award of the death sentence are mandatory. Sub-section (3) of Section 354 casts a heavy duty on the Court to explain its choice why such sentence is being awarded. The special reasons clause in that sub-section is a sufficient safeguard against arbitrary imposition of the extreme penalty and if the Court reached the conclusion that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment. Only in those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community, would it be permissible to award the death sentence.
31. This aspect was again considered by the Hon’ble Apex Court in the case of State through Superintendent of Police CBI/SIT v. Nalini and Ors., reported in (1999) 5 SCC 253 and in the case of Om Prakash v. State of Haryana, reported in (1999) 3 SCC 19. In that case a member of a paramilitary force who has killed seven members of the family was not awarded extreme penalty for the reason that he had been labouring under the strain that he and the members of his family had been suffering due to injustice being meted out to them by the family of the deceased, ft was considered to he mitigating circumstances in that case. In the case of State of Punjab v. Gurmej Singh (supra), Hon’ble Apex Court again held that before awarding the death penalty the Court has to consider the motive of the crime, manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, the circumstances and the facts of the case as to whether the crime committed is were satisfying any kind of lust, greed or in pursuance of any
organized anti social activity or by way of organized crime, drug trafficking or the like or the chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future or commission of murder which may be shocking to the conscience.
32. The Hon’ble Apex Court in Bachhitar Singh (supra), has held that the accused murdered eight members of the family out of the land dispute. The Court reached to the conclusion that apart from the incident in question no evidence on record to suggest about the past misconduct of the accused. No evidence also to suggest that the appellant is menace to society. No reason to believe that they can not be reformed or rehabilitated. Crime though committed in heinous and brutal manner, sentence of death commuted to imprisonment for life to give appellants a chance to repent and be reformed or rehabilitated and become good law abiding citizens.
33. The sum and substance of the principles enumerated by the Hon’ble Apex Court extracted above, is that the death penalty can be awarded only in rarest of rare cases and in exceptional cases looking to the facts and circumstances of the particular case, examples of which have been cited in the above referred cases and where looking to the facts and circumstances the awarding of the life imprisonment is inadequate based on the above law by the Hon’ble Apex Court.
34. We have considered the legal submissions made by both the Counsel. As per the prosecution case, it is evident that the accused and the deceased are closely related. Even their houses arc adjacent to each other. The courtyard is common and they are cousins. The offence appears to be committed by the accused on account of suspecting the family of the deceased as witchcraft and some quarrel also took place between the two families fifteen days prior to this incident. Therefore, by any stretch of imagination, this crime can not be considered, as crime committed for any gain or lust, there is no evidence on record, which shows that the accused is a menace to the society. Therefore, we are of the opinion that in view of the above law laid down by the Hon’ble Apex Court specifically in the case of Om Prakash (supra), in which the accused murdered seven persons of a family only for the reason that the family of the accused had been suffering due to injustice being meted out to them by the family of the deceased. Similarly, in this connection, as per the law laid down in the matter of Bachhitar Singh and Anr. (supra), we are of the considered opinion that the present case is not rarest among the rare cases. As such, capital punishment awarded by the learned Trial Court can not be sustained. Therefore, the death sentence awarded by the learned Additional Sessions Judge to accused/appellant Komal Prasad Pandcy can not be confirmed for the reasons mentioned herein above.
35. In the result, the convictions of accused/appellant for the commission of the offences under Section 302 of the Indian Penal Code and Section 25(1B)(h) read with Section 4 of the Arms Act are maintained. The sentence of death is set aside. In its place, we sentence the accused/appellant to undergo imprisonment for life and to pay a fine of Rs. 1,000/- (Rupees One thousand only) in default of payment of fine to further undergo simple imprisonment for three months. We maintain the sentence imposed by the learned Additional Sessions Judge on the accused/appellant for the commission of the offence under Section 25(1B)(b) read with Section 4 of the Arms Act.
36. Thus the appeal of the accused/appellant is partly allowed to the extent indicated above and the reference for confirmation of the death sentence is rejected.