JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of acquittal passed by a Division Bench of the Bombay High Court, Nagpur Bench, allowing the appeal filed by the respondent while answering negatively the reference made by the trial Court for confirmation of death sentence in terms of Section 366 of the Code of Criminal Procedure, 1973 (in short the `Code'). The respondent was found guilty of offence punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (in short the `IPC').

2. Four persons lost their lives in the night between 19th of August 1998 and 20th of August, 1998. The case of the prosecution is that one Mahadeo the husband of the first victim Durgabai lived at Katepurna. His brothers were also living in the same village though in different localities. Mahadeo committed suicide about three years prior to the incident, leaving his widow Durgabai, daughter Yogita aged about 15 years, son Vinod aged about 12 years and the youngest Maroti aged about 10 years, to stay in the house belonging to Mahadeo. The house was situated near an open ground where weekly market is held. In front of the house, there was a Flour Mill and by one side of the house, there appeared to be a row of petty shops, One Laxman Kakad (PW-1) was said to be residing by the side of the Flour Mill. He was a loner and an old man of 75 years of age, living on whatever help which he received from others by doing their petty jobs like taking the children to the school or doing such sundry works to provide him food and living in a small room.

3. After the death of Mahadeo, his widow Durgabai and her three children were living in the house and there appeared to be no clear means of survival to these persons and from the evidence of P. Ramkrishna More (PW-3), the local Police Patil, Durgabai was known in the village as "quarterwali", thereby suggesting her association with dealings in liquor, as could be popularly understood, together with people visiting her house because of such reputation of Durgabai.

4. In this background, the prosecution alleged that the accused Mangilal, of the age of 30 years, developed illicit relations with Durgabai. The activity did not stop at that stage because of the presence of Yogita, the first daughter of Durgabai. Slowly, during a span of couple of years, he was said to have developed illicit relations with Yogita and this was the aspect, which was alleged to have been a matter of disturbance to Durgabai.

5. Though Durgabai tolerated the access of the accused to her, the aspect of access further extending to Yogita, was unacceptable to her and she protested. It was retaliated by the accused in quarreling with her, which drove her to give a report regarding that sometime on 20th July, 1998 against the accused to the police. Her grievance was that the accused used to visit her house and was unnecessarily creating quarrels and giving threats to her life because of which she was required to give report against him.

6. The presence of Durgabai and her two sons - Vinod and Maroti was a matter for irritation to the accused in maintaining his amorous relations with Yogita. The prosecution also adduced certain material to contend, as its case, that even till the earlier day of the incident, Durgabai had a grievance to make regarding the threats given by the accused to her life and to the lives of her two sons. In this background, the incident of murders in question occurred.

7. During the eventful night, the prosecution alleged, that Durgabai had taken care in asking Laxman Kakad to be present in the Chapri' during the night as she needed some support or protection because of apprehension day and and accordingly alongwith her children and Laxman they were all sleeping in the `chapri' covered by the tin shed during that night. Laxman was said to have woken up on hearing the sound of something being heavily struck. He got up, and saw the accused present there. The accused threatened him with conseq