Heard finally by consent of both the parties.

1] This matter is the offshoot of the 1993 communal riots in Mumbai. On 9/1/1993 the riots were at peak in Mumbai and on that day at around 9.30 a.m. the police officers from Payadhuni police station noticed bullet shots were fired towards them from the terrace of Suleman Bakery. The Bakery is adjacent to the mosque and in the same building on the upper floor there is Mothersa .The police warned the miscreants on the terrace of Suleman Bakery to stop the firing, however, it went on intermittently. The Police Inspector from Payadhuni police station reported this incident to the Control Room and asked for the help. One wireless van came to the spot and also noticed some shots were fired from the building of Soleman Bakery. On receipt of wireless message to the Control Room Jt. Commissioner of Police Mr.R.D.Tyagi went to the spot alongwith the team of the Special Operation Squad (SOS). Mr. Tyagi who is accused no.1 in the present case ordered to use the cylinders of tear gas and asked the miscreants to surrender. However, it was of no use. The persons in the bakery pelted bottles, acid bulbs and stones towards the police force. Mr.Tyagi thereafter ordered the squad to enter the bakery. However, the door of the bakery was bolted from inside and it was not opened even after the police asked them to open. Mr.Tyagi thereafter directed the police force to break open the door of the bakery and directed the police to arrest the miscreants. The police while arresting the people opened fire and 12 persons got injured and 8 persons succumbed to death due to bullet injuries. The police could not recover any fire arm except swords and sticks.

2] Thereafter Mr.Tyagi left the place. The complaints were lodged after the riots against the tyrants for bias and one sided action of the police which resulted into the enquiry by the One Man Commission i.e. Shrikrishna Commission. The police were held responsible in certain cases and the State of Maharashtra after accepting the report of the Commission decided to take action and launched prosecution against the police officers who had taken the law in hand. The present matter is one of them.

3] The State has lodged the complaint against 18 police personnels for the offences punishable u/s 302 and 307 r/w section 34 of the Indian Penal Code. In Sessions Case (no.1171/2001) all the 18 accused moved application for discharge under section 227 of the Criminal Procedure Code and the learned Sessions Judge while deciding the application by his order dated 16/4/2003 discharged the present respondents and rejected the application of the remaining accused. The State of Maharashtra did not challenge the said order, however, the private party i.e. Victim has challenged this order and hence this Revision Application.

4] The learned counsel Shri.Pradhan has submitted that at the time of discharge the learned Sessions Judge ought to have appreciated that all the police personnels of SOS were inside the building and had common intention to kill the defenceless persons. The learned Sessions Judge has erred in not appreciating a set of statements of the witnesses in which they have stated that they were beaten up with the butt of the rifles and with the kicks and fists. These acts of assault ought to have been taken into account by the learned Sessions Judge. The order given by respondent no. 2 Mr.Tyagi to break open the door of the Bakery is an act violative to his authority, power and if he would not have taken such a drastic steps the further disaster of murders would not have taken place.

5] The learned counsel Mr. Pradhan has further argued that the Trial Judge has erred in weighing and appreciating the evidence at the stage of discharge and the Judge has erred in classifying the accused in two groups as the one who fired bullets and the other who did not. Such distinction cannot be made at this embrio stage. The learned Sessions Judge did not appreciat