This appeal, under Section 377 of the Code of Criminal Procedure, has been preferred by appellant - State of Rajasthan, challenging sentence part of judgment dated 21.03.2016 of the Additional District and Sessions Judge, Baran, in Sessions Case No.132/2011, whereby, for offence under Section 302 of the Indian Penal Code, accused-respondent Ramcharan has been sentenced to suffer life imprisonment. It is prayed that accused-respondent Ramcharan be awarded capital punishment instead of life imprisonment.

Facts of the case are that on 06.10.2010 at 9.10 PM a 'parcha bayan' was given by one Narendra Malav, H.C. 328, Police Line, Baran, to Station House Officer, Police Station Kotwali Baran, stating therein that when he was making entries in 'rojnamcha' at the Police Line, accused Ramcharan, who was constable, came there with rifle and fired at him. Bajrang Singh, H.C., and other staff members, were also present there. Accusedrespondent had fired at him at 8.45 PM on that day with intention to commit his murder. The injured sustained fire arm injuries. The injuries were on left ribs with exit wound on its right side with blood. The informant stated that as usual he was on night duty. Accused-respondent Ramcharan was also on duty as magazine guard. Accused-respondent Ramcharan entered his room stating that informant had entered an adverse report in his service record 3-4 days ago and that he (accused) would finish him. The police, on the basis of 'parcha bayan', registered regular F.I.R. No.574/2010 for offence under Section 302 IPC. Soon after giving 'parcha bayan' but before registration of F.I.R., the injured succumbed to injuries. Prosecution produced 31 witnesses and got 51 documents exhibited. The defence got 12 documents exhibited. The trial court, on completion of trial, convicted the accused-respondent for offence under Section 302 IPC and sentenced to suffer life imprisonment with fine of Rs.5000/-; in default of payment of fine, he was to further undergo simple imprisonment of one month.

Mrs. Sonia Shandilya, learned Public Prosecutor appearing for appellant State, argued that learned trial court ought to have awarded death penalty to the accused-respondent because he was found guilty of committing cold blooded murder of a police personnel, where a fellow constable in uniform, while on duty, murdered his superior by using the official weapon. The offence against accused-respondent is proved by dying declaration of the deceased. According to learned Public Prosecutor, present case squarely falls in the

category of rarest of rare cases, as per the law enunciated by the Supreme Court in Bachan Singh Vs. State of Punjab – (1980) 2 SCC 684 . Only if maximum punishment of death penalty is awarded to the accused-respondent, it would have a strong deterrent effect on others. The accused-respondent was a member of the armed police force of the State and if the maximum punishment is awarded to him, it would have a strong deterrent effect on others not to take law in their own hands and commit murder of their superior.

Learned Public Prosecutor argued that the trial court, even though has taken note of the argument of the Public Prosecutor appearing before it for the State, but it has not recorded satisfactory finding as to why present matter does not fall in the category of rarest of rare cases so as to award death penalty.

On hearing learned Public prosecutor and perusing the impugned judgment, we find from the statement of Bajrang Singh (PW-2), Head Constable, that on 06.10.2010 the accused was on duty in the night between 3.00 am to 6.00 am. While deceased Narendra Malav was making certain entries in 'rojnamcha' and this witness was listening to a phone call at 8.45 pm. He suddenly heard the sound of a fire. He immediately rushed towards the room and caught hold of the accused-respondent and by the time he had already loaded another round. Had this witness not caught hold of accused Ramcharan, he would have again fired. Sham