CASE NO.: Appeal (crl.) 190 of 2002 PETITIONER: GYASUDDIN KHAN @ MD. GYASUDDIN KHAN RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 07/11/2003 BENCH: S. RAJENDRA BABU & P. VENKATARAMA REDDI JUDGMENT:
JUDGMENT
2003 Supp(5) SCR 367
The Judgment of the Court was delivered by
P. VENKATARAMA REDDI, J. In the morning hours of 9th April, 1996, in the
precincts of a police camp stationed near a village in Bihar, a macabre
incident similar to a terrorist operation happened. The accused-a policeman
deployed in the police picket to contain the terrorist activities,
unleashed terror by indulging in a firing spree killing three of his
colleagues instantaneously. After trial, he has been condemned to death. He
is now before this Court contesting the conviction and sentence.
The prosecution case is as follows:
The appellant was one among the police personnel deployed at Narhi police
camp, close to Chakardah village, Bhojpur district of Bihar. He was a
Constable who was also trained as Black Commando. He was aggrieved by the
action of Hawaldar Ram Pandey reprimanding him on one occasion for his
carelessness in leaving the rifle on the ground floor while sleeping on the
terrace and on another occasion for listening to radio while on duty and
for making adverse entries in the Guards’ register for these lapses. At
about 8 a.m. on 9th April, 1996 when Shri Ram Pandey was sitting on a cot
and meditating, the appellant suddenly took the sten-gun of Ram Pandey
which was kept on the cot and shot him dead. Shri Chandrashekhar Singh,
S.I. who was taking bath at that time near the water pump questioned him.
He too was not spared. The accused fired the shots from his sten-gun and at
that juncture, his other colleagues including Hawaldar Bhagirath Singh ran
for safety. The appellant fired the shots at the fleeing Bhagirath Singh,
chasing him upto the nearby onion field separated by a mud wall. After
firing at him, the magazine of the sten-gun which the accused was handling
got exhausted. He took out the sten-gun of Bhagirath Singh and resorted to
‘burst’ firing. All the three persons succumbed to the gunshot injuries
instantaneously. Thereafter, when the appellant threw away both the sten-
guns and wanted to escape with his SLR, he was overpowered by the police
Constables.
On information, the company Commander (PW7) and the S.I. of police,
Udwantnagar Police Station (CW1) rushed to the police picket and recorded
the statement of PW3 on the spot and the same was treated as F.I.R. He took
up investigation, recorded the statements of other witnesses, prepared the
inquest report and sent the three dead bodies to the hospital for
postmortem examination. He seized five numbers of empty shells of
cartridges from a spot close to the place where Ram Pandey was shot and 18
numbers of empty shells of cartridges on the road adjoining the police
picket. He also seized bloodstained earth. The ballistic expert, to whom
sten-guns of the deceased Ram Pandey and Bhagirath Singh were sent for
examination, opined that they were in working order and to that effect sent
a report to the I.O. Charges were laid under Section 302 IPC read with
Section 27 of the Arms Act.
The appellant took the defence that some extremists made their way into the
police picket on 9th April, 1996 and indiscriminately fired at the police
personnel, as a result of which the victims died. In support of this plea,
the accused examined five defence witnesses. The defence version was not
accepted by the trial Court as well as the High Court. Both the Courts
relied on the account of the eyewitnesses who were present at the picket on
the fateful day and returned the finding of guilt. The appellant was
convicted under Section 302 IPC and also under Section 27 of the Arms Act
and was sentenced to death. The conviction and sentence was upheld and the
reference made by the trial Court was accepted by the High Court at Patna.
The appeal filed by the accused was dismissed. This court granted special
leave to appeal and stayed the execution of the death sentence.
Before proceeding further, we shall briefly refer to the postmortem reports
(Exhibits 5 to 5/2) and the evidence of P.W.6-the Medical Officer attached
to Sadar hospital who held the postmortem on the very day of occurrence. He
noticed eight injuries which were in the nature of lacerated wounds on the
dead body of Ram Pandey. According to him, all the injuries were caused by
firearm. He found a bullet in the chest wall in the back portion. He
described the wounds of entry on the left side of the neck, upper part of
the back and chest and corresponding wounds of exit. On dissection of the
skull, he noticed brain and meninges damaged and lacerately wounded on the
left side of the scalp and medulla. Right lung was also severely damaged.
PW6 opined that the death occurred by reason of damage to brain, lungs and
chest caused by the shots of the firearm.
On the dead body of Chandrashekhar Singh, PW6 found as many as nine
injuries caused by the firearm. The most serious amongst them were a
lacerated wound on the right side of front parietal scalp which was the
wound of entry and a lacerated wound of exit on the left side of occipital
scalp through which brain substance was protruding. Another serious wound
was a round wound on right side of chest which was the wound of entry. He
stated that the death occurred on account of damage to vital organs,
namely, brain, neck, spinal chord and right lung.
PW6 found five injuries on the dead body of Bhagirath Singh which were in
the nature of round piercing wounds and round lacerated wounds. He gave
description of the various wounds of entry and exit. The wounds of entry
were on the right shoulder and behind the right ear etc. On dissection, he
found brain matter and meninges torn and lacerately wounded along the
passage of the firearm. Chest was found damaged on both sides. The heart
was found pierced and damaged. The doctor opined that the damage to vital
organs, namely, brain, heart and lungs caused by firearm led to his death.
PW6 clarified that from the nature of entry wounds, it can be said that
firing took place from close range.
The death on account of serious injuries on vital parts inflicted by the
firearm has thus been established by medical evidence. Four eyewitnesses to
the occurrence are the Constables-PWs 1 to 3 and 5. PW7 was the Company
Commander of the police picket who on hearing the sounds of firing and
receiving information through PW1, came to the scene of occurrence
immediately in the company of Sub-Inspector. The Station House Officer in
charge of Udwant Nagar police Station who also reached the spot immediately
and took up investigation, was examined as Court Witness No.l.
We find, just as the High Court did, that the version of the eyewitnesses
who were all present at the camp at the crucial time is quite consistent
and reliable. They have given an account of the incident lasting for a few
minutes leading to the death of three police personnel. They have also
spoken to the motive, viz., the reprimand and adverse entries made in the
register. There was no reason for the fellow policemen to invent a story to
implicate the accused against whom none of them had any animosity. If,
according to the accused, some armed outsiders were responsible for this
incident, the fellow policemen would not have gone to the extent of
suppressing that incident and conspiring together to implicate the accused.
Some discrepancies in regard to the position from which the accused aimed
his firearm at the victims were pointed out. It was then pointed out that
no one else was injured, though according to the prosecution, the accused
resorted to indiscriminate firing. It was further commented that PW3 who
was on sentry duty with a gun should have fired at the appellant if he was
the real culprit. Then, it was contended that no witness from the village
was examined by the prosecution, though the incident took place in the
vicinity of the village. Similar contentions were negatived by the High
Court. We do not think that by any reasonable standards, these factors
would make a dent on the overwhelming prosecution evidence. So also,
certain omissions of the investigating officer have been projected to
attack the prosecution version. For instance, it was pointed out that the
ballistic expert was not examined to elicit the fact that the empty
cartridges recovered could have been fired from the particular sten-gun and
the pellets found in the bodies of Ram Pandey and Bhagirath singh were
traceable to the particular sten-gun. Moreover, the bloodstained earth and
the shirt of accused should have been sent for chemical analysis and the
reports obtained. These lapses in the investigation, for whatever reason it
be, do not, to any material extent, affect the veracity of the most natural
eyewitnesses who have given a consistent version and who came forward with
this version at the earliest opportunity.
Amongst the eyewitnesses, it appears that PW2 could not have been in a
position to see the attack on the first victim, namely, Ram Pandey because
he was cooking meal at the mess-a little away from the scene. He stated
that after hearing the sound of firing, he and two others (not examined)
hid themselves behind the wall. So also PW5, who was urinating at a comer
could not have witnessed Ram Pandey being shot by the accused. He stated
that the place where Ram Pandey was sitting was not visible from the place
he was urinating. However, it was stated that after hearing the sound of
firing from the guard room, he looked towards that direction and observed
that Ram Pandey was killed by the accused and thereafter he aimed at
Chandrashekhar Singh and after shooting him dead the accused targeted
Bhagirath Singh who was running away. It may be that some of the witnesses
could not have seen Ram Pandey being shot and they would have realized it
soon after the firing. But they would have certainly seen the gun-wielding
accused on the offensive and his further acts of shooting. They found dead
bodies of the three victims within minutes after the firing stopped. Even
though they may not be direct eyewitnesses in that sense, their evidence
about hearing the sound of gunfire and noticing the action-packed movements
of the accused with the gun in his hand immediately thereafter lends strong
support to the other eyewitnesses’ account. It also serves as clinching
circumstantial evidence to fix up the responsibility for the ghastly act on
the accused and accused alone.
It was contended that nothing was mentioned in the F.I.R. given by PW3
about the attack on Bhagirath Singh. However, he did mention that soon
after the appellant was nabbed, they saw the dead body of Hawaldar
Bhagirath Singh on the field situate towards the north of the camp. May be,
he would not have actually seen the accused firing at Bhagirath Singh
because he (PW3) hid behind the wall after the assassin’s bullets fell on
Chandrashekhar Singh and therefore omitted to mention the same in the
F.I.R. Even then, the prosecution case does not suffer. PW3’s evidence
unfolds the inextricable link between the death of Bhagirath Singh and the
firing resorted to by the appellant. Moreover, there is other evidence
which supports the prosecution case of the attack on Bhagirath Singh by the
appellant. We have the evidence of PWs 1 and 4 who were sitting on a cot
along with the deceased Bhagirath Singh just before the incident. PW1
stated that when they were running away for safety, Bhagirath Singh-who was
behind, received gunshot injury and he hid himself behind the mango tree.
PW4 also gave almost the same version. Elaborating the details of attack on
Bhagirath Singh, PW4 stated that the accused shot at him at the ridge of
the onion field and he fell down at that place. He also clarified that he
took shelter behind the wall situated towards east of the onion field and
he was able to see the occurrence though the accused could not see. Above
all, there is the evidence of all the witnesses-PWs 1 to 5 that they found
the dead body of Bhagirath Singh on the onion field immediately after the
firing from the assassin’s gun stopped and he was overpowered. The evidence
therefore establishes beyond reasonable doubt that none other than the
appellant killed Hawaldar Bhagirath Singh with the shots fired form the
sten-gun. The probability of Bhagirath Singh, even after receiving one or
two shots by then, scaling the low mud wall and reaching the onion field
cannot be ruled out.
The learned counsel for the appellant next contended that according to the
eyewitnesses’ account, Bhagirath Singh was shot while he was running away,
but there was a lacerated wound on the front of the body i.e., chest. As
pointed out by the High Court, there was every possibility of Bhagirath
Singh facing towards the accused at one stage or the other. It is not
reasonable to expect that the scared eyewitnesses would be able to give a
meticulous and precise account of the details of shots that landed on
Bhagirath Singh. It was then contended that the charring at the entry
wounds 1,3 & 5, found on the dead body of Bhagirath Singh indicated that
the firing was done from close range as stated by the doctor. But, the dead
body of Bhagirath Singh was found in the onion field which was at some
distance from the police picket. According to the learned counsel, it
indicated that the firing could not have been done from a close range. From
the mere fact that Bhagirath Singh collapsed after reaching the adjacent
fields does not mean that he did not receive bullet injuries from a close
range. The Court cannot expect the panic-stricken eyewitnesses to come
forward with a vivid account of the distance from which each one of the
shots was fired at. The possibility of firing from close range cannot be
ruled out.
The defence witnesses’ account was rightly disbelieved by the trial Court
and the High Court. First of all, it must be noted that these witnesses
never came forward to give their version before the police. There is no
explanation as to why they should, as law abiding citizens, withhold the
important information. The defence witnesses 1 to 5 came forward with an
omnibus version that ten to fifteen persons armed with rifles and guns came
from the east of the police picket and began firing after surrounding the
picket. Some of them stated that they noticed some persons inside the camp
falling to ground after receiving the shots and further stated that they
noticed some policemen running away. According to the witnesses, none of
those alleged miscreants could be identified by them. The trial Court at
paras 18 and 19 discarded their evidence on a critical analysis and
probabilities. The discussion of the High Court is at paragraph 22. We are
in agreement with the trial Court and the High Court that the defence
evidence is not trustworthy.
In the light of the overwhelming and unimpeachable evidence, it has been
established beyond shadow of doubt that the appellant killed the three
policemen, namely, Ram Pandey (Hawaldar), Chandrashekhar Singh (S.I.) and
Bhagirath Singh (Hawaldar) with the sten-gun picked up from the ‘chowki’ of
Ram Pandey. The conviction of the appellant under Section 302 IPC is
therefore upheld.
“Guilt once established, the punitive dilemma begins” per Krishna lyer J.
in [1974] 4 SCC 443 and this dilemma reaches its peak when the magnitude of
the crime is enormous, viewed from the angle of number of casualties
inflicted by the offender. In Bachan Singh’s case [1980] 2 SCC 684, death
sentence has passed the test of constitutional validity. It has come to
stay as part of our law of penology. At the same time, it hardly needs to
be emphasized that the capital punishment ought to be imposed only in very
rare and exceptionally grave cases of murder. ‘Scrupulous care and humane
concern’ should inform the approach of Court. The view held by this Court
in Sheikh Ishaque v. State of Bihar, [1995] 3 SCC 392 apart from other
cases is that the number of persons killed, though a factor to be taken
into account, should not be the sole consideration to condemn the criminal
to death. A delicate balancing of various factors such as those which give
an insight into the state of mind, motivation, attitude and propensities of
the accused has to be while at the same time, keeping in view the larger
societal interests. The principle that in case of murder, life imprisonment
is the normal rule and the death sentence should be handed down in rarest
of rare cases should of course be uppermost in the mind of the judge.
Though no hard and fast rules can be laid down, prima facie, a dangerous
criminal who has indulged in the killing spree in an extremely brutal and
horrendous manner to achieve his own selfish gains or to satisfy his
physical lust or to disrupt the public order and peace should be considered
to be a menace to society and he be subjected to the extreme punishment of
death. However, even in such cases, mitigating circumstances are not out of
place. While death sentence ought to be imposed in the rarest of rare
cases, so long as the law provides for it and such law has withstood the
judicial scrutiny, the Court cannot make it a dead letter and refuse to
impose death sentence where nothing short of it would be appropriate and
adequate. The justification behind death sentence is to respect the
collective conscience of the society in relation to crimes of extreme
brutality and terrorism and to impart security to the society. The element
of deterrence is of course inherent in it. As pointed out in Allauddin
Mian’s case [1989] 3 SCC 5 death sentence serves a three fold purpose (i)
punitive (ii) deterrent and (iii) protective.
The nature of the crime, the circumstances of the criminal and the impact
of the crime on the community are broadly the considerations that ought to
be kept in view by a Court called upon to choose between the death sentence
and the life imprisonment. At the same time, the circumstances in which the
death sentence can be imposed cannot be placed in pigeon holes. The
enumeration of aggravating and mitigating circumstances in the case of
Bachan Singh v. State of Punjab, [1980] 2 SCC 684 is not exhaustive and is
not intended to fetter the judicial discretion. This Court guardedly said
that they are broad indicators or guidelines and that it did not propose to
formulate rigid standards vis-a-vis sentencing process. Each one of the
enumerated factors cannot be viewed in isolation. A holistic view has to be
taken on the facts presented in each case. In this context, we may quote
the pertinent observations made by Sarkaria J. speaking for the
Constitution Bench in Bachan Singh’s case:
“As we read Sections 354(3) and 235(2) and other related provisions of the
Code of 1973, it is quite clear to us that for making the choice of
punishment or for ascertaining the existence or absence of “special
reasons” in that context, the Court must pay due regard both to the crime
and the criminal.* What is the relative weight to be given to
‘Emphasis supplied. the aggravating and mitigating factors, depends on the
facts and circumstances of the particular case. More often than not, these
two aspects are so intertwined that it is difficult to give a separate
treatment to each of them. This is so because ‘style is the man’. In many
cases, the extremely cruel or beastly manner of the commission of murder is
itself a demonstrated index of the depraved character of the perpetrator.
That is why, it is not desirable to consider the circumstances of the crime
and the circumstances of the criminal in two separate watertight
compartments. In a sense, to kill is to be cruel and therefore all murders
are cruel. But such cruelty may vary in its degree of culpability. And it
is only when the culpability assumes the proportion of extreme depravity
that “special reasons” can legitimately be said to exist.”
(emphasis supplied) It was then pointed out that:
“No exhaustive enumeration of aggravating circumstances is possible. But
this much can be said that in order to quality for inclusion in the
category of “aggravating circumstances” which may form the basis of
‘special reasons’ in Section 354 (3), circumstances found on the facts of a
particular case, must evidence aggravation of an abnormal or special
degree”.
(emphasis supplied)
In Machhi Singh v. State of Punjab, [1983] 3 SCC 470, this Court after
referring to the guidelines adverted to in Bachan Singh’s case applied the
following working test to reach the conclusion whether a particular case
warrants death sentence:
“(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?”
Now, we shall turn our attention to the relevant facts and circumstances
having a bearing on the question of sentence. The appellant was aggrieved
by the action of Hawaldar Ram Pandey in taking him to task for his lapses
or indisciplined behaviour. Even then, no sensible person caring for his
own future and the future of his family would risk to avenge the alleged
wrong done to him by taking recourse to the extreme step of killing the
Hawaldar openly in the presence of all his colleagues. This act of killing
Ram pandey with no apparent motive to derive an advantage or gain out of it
reveals the mental state of the appellant. Such an abnormal and desperate
behaviour on the pan of the appellant unfolds his attitude and personality.
We get a picture of the appellant as an over-sensitive, over-emotional,
self-centred and hot headed person utterly lacking in restraint and
foresight In fact, PW7’s evidence does throw light on these characteristics
of the appellant, when he describes the accused as ‘Manbhadhu’ and
‘Manshokh’. It seems to us that he had almost a paranoid tendency which had
driven him to the extreme step of taking away the life of his superior
official without thinking of the obvious consequences that would befall on
him and his family. The feelings of humiliation, mental tension,
indignation and retribution towards his officer have apparently overtaken
him. The result was that he acted in a state of extremely perturbed and
imbalanced mind. In fact, one of the witnesses, namely PW4 spoke to the
fact that the accused was very much disturbed after the action initiated by
the deceased Ram Pandey.
The mental condition or state of mind of the accused is one of the factors
that has been legitimately taken into account in various cases and that can
be taken into account in considering the question of sentence. There are
various cases in which the Court having regard to the disturbed or
imbalanced state of mind of the accused at the time of commission of
offence, thought it fit not to impose the death sentence vide: Shamshul
Kanwar v. State of U.P., [1995] 4 SCC 430, Lehna v. State of Haryana,
[2002] 3 SCC 76 and Om Prakash v. State of Haryana, [1999] 3 SCC 19.
In Francis v. State of Kerala, [1975] 3 SCC 825, The following pertinent
observations were made:
“Nevertheless, in deciding whether the case merits the less severe of the
two penalties prescribed for murder a history of relations between the
parties concerned, the background, the context, or the factual setting of
the crime, and the strength and nature of the motives operating on the mind
of the offender, are relevant considerations. The state of feelings and
mind produced by these, while insufficient to bring in an exception may
suffice to make the less severe sentence more appropriate.”
The killing of two other police men without premeditation and without any
motive whatsoever further reveals that these acts were done out of panic
reaction and in a state of Frenzy. It is not a case where it can be said
with certitude that the murderous attacks were “diabolical in conception
and cruel in execution’ as pointed out in Bachan Singh’s case (supra). Nor
can it be said that “The nature of the crime and the circumstances of the
offender reveal that the criminal is a menace to the society” or that the
“collective conscience of the community would be shocked” if the death
sentence is not inflicted in the instant case. Above all, the sentence of
death has been haunting him for considerable time.
In conclusion we would like to say that the facts of the case on hand are
quite close to the facts of Randhir Basu v. State of Bengal, [2000] 3 SCC
161 and Alauddin Mian v. State of Bihar, [1989] 3 SCC 5 in which the Court
did not choose to impose death sentence in multiple murder cases. The
indiscriminate killing of fellow-policemen resorted to by a member of
disciplined force is no doubt an aggravating factor but it is offset by
other mitigating circumstances discussed above and we are, therefore,
inclined to hold that death sentence is not the appropriate sentence in the
instant case. We, therefore, set aside the judgment under appeal insofar as
it has confirmed the sentence of death while maintaining the conviction
under Section 302 IPC. The appellant is hereby sentenced to life
imprisonment and a fine of Rs. 1,000 and in default of payment of fine to
undergo imprisonment for a period of six months.
The conviction under Section 27 of the Arms Act cannot however be
sustained. The gravamen of the second charge framed against the appellant
is that he used the sten-gun and SLR for the unlawful purpose of killing
the three persons. There is no evidence to the effect that the weapon used,
namely Sten-gun, answers the description of ‘prohibited arms’ within the
meaning of Section 2(1)(i) of the Arms Act. The report of the Sergeant
Major to whom the weapons were sent was only to the effect that they were
in working condition. There was no discussion whatsoever either by the
trial Court or by the High Court in regard to the offence under Section 27.
We are not inclined at this stage to probe further and address the question
whether the sten-gun of Ram Pandey which was used in the commission of the
crime is a prohibited vide Allauddin Mian v. State of Bihar, [1989] 3 SCC
5. arm within the meaning of Section 2(1)(i) though, in all likelihood, it
may be.it is not appropriate to convict the appellant under Section 27(3)
in which the extreme punishment of death is provided for. Hence the
conviction of the appellant under Section 27 of the Arms Act, 1959 is
hereby set aside.
Resultantly, the appeal is allowed to the extent set out above.