Case: Gyasuddin Khan @ Mohd.Gyaduddin Khan Vs. State Of Bihar

2. 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 then 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 hisn 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 then which the accused was handling got exhausted. He took out then 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 thes and wanted to escape with his SLR, he was overpowered by the police Constables.  3. 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 whoms 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.  4. The appellant took the defence that some extremists made their way into the police picket on 9th April, 19996 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.  5. Before proceeding further, we shall briefly refer to the postmortem reports (Exhibits 5 to 54/2) and the evidence of PW6the 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 meanings 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.  6. 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.  7. PW6 found five injuries on the dead body of Bhagiradh 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 meanings torn and lacerated 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.  8. 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 thes 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. 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.1.3. 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 whoms 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.

Reasoning:
13. 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 trustworthy14. 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), Chandrashekar Singh (S.I.) and Bhagirath Singh (Hawaldar) with then picked up from the chowki of Ram Pandey. The conviction of the appellant under Section 302 IPC is therefore upheld18. 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 apparently 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 part of the appellant unfolds his attitude and personality. We get a picture of the appellant as and and hot headed person utterly lacking in restraint and foresight. In fact, PW7s 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 Pandey21. In conclusion we would like to say that the facts of the case on hand are quite close to the facts of Randhir Basu vs. State of West Bengal (2000 (3) SCC 161 ) and Allauddin Mian vs. 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 ofn 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 months22. 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 then and SLR for the unlawful purpose of killing the three persons. There is no evidence to the effect that the weapon used, namely, 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 then of Ram Pandey which was used in the commission of the crime is a prohibited 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 asideResultantly, the appeal is allowed to the extent set out above.