GYASUDDIN KHAN @ MD. GYASUDDIN KHAN v. THE STATE OF BIHAR

Judgment

GYASUDDIN KHAN @ MD. GYASUDDlN KHAN v. THE ST A TE OF BIHAR NOVEMBER 7, 2003 [S. RAJENDRA BABU AND P. VENKATARAMA REDD!, JJ.] A B Penal Code, I 860-Section 302-Murder-Death sentence-Justification for-Mental condition of the accused-Held, a relevant factor for determining sentence-Accused police personnel killing three fellow police personnel- C Murder committed because one of the deceased had reprimanded him and had made adverse entries against him in register-No motive to kill the other two police personnel-Death sentence converted into life imprisonment considering his mental condition-Penology-Death Sentence. The appellant was a constable in police force. He was aggrieved by D the action of his superior, R, who had reprimanded him on various occasions for negligence and lack of devotion to duty. R had also made certain adverse remarks in the Guards' register against him. When R was meditating, the appellant took his sten-gun and shot him dead. He thereafter killed another colleague, C, who challenged him. Another police personnel, B, witnessing all this ran for his safety. The appellant chased E him to the nearby field and shot him dead. After exhausting the magazine of the sten-gun, the appellant took the sten-gun of B and started firing indiscriminately. Thereafter, he threw the gun and tried to escape when he was over-powered by the police constables. The appellant was charged for commission of offences under Section 302 I.P.C. and Section 27 of the Arms Act, 1959. The appellant pleaded not guilty and took a plea that the police station was attacked by extremists who killed the deceased persons. F The Trial Court convicted the petitioner under Section 302 l.P.C. G and Section 27 of the Arms Act and sentenced him to death. The appeal of the appellant to the High Court was dismissed and the death reference was accepted by the High Court. Hence the appeal. Allowing the appeal on the question of sentence, the Court 367 H 368 SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R. A HELD: On conviction under Section 302 l.P.C.

1.1. The conviction of the appellant .under Section 302 I.P.C. is upheld. The version of 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 B 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. (376-E; 373-E, F)

1.2. If, according to the accused, some armed outsiders were C 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. The defence 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. (376-8) D On conviction under Section 27 of the Arms Act

#2. The conviction of the appellant under Section 27 of the Arms Act, 1959 is set aside. There was no discussion whatsoever either by the trial Court or by the High Court in regard to offence under Section 27 of the E Arms Act. 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 (I) (i) of Arms Act though, in all likelihood, it maybe. It is not appropriate to convict the appellant under Section 27 (3) in which the extreme punishment of death is provided for. (380-F, G; 381-A) F On death sentence

3.1. The death sentence is not the appropriate sentence in the instant case. (380-D)

3.2. Capital punishment ought to be imposed only in very rare and G exceptionally grave cases of murder. 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 done while at the same time, H keeping in view the larger societal interests. The principle that in case of GY ASUDDIN KHAN v. STATE OF BIHAR 369 murder, life imprisonment is the normal rule and the death sentence should A be handed down in rarest of rare cases should of course be uppermost in the mind of the Judge. (376-G-H; 377-A)

3.3. Though no hard and fast rules can be laid down, primafacie, 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 B his physical lust or to disrupt the public order and peace should be considered to be a menace to the society and he be subjected to the extreme punishment of death. However, even in such cases, mitigating circumstances are not out of place. [377-A, BJ

3.4. While death sentence ought to be imposed in the rarest of rare C 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 D terrorism and to impart security to the society. The element of deterrence is of course inherent in it. Death sentence serves a threefold purpose (i) punitive (ii) deterrent and (iii) protective. (377-C-D)