GYASUDDIN KHAN @ MD. GYASUDDLN KHANversusTHE STATE OF BIHAR

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

                           NOVEMBER 7, 2003

     [S. RAJENDRA BABU AND P. VENKATARAMA REDD!, JJ.]                           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
                                                                                F
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.

      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
                  GYASUDDIN 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)

      Ediga Anamma v. State of Andhra Pradesh, [1974)4 SCC 443; Bachan
Singh v. The State of Punjab, (1980) 2 SCC 684; Sheikh lshaque v. State of       E
Bihar, (1995) 3 SCC 392 and Allauddin Mian v. State ofBihar, (1989)3 SCC
5, referred to.

     3.5. The nature of 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            p
death sentence and the life imprisonment. At the same time, the
circumstances in which the death sentence can be imposed cannot he
placed in pigeon holes. A holistic view has to be taken on the facts
presented in each case. (377-E, F]

     Bachan Singh v. The State of Punjab, (1980) 2 SCC 684 and Machhi            G
Singh v. State of Punjab, [1983) 3 SCC 470 referred to.

      3.6. 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        H
    370                     SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A or imbalanced state of mind of the accused at the time of commission of
    offence, thought it fit not to impose the death sentence. (379-E, F]

         Shamhul Kanwar v. State of U.P., (1995] 4 SCC 430; Lehna v. State of
    Haryana, (2002] 3 SCC 76; Om Prakash v. State of Haryana, [1999] 3 SCC
    19 and Francis v. State of Kera/a, (1975] 3 SCC 825, referred to.
B
           3. 7. This act of killing R 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 part of the appellant unfolds
    his attitude and personality. The picture of the appellant which emerges
C   is of an over-sensitive, over-emotional, self-centred and hot headed person
    utterly lacking in restraint and foresight. It seems 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
D   have apparently overtaken him. The result was that he acted in a state of
    extremely perturbed and imbalanced mind. The killing of two of the
    policemen 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 the case where it can be said with certitude that
    the murderous attacks were 'diabolical in conception and cruel in
E   execution'. Nor can it be said that "the nature of the crime and the
    circumstances of the offender revealed that the criminal is a menace to
    the society" or that the "collective consciousness 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.
F                                                            [379-B-D; 380-A-C]

          Bachan Singh v. The State ofPunjab, (1980] 2 SCC 684; Allauddin Mian
    v. State of Bihar, (1989] 3 SCC 5 and Randhir Basu v. State of West Bengal,
    (2000] 3 sec 161, referred to.

G        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    190 of 2002.

          From the Judgment and Order dated 25.9.2001 of the Patna High Court
    in Crl.A. No. 165 of 2000(08).

H         Amrendra Sharan and Krishnanand Pandeya for the Appellant.
                 GYASUDDINKHANv. STATEOFBIHAR[REDDI, J.]                      371
          H.L. Aggarwal and Kumar Rajesh Singh for the Respondent.                    A
          The Judgment of the Court was delivered by

          P. VENKAT ARAMA RED DI, 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         B
    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:                                         c
          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   D
    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.l. who        E
    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         F
    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.
                                                                                      G
          On information, the company Commander (PW7) and the S.l. of police,
    Udwantnagar Police Station (CWl) rushed to the police picket and recorded
    the statement of PW3 on the spot and the same was treated as F.l.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          H
    372                     SUPREME COURT REPORTS (2003) SUPP. 5 S.C.R.

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 1.0. Charges
    were:: laid under Section 302 !PC read with Section 27 of the Arms Act.
B
         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
C accepted by the trial Court as well as the High Court. Both the Courts relied
  on the account of the eyewitnesses whCJ were present at the picket on the
  fateful day and retumed the finding of guilt. The appellant was convicted
  under Section 302 !PC 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
D 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
E occurrence. He noticed eight injuries which were in the nature of lacerated
  wounds on the dea~ body of Ram ~andey. 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
p 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
G 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
H stated that the death occurred on account of damage to vital organs, namely,
              GYASUDp!N KHAN v. STA TE OF BIHAR [REDD!, J.]                  373
 brain, neck, spinal chord and right lung.                                           A
        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 tom and lacerately wounded along the             B
 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
 orga!IS, 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.
                                                                                     c
       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 I to 3 and 5. PW7 was the Company
 Commander of the police picket who on· hearing the sounds of firing and
 receiving information through PWI, came to the scene of occurrence D
 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. I.

         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       E
  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          F
  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    G
  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,     H
    374                       SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A 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
B 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.
c        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 corner
D 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
E 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
F 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
                                            1

  circumstantial evidence to fix up the responsibility for the ghastly act on the
  accused and accused alone.
G
       It was contended that nothing was mentioned in the F.l.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,
H he would not have actually seen the accused firing at Bhagirath Singh because
               GYASUDDINKHANv. STATEOFBIHAR[REDDI, J.]                         375

  . he (PW3) hid behind the wall after the assassin's bullets fell on Chandrashekhar   A
    Singh and therefore omitted to mention the same in the F.l.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       B
    of PWs I and 4 who were sitting on a cot along with the deceased Bhagirath
    Singh just before the incident. PW! 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       C
    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 I 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            D
    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.
                                                                                       E
        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., c.hest.
  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        F
  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.          G
  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
                                                                                       H
    376                     SUPREME COURT REPORTS [2003] SUPP. 5 S.CR.

A 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
B   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
C   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.
D
          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.L)
    and Bhagirath Singh (Hawaldar) with the sten-gun picked up from the
E   '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 Iyer
  J. in [1974] 4 sec 443 and this dilemma reaches its peak when the magnitude
                                    0




  of the crime is enormous, viewed from the angle of number of casualties
F inflicted by the offender. In Bachan Singh 's case [1980] 2 sec 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
G /shaque v. State of Bihar, [1995] 3 sec 392 apart from oth~r 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
H at the same time, keeping in view the larger societal interests. The principle
              GY ASUDDIN KHAN v. STATE OF BIHAR [REDD!, J.]                  377
that in case of murder, life imprisonment is the normal rule and the death           A
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     B
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       C
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.                                                                          D
      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 b.y a Court called upon to choose between the death
sentence and the life imprisonment. At the same time, the circumstances in           E
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 exhauftive 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             F
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         G
         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.                                                                  H
    378                      SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A          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
B          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 cmel. But such cruelty may vary in its
           degree of culpability. And it is only when the culpability assumes the
c          proportion of extreme depravity that "special reasons" can legitimately
           be said to exist."

                                                                (emphasis supplied)

           It was then pointed out that:

D          "No exhaustive enumeration of aggravating circumstances is possible.
           But this much can be said that in order tl 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
E          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
F   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?

G          (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 tum our attention to the relevant facts and circumstances
    having a bearing on the question of sentence. The appellant was aggrieved
H
            GYASUDDINKHANv. STATEOFBIHAR[REDDI, J.]                      379
 by the action of Hawaldar Ram Pandey in taking him to task for his lapses A
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 B
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 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 C
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, D
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 E
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
UP., (1995] 4 SCC 430, Lehna v. State of Haryana, (2002] 3 SCC 76 and
Om Prakash v. State of Haryana, (1999] 3 SCC 19.                                F
      In Francis v. State ofKera/a, (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 G
       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 H
    380                         SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A             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
B 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 wolild be shocked" if the death sentence is not
  inflicted in the instant case. Above al~ the sentence of death has been haunting
C 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
D 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
E IPC. The appellant is hereby sentenced to life imprisonment and a fine of Rs.
   1,000 and in default of payment of fine to u1.1dergo imprisonment for a period
   of six months.

            The conviction under Section 27 of the Arms Act cannot however be
F 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
G    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

H • vide Allauddin Mian v. State ofBihar, [1989] 3 sec 5.
            GYASUDDINKHANv. STATEOFBIHAR[REDDI, J.]                    381
arm within the meaning of Section 2( I)'i) though, in all likelihood, it may A
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.

B.K.M.                                                     Appeal allowed.