Important point
Indiscriminate killing of fellow police men resorted to by accused police man was an aggravating factor but when off set by other mitigating factors, extreme penalty of death sentence could not be sustained.

Judgment

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.­

2. The prosecution case is as follows:

The appellant was one among the police personnel deployed at Narhi police camp, close the 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 Chandrasekhar 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.

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 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.

4. 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.

5. 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 Sardar hospital who held the postmortem o