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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 396 OF 2008
Mulla & Anr. .... Appellant(s)
Versus
State of U.P. .... Respondent(s)
JUDGMENT
P. Sathasivam, J.
1) This appeal is filed on behalf of the appellants through
the Jailor, District Jail, Sitapur, U.P. against the
impugned judgment dated 03.03.2006 passed by the High
Court of Judicature at Allahabad, Lucknow Bench,
Lucknow, in Criminal Reference No. 2 of 2005 and
Criminal Appeal No. 713 of 2005 whereby the High Court
allowed Criminal Reference No.2 of 2005 filed by the State
confirming the death sentence awarded to the appellants
1
herein and dismissed Criminal Appeal No. 713 of 2005
filed by the appellants herein.
2) The prosecution case is as under:
(a) On the fateful night of 21.12.1995 when Shiv Ratan,
Nanhakey, Ram Kishore and Sushil were irrigating their
fields in the northern side of the village from the tubewell
of Sundari, widow of Jai Narain, at about 8.30 p.m., eight
miscreants armed with guns reached the spot. A boy and
two girls were also with them. All the miscreants caught
hold of the four persons who were irrigating their fields
and enquired about their properties and made a demand
of Rs.10,000/- each and threatened that otherwise they
would be killed. At the very moment, Harnam, Ganga Dai,
Chhotakey s/o Gaya Ram and Hari Kumar Tripathi who
were returning home after irrigating their fields were also
stopped by the miscreants demanding Rs.10,000/- each
from them. When all of them expressed their inability to
pay the money, the miscreants assaulted Sushil, Shiv
Ratan and Harnam by butt of the gun and took away Hari
2
Kumar Tripathi, Nanhakey, Ram Kishore @ Chottakey
Naney, Chhotakkey and Ganga Dai towards western side
of tubewell leaving Sushil, Shiv Ratan and Harnam
directing them to bring money otherwise they would be
killed. These three persons returned to the village and
informed the villagers about the incident and by the time
the villagers reached near the field, the miscreants had
taken away all the five abducted persons along with them.
Due to the night and being afraid of the miscreants, the
villagers could not lodge a complaint immediately. On the
very next day i.e. 22.12.1995 at 6.10 a.m., a complaint
was lodged at P.S. Sandana, Dist. Sitapur and a case was
registered and the investigation was commenced for
searching the abducted persons. At about 25 mts. away
from the tubewell in the sugar cane field of Laltu, the dead
body of Hari Kumar Tripathi was recovered and the dead
bodies of Nanhakey, Ram Kishore @ Chottakey Naney,
Chhotakkey and Ganga Dai were found in the Arhar field
at a distance of 1 km. from the tubewell. After recovery of
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the dead bodies, they were sent for post-mortem. After
recording the statements, S.H.O. Ram Shankar Singh
arrested Mulla and Guddu on 01.01.1996 and Tula on
08.01.1996 and recovered a countrymade gun, two
cartridges and one knife.
(b) After completion of investigation, charge sheet was
filed against Mulla, Guddu, Tula and Asha Ram. The
accused persons were produced in the Court of Judicial
Magistrate, First Class, Sitapur. Before committal of the
case, the Judicial Magistrate vide his order dated
19.11.1996, separating the case of accused Asha Ram
committed the case to the Additional Sessions Judge,
Sitapur for trial vide his order dated 03.03.1997. During
the trial, since accused Tula was absent, his case was
separated. By order dated 30.4.2005, the trial Court
convicted Mulla and Guddu under Section 365 IPC and
sentenced them to undergo R.I. for 7 years and a fine of
Rs.1000/- each and in default of payment of fine further
simple imprisonment for one year. The appellants herein
4
were also convicted under Section 148 IPC and sentenced
to undergo R.I. for 3 years. They were further convicted
under Section 302 read with Section 149 IPC and
sentenced to death.
(c) Challenging the said judgment, Guddu filed Crl. A.
No. 698 of 2005 and Mulla filed Crl. A. No. 701 of 2005
before the High Court from Jail and both of them jointly
filed Crl.A. No.713 of 2005 through counsel. The High
Court, vide order dated 03.03.2006, confirming the death
sentence imposed on the appellants dismissed the appeals
filed by both the appellants. Aggrieved by the said
judgment, both the accused persons filed this appeal
through the Jailor, Distt. Sitapur, U.P. On 14.7.2006,
this Court issued notice and on 21.7.2006, stayed the
execution of death sentence pending further orders.
3) We heard Ms. Ranjana Narayan, learned amicus
curiae for the appellants and Mr. Pramod Swaroop,
learned senior counsel for the respondent-State.
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4) After taking us through the relevant materials relied
on by the prosecution, Ms Ranjana Narayan, learned
amicus curiae raised the following contentions:
a) No eye-witness to the alleged incident;
b) Accused persons are not named in the FIR. In other
words, FIR was lodged against unknown persons;
c) delay in conducting the Test Identification Parade
(TIP);
d) Prosecution failed to establish motive for the incident;
e) In any event, even if the Court accepts the
prosecution case, imposition of death sentence is not
warranted.
5) Mr. Pramod Swaroop, learned senior counsel for the
State of U.P. while disputing all the above contentions
pointed out that a) though the FIR was registered against
unknown persons, by proper investigation and examining
the persons who witnessed the occurrence, the
prosecution proved its charge b) PWs 1, 2 and 3 were
present at the place of occurrence and in the absence of
6
any contradiction in their statements, the Courts below
have rightly relied on and accepted their version c) PWs 2
and 3 identified Mulla and Guddu in the test identification
parade which was conducted in accordance with the
procedure d) the evidence of PW 4 is more probable and
acceptable in view of the fact that she being a victim at the
hands of the miscreants including the appellants, the
Courts below have rightly relied on her statement e) all the
miscreants were armed with illegal guns in their hands
and came to the spot along with a boy and two girls
demanding ransom, f) inasmuch as the appellants-
accused killed five persons including a woman, all
between the age of 25-50 mercilessly, the award of capital
punishment is justified and no interference called for by
this Court.
6) We have carefully perused the entire records
including depositions and documents and considered the
rival contentions.
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7) The prosecution mainly relied on the evidence of PW
1 - Rajesh Kumar Tripathi, PW 2 - Sushil, PW 3 -Harnam,
independent eye witness - PW 4 - Kiran, PW 5 - Dr. A.K.
Verma-Post Mortem Doctor, PW 7 - Dr. Sudarshan, who
treated the injured witness, PW 8 - S.I. - Ram Kripal
Bharati, PW 9 - Sub-inspector of Police, PW 11 Vijay
Kumar Verma, an officer who accompanied and assisted
the Magistrate in conducting the test identification parade
and one Rajni Kant Mishra, the then Reader, as a court
witness (CW 1). No one was examined on the side of the
accused as defence witness.
8) It is true that either in the complaint or in the first
information report, no one was specifically named for the
commission of offence. In other words, the accused
persons are not named in the FIR and it merely mentions
`unknown persons'. Though a suggestion was made to
prosecution witnesses that the accused persons are from
the nearby villages, the same was stoutly denied and in
such circumstance, miscreants being outsiders, it would
8
not be possible to name those persons in the complaint
itself without further verification. On the other hand, the
prosecution through their witnesses particularly, PWs 1 to
4, established that it was the appellants, who along with
few more persons committed the offence by killing five
persons mercilessly for non-payment of ransom amount
which they demanded for the release of five persons
caught hold by them. In view of the same, though none
was named in the FIR, subsequently, the name of the
appellants came into light during investigation.
9) Rajesh Kumar Tripathi who made the complaint-Ex.
Ka-1 was examined as PW 1. He was examined on
09.04.2001 and narrated that on the night of the incident,
namely, on 21.12.1995 nearly at about 8.30 p.m. in the
north of his land, Shiv Ratan, Ram Kishore @ Nanhakkey
Naney, Nanhakkey and Sushil were watering their
respective fields from the tubewell of Sundari, widow of Jai
Narain. At that very moment, eight miscreants, armed
with guns, reached there. They also had two girls and a
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boy with them. One by one, they caught hold of all the
four persons and enquired them about their lands and
threatened to kill them if they failed to bring Rs.10,000/-
each. He further narrated that in the meantime, Harnam,
Ganga Dai, Chhotakkey and Hari Kumar Tripathi, all from
his village who were returning their home after watering
their fields were also stopped by the miscreants. He also
reached the spot. The miscreants were flashing their
torches. The accused made all those persons to sit and
asked to bring Rs.10,000/- each. When they replied that
they are poor and wherefrom they would bring money to
give them, all the accused persons assaulted Sushil, Shiv
Ratan and Harnam by butt of the gun. The remaining five
persons were taken away by accused persons towards
west. All of them were told by the accused to come back
immediately with money failing which these five persons
would be killed. Sushil, Shiv Ratan and Harnam went to
their village and informed the villagers about it. With the
help of the villagers, they started searching the abducted
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persons who were taken away by the accused but could
not found anyone. According to him, in the night itself
they tried to inform at Sandana Police Station by
telephone but they could not get the connection. Next
day, early in the morning, he along with Sushil, Shiv
Ratan and Harnam went to Police Station by bicycles. He
prepared a complaint in his own handwriting under his
signature. The said complaint has been marked as Ex. Ka-
1. Thereafter, after sending the injured persons to
hospital at Sandana for treatment, he came back and with
the help of villagers started searching for the kidnapped
persons. In the western side of the tubewell dead body of
Hari Kumar Tripathi was found lying in the sugarcane
field of Laltu. At a distance of 1 km. in the west of Village
Fatehpur, near a pond, they found the dead bodies of
remaining four persons. These bodies were identified as
Ram Kishore @ Chhotakkey Naney, Ganga Dai,
Chhotakkey S/o Gaya Ram, Nanhakey. He along with the
others noticed that the neck of all the four persons had
11
been cut. PW 1 further deposed that after recovering the
dead bodies, his statement was recorded and Daroga Ji
(PW 8) I.O. prepared a sketch map of the place of
occurrence. He asserted that he had seen the faces of all
the accused persons in the light of the torch. However, he
admitted that he could not go and attend the identification
parade which was conducted in the District Jail, Sitapur,
due to his illness. In cross-examination also, he asserted
that he had seen the guns in the hands of the accused
and Sushil Kumar, Shiv Ratan and Harnam were
assaulted by the accused persons by the butt of the gun.
He informed that he had witnessed the incident from the
distance of 10 mts. He also informed the Court that Hari
Kumar Tripathi, who came from the western side had
lantern and torch and when he focused his torch on
criminals they assaulted him and snatched away his torch
and extinguished the lantern.
10) The other important witness heavily relied on by the
prosecution is PW 2 Sushil Kumar. He was an injured eye
12
witness. He narrated before the Court that nearly six
years earlier i.e. on 21.12.1995, on the night of the
incident, nearly about 8.30 p.m. he along with his brother
Ram Kishore @ Chhotkaney, Shiv Ratan and Nanhakey
were watering their fields from the tubewell. The said
tubewell was owned by Sundari Devi, widow of Jai Narain.
At that moment, eight miscreants reached there. They
were armed with guns and torches. Two girls, one aged
10-13 years and the other 18-20 years and a young boy
was also with them. All the miscreants came near the
tubewell and caught hold four of them and asked about
their properties and wealth. They threatened that unless
they bring Rs.10,000/- each, they would be killed. In the
meantime, Harnam, his mother Ganga Dai, Chhotakey
and Hari Kumar Tripathi came there from western side.
They were also caught hold of by the miscreants and
enquired about their properties. They started beating
Harnam, Shiv Ratan and him with the butt of the gun and
directed him along with the others to go to village and
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bring money. Thereafter, Hari Kumar Tripathi, Ram
Kishore @ Chhotakey and his mother Ganga Dai and
Nanhakey were taken away by them towards west. He
also asserted that the miscreants were flashing their
torches regularly. They had been recognized by PW 2 and
others in the light of their torches. They were unknown to
them. PW 2 along with others went to their village and
informed the villagers about the demand of the
miscreants. Thereafter, they started searching the
accused and the persons who were taken away by the
accused. PW 1 Rajesh had submitted a written complaint
to the police. Since PW-2 had sustained injuries at the
hands of the miscreants, he along with others went to
Sandana hospital for treatment. Due to absence of doctor,
treatment could not have been availed and he was given
treatment only in Government Hospital on 27.12.1995.
He further deposed that on return, he saw the dead body
of Hari Kumar Tripathi in the sugar cane field of Laltu
nearly 200-250 yards away from the tubewell. The other
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four dead bodies were lying in the boundary of Arhar fields
about 1 km. away near the pond. These dead bodies were
of Ram Kishore @ Chottakey Naney, Nanhakey, Chhotakey
and Ganga Dai. He also deposed about his visit to District
Jail, Sitapur for test identification parade of miscreants.
He informed the Court that he had identified three
miscreants, namely, Guddu, Mulla and Tulla, who were
present in the Court. These persons had also been
identified in the jail. He further explained that these
accused had been seen for the first time by him at the
time of incident and thereafter, he saw them in the test
identification parade. He also reiterated that before the
incident, these miscreants were neither known nor seen
by him. In his cross-examination, he reiterated that in the
test identification parade which was conducted in District
Jail, Sitapur, he identified the three accused. He
explained that all three miscreants were not in one line
and there were no specific marks of identification on the
faces of accused persons. The face of all the accused were
15
not similar. He also reiterated that when miscreants were
beating him they were flashing torches. He also denied
the claim that the accused Mulla is a labourer and
residing in Mohmadpur half a kilo metre away from his
village.
11) It is seen that PW 2 corroborated the evidence of
PW 1. It is further seen from his evidence that he also
sustained injuries by one of the miscreants and this is
also clear from his assertion and statement as well as the
evidence of PW 7 - Dr. Sudarshan. In his evidence, PW 7
has stated that he examined injured Sushil Kumar - PW 2
and noticed the following injuries:
"Abrasion 1 cm x 0.5, which was present on the fore
arm at the left side at 10 cm. below the wrist joint,
the same was healed".
According to him, this injury was of simple nature, one
week old and it was inflicted by any blunt object. His
report was marked as Ex K-15. Dr. Sudarshan - PW 7 has
also asserted that this injury could have been caused by
the butt of a gun. It is also relevant to point out that
16
apart from the fact that he had been injured at the hands
of one of the accused persons which is evident from the
statement of PW 7 who treated him. PW 2 also
participated in the test identification parade which was
held at District Jail, Sitapur. He also identified three
miscreants, namely, Guddu, Mulla and Tulla. He further
asserted that except on the date of occurrence of the
incident, he had not seen them earlier and only on the
date of test identification parade, he identified these
persons at the jail. There is no reason to disbelieve his
version that he did not see these persons on any other
occasion except on the date of occurrence and at the time
of identification parade. He being an injured eye witness
as well as identified the appellants in the identification
parade, the trial Judge as well as the High Court rightly
accepted his version.
12) The other reliable witness examined on the side of the
prosecution is PW 3-Harnam. He asserted that on the
date and time of the incident, he witnessed the occurrence
17
along with PW 2. He also reiterated that those miscreants
were carrying country-made guns and torches which they
were flashing. He also sustained injuries. He was one of
the four persons detained by the miscreants, enquired
about their status, land details and demanded
Rs.10,000/- each and when he informed the miscreants
that he and others are poor people and difficult to comply
with their demand, they started beating him. He also
explained to the court that when the miscreants detained
him and others for about half an hour, he noticed the
faces of the miscreants in the light of their torches. Like
PW 2, he also explained that in view of their inability to
pay the ransom as demanded by the miscreants, initially
they killed one Hari Kumar and thereafter killed other
four-Nanhakey, Ram Kishore @ Chottakey Naney,
Chhotakey and Ganga Dai, by throwing their dead bodies
1 km. away from the spot near a pond.
13) Along with PW 2 and others, PW 3 also reached
Sandana Police Station at about 6 a.m. PW 1 lodged a
18
written complaint at the Police Station. He further
explained that apart from himself, the other injured
persons, namely, PW 2 and others were sent to
Government Hospital, Sandana for medical examination.
According to him, due to non-availability of doctor, they
returned back to their village and searched the kidnapped
persons and found one dead body near a tubewell and
other four dead bodies one km. away from the tubewell
near a pond.
14) About the injury of PW 3, PW 7 - Dr. Sudarshan
stated that he conducted the medical examination of
Harnam, PW 3, who was taken along with Sushil Kumar
and Shiv Ratan. He prepared a medical report in his own
hand writing with his signature which has been marked
as Ex. K-16.
15) Like PW 2, PW 3 also asserted before the Court that
none of the accused was known to him earlier. He also
explained that he had gone to jail for identification of the
accused. Before the Court, PW 3 identified, by putting his
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hand on the accused Guddu, Tulla and Mulla who were
standing in the dock and said that these miscreants were
involved in the incident and for the first time he had seen
these persons at the time of occurrence and second time
in jail at the time of test identification parade. Though he
was cross-examined at length, his evidence about the
incident, the involvement of the accused, threat to kill the
persons in custody, recovery of dead bodies, identifying
the accused in the test identification parade, could not be
shattered in any way. He being an injured eye witness,
corroborated the evidence of PW 2 and identified the
accused persons in the properly constituted test
identification parade, his evidence was fully relied on by
the prosecution and rightly accepted by the trial Court as
well as by the High Court.
16) The next witness relied on by the prosecution is PW 4
- Smt. Kiran. Learned amicus curiae by pointing out the
conduct of PW 4 in respect of her statement in the earlier
case in State vs. Kailash Chandra & Ors. submitted
20
that the reliance on her evidence before the Trial court
and accepted by the High Court cannot be sustained. She
further pointed out that inasmuch as in the case of State
vs. Kailash Chandra & Ors. though she claimed to be a
victim, she deposed before the Court that the present
accused Mulla and Guddu have nothing to do with the
earlier incident. In such circumstances, according to the
amicus curiae she is not competent to narrate the present
incident and implicate the very same accused. On going
through her entire evidence, we are unable to accept the
stand taken by amicus for the following reasons: About
the first incident, namely, setting fire to her house, she
informed the court that six years earlier when she was at
her matrimonial home at Surjapur, three criminals came
there and set the roof of her house on fire. At the time,
when she was in her house and male members had gone
to extinguish the fire, the criminals forcibly took her away
with them. This incident took place at 1.00 a.m. in the
midnight. They had taken her to the nearby forest. She
21
further explained, that on the third day on which they had
taken her away, after the sunset when it had become
dark, eight miscreants armed with guns and torches
reached near the tubewell of the village. She and other
girl and a boy who were brought from somewhere were
with them. There the criminals had caught eight persons
and made them to sit at tubewell and they were asking
them to bring Rs.10,000/- each then only they would be
released. The accused persons had assaulted two to three
persons by the butt of the gun and they were having torch
lights. After keeping them for one hour, they released
three persons and told them to bring Rs.10,000/- each
and threatened that only then the remaining five persons
would be released. After waiting for sometime since
nobody came from the village the miscreants took away
the said four men and one woman towards north. Nearly
after crossing two or three agricultural fields they killed
one person by slitting his throat by knife. Thereafter,
about 1 km. in the southern side of the village near a
22
pond they took the remaining four persons, that is, three
men and one woman and killed them by cutting their
throat and left the dead bodies near a pond. She informed
that after leaving the dead bodies, they all went away.
She, however, managed to escape from the custody of the
said criminals after 10-12 days. Among the eight persons
who committed the crime at the tube-well one was Asha
Ram, Ram Sebak, Guddu, Mulla and Tulla whose names
she came to know since she was with them for 10-12
days. She asserted that Mulla had killed three persons
and Guddu had killed two persons. She pointed out that
she can recognize the accused Guddu, Mulla and Tulla by
face and by name and she also identified them when
Mulla and Guddu were present in the Court.
17) It is relevant to point out that just prior to the
incident the very same accused, that is, Mulla and Guddu
set fire to her house and took her to the forest. She was
in the custody of miscreants for 10-12 days. It is true that
at one stage she complained that they attempted to rape
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her. However, in the said case, before the Court she failed
to mention their name and implicate them in the said
crime. In the present case, when she was examined, she
explained that due to threat and fear she made a
statement in the earlier case disowning these accused.
Considering her explanation, particularly, because of the
threat and fear she was forced to make such statement
and in view of the categorical statement about the present
occurrence implicating the miscreants including the
present appellants Mulla and Guddu, explaining all the
details about keeping three youngsters in their hands and
five villagers demanding ransom for their release,
identifying the five dead bodies at different places, there is
no reason to disbelieve her version.
18) As rightly pointed out, the trial Judge has accepted
her conduct in making a statement about the earlier case
and relied on her present statement with reference to
abduction and killing of five persons. The statement of
PW-4 also corroborates with the evidence of injured eye
24
witnesses PWs 2 and 3. Further she was in the clutches of
these miscreants for a period of 10-12 days and because
of her familiarity of their faces, in categorical terms, she
informed the Court that it was Mulla, who killed three
persons and Guddu, who killed two persons by slitting
their neck. Her explanation about her own case and
detailed narration in respect of the present case are
acceptable and rightly relied on by the Trial Court and
accepted by the High Court.
19) Apart from the evidence of PWs 1-4 about killing of
five persons, medical evidence also supports the case of
prosecution. Dr. A.K.Verma, Medical Officer, District
Hospital, Sitapur who conducted autopsy on the five dead
bodies was examined as PW 5. He explained before the
Court that on 22.12.1995 at about 8.00 p.m., he
conducted post mortem on the dead body of Hari Kumar
Tripathi, Nanhakey, Ram Kishore @ Chottakey Naney,
Chhotakey and Ganga Dai, who were all residents of
village Sandana, Police Station Sandana, District Sitapur.
25
According to him, the dead bodies had been brought by
the constables and identified by them. After post mortem,
he prepared a report (Ex. K2-K6). The details are as
follows:-
"The post mortem on the dead body of Hari Kumar
Tripathi was conducted by Dr. A.K. Verma on
22.12.1995 at 8.30 p.m. and he noted the following ante
mortem injuries on the person of the deceased:
1. Incised wound 14 x 2 cm. x tissue deep on front
of neck (more towards right side) 4.5 cm. below
chin trachea, all blood vessels of both side nerves
and muscles divided.
2. Incised wound 3 x 0.5 cm. side just above eye
brow.
3. Incised wound 3 x 0.5 cm. skin deep on the
nose.
4. Incised wound 2 x 0.5 cm. x skin cartilage deep
upper part of the Pinna of right ear.
In the opinion of the doctor cause of death was due to
shock and haemorrhage as a result of ante mortem
injuries.
The post mortem on the dead body of Chhotkanney was
conducted by Dr. A.K.Verma on 22.12.1995 at 8.00
p.m. and he noted the following ante mortem injuries on
the person of the deceased:
Incised wound 9 cm. x 1.5 cm. x tissue and bone
deep. 1 cm. neck 6.5 cm. below 1 cm. chin. All
self tissues uncludy muscle, blood vessels, trachea
and oseophagus cut.
In the opinion of the doctor cause of death was due to
shock and haemorrhage as a result of ante mortem
injuries.
26
The post mortem on the dead body of Chhotakkey was
conducted by Dr. A.K.Verma on 22.12.1995 at 9.30
p.m. and he noted the following ante mortem injuries on
the person of the deceased:
1. Incised wound 8.5 cm. x 2 cm. x bone deep on
part of neck just below the adamis apple (Thyroid
cartied) trachea, nerves, blood vessels of both
sides divided along with other tissues oseophagus
also cut.
2. Incised wound 2 cm. x 0.5 cm. x bone deep
dorsum of left ring finger at its base.
3. Incised wound 1.5 cm. x. 0.5 cm. x muscle deep
over finger web between ring finger and middle
finger of right hand.
In the opinion of the doctor cause of death was due to
shock and haemorrhage as a result of ante mortem
injuries.
The post mortem on the dead body of Nanhakey was
conducted by Dr. A.K. Verma on 22.12.1995 at 9.30
p.m. and he had noted the following ante mortem injury
on the person of the deceased:
Incised wound 9 cm. x 2 cm. x bone deep just
above adamis apple (Thyroid cartied) trachea,
nerves, blood vessels of both sides divided along
with other tissues oseophagus also cut.
In the opinion of the doctor cause of death was due to
shock and haemorrhage as a result of ante mortem
injuries.
The post mortem on the dead body of Gangadai was
conducted by Dr. A.K. Verma on 22.12.1995 at 10 p.m.
and he had noted the following ante mortem injury on
the person of the deceased:
Incised wound 9.5 cm. x 2 cm. x bone and trachea
deep over fold neck just above the thyroid
27
cartilage, trachea, blood vessels of both sides
nerves and much and oseophagus all cut.
In the opinion of the doctor cause of death was due to
shock and haemorrhage as a result of ante mortem
injuries."
In all the reports, he mentioned cut in the nerves and
muscles of neck and blood vessels apart from other
injuries. He also opined that death was caused due to
shock and hemorrhage and approximately one day before
the post mortem. Though the police could not produce
the knife used for killing the five persons, one of the
accused had admitted about possession of knife apart
from unlicensed gun at the time of the occurrence. There
is no reason to disbelieve the assertion of PWs 1 to 4 as
well as the evidence of PW 7 who treated the injured
witnesses PWs 2 and 3 and the medical opinion of PW 5
about the cause of death of five persons.
20) Now, let us consider the arguments of the learned
amicus curiae on the delay in conducting the test
identification parade. The evidence of test identification is
28
admissible under Section 9 of the Indian Evidence Act.
The Identification parade belongs to the stage of
investigation by the police. The question whether a
witness has or has not identified the accused during the
investigation is not one which is in itself relevant at the
trial. The actual evidence regarding identification is that
which is given by witnesses in Court. There is no provision
in the Cr. P.C. entitling the accused to demand that an
identification parade should be held at or before the
inquiry of the trial. The fact that a particular witness has
been able to identify the accused at an identification
parade is only a circumstance corroborative of the
identification in Court.
21) Failure to hold test identification parade does not
make the evidence of identification in court inadmissible,
rather the same is very much admissible in law. Where
identification of an accused by a witness is made for the
first time in Court, it should not form the basis of
29
conviction. As was observed by this Court in Matru v.
State of U.P., (1971) 2 SCC 75, identification tests do not
constitute substantive evidence. They are primarily meant
for the purpose of helping the investigating agency with an
assurance that their progress with the investigation into
the offence is proceeding on the right lines. The
identification can only be used as corroborative of the
statement in Court. (Vide Santokh Singh v. Izhar
Hussain, (1973) 2 SCC 406).
22) The necessity for holding an identification parade can
arise only when the accused persons are not previously
known to the witnesses. The whole idea of a test
identification parade is that witnesses who claim to have
seen the culprits at the time of occurrence are to identify
them from the midst of other persons without any aid or
any other source. The test is done to check upon their
veracity. In other words, the main object of holding an
identification parade, during the investigation stage, is to
30
test the memory of the witnesses based upon first
impression and also to enable the prosecution to decide
whether all or any of them could be cited as eyewitnesses
of the crime. The identification proceedings are in the
nature of tests and significantly, therefore, there is no
provision for it in the Code and the Indian Evidence Act,
1872. It is desirable that a test identification parade
should be conducted as soon as possible after the arrest of
the accused. This becomes necessary to eliminate the
possibility of the accused being shown to the witnesses
prior to the test identification parade. This is a very
common plea of the accused and, therefore, the
prosecution has to be cautious to ensure that there is no
scope for making such allegation. If, however,
circumstances are beyond control and there is some delay,
it cannot be said to be fatal to the prosecution.
23) In Subhash v. State of U.P. (1987) 3 SCC 331, the
parade was held about three weeks after the arrest of the
31
accused. Therefore, there was some room for doubt if the
delay was in order to enable the identifying witnesses to
see him in jail premises or police lock-up and thus make a
note of his features. Moreover, four months had elapsed
between the date of occurrence and the date of holding of
the test identification parade. The descriptive particulars
of the appellant were not given when the report was
lodged, but while deposing before the Sessions Judge, the
witnesses said that the accused was a tall person with
shallow complexion. The Court noted that if on account of
these features the witnesses were able to identify the
appellant Shiv Shankar at the identification parade, they
would have certainly mentioned about them at the earliest
point of time when his face was fresh in their memory. It
is important to note that since the conviction of the
accused was based only on the identification at the test
identification parade, the Court gave him the benefit of
doubt while upholding the conviction of the co-accused.
This is also a case where the conviction of the appellant
32
was based solely on the evidence of identification. There
being a delay in holding the test identification parade and
in the absence of corroborative evidence, this Court found
it unsafe to uphold his conviction.
24) In State of Andhra Pradesh v. Dr. M.V. Ramana
Reddy (1991) 4 SCC 536, the Court found a delay in
holding the test parade for which there was no valid
explanation. It held that in the absence of a valid
explanation for the delay, the approach of the High Court
could be said to be manifestly wrong calling for
intervention.
25) In the case of Brij Mohan & Ors. v. State of
Rajasthan, (1994) 1 SCC 413, the test identification
parade was held after three months. The argument was
that it was not possible for the witnesses to remember,
after a lapse of such time, the facial expressions of the
accused. It was held that generally with lapse of time
memory of witnesses would get dimmer and therefore the
33
earlier the test identification parade is held it inspires
more faith. It was held that no time limit could be fixed for
holding a test identification parade. It was held that
sometimes the crime itself is such that it would create a
deep impression on the minds of the witnesses who had
an occasion to see the culprits. It was held that this
impression would include the facial impression of the
culprits. It was held that such a deep impression would
not be erased within a period of three months.
26) In Rajesh Govind Jagesha v. State of
Maharashtra (1999 ) 8 SCC 428, the accused was
apprehended on 20th January, 1993, while the
identification parade was held on 13th February, 1993. It
was also not disputed that at the time of identification
parade the appellant was not having a beard and long hair
as mentioned at the time of lodging of the first information
report. It was also not disputed that no person with a
beard and long hair was included in the parade. The
34
witnesses were alleged to have identified the accused at
the first sight despite the fact that he had removed the
long hair and beard. This Court held that the Magistrate
should have associated 1-2 persons having resemblance
with the persons described in the FIR and why it was not
done was a mystery shrouded with doubts and not cleared
by the prosecution. In these circumstances, the Court
observed that the possibility of the witnesses having seen
the accused between the date of arrest and the test
identification parade cannot be ruled out. This case also
rests on its own facts, and mere delay in holding the test
identification parade was not the sole reason for rejecting
the identification.
27) In the case of Daya Singh v. State of Haryana,
(2001) 3 SCC 468, the test identification parade was held
after a period of almost eight years inasmuch as the
accused could not be arrested for a period of 7-1/2 years
and after the arrest the test identification parade was held
35
after a period of six months. It was pointed out that the
purpose of test identification parade is to have the
corroboration to the evidence of the eye witnesses in the
form of earlier identification. It was held that the
substantive evidence is the evidence given by the witness
in the Court and if that evidence is found to be reliable
then the absence of corroboration by the test identification
is not material. It was further held that the fact that the
injured witnesses had lost their son and daughter-in-law
showed that there were reasons for an enduring
impression of the identity on the mind and memory of the
witnesses.
28) This Court in Lal Singh v. State of U.P., (2003) 12
SCC 554, while discussing all the cases germane to the
question of identification parades and the effect of delay in
conducting them held that:
"It will thus be seen that the evidence of identification
has to be considered in the peculiar facts and
circumstances of each case. Though it is desirable to
hold the test identification parade at the earliest
possible opportunity, no hard and fast rule can be laid
36
down in this regard. If the delay is inordinate and there
is evidence probablising the possibility of the accused
having been shown to the witnesses, the Court may not
act on the basis of such evidence. Moreover, cases
where the conviction is based not solely on the basis of
identification in court, but on the basis of other
corroborative evidence, such as recovery of looted
articles, stand on a different footing and the court has
to consider the evidence in its entirety."
29) In the case of Anil Kumar v. State of Uttar
Pradesh, (2003) 3 SCC 569, this Court observed as
under:
"It is to be seen that apart from stating that delay
throws a doubt on the genuineness of the identification
parade and observing that after lapse of such a long
time it would be difficult for the witnesses to remember
the facial expressions, no other reasoning is given why
such a small delay would be fatal ..A mere lapse of some
days is not enough to erase the facial expressions of
assailants from the memory of father and mother who
have seen them killing their son..."
30) In another case of Pramod Mandal v. State of
Bihar, 2004 (13) SCC 150, placing reliance on the case of
Anil Kumar (supra), this Court observed that it is neither
possible nor prudent to lay down any invariable rule as to
the period within which a Test Identification Parade must
be held, or the number of witnesses who must correctly
identify the accused, to sustain his conviction. These
37
matters must be left to the Courts of fact to decide in the
facts and circumstances of each case. If a rule is laid
down prescribing a period within which the Test
Identification Parade must be held, it would only benefit
the professional criminals in whose cases the arrests are
delayed as the police have no clear clue about their
identity, they being persons unknown to the victims. They
therefore, have only to avoid their arrest for the prescribed
period to avoid conviction. Similarly, there may be offences
which by their very nature may be witnessed by a single
witness, such as rape. The offender may be unknown to
the victim and the case depends solely on the
identification by the victim, who is otherwise found to be
truthful and reliable. What justification can be pleaded to
contend that such cases must necessarily result in
acquittal because of there being only one identifying
witness? Prudence therefore demands that these matters
must be left to the wisdom of the courts of fact which
must consider all aspects of the matter in the light of the
38
evidence on record before pronouncing upon the
acceptability or rejection of such identification.
31) The identification parades are not primarily meant for
the Court. They are meant for investigation purposes. The
object of conducting a test identification parade is two-
fold. First is to enable the witnesses to satisfy themselves
that the accused whom they suspect is really the one who
was seen by them in connection with the commission of
the crime. Second is to satisfy the investigating authorities
that the suspect is the real person whom the witnesses
had seen in connection with the said occurrence.
32) Therefore, the following principles regarding
identification parade emerge: (1) an identification parade
ideally must be conducted as soon as possible to avoid
any mistake on the part of witnesses; (2) this condition
can be revoked if proper explanation justifying the delay is
provided; and, (3) the authorities must make sure that the
39
delay does not result in exposure of the accused which
may lead to mistakes on the part of the witnesses.
33) In the light of the above principles, let us consider
whether the test identification parade conducted on
24.02.1996 at District Jail, Sitapur is valid. It is
contended by the learned amicus Curiae that the
appellants were arrested on 01.01.1996 and they were
placed for identification only on 24.02.1996. It is further
pointed out that the accused were put up for identification
after 63 days of the occurrence and 55 days after their
arrest. It is also pointed out that in the meantime, these
persons were taken to court and present before the test
identification parade, innumerable persons noticed them
and in the absence of evidence that they were kept
baparda at a time when they were taken to court, the
report has no value at all. It is true that though the
appellants were arrested on 01.01.1996 they were put up
for identification on 24.02.1996. However, merely because
40
there is delay, the outcome of the identification parade
cannot be thrown out if the same was properly done after
following the procedure. In fact, when PWs 8 and 9 - I.O.
and S.I were examined, nothing was suggested to them
regarding delay in conducting the identification parade.
34) PW 6, Suresh Kumar, while examining before the
court explained in categorical terms that all the accused
were kept in baparda when they were taken to court for
remand. He also claimed that when persons connected
with the incident came to the Police Station, they were
kept in baparda. In view of the assertion of the official
witness and in the absence of allegation against him, it is
to be accepted that the accused were not seen by these
witnesses more particularly PWs 2 and 3, who identified
them in the identification parade.
35) Admittedly, the Magistrate before whom the
identification parade was conducted at the District Jail,
Sitapur is no more and was not available for examination.
On the other hand, One Vijay Kumar Verma, who
41
accompanied the Magistrate for test identification parade
was examined as PW 11. He proved the identification
memo as secondary evidence due to non-availability of the
Magistrate in whose presence test identification parade
was conducted. PW 11 has stated that witnesses PW 2
and PW 3 had correctly identified these accused persons.
It is further seen that the accused persons' thumb
impressions and signatures were obtained before starting
of identification parade as well as after completing the
process. It is further seen that in the report, the
Magistrate had put his signature. PW 11 who is
competent to speak about the proceedings of the learned
Magistrate and who recorded the test identification parade
has also explained the presence of PW 2 and PW 3, the
procedure followed and identification by them correctly
identifying the accused Mulla and Guddu. After
completing the process, identification memo was signed by
the Magistrate and he also put his signature.
Identification memo Ex. K-58 has been proved by PW 11.
42
From the materials, we hold that the test identification
parade was properly conducted and all required
procedures were duly followed. The statement of
witnesses PWs 2 and 3 clearly show that they identified
the appellants as the accused who involved in killing five
persons on the night of 21.12.1995. In those
circumstances, merely because there was some delay,
evidence of PWs 2 and 3 who identified the appellants-
accused coupled with the statement of official witnesses
PW 6 and PW 11 who accompanied the Magistrate clearly
prove the fact that test identification parade was
conducted in accordance with the established procedure.
There is no reason to disbelieve their version and we hold
that the trial Court has correctly appreciated their
evidence and the High Court has rightly affirmed it.
36) Learned amicus curiae put-forth another feeble
argument that in the absence of proper light at the time of
occurrence it is highly improper to accept the version of
prosecution witnesses particularly, PWs 2 and 3
43
identifying these appellants. PW 1, in his cross
examination, has stated that Harikumar Tripathi, who
came from the western side had lantern and torch and
when he focused his torch on criminals, they assaulted
him and snatched away his torch and extinguished the
lantern. PW 2 has asserted that "the miscreants were
flashing their torches regularly. They have been
recognized properly by us in the light of their torches.
They were not known to us. They were unknown......"
Again he deposed "when miscreants were beating me, they
were flashing torches......" PW 3 has also asserted by
saying "the miscreants detained us at about half an hour
at this spot and I had seen the faces of miscreants in the
light of their torches....." In cross-examination, he also
reiterated "at first time, I had seen these persons at the
time of occurrence and second time in jail when I went for
identification".
37) Apart from the evidence of PWs 1 to 3, about the
information that through their torch lights they were able
44
to recognize the faces of miscreants, PW 4 who was taken
away by the miscreants to the forest in respect of the first
incident informed the name of the accused correctly.
Inasmuch as her association with the accused was longer
than others, she mentioned the name of the accused
without any difficulty. In those circumstances, the
learned trial Judge is perfectly right in holding that the
prosecution witnesses were able to correctly identify these
persons and rightly rejected the defence plea.
38) Finally, we have to consider whether the death
sentence awarded by the trial Judge affirmed by the High
Court is justifiable and acceptable. After finding that the
prosecution has established beyond reasonable doubt in
respect of offences under Sections 148, 364A, 365 and
302 IPC, the learned Trial Judge, by giving adequate
reasons, awarded death sentence to both the appellants
which was confirmed by the High Court. Now, we have to
find out whether death sentence is warranted in the facts
and circumstances duly established by the prosecution.
45
39) When the constitutional validity of death penalty for
murder provided in Section 302 of the Indian Penal Code
and sentencing procedure embodied in sub-section 3 of
Section 354 of the Code of Criminal Procedure, 1873, was
questioned, the Constitution Bench of this Court in
Bachhan Singh vs. State of Punjab (1980) 2 SCC 684,
after thorough discussion, rejected the challenge to the
constitutionality of the said provisions and ruled that "life
imprisonment is the rule and death sentence is an
exception".
40) The above said decision of the Constitution Bench
was considered by a three-Judge bench in Machhi Singh
& Others vs. State of Pubjab (1983) 3 SCC 470. The
discussion and the ultimate conclusion as well as
instances/guidelines are relevant:-
"Death Sentence
32. The reasons why the community as a whole does
not endorse the humanistic approach reflected in "death
sentence-in-no-case" doctrine are not far to seek. In the
first place, the very humanistic edifice is constructed on
the foundation of "reverence for life" principle. When a
46
member of the community violates this very principle by
killing another member, the society may not feel itself
bound by the shackles of this doctrine. Secondly, it has
to be realized that every member of the community is
able to live with safety without his or her own life being
endangered because of the protective arm of the
community and on account of the rule of law enforced
by it. The very existence of the rule of law and the fear
of being brought to book operates as a deterrent of
those who have no scruples in killing others if it suits
their ends. Every member of the community owes a
doubt to the community for this protection. When
ingratitude is shown instead of gratitude by "killing" a
member of the community which protects the murderer
himself from being killed, or when the community feels
that for the sake of self-preservation the killer has to be
killed, the community may well withdraw the protection
by sanctioning the death penalty. But the community
will not do so in every case. It may do so "in rarest of
rare cases" when its collective conscience is so shocked
that it will expect the holders of the judicial power
centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of
retaining death penalty. The community may entertain
such a sentiment when the crime is viewed from the
platform of the motive for, or the manner of commission
of the crime, or the anti-social or abhorrent nature of
the crime, such as for instance:
I. Manner of commission of murder
33. When the murder is committed in an extremely
brutal, grotesque, diabolical, revolting or dastardly
manner so as to arouse intense and extreme indignation
of the community. For instance,
(i) when the house of the victim is set aflame with the
end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of
torture or cruelty in order to bring about his or her
death.
47
(iii) when the body of the victim is cut into pieces or his
body is dismembered in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which
evinces total depravity and meanness. For instance
when (a) a hired assassin commits murder for the sake
of money or reward (b) a cold-blooded murder is
committed with a deliberate design in order to inherit
property or to gain control over property of a ward or a
person under the control of the murderer or vis-a-vis
whom the murderer is in a dominating position or in a
position of trust, or (c) a murder is committed in the
course for betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste
or minority community etc., is committed not for
personal reasons but in circumstances which arouse
social wrath. For instance when such a crime is
committed in order to terrorize such persons and
frighten them into fleeing from a place or in order to
deprive them of, or make them surrender, lands or
benefits conferred on them with a view to reverse past
injustices and in order to restore the social balance.
(b) In cases of "bride burning" and what are known as
"dowry deaths" or when murder is committed in order to
remarry for the sake of extracting dowry once again or
to marry another woman on account of infatuation.
IV. Magnitude of crime
36. When the crime is enormous in proportion. For
instance when multiple murders say of all or almost all
the members of a family or a large number of persons of
a particular caste, community, or locality, are
committed.
V. Personality of victim of murder
48
37. When the victim of murder is (a) an innocent child
who could not have or has not provided even an excuse,
much less a provocation, for murder (b) a helpless
woman or a person rendered helpless by old age or
infirmity (c) when the victim is a person vis-a-vis whom
the murderer is in a position of domination or trust (d)
when the victim is a public figure generally loved and
respected by the community for the services rendered
by him and the murder is committed for political or
similar reasons other than personal reasons.
38. In this background the guidelines indicated in
Bachan Singh case1 will have to be culled out and
applied to the facts of each individual case where the
question of imposing of death sentence arises. The
following propositions emerge from Bachan Singh case1:
of death need not be inflicted except in gravest cases of
extreme culpability.
(ii) Before opting for the death penalty the
circumstances of the `offender' also require to be taken
into consideration along with the circumstances of the
`crime'.
(iii) Life imprisonment is the rule and death sentence is
an exception. In other words death sentence must be
imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and
only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously
exercised having regard to the nature and
circumstances of the crime and all the relevant
circumstances.
(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the
mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between
the aggravating and the mitigating circumstances before
the option is exercised.
39. In order to apply these guidelines inter alia the
following questions may be asked and answered:
49
(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?
40. If upon taking an overall global view of all the
circumstances in the light of the aforesaid proposition
and taking into account the answers to the questions
posed hereinabove, the circumstances of the case are
such that death sentence is warranted, the court would
proceed to do so."
41) Following the guidelines and principles enunciated in
Bachhan Singh's case & Machhi Singh's case, (supra),
this Court in subsequent decisions applied those
principles and either confirmed the death sentence or
altered the same as life sentence vide Asharfi Lal &
Others vs. State of Uttar Pradesh, (1987) 3 SCC 224,
Ravji vs. State of Rajasthan, (1996) 2 SCC 175 and
Ram Singh vs. Sonia & Others, (2007) 3 SCC 1.
42) It is settled legal position that the punishment must
fit the crime. It is the duty of the Court to impose proper
punishment depending upon the decree of criminality and
desirability to impose such punishment. As a measure of
50
social necessity and also as a means of deterring other
potential offenders, the sentence should be appropriate
befitting the crime.
43) This Court in Bachhan Singh's case (supra) has held
that:
"A real and abiding concern for the dignity of human life
postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the rarest
of rare cases when the alternative option is unquestionably
foreclosed."
44) Therefore, it is open for the court to grant a death
penalty in an extremely narrow set of cases, which is
signified by the phrase `rarest of the rare'. This rarest of
the rare test relates to "special reasons" under Section
354(3). Importantly, as the Court held, this route is open
to the Court only when there is no other punishment
which may be alternatively given. This results in the death
penalty being an exception in sentencing, especially in the
case where some other punishment can suffice. It was in
this context that the Court had noted:
"The expression "special reasons" in the context of this
provision, obviously means "exceptional reasons" founded on
51
the exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal"
45) In Panchhi v. State of U.P., (1998) 7 SCC 177, this
Court also elucidates on "when the alternative option is
foreclosed" benchmark in the following terms:
"16. When the Constitution Bench of this Court, by a
majority, upheld the constitutional validity of death sentence
in Bachan Singh v. State of Punjab this Court took
particular care to say that death sentence shall not normally
be awarded for the offence of murder and that it must be
confined to the rarest of rare cases when the alternative
option is foreclosed. In other words, the Constitution Bench
did not find death sentence valid in all cases except in the
aforesaid freaks wherein the lesser sentence would be, by
any account, wholly inadequate. In Machhi Singh v. State
of Punjab a three-Judge Bench of this Court while following
the ratio in Bachan Singh case laid down certain guidelines
among which the following is relevant in the present case:
(SCC p.489, para 38)"
Here, this court quoted Guideline no. 4 in para 38 of
Machhi Singh (supra) which we have extracted earlier.
46) In the same case, this court held that the brutality
of the murders must be seen along with all the mitigating
factors in order to come to a conclusion:
"20. We have extracted the above reasons of the two courts only to
point out that it is the savagery or brutal manner in which the
killers perpetrated the acts on the victims including one little child
which had persuaded the two courts to choose death sentence for
the four persons. No doubt brutality looms large in the murders in
this case particularly of the old and also the tender-aged child. It
may be that the manner in which the killings were perpetrated may
not by itself show any lighter side but that is not very peculiar or
52
very special in these killings. Brutality of the manner in which a
murder was perpetrated may be a ground but not the sole criterion
for judging whether the case is one of the "rarest of rare cases" as
indicated in Bachan Singh case. In a way, every murder is brutal,
and the difference between one from the other may be on account of
mitigating or aggravating features surrounding the murder."
47) In Bachan Singh (supra) again, this Court
discussed mitigating circumstances as follows:
"206. Dr Chitale has suggested these mitigating factors:
"Mitigating circumstances.--In the exercise of its
discretion in the above cases, the court shall take into
account the following circumstances:
(1) That the offence was committed under the influence of
extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he
shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
(4) The probability that the accused can be reformed and
rehabilitated. The State shall by evidence prove that the
accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the
accused believed that he morally justified in committing the
offence. (6) That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.
We will do no more than to say that these are undoubtedly
relevant circumstances and must be given great weight in
the determination of sentence."
53
48) Therefore, in the determination of the death penalty,
para. 38 of Machhi Singh's case (supra) must be paid
due attention to it. The test for the determination of the
`rarest of the rare' category of crimes inviting the death
sentence thus includes broad criterions i.e. (1) the
gruesome nature of the crime, (2) the mitigating and
aggravating circumstances in the case. These must take
into consideration the position of the criminal, and (3)
whether any other punishment would be completely
inadequate. This rule emerges from the dictum of this
Court that life imprisonment is the rule and death penalty
an exception. Therefore, the Court must satisfy itself that
death penalty would be the only punishment which can be
meted out to the convict.
49) In the light of the above principles, let us examine the
reasoning of the Trial Judge and its confirmation by the
High Court in awarding death sentence. Before the Trial
Court, High Court and even before us the learned amicus
curiae appearing on behalf of the accused Mulla and
54
Guddu argued that the offences alleged to have committed
by these persons cannot come in the category for which
they may be punished with death sentence. She also
pointed out that neither they have any criminal history
nor the prosecution could show that the accused Mulla
and Guddu were involved in dacoity/gang or taken part in
any criminal activities prior to the occurrence of the
present case. Learned amicus curiae further pointed out
that even the one incident pressed into service by the
prosecution ended in acquittal. On the other hand, the
learned senior counsel appearing for the State by pointing
various instances how the five persons were killed
mercilessly by these accused, pleaded that no sympathy
or leniency should be afforded to these persons and
prayed for confirmation of the death sentence as awarded
by the Trial Court and confirmed by the High Court. We
have already quoted the Constitution Bench decision in
Bachhan Singh (supra) and three-Judge Bench decision
in Machhi Singh (supra) to the effect that in the case of
55
murder, "life imprisonment is a rule and imposition of
death sentence is an exceptional one" and the same
should come within the purview of "rarest of rare
category". We have already noted that the accused Mulla
is of the age 50 years and Guddu is of the age 30 years at
the time of committing the offence in question. No
material was placed or available about the family
background of these two accused and whether these
persons are married or not and about the family
circumstance etc. Learned amicus curiae fairly stated that
no family member ever approached during the entire
proceedings enquiring these appellants. The perusal of
the case records also shows that no one is depending on
them and no family responsibility is on the shoulders of
these accused persons.
50) Now, coming to their background as to the
criminality, the prosecution pressed into service the
earlier incident relating to the offences of abduction,
murder, mischief by firing led against these persons. The
56
fact remained that ultimately both of them were acquitted
from those offences. Admittedly, prosecution has not
placed any other material about their criminal
antecedents.
51) No doubt, the aggravating circumstances against the
appellants show that it is a case of cold blooded
murdering of five persons including one woman of the
middle age, the unfortunate victims did not provoke or
resist. The murder of five innocent persons were
committed for ransom which was executed despite the fact
that the poor villagers were unable to pay the ransom as
demanded, the accused knowing fully aware of their
inability and poverty of the victims.
52) As we have noted above, along with the aggravating
circumstances, it falls on us to point to the mitigating
circumstances in the case. In this case, we observe three
factors which we must take into account, 1) the length of
the incarceration already undergone by the convicts;
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2) the current age of the convicts; and finally, 3)
circumstances of the convicts generally.
53) As we have noted above, old age has emerged as a
mitigating factor since Bachhan Singh (supra). This
court in Swamy Shraddananda v. State of Karnataka
(2008) 13 SCC 767 substituted death sentence to life
imprisonment since the convicts were 64 years old and
had been in custody for 16 years. Even in the present
case, one of the convicts is around 65 years old. The
charges had been framed in 1999 and they have been in
custody since 1996. They have been convicted by the
Sessions Court in 2005. Clearly, the appellants have been
in prison for the last 14 years.
54) Another factor which unfortunately has been left
out in much judicial decision-making in sentencing is the
socio-economic factors leading to crime. We at no stage
suggest that economic depravity justify moral depravity,
but we certainly recognize that in the real world, such
factors may lead a person to crime. The 48th report of the
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Law Commission also reflected this concern. Therefore, we
believe, socio-economic factors might not dilute guilt, but
they may amount to mitigating circumstances. Socio-
economic factors lead us to another related mitigating
factor, i.e. the ability of the guilty to reform. It may not be
misplaced to note that a criminal who commits crimes due
to his economic backwardness is most likely to reform.
This court on many previous occasions has held that this
ability to reform amount to a mitigating factor in cases of
death penalty.
55) In the present case, the convicts belong to an
extremely poor background. With lack of knowledge on the
background of the appellants, we may not be certain as to
their past, but one thing which is clear to us is that they
have committed these heinous crimes for want of money.
Though we are shocked by their deeds, we find no reason
why they cannot be reformed over a period of time.
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56) This Court in Dalbir Singh and others v. State of
Punjab (1979) 3 SCC 745 had considered the question of
the length of incarceration when death penalty is reduced
to life imprisonment. It was held that:
"14. The sentences of death in the present appeal are liable
to be reduced to life imprisonment. We may add a footnote to
the ruling in Rajendra Prasad case. Taking the cue from the
English legislation on abolition,we may suggest that life
imprisonment which strictly means imprisonment for the
whole of the men's life but in practice amounts to
incarceration for a period between 10 and 14 years may, at
the option of the convicting court, be subject to the condition
that the sentence of imprisonment shall last as long as life
lasts, where there are exceptional indications of murderous
recidivism and the community cannot run the risk of the
convict being at larger. This takes care of judicial
apprehensions that unless physically liquidated the culprit
may at some remote time repeat murder."
57) This Court in Subash Chander v. Krishan Lal
(2001) 4 SCC 458 considered the length of life
imprisonment, while going over the precedents germane to
the question and observed as follows:
"20. Section 57 of the Indian Penal Code provides that in
calculating fractions of terms of punishment of
imprisonment for life shall be reckoned as equivalent to
imprisonment for 20 years. It does not say that the
transportation for life shall be deemed to be for 20 years. The
position at law is that unless the life imprisonment is
commuted or remitted by appropriate authority under the
relevant provisions of law applicable in the case, a prisoners
sentenced to life imprisonment is bound in law to serve the
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life term in prison. In Gopal Vinayak Godse v. State of
Maharashtra & Others 1961 Cri L J 736a , the convict
petitioner contended that as the term of imprisonment
actually served by him exceeded 20 years, his further
detention in jail was illegal and prayed for being set at
liberty. Repelling such a contention and referring to the
judgment of the Privy Council in Pandit Kishori Lal v. King
Emperor 1944 (1) 72 LR IndAp this Court held:
"If so, the next question is whether there is any provision of
law whereunder a sentence for life imprisonment, without
any formal remission by appropriate Government, can be
automatically treated as one for a definite period. No such
provision is found in the Indian Penal Code, Code of
Criminal Procedure or the Prisons Act. Though the
Government of India stated before the Judicial Committee in
the case cited supra that, having regard to s. 57 of the
Indian Penal Code, 20 year's imprisonment was equivalent to
a sentence of transportation for life, the Judicial Committee
did not express its final opinion on that question. The
Judicial Committee observed in that case thus at p.10:
"Assuming that the sentence is to be regarded as one of
twenty years, and subject to remission for good conduct, he
had not earned remission sufficient to entitle him to
discharge at the time of his application, and it was therefore
rightly dismissed, but in saying this, their Lordships are not
to be taken as meaning that a life sentence must and in all
cases be treated as one of not more than twenty years, or
that the convict is necessarily entitled to remission."
Section 57 of the Indian Penal Code has no real bearing on
the question raised before us. For calculating fractions of
terms of punishment the section provides that
transportation for life shall be regarded as equivalent to
imprisonment for twenty years. It does not say that
transportation for life shall be deemed to be transportation
for twenty years for all purposes; nor does the amended
section which substitutes the words "imprisonment for life"
for "transportation for life" enable the drawing of any such
all-embracing fiction. A sentence of transportation for life or
imprisonment for life must prima facie be treated as
transportation or imprisonment for the whole of the
remaining period of the convicted person's natural life."
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21. In State of Madhya Pradesh v. Ratan Singh & Ors.
1976 Cri L J 1192 this Court held that a sentence of
imprisonment for life does not automatically expire at the
end of the 20 years, including the remissions. "The sentence
for imprisonment for life means a sentence for the entire life
of the prisoner unless the appropriate Government choses to
exercise its discretion to remit either the whole or a part of
the sentence under Section 401 of the Code of Criminal
Procedure", observed the court. To the same effect are the
judgments in Sohan Lal v. Asha Ram & Others AIR 1981
SC 174a , Hagirath v. Delhi Administration 1985 Cri L J
1179 and the latest judgment in Zahid Hussein & Ors. v.
State of West Bengal & Anr. 2001 Cri L J 1692 ."
Finally, this Court held that life imprisonment would
mean imprisonment for the rest of the life of the convict,
unless the State Government remits the sentence to 20
years. This position has been accepted by this Court on
various occasions [See Shri Bhagwan v. State of
Rajasthan, (2001) 6 SCC 296; Jayawant Dattatray
Suryarao v. State of Maharashtra, (2001) 10 SCC 109].
58) This question came up again recently before this
Court in Ramraj @ Nanhoo @ Bihnu v. State of
Chhattisgarh, 2009 (14) SCALE 533, where this Court
considered the variance in precedents and ruled as
follows:
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"15. What ultimately emerges from all the aforesaid decisions
is that life imprisonment is not to be interpreted as being
imprisonment for the whole of a convict's natural life within
the scope of Section 45 of the aforesaid Code. The decision in
Swamy Shraddananda's case (supra) was taken in the
special facts of that case where on account of a very brutal
murder, the appellant had been sentenced to death by the
Trial Court and the reference had been accepted by the High
Court. However, while agreeing with the conviction and
confirming the same, the Hon'ble Judges were of the view
that however heinous the crime may have been, it did not
come within the. definition of "rarest of rare cases" so as to
merit a death sentence. Nevertheless,' having regard to the
nature of the offence, Their Lordships were of the view that
in the facts of the case the claim of the petitioner for
premature release after a minimum incarceration for a
period of 14 years, as envisaged under Section 433A Cr.P.C.,
could not be acceded to, since the sentence of death had
been stepped down to that of life imprisonment, which was a
lesser punishment.
16. On a conjoint reading of Sections 45 and 47 of the Indian
Penal Code and Sections 432, 433 and 433A Cr.P.C., it is
now well established that a convict awarded life sentence
has to undergo imprisonment for at least 14 years. While
Sections 432 and 433 empowers the appropriate
Government to suspend, remit or commute sentences,
including a sentence of death and life imprisonment, a fetter
has been imposed by the legislature on such powers by the
introduction of Section 433A into the Code of Criminal
Procedure by the Amending Act of 1978, which came into
effect on and from 18th December, 1978. By virtue of the
non-obstante clause used in Section 433A, the minimum
term of imprisonment in respect of an offence where death is
one of the punishments provided by laws or where a death
sentence has been commuted to life sentence, has been
prescribed as 14 years. In the various decisions rendered
after the decision in Godse's case (supra), "imprisonment for
life" has been repeatedly held to mean imprisonment for the
natural life term of a convict, though the actual period of
imprisonment may stand reduced on account of remissions
earned. But in no case, with the possible exception of the
powers vested in the President under Article 72 of the
Constitution and the power vested in the Governor under
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Article 161 of the Constitution, even with remissions earned,
can a sentence of imprisonment for life be reduced to below
14 years. It is thereafter left to the discretion of the
concerned authorities to determine the actual length of
imprisonment having regard to the gravity and intensity of
the offence. Section 433A Cr.P.C., which is relevant for the
purpose of this case, reads as follows:
433A. Restriction on powers of remission or
commutation in certain cases.- Notwithstanding anything
contained in Section 432, where a sentence of imprisonment
for life is imposed on conviction of a person for an offence for
which death is one of the punishment provided by laws or
where a sentence of death imposed on a person has been
commuted under Section 433 into one of imprisonment for
life, such person shall not be released from prison unless he
had served at least fourteen years of imprisonment.
17. In the present case, the facts are such that the petitioner
is fortunate to have escaped the death penalty. We do not
think that this is a fit case where the petitioner should be
released on completion of 14 years imprisonment. The
petitioner's case for premature release may be taken up by
the concerned authorities after he completes 20 years
imprisonment, including remissions earned."
59) We are in complete agreement with the above dictum
of this Court. It is open to the sentencing Court to
prescribe the length of incarceration. This is especially
true in cases where death sentence has been replaced by
life imprisonment. The Court should be free to determine
the length of imprisonment which will suffice the offence
committed.
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60) Thus we hold that despite the nature of the crime,
the mitigating circumstances can allow us to substitute
the death penalty with life sentence.
61) Here we like to note that the punishment of life
sentence in this case must extend to their full life, subject
to any remission by the Government for good reasons.
62) For the foregoing reasons and taking into account all
the aggravating and mitigating circumstances, we confirm
the conviction, however, commute the death sentence into
that of life imprisonment. The appeal is disposed of
accordingly.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(H.L. DATTU)
NEW DELHI;
FEBRUARY 08, 2010.
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