20/10/2020 Delivery | Westlaw India

Westlaw India Delivery Summary

Request made by : IP   USER

Request made on: Tuesday, 20 October, 2020 at
16:05 IST
   
Client ID: inapu-1
Content Type: Cases
Title : Mulla & Anr v State Of U.P.
Delivery selection: Current Document
Number of documents 1
delivered:
Document(s) e-mailed to: nandinicp@gmail.com

© 2020 Thomson Reuters South Asia Private Limited

20/10/2020 Delivery | Westlaw India Page  2

Supreme Court of India

8 February 2010

Mulla & Anr

v
State Of U.P.

Case No : CRIMINAL APPEAL NO. 396 OF 2008

Bench : P. Sathasivam, H.L. Dattu

Citation : 2010 Indlaw SC 87, (2010) 3 SCC 508, AIR 2010 SC

942, 2010 CRLJ 1440, JT 2010 (2) SC 35, 2010 (2) MLJ(Crl)
270, 2010 (2) RCR(Criminal) 176, 2010(2) SCALE 179, [2010]
2 S.C.R. 633

Summary : (A) Criminal - Indian Penal Code, 1860, 148, 149,

302, 364A and 365 - Rioting - Kidnapping for ransom -
Unlawful assembly - Murder - Death sentence - Challenged -
Appellants were charged u/ss. 148, 302, 365 all r/w s. 149, IPC
- Trial Court by giving adequate reasons, awarded death
sentence to both the appellants which was confirmed by the HC
- Hence, present appeal - (A) Accused persons were not named
in the FIR - FIR was lodged against unknown persons - Held,
prosecution through their witnesses, 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 kidnapped by them - In view of the same, though none
20/10/2020 Delivery | Westlaw India Page  3

was named in the FIR, subsequently, the name of the

appellants came into light during investigation - (B) Delay in
conducting the Test Identification Parade (TIP) - Held, merely
because there was delay, the outcome of the identification
parade cannot be thrown out if the same was properly done
after following the procedure - In the present case, evidence of
PWs 2 and 3 who identified the appellants coupled with the
statement of official witnesses who accompanied the Magistrate
clearly proved the fact that TIP was conducted in accordance
with the established procedure - (C) Death sentence - Whether
the death sentence awarded by the Trial Court affirmed by the
HC justifiable and acceptable? - Held, in the present case,
along with the aggravating circumstances, these three factors
must take into account, 1) the length of the incarceration
already undergone by the convicts; 2) the current age of the
convicts; and finally, 3) circumstances of the convicts generally
- In the present case, one of the appellant is around 65 years
old - Charges were framed in 1999 and they have been in
custody since 1996 - Appellants have been in prison for the last
14 years - Despite the nature of the crime, death penalty can
be substituted with life sentence - Appeal disposed of.

(B) Criminal - Indian Evidence Act, 1872, s. 9 - Test

Identification Parade - Object - Held, evidence of test
identification is admissible u/s. 9 of the Indian Evidence Act -
Necessity for holding an identification parade can arise only
when the accused persons are not previously known to the
witnesses - Object of conducting a test identification parade
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
20/10/2020 Delivery | Westlaw India Page  4

the said occurrence - Appeal disposed of.

(C) Criminal - Indian Evidence Act, 1872, s. 9 - Delay in

conducting Test Identification Parade - Effect thereof - Held,
principles regarding identification parade are (1) 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 delay does
not result in exposure of the accused which may lead to
mistakes on the part of the witnesses - Appeal disposed of.

(D) Criminal - Code of Criminal Procedure, 1973, s. 354(3) -

Indian Penal Code, 1860, s. 302 - Death penalty - 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 - Court
must satisfy itself that death penalty would be the only
punishment which can be meted out to the convict - Appeal
disposed of.

The Judgment was delivered by: 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 herein and
20/10/2020 Delivery | Westlaw India Page  5

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
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
20/10/2020 Delivery | Westlaw India Page  6

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 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 u/s. 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 were also
convicted u/s. 148 IPC and sentenced to undergo R.I. for 3
years. They were further convicted u/s. 302 read with S.
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
20/10/2020 Delivery | Westlaw India Page  7

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.

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 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
20/10/2020 Delivery | Westlaw India Page  8

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.

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 not
be possible to name those persons in the complaint itself
without further verification. On the other hand, the
20/10/2020 Delivery | Westlaw India Page  9

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 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
20/10/2020 Delivery | Westlaw India Page  10

and Harnam went to their village and informed the villagers

about it. With the help of the villagers, they started
searching the abducted 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 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
20/10/2020 Delivery | Westlaw India Page  11

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
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 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
20/10/2020 Delivery | Westlaw India Page  12

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
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 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
20/10/2020 Delivery | Westlaw India Page  13

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 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

20/10/2020 Delivery | Westlaw India Page  14

prosecution is PW 3-Harnam. He asserted that on the date

and time of the incident, he witnessed the occurrence 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
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
20/10/2020 Delivery | Westlaw India Page  15

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
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 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
20/10/2020 Delivery | Westlaw India Page  16

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
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 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-
20/10/2020 Delivery | Westlaw India Page  17

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 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
20/10/2020 Delivery | Westlaw India Page  18

corroborates with the evidence of injured eye 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.

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.

20/10/2020 Delivery | Westlaw India Page  19

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.

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

20/10/2020 Delivery | Westlaw India Page  20

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 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
20/10/2020 Delivery | Westlaw India Page  21

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
admissible u/s. 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
conviction. As was observed by this Court in Matru v. State
of U.P, (1971) 2 SCC 75 1971 Indlaw SC 275, 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
20/10/2020 Delivery | Westlaw India Page  22

Hussain, (1973) 2 SCC 406 1973 Indlaw SC 112).

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
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 1987

Indlaw SC 28887, the parade was held about three weeks
after the arrest of the 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
20/10/2020 Delivery | Westlaw India Page  23

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
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 1991 Indlaw SC 1047, 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 1993 Indlaw SC 142, 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
20/10/2020 Delivery | Westlaw India Page  24

lapse of time memory of witnesses would get dimmer and

therefore the 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 1999 Indlaw SC 492, the accused was
apprehended on 20th January, 1993, while the
identification parade was held on 13 th 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
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)

20/10/2020 Delivery | Westlaw India Page  25

3 SCC 468 2001 Indlaw SC 20277, 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 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 2003 Indlaw SC 927, 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 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."
20/10/2020 Delivery | Westlaw India Page  26

29. In the case of Anil Kumar v. State of Uttar Pradesh,

(2003) 3 SCC 569 2003 Indlaw SC 120, 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 2004 Indlaw SC 749, placing reliance
on the case of Anil Kumar 2003 Indlaw SC 120 (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 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
20/10/2020 Delivery | Westlaw India Page  27

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 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 twofold.
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 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
20/10/2020 Delivery | Westlaw India Page  28

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 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
accompanied the Magistrate for test identification parade
20/10/2020 Delivery | Westlaw India Page  29

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.

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

20/10/2020 Delivery | Westlaw India Page  30

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 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
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

20/10/2020 Delivery | Westlaw India Page  31

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.

39. When the constitutional validity of death penalty for

murder provided in S. 302 of the Indian Penal Code and
sentencing procedure embodied in sub-s. 3 of S. 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 1980 Indlaw SC 586, 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 1983 Indlaw
SC 116. The discussion and the ultimate conclusion as well
as instances/guidelines are relevant:-

"Death Sentence

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
member of the community violates this very principle by
killing another member, the society may not feel itself
20/10/2020 Delivery | Westlaw India Page  32

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

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.
20/10/2020 Delivery | Westlaw India Page  33

(ii) when the victim is subjected to inhuman acts of torture

or cruelty in order to bring about his or her death.

(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

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

(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

When the crime is enormous in proportion. For instance

20/10/2020 Delivery | Westlaw India Page  34

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

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.

In this background the guidelines indicated in Bachan

Singh case 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 case: 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
20/10/2020 Delivery | Westlaw India Page  35

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.

In order to apply these guidelines inter alia the following

questions may be asked and answered:

(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?

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 1980 Indlaw SC 586 & Machhi
Singh's case 1983 Indlaw SC 116, (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 1987 Indlaw SC 28211, Ravji
vs. State of Rajasthan, (1996) 2 SCC 175 1995 Indlaw SC
761 and Ram Singh vs. Sonia & Others, (2007) 3 SCC 1
20/10/2020 Delivery | Westlaw India Page  36

2007 Indlaw SC 122.

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
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 1980 Indlaw SC

586 (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 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 1998

Indlaw SC 827, this Court also elucidates on "when the
20/10/2020 Delivery | Westlaw India Page  37

alternative option is foreclosed" benchmark in the following

terms:

"When the Constitution Bench of this Court, by a majority,

upheld the constitutional validity of death sentence in
Bachan Singh v. State of Punjab 1980 Indlaw SC 586 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 1983 Indlaw SC 116a
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:"

Here, this court quoted Guideline no. 4 in Machhi Singh

1983 Indlaw SC 116 (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:

"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 very special in these killings.
20/10/2020 Delivery | Westlaw India Page  38

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 1980 Indlaw SC 586 (supra) again,

this Court discussed mitigating circumstances as follows:

" 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.
20/10/2020 Delivery | Westlaw India Page  39

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."

48. Therefore, in the determination of the death penalty,

para of Machhi Singh's case 1983 Indlaw SC 116 (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 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
20/10/2020 Delivery | Westlaw India Page  40

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 1980 Indlaw SC 586 (supra) and three-
Judge Bench decision in Machhi Singh 1983 Indlaw SC 116
(supra) to the effect that in the case of 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 fact remained that
ultimately both of them were acquitted from those
20/10/2020 Delivery | Westlaw India Page  41

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;

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 1980 Indlaw SC 586
(supra). This court in Swamy Shraddananda v. State of
Karnataka (2008) 13 SCC 767 2008 Indlaw SC 1128
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

20/10/2020 Delivery | Westlaw India Page  42

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 Law
Commission also reflected this concern.

Therefore, we believe, socio-economic factors might not

dilute guilt, but they may amount to mitigating
circumstances. Socioeconomic 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.

56. This Court in Dalbir Singh and others v. State of Punjab

(1979) 3 SCC 745 1979 Indlaw SC 556 had considered the
question of the length of incarceration when death penalty
is reduced to life imprisonment. It was held that:

"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
20/10/2020 Delivery | Westlaw India Page  43

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 2001 Indlaw SC 20876 considered the length of
life imprisonment, while going over the precedents
germane to the question and observed as follows:

"S. 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 life term in
prison. In Gopal Vinayak Godse v. State of Maharashtra &
Others 1961 Cri L J 736a 1961 Indlaw SC 227 , 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 Ind Ap 1944 Indlaw PC 26 this
Court held:

"If so, the next question is whether there is any provision

of law whereunder a sentence for life imprisonment,
20/10/2020 Delivery | Westlaw India Page  44

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."

S. 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."
20/10/2020 Delivery | Westlaw India Page  45

In State of Madhya Pradesh v. Ratan Singh & Ors. 1976 Cri

L J 1192 1976 Indlaw SC 590 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 u/s. 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 1980 Indlaw SC 434 , Hagirath
v. Delhi Administration 1985 Cri L J 1179 1985 Indlaw SC
427 and the latest judgment in Zahid Hussein & Ors. v.
State of West Bengal & Anr. 2001 Cri L J 1692 2001 Indlaw
SC 20686."

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 2001 Indlaw SC 20087; Jayawant Dattatray
Suryarao v. State of Maharashtra, (2001) 10 SCC 109 2001
Indlaw SC 20884].

58. This question came up again recently before this Court

in Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh,
2009 (14) SCALE 533 2009 Indlaw SC 2087, where this
Court considered the variance in precedents and ruled as
follows:

"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 S. 45 of the aforesaid Code. The decision in
20/10/2020 Delivery | Westlaw India Page  46

Swamy Shraddananda's case 2008 Indlaw SC 1128 (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.

On a conjoint reading of Ss. 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 Ss. 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 18 th 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
20/10/2020 Delivery | Westlaw India Page  47

rendered after the decision in Godse's case 1961 Indlaw SC

227 (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 u/art. 72 of the Constitution and the power
vested in the Governor u/art. 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 u/s. 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.

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
20/10/2020 Delivery | Westlaw India Page  48

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.

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.

Appeal disposed of.

© 2019 Thomson Reuters South Asia Private Limited

This database contains editorial enhancements that are not a part of the original material. The database may also have
mistakes or omissions. Users are requested to verify the contents with the relevant original text(s) such as, the certified copy
of the judgment, Government Gazettes, etc. Thomson Reuters bears no liability whatsoever for the adequacy, accuracy,
satisfactory quality or suitability of the content.