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)

J U D G M E N T  

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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

23

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

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

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  

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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.  

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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  

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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.

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(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

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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:

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(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  

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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  

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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  

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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."

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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  

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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  

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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  

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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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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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