Supreme Court of India
MULLA & ANR.versusSTATE OF U.P.
- Citation
- 2010 INSC 89
- Decided
- 8 February 2010
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
The conviction stands, but the death sentence is commuted to life imprisonment because the identification parade was valid and mitigating factors outweigh the aggravating circumstances.
Summary
The appellants Mulla and Guddu were convicted for abducting and murdering five villagers for ransom, based on the testimony of injured eye‑witnesses and a test identification parade (TIP) conducted after a delay. The Supreme Court held that the TIP was properly conducted and its evidence admissible, and that the eye‑witness accounts were reliable. While the conviction was affirmed, the Court found that the aggravating circumstances did not satisfy the "rarest of the rare" test for death, and that mitigating factors – advanced age, long pre‑sentencing incarceration, and extreme poverty – warranted commuting the death sentence to life imprisonment. The life sentence was ordered to run for the convict’s natural life, subject to government remission. The appeal was disposed of with the death sentence altered to life imprisonment.
Issues considered
- The admissibility and reliability of the test identification parade despite a delay of 55 days after arrest.
- Whether the eye‑witness testimonies, given under torchlight, are sufficient to sustain conviction.
- Whether the murder of five persons for ransom qualifies as a 'rarest of the rare' case justifying death penalty.
- Whether mitigating circumstances – age, length of incarceration, and socio‑economic background – justify commuting death to life imprisonment.
- Interpretation of life imprisonment duration and the effect of Section 433A CrPC on remission.
Legislation cited
- Code of Criminal Procedure, 1973s. 354(3), s. 401, s. 432, s. 433, s. 433A
- Indian Evidence Act, 1872s. 9
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 365, s. 45, s. 47, s. 57
Subjects
abductionmurder for ransomeye‑witness testimonytest identification paradedeath penaltycommutationmitigating circumstancessocio‑economic factorssentencingIPC 302IPC 365IPC 148CrPC 433AEvidence Act
Judgment
[2010] 2 S.C.R. 633
MULLA & ANR. A
V.
STATE OF U.P.
(Criminal Appeal No. 396 of 2008)
FEBRUARY 8, 2010
B
[P. SATHASIVAM AND H. L. DATTU, JJ.]
Penal Code, 1860 - 3021149, 365 and 148 - Abduction
and murder for ransom - Eye-witnesses to the incident -
Three of them injured eye-witnesses - Prosecution case C
supported by medical evidence - Accused identified by two
of the eye-witnesses in Test Identification Parade - Conviction
and death sentence by courts below - On appeal, held:
Prosecution case supported by version of eye-witnesses and
medical evidence - Test Identification Parade properly D
conducted - Conviction justified - In view of the socio-
economic background of the convicts, death sentence altered
to life imprisonment - Life sentence to extend to their full life,
subject to remission by Government- Sentence/Sentencing.
Evidence: Test identification parade - Purpose and E
object of holding - Evidentiary value of - Discussed.
Sentence/Sentencing - death sentence - Mitigating
circumstance - Held: Socio-economic factors leading to crime
is relevant in judicial decision making in sentencing - Such F
factors lead to another mitigating factor i.e. ability of the guilty
to reform.
Appellant accused was prosecuted for having
assaulted three persons and further for having abducted G
five persons and killing them for ransom. The prosecution
case was that appellants' accused alongwith two (one girl
and a boy) came to the filed of the victims while th~y were
633 H
634 SUPREME COURT REPORTS [2010] 2 S.C.R.
A irrigating their fields. They demanded Rs. 10,000 from
each of them. They assaulted three of the persons with
the butt of the gun and thereafter abducted five persons
and asked three persons to go to the village and bring
the amount demanded, threatening that otherwise th~
s five abducted persons would be killed. The three persons
reached the village and thereafter lodged a complaint. On
investigation for searching the abducted persons, their
dead bodies were recovered. The appellants accused
were convicted u/ss. 365, 148 and 302/149 IPC. They were
c sentenced to death. High Court confirmed the sentence
and dismissed the appeals filed by the appellants. Hence
the present appeal.
Disposing of the appeal, the Court
D HELD: 1.1. It is true that either in the complaint or in
the first information report, no one was specifically named
for the commission of offence. Though a suggestion was
made to prosecution witnesses that the accused persons
are from the nearby villages, the same was stoutly denied
E 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 prosecution through their witnesses
particularly, PWs 1 to 4, established that it was the
F 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,
G subsequently, the name of the appellants came into light
during investigation. [Para 8] [649-E-H; 650-A]
1.2. PW 1 had 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
H
MULLA v. STATE OF U.P. 635
identification parade due to his illness. In cross- A
examination also, he asserted that he had seen the guns
in the hands of the accused and three of the victims 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 one B
of the deceesed 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. (Para 9] [651-C-E]
1.3. PW 2 corroborated the evidence of PW 1. It is C
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. There is no reason to disbelieve the version of
PW-2 that he did not see these persons on any other D
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. He deposed about his E
visit to District Jail, for test identification parade of
miscreants. He informed the court that he had identified
three miscreants. 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 F
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, G
he identified the three accused. [Paras 10 and 11] [653-
C-D; G-H; 654-A; 652-F-H; 653-A]
1.4. PW 3 asserted that on the date and time of the
incident, he witnessed the occurrence along with PW 2.
H
636 SUPREME COURT REPORTS [2010) 2 S.C.R.
A He 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
B miscreants, initially they killed one of the deceased and
thereafter killed other four. 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, he
c identified, by putting his hand on the accused persons
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. In his cross-
D examination, 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
E. 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. [Paras 12 and 15] [654-B-E;
655-A-D]
F
1.5. It is not correct to say that PW-4, who claimed to
be a victim of the accused person, is not competent to
narrate the present incident and implicate the very same
accused as in her earlier case she had deposed that the
G appellant-accused had nothing to do with the incident.
Just prior to the incident the very same accused, that is,
appellant-accused 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
H they attempted to rape her. However, in the said case,
MULLA v. STATE OF U.P. 637
before the court she failed to mention their names and . A
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 B
to make such statement and in view of the categorical
statement about the present occurrence implicating the
miscreants including the present appellants, explaining
all the details about keeping three youngsters in their
hands and five villagers demanding ransom for their c
release, identifying the five dead bodies at different
places, there is no reason to disbelieve her version.
[Paras 16 and 17] [655-E-F; 656-G-H; 657-A-C]
1.6.. The trial Judge has accepted her conduct in
making a statement about the earlier case and relied on D ·
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-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 E
familiarity of their faces, in categorical terms, she
informed the Court that it was appellant-accused 'M', who
killed three persons and appellant-acused 'G', who killed
two persons by slitting their neck. Her explanation about
her own case and detailed narration in respect of the F
present case are acceptable and rightly relied on by the
trial court and accepted by the High Court. [Para 18) [657-
D-F]
1.7.Medical evidence also supports the case of G
prosecution. Medical Officer, who conducted autopsy on
the five dead bodies was examined as PW 5. 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 H
638 SUPREME COURT REPORTS {2010] 2 S.C.R.
A hemorrffage -and approximately one day before the post
mortem: Though the police could not produce the knife
used 'fof killing the five persons, one of the accused had
admitted about possession of knife- apart from unlicensed
gun at the 'tirrie..of the occurrence. [Para 19] [657-G-H; 660-
B c.:01 " - : i ' · •
1;8. It is not correct to say that in the absence of
proper light at the time of occurrence it is highly improper
to· ac-cept-. the version of prosecution witnesses
C particularly, PWs 2 and 3 identifying these appellants.
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
ttie ffrst ·incident informed the name of the accused
D correctly: Inasmuch as her association with the accused
wa·s 'IOnger than others, she mentioned the name of the
accus-E!cf without any difficulty. In those circumstances,
the·· trfal Judge is perfectly right in holding that the
pro~ecutiori 'Witnesses were able to correctly identify
E these -pers'ons ·and rightly rejected the defence plea.
[Paras
. 36.. and
- 37] [668-B-G].
t ' ....~. .~
, ; .:2.1 .. The question whether a witness has or has not
identifiedjhe. ace.used during the investigation is not one
F 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.
G The fact that a particular witness has been able to identify
tne~accused at an identification parade is only a
cfrcutnstance corroborative of the identification in court.
[P~~~, 20] [660-E-G]
1 • , • • •
. Matru v.: 'State of U.P. (1971) 2 SCC 75; Santokh Singh
H v. /zhar Hussain, (1973) 2 SCC 406, relied on
MULLA v. STATE OF U.P. 639
2.2. The necessity for holding an idehtification parade A
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 B
aid or any other source. The test is done to check upon
their veracity. 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 c
or any of them could be cited as eye-witnesses of the
crime. [Para 22] [661-C-E]
2.3. The identification proceedings are in the nature
of tests and significantly, therefore, there is no provision
for it in Cr.P .C. and the Evidence Act, 1872. It is desirable D
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. If, however, circumstances are E
beyond control and there is some delay, it cannot be said
to be fatal to the prosecution. [Para 22] [661-E-G]
2.4. The identification parades are not primarily meant
for the court. They are ·meant for investigation purposes. F
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 G
investigating authorities that the suspect is the real
person whom the witnesses had seen in connection with
the said occurrence. [Para 31] [665-G-H; 666-A]
2.5. The following principles regarding identification
H
640 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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
B delay does not result in exposure of the accused which
may lead to mistakes on the part of the witnesses. In the
present case, 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.
c [Paras 32 and 33] [666-B-F]
. 2.6. When PWs 8 and 9 - 1.0. and 5.1 were examined,
nothing was suggested to them regarding delay in
conducting the identification parade. PW-6, while
examining before the court, explained in catt;gorical
D 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
E 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. [Paras 33 and 34] [666-E-H; 667-A]
·F 2.7. From the facts of the case, it is evident that the
testidentification 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
G killing five -persons on the fateful night. In those
circumstances;. _merely because there was some delay,
evidence of PWs 2 and 3 who jdentified the appellants-
accused coupled with the statement of official witnesses
PW 6 and PW 11 who accompanied the Magis_trate clearly
H
MULLA v. STATE OF U.P. 641
prove the fact that test identification parade was A
conducted in accordance with the established procedure.
There is no reason to disbelieve their version, and court
has correctly appreciated their evidence and the High
Court has rightly affirmed it. [Para 35] [667-F;.H; 668-A)
B
Subhash v. State of U.P. (1987) 3 SCC 331; State of
Andhra Pradesh v. Dr. M. V. Ramana Reddy (1991) 4 SCC
536; Brij Mohan and Ors, v. State of Rajasthan, (1994) 1 SCC
413; Rajesh Govind Jagesha v. State of Maharashtra (1999
) 8 SCC 428; Daya Singh v. State of Haryana, (2001) 3 SCC C
468; Lal Singh v. State of U.P. (2003) 12 SCC 554; Anil
Kumar v. State of Uttar Pradesh, (2003) 3 SCC 569; Pramod
Manda/ v. State of Bihar 2004 (13) SCC 150, referred to
3.1. The punishment must fit the crime. It is the duty
of the court to impose proper punishment depending D
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. [Para
42] [673-F-G] . E
3;2. 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). This F
route is open to the court only when there is no other
punishment which may be alternatively given. This
result$ In the death penalty being an exception in
sentencing, especially in the case where some other
punishment can suffice. [Para 44] [674-B-C]
G
3,3, The test for the determination of the 'rarest of the
rare' ca.tegory of crimes inviting the death sentence thus
Includes broact criterions i.e. (1) the gruesome nature of
the crime, (2) the mitigating and aggravating
H
642 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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.
B Therefore, the Court must satisfy itself that death penalty
would be the only punishment which can be meted out
to the convict. [Para 48] [676-E-G]
Bachhan Singh vs. State of Punjab (1980) 2 SCC 684;
Machhi Singh and Ors. vs. State of Pubjab (1983) 3 SCC
C 470; Asharfi Lal and Ors. vs. State of Uttar Pradesh, (1987)
3 SCC 224; Ravji vs. State of Rajasthan, (1996) 2 SCC 175;
Ram Singh vs. Sonia and Ors. (2007) 3 SCC 1; Panchhi v.
State of U.P. (1988) 7 SCC 177, referred to
D 3.4. The perusal of the case records of the present
case shows that no one is depending on the appellant-
accused and no family responsibility is on the shoulders
of these accused persons. Coming to their background
as to the criminality, the prosecution pressed into service
E 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 offences. Admittedly, prosecution has not
placed any other material about their criminal
F antecedents. [Paras 49 and 50] [677-G-H; 678-A]
3.5. The aggravating circumstances against the
appellants show that it is a case of cold blooded murder
of five persons including one woman of the middle age,
the unfortunate victims did not provoke or resist. The
G 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 fully aware of their inability and
poverty of the victims. [Para 51] [678-8-C]
H
MULLA v. STATE OF U.P. 643
3.6. As regards mitigating circumstances, three A
factors which the court 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 convicts is around 65 years old. The B
appellants have been in prison for the last 14 years. [Paras
52 and 53] [678-0-F]
Bachhan Singh vs. State of Punjab (1980) 2 SCC 684;
Swamy Shraddananda v. State of Karnataka (2008) 13 SCC C
767, relied on
3.7. Socio-economic factors leading to crime is
relevant in judicial decision-making in sentencing. It is not
suggested that economic depravity justify moral
depravity, but in the real world, such factors may lead a D
person to crime. Therefore, the Court believes that socio-
economic factors might not dilute guilt, but they may
amount to mitigating circumstances. Socio-economic
factors leads the Court to another related mitigating
factor, i.e. the ability of the guilty to reform. It may not be E
misplaced to note that a criminal who commits crimes
due to his economic backwardness is most likely to
reform. [Para 54] [678-G-H; 679-A-B]
The 48th report of the Law Commission, referred to
F
3.8. In the present case, the convicts belong to an
extremely poor background. With lack of knowledge on
the background of the appellants, the Court may not be
certain as to their past, but one thing which is clear to the
Court is that they have committed these heinous crimes G
for want of money. Though the Court is shocked by their
deeds, there is no reason why they cannot be reformed
over a period of time. [Para 55] [679-C-D]
Dalbir Singh and Ors. v. State of Punjab (1979) 3 SCC H
644 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 145; Subash Chander v. Krishan Lal (2001) 4 SCC 458,
relied on
3.9. It is open to the sentencing Court to prescribe
the length of incarceration. This is especially true ii,'.' cases
B 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. Thus, despite the nature ~f1he crime, the·.
mitigating circumstances can aUow the Court to
substitute the death penalty with life sentence. The
C punishment of life sentence in this case must extend to
their foll life, subject to any remission by the Government
for good reasons. [Paras 59, 60 and 61] [684-C-E]
Shri Bhagwan v. State of Rajasthan, (2001) ·6 SCC 296;
D Jayawant Dattatray Suryarao V; State of Maharashtra, (2001)
10 SCC 109; Ramraj @ Nanhoo @ Bihnu v. State of
Chhattisgarh, 2009 (14) SCALE 533, relied on
Case Law Reference:
E (1973) 2 sec 406 relied on Para 21
(1971) 2 sec 75 relied on Para 21
(1987) 3 sec 331 referred to Para 23
(1991) 4 sec 536 referred to Para 24
F
(1994) 1 sec 413 referred to Para 25
(1999) 8 sec 428 referred to Para 26
(2001) 3 sec 468 referred to Para 27
G
(2003) 12 sec 554 referred to Para 28
(2003) 3 sec 569 referred to Para 29
(2004) (13) sec 1so referred to Para 30
H
MULLA v. STATE OF U.P. 645
(1980) 2 sec 684 referred to Para 39 A
(1983) 3 sec 470 referred to Para 40
(1987) 3 sec 224 referred to Para 41
(1996) 2 sec 115 referred to Para 41
B
(2001) 3 sec 1 referred to Para 41
(1998) 1 sec 111 referred to Para 45
(2008) 13 sec 767 relied on Para 54
c
(1979) 3 sec 745 relied on Para 56
(2001) 4 sec 458 relied on Para 57
(2001) 6 sec 296 relied on Para 57
(2001) 10 sec 109 relied on Para 57 D
(2009) (14) SCALE 533 relied on Para 58
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 396 of 2008.
E
From the Jugdment & Order dated 3.3.2006 of the High
Court of Judicature at Allahabadin Capital Sentence No. 2 of
2005 and and Crl. A. No. 713 of 2005.
Ranjana Narayana (AC) for the Appellant.
F
Pramod Swaroop, S.K. Dwivedi, Sanjay Visen, Vandana
Mishra, Manoj Kr. Dwivedi, Ashutosh Kr. Sharma, Guuna
Venkateswara Rao for the Respondent.
The Judgment of the Court was delivered by G
P. SATHASIVAM, J. 1. This appeal is filed on behalf of
the appellants through the Jailer, District Jail, Sitapur, U.P.
against the impugned judgment dated 03.03.2006 passed by
the High Court of Judicature at Allahabad, Lucknow Bench,
H
646 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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
dismissed Criminal Appeal No. 713 of 2005 filed by the
s 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
C 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
D properties and made a demand of Rs.10,000/- each and
threatened that otherNise 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
E 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
F 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
G 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
H
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 647
searching the abducted persons. At about 25 mts. away from A
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 the dead bodies, they were B
sent for post-mortem. After recording the statements, S.H.0.
Ram Shankar Singh arrested Mulla and Guddu on 01.01.1996
and Tula on 08.01.1996 and recovered a co.untrymade gun, two
cartridges and one knife.
(b) After completion of investigation, charge sheet was filed C
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 D
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 S:ection 365 IPC and
sentenced them to undergo R.I. for 7 years and a fine of E
Rs.1000/- each and in default of payment of fine further simple
imprisonment for one year. The appellants herein 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. F
(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 G
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
H
648 SUPREME COURT REPORTS (201 O] 2 S.C.R.
A 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.
B 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;
c (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
(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
E 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
F 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
G 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,
H the Courts below have rightly relied on her statement e) all the
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 649
miscreants were armed with illegal guns in their hands and A
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. B
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 C
- Rajesh Kumar Tripathi, PW 2 - Sushil, PW 3 -Harnam,
independent eye witness - PW 4 - Kiran, PW 5 - Dr. AK.
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, D
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.
E
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
F
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 prosecution through their witnesses
particularly, PWs 1 to 4, established that it was the appellants, G
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
H
650 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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
8
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,
C 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
D 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
E 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.
F 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 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
G 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
H sending the injured persons to hospital at Sandana Jor
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 651
treatment, he came back and with the help of villagers started A
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 B
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) 1.0. prepared a sketch c
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
0
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
E
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 F
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 G
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 H
652 SUPREME COURT REPORTS [2010) 2 S.C.R.
A 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
s 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
c 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
D 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
E 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
F 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.
G 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.
H
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 653
In his cross-examination, he reiterated that in the test A
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 B
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 C
'.J, 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 Sushi! Kumar - PW 2 and noticed the following injuries: D
"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".
E
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
F
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 Tulia. He further asserted that except
on th~ate of oHcurrence of the incident, he had not seen them G
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 H
654 SUPREME COURT REPORTS [2010) 2 S.C.R.
A well as identified the appellants in the identification parade, the
trial Judge as well as the High Court rightly accepted his
version. .i~
12. The other reliable witness examined on the side of the
prosecution is PW 3-Harnam. He asserted that on the date and
8
time of the incident; he witRessed_the o_ccurrence 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
: . .:: :· C detained by the miscreants, enquired about their status, land
details and demanded Rs.10,000/- each and when he informed
the~V;jscreants 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
D miscreants· in the light of their torches. Like PW 2, he also
'.'''explained that'in vi~w 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
E 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
F 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
G four qead 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
H signature which has been marked as Ex. K-16.
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 655
15. Like PW 2, PW 3 also asserted before the Court that A
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, Tulia and Mulla who were standing in
the dock and said that these miscreants were involved in the B
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, c
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
0
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. Kai/ash Chandra & Ors. submitted that the reliance on her E
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. Kai/ash 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 F
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 tak~n by amicus
for the following reasons: About the first incident, namely, G
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 H
656 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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
B 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
c 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
0
woman towards north. Nearly after crossing two or three
agricultural fields they killed one person by slitting histhroat 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 th'roat and
E 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
F 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
G 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
H miscreants for 10-12 days. It is true that at one stage she
MULLA v. STAT!f OF U.P. [P. SATHASIVAM, J.] 657
complained that they attempted to rape her. However, in the A
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 B
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 c
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 D
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 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 E
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 F
Court.
19. Apart from the evidence of PWs 1-4 about killing of
five persons, medical evidence also supports the case of
prosecution. Dr. AK.Verma, Medical Officer, District Hospital, G
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 H
658 SUPREME COURT REPORTS [2010) 2 S.C.R.
A 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
B
was conducted by Dr. AK. 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
c- 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
D 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.
E
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. AK.Verma on 22.12.1995 at 8.00 p.m.
F 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
G 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.
H The post mortem on the dead body of Chhotakkey was
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 659
conducted by Dr. AK.Verma on 22.12.1995 at 9.30 p.m. A
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 8
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. C
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 D
shock and haemorrhage as a result of ante mortem injuries.
The post mortem on the dead body of Nanhakey was
conducted by Dr. AK. Verma on 22.12.1995 at 9.30 p.m.
and he had noted the following ante mortem injury on the E
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
F
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 G
conducted by Dr. AK. Verma on 22.12.1995at10 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.
H
660 SUPREME COURT REPORTS [2010] 2 °S.C.R.
A 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
B
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
C 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
0 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
E amicus curiae on the delay in conducting the test identification
parade. The evidence of test identification is 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.
F 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
G 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
H same is very much admissible in law. Where identification of
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 661
an accused by a witness is made for the first time in Court, it A
should not form the basis of 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 s
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. lzhar Hussain,
(1973) 2 sec 406).
22. The necessity for holding an identification parade can C
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 D
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 E
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 F
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 G
beyond control and there is some delay, it cannot be said to
be fatal to the prosecution.
23. In Subhash v. State of U.P. (1987) 3 SCC 331, the
parade was held about three. weeks after the arrest of the
H
662 SUPREME COURT REPORTS [201 O] 2 S.C.R.
A 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 bf the test identification
B 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
c 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
0
the co-accused. This is also a case where the conviction of the
appellant was based solely on the evidence of id~ntification.
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.
E
24. In State of Andhra Pradesh v. Dr. M. V. Ramana
Reddy (1991) 4 SCC 536, the Court found a delay in holding
the test parade for which there was no valid explanation. It held
that in the absence of a valid explanation for the delay, the
F 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 sec 413, the test identification parade was held after
G three months. The argument was that it was not possible for
the witnesses to remember, after a lapse of such time, the facial
expressions of the accused. It was held that generally with lapse
of time memory of witnesses would get dimmer and therefore
the earlier the test identification parade is held it inspires more
faith. It was held that no time limit could be fixed for holding a
H
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 663
test identification parade. It was held that sometimes the crime A
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 B
months.
26. In Rajesh Govind Jagesha v. State of
Maharashtra (1999) 8 sec 428, the accused was
apprehended on 20th January, 1993, while the identification C
parade was held on 13th February, 1993. It was also not
disputed that at the time of identification parade the appellant
was not having a beard and long hair as mentioned at the time
of lodging of the first information report. It was also not disputed
that no person with a beard and long hair was included in the
. parade. The witnesses· were alleged to have identified the D
· 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 E
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 F
sole reason for rejecting the identification.
27. In the case of Daya Singh v. State of Haryana, (2001)
3 sec 468, the test identification parade was held after a
period of almost eight years inasmuch as the accused could G
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
H
664 SUPREME COURT REPORTS [201 O] 2 S.C.R.
A 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
B there were reasons for an endµring 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
sec 554, while discussing all the cases germane to the
question of identification parades and the effect of delay in
C 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
D 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
E 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."
F 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
G observing that after lapse of such a lorig 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
H
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 665
the memory of father and mother who have seen them A
killing their son ... "
30. In another case of Pramod Manda/ v. State of Bihar,
2004 (13) sec 150, placing reliance on the case of Anil
Kumar (supra), this Court observed that it is neither possible 8
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 C
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. D
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 E
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 F
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 G
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 H
666 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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
8
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
C 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
D 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
E 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.
F 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 - 1.0. and S.I were examined, nothing was suggested
to them regarding delay in conducting the identification parade.
G 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
H assertion of the official witness and in the absence of allegation
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 667
against him, it is to be accepted that the accused were not seen A
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
8
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 was examined as PW
11. He proved the identification memo as secondary evidence
due to non-availability of the Magistrate in whose presence test C
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 D
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 E
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 F
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 G
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
H
668 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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
8
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
C 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 ...... "
D 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
E 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
F 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
G 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
H established beyond reasonable doubt in respect of offences
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 669
under Sections 148, 364A, 365 and 302 IPC, the learned Trial A
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. B
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 C
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".
D
40. The above said decision of the Constitution Bench was
considered by a three-Judge bench in Machhi Singh & Others
vs. State of Punjab (1983) 3 SCC 470. The discussion and
the ultimate conclusion as well as instances/guidelines are
relevant:- E
"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 F
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
bound by the shackles of this doctrine. Secondly, it has to G
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 H
670 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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
B 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
c 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
D 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
E
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,
F (1) when the house of the victim is set aflame with the end
in view to roast him alive in the house.
(it) when the victim is subjected to inhuman acts of torture
or cruelty in order to bring about his or her death.
G
(iit) when the body of the victim is cut into pieces or his
body is dismembered in a fiendish manner.
11. Motive for commission of murder
H 34. When the murder is committed for a motive which
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 671
evinces total depravity and meanness. For instanc~ when A
(a) a hired assassin commits murder for the sake of money
or reward (b) a cold-bl.ooded 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 B
in a dominating position or in a position of trust, or (c) a
murder is committed in the course for betrayal of the
motherland.
l ·.
Ill. Anti-social or socially abhoffent nature of the crime
»
c
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 D
a place or jn 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.
E
(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 F
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. G
V. Personality of victim of murder
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 H
672 SUPREME COURT REPORTS [2010] 2 S.C.R.
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
B murder is committed for political or similar reasons other
than personal reasons.
38. In this background the guidelines indicated in Bachan
Singh case 1 will have to be culled out and applied to the
facts of each individual case where t~ question of
c 1
imposing of death sentence arises. 'F'he following
propositions emerge from Bachan Singh case 1:
of death need not be inflicted except in gravest cases of
extreme culpability.
D
(it) 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'.
(iit) Life imprisonment is the rule and death sentence is an
E 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
F 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
G 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.
H
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 673
39. In order to apply these guidelines inter alia the following A
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
(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?
c
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 D
do so."
41. Following t~e 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 E
sentence vide Asharfi Lal & Others vs. State of Uttar Pradesh,
(1987) 3 SCC 224, Ravji vs. State of Rajasthan, (1996) 2
sec 175 and Ram Singh VS. Sonia & Others, (2007) 3 sec
1.
F
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 G
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 H
674 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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."
B 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
C 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
D 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, this
E 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
F 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
G 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:
H (SCC p.489, para 38)".
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 675
Here, this court quoted Guideline no. 4 in para 38 of Machhi A
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:
B
"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. C
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. Brutality of the D
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 E
account of mitigating or aggravating features surrounding
the murder."
47. In Bachan Singh (supra) again, this Court discussed
mitigating circumstances as follows:
F
"206. Dr Chitale has suggested these mitigating factors:
"Mitigating circumstances.-ln the exercise of its
discretion in the above cases, the court shall take into
account the following circumstances: G
(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. H
676 SUPREME COURT REPORTS [2010) 2 S.C.R.
A (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
B
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
c 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.
D 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,
E 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
F 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
G 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
H
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 677
Court and even before us the learned amicus curiae appearing A
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 B
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 c
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 0
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 murder, "life imprisonment is a rule and imposition
of death sentence is an exceptional one" and the same should E
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 F
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. G
50. Now, coming to their background as to the criminality,
the prosecution pressed into service the earl!er incident relating
to the offences of abduction, murder, mischief by firing led
against these persons. The fact remained that ultimately both H·
678 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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
8 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
C 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
D 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.
E 53. As we have noted above, old age has emerged as a
mitigating factor since Bachhan Singh (supra). This court in
Swamy Shraddananiia v. State of Kamataka (2008) 13 SCC
767 substituted death sentence to life imprisonment since the
convicts were 64 years old and had been in custody for 16
F 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.
G 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
H to crime. The 48th report of the Law Commission also reflected
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 679
this concern. Therefore, we believe, socio-economic factors A
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 B
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 C
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 b~
their deeds, we find no reason why they cannot be reformed
over a period of time. D
56. This Court in Dalbir Singh and others v. State of
Punjab (1979) 3 SCC 745 had considered the question of the
length of incarceration when death penalty is reduced to life
imprisonment. It was held that: E
"14. The sentences of death in the present appeal are
liable to be reduced to life imprisonment. We may add a
footnote to the ruling in Rajendra Prasad case. Taking the
cue from the English legislation on abolition.we may
suggest that life imprisonment which strictly means F
imprisonment for the whole of the men's life but in practice
amounts to incarceration for a period between 10 and 14
years may, at the option of the convicting court, be subject
to the condition that the sentence of imprisonment shall last
as long as life lasts, where there are exceptional G
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." H
680 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 57. This Court in Subash Chander v. Krishan Lal (2001)
4 sec 458 considered the length of life imprisonment, while
going over the precedents germane to the question and
observed as follows:
"20. Section 57 of the Indian Penal Code provides that in
B
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
c 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, the
D 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.
E King Emperor 1944 (1) 72 LR lndAp this Court held:
"If so, the next question is whether there is any provision
of law whereunder a sentence for life imprisonment,
without any formal remission by appropriate Government,
F 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 thP case cited supra that, having regard to s. 57 of the
Indian ."enal Code, 20 year's imprisonment was equivalent
G
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:
I H "Assuming that the sentence is to be regarded as one of
MULLA v. STATE OF U.P. [P. SATHASIVAM, J.] 681
twenty years, and subject to remission for good conduct, A
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 8
more than twenty years, or that the convict is necessarily
entitled to remission."
Section 57 of the Indian_ Penal Code has no real bearing
on the question raised before us. For calculating fractions C
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" D
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." E
21. In State of Madhya Pradesh v. Ratan Singh & Ors.
1976 Cri L J 1192 this Court held that a sentence of
imprisonment for life does not automatically expire at the
end of the 20 years, including the remissions. "The F
sentence for imprisonment for life means a sentence for
the entire life of the prisoner unless the appropriate
Government choses to exercise its discretion to remit
either the whole or a part of the sentence under Section
401 of the Code of Criminal Procedure", observed the G
court. To the same effect are the judgments in Sohan Lal
v. Asha Ram & Others AIR 1981 SC 174a , Hagirath v.
Delhi Administration 1985 Cri L J 1179 and the latest
judgment in Zahid Hussein & Ors. v. State of West Bengal
& Anr. 2001 Cri L J 1692 ."
H
682 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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;
"" B Jayawant Dattatray Suryarao v. State of Maharashtra, (2001)
10 sec 109).
58. This question came up again recently before this Court
in Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh, 2009
C (14) SCALE 533, where this Court considered the variance in
precedents and ruled as follows:
"15. What ultimately emerges from all the aforesaid
decisions is that life imprisonment is not to be interpreted
as being imprisonment for the whole of a convict's natural
D life within the scope of Section 45 of the aforesaid Code.
The decision in Swamy Shraddananda's case (supra) was
taken in the special facts of that case where on account
of a very brutal murder, the appellant had been sentenced
to death by the Trial Court and the reference had been
E 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,'
F 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
G
imprisonment, which was a lesser punishment.
16. On a conjoint reading of Sections 45 and 4 7 of the
Indian Penal Code and Sections 432, 433 and 433A
Cr.P.C., it is now well established that a convict awarded
H life sentence has to undergo imprisonment for at least 14
MULLA v. STAIE OF U.P. [P. SATHASIVAM, J.] 683
years. While Sections 432 and 433 empowers the A
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 B
1978, which came into effect on and from 18th December,
1978. By virtue of the non-obstante clause used in Section
433A, the minimum term of imprisonment in respect of an
offence where death is one of the punishments provided
by laws or where a death sentence has been commuted c
to life sentence, has been prescribed as 14 years. In the
various decisions rendered after the decision in Godse's
case (supra), "imprisonment for life" has been repeatedly
held to mean imprisonment for the natural life term of a
convict, though the actual period of imprisonment may
0
stand reduced on account of remissions earned. But in no
case, with the possible exception of the powers vested in
the President under Article 72 of the Constitution and the
power vested in the Governor under Article 161 of the
Constitution, even with remissions earned, can a sentence c:
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: F
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 G
death is one of the punishment provided by laws or where
a sentence of death imposed on a person has been
commuted under Section 433 into one of imprisonment for
life, such person shall not be released from prison unless
he had served at least fourteen years of imprisonment. H
684 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 17. In the present case, the facts are such that the petitioner
is fortunate to have escaped the death penalty. We do not
think that this is a fit case where the petitioner should be
released on completion of 14 years imprisonment. The
petitioner's case for premature release may be taken up
B by the ·concerned authorities after he completes 20 years
imprisonment, including remissions earned."
59. We are in complete agreement with the above dictum
of this Court. It is open to the sentencing Court to prescribe the
length of incarceration. This is especially true in cases where
C 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
D 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
E 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.
F
K.K.T. Appeal disposed of.
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