& Another Vs. State Of U.P.  INSC 90 (8 February 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 396
OF 2008 Mulla & Anr. .... Appellant(s) Versus State of U.P. ....
This appeal is filed on behalf of the appellants through the
Jailor, District Jail, Sitapur, U.P. against the impugned judgment dated
03.03.2006 passed by the High Court of Judicature at Allahabad, Lucknow Bench,
Lucknow, in Criminal Reference No. 2 of 2005 and Criminal Appeal No. 713 of
2005 whereby the High Court allowed Criminal Reference No.2 of 2005 filed by
the State confirming the death sentence awarded to the appellants herein and
dismissed Criminal Appeal No. 713 of 2005 filed by the appellants herein.
The prosecution case is as under:
the fateful night of 21.12.1995 when Shiv Ratan, Nanhakey, Ram Kishore and
Sushil were irrigating their fields in the northern side of the village from
the tubewell of Sundari, widow of Jai Narain, at about 8.30 p.m., eight
miscreants armed with guns reached the spot. A boy and two girls were also with
them. All the miscreants caught hold of the four persons who were irrigating
their fields and enquired about their properties and made a demand of Rs.10,000/-
each and threatened that otherwise they would be killed. At the very moment,
Harnam, Ganga Dai, Chhotakey s/o Gaya Ram and Hari Kumar Tripathi who were
returning home after irrigating their fields were also stopped by the
miscreants demanding Rs.10,000/- each from them. When all of them expressed
their inability to pay the money, the miscreants assaulted Sushil, Shiv Ratan
and Harnam by butt of the gun and took away Hari Kumar Tripathi, Nanhakey, Ram
Kishore @ Chottakey Naney, Chhotakkey and Ganga Dai towards western side of
tubewell leaving Sushil, Shiv Ratan and Harnam directing them to bring money
otherwise they would be killed. These three persons returned to the village and
informed the villagers about the incident and by the time the villagers reached
near the field, the miscreants had taken away all the five abducted persons
along with them.
the night and being afraid of the miscreants, the villagers could not lodge a
complaint immediately. On the very next day i.e. 22.12.1995 at 6.10 a.m., a
complaint was lodged at P.S. Sandana, Dist. Sitapur and a case was registered
and the investigation was commenced for searching the abducted persons. At
about 25 mts. away from the tubewell in the sugar cane field of Laltu, the dead
body of Hari Kumar Tripathi was recovered and the dead bodies of Nanhakey, Ram
Kishore @ Chottakey Naney, Chhotakkey and Ganga Dai were found in the Arhar
field at a distance of 1 km. from the tubewell. After recovery of the dead
bodies, they were sent for post-mortem. After recording the statements, S.H.O.
Ram Shankar Singh arrested Mulla and Guddu on 01.01.1996 and Tula on 08.01.1996
and recovered a countrymade gun, two cartridges and one knife.
completion of investigation, charge sheet was filed against Mulla, Guddu, Tula
and Asha Ram. The accused persons were produced in the Court of Judicial
Magistrate, First Class, Sitapur. Before committal of the case, the Judicial
Magistrate vide his order dated 19.11.1996, separating the case of accused Asha
Ram committed the case to the Additional Sessions Judge, Sitapur for trial vide
his order dated 03.03.1997. During the trial, since accused Tula was absent,
his case was separated. By order dated 30.4.2005, the trial Court convicted
Mulla and Guddu under Section 365 IPC and sentenced them to undergo R.I. for 7
years and a fine of Rs.1000/- each and in default of payment of fine further
simple imprisonment for one year. The appellants herein 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
Challenging the said judgment, Guddu filed Crl. A.No. 698 of 2005 and Mulla
filed Crl. A. No. 701 of 2005 before the High Court from Jail and both of them
jointly filed Crl.A. No.713 of 2005 through counsel. The High Court, vide order
dated 03.03.2006, confirming the death sentence imposed on the appellants
dismissed the appeals filed by both the appellants. Aggrieved by the said
judgment, both the accused persons filed this appeal through the Jailor, Distt.
Sitapur, U.P. On 14.7.2006, this Court issued notice and on 21.7.2006, stayed
the execution of death sentence pending further orders.
We heard Ms. Ranjana Narayan, learned amicus curiae for the
appellants and Mr. Pramod Swaroop, learned senior counsel for the
After taking us through the relevant materials relied on by the
prosecution, Ms Ranjana Narayan, learned amicus curiae raised the following
eye-witness to the alleged incident;
Accused persons are not named in the FIR. In other words, FIR was lodged
against unknown persons;
in conducting the Test Identification Parade (TIP);
Prosecution failed to establish motive for the incident;
e) In any
event, even if the Court accepts the prosecution case, imposition of death
sentence is not warranted.
Pramod Swaroop, learned senior counsel for the State of U.P. while disputing
all the above contentions pointed out that a) though the FIR was registered
against unknown persons, by proper investigation and examining the persons who
witnessed the occurrence, the prosecution proved its charge b) PWs 1, 2 and 3
were present at the place of occurrence and in the absence of any contradiction
in their statements, the Courts below have rightly relied on and accepted their
version c) PWs 2 and 3 identified Mulla and Guddu in the test identification
parade which was conducted in accordance with the procedure d) the evidence of
PW 4 is more probable and acceptable in view of the fact that she being a
victim at the hands of the miscreants including the appellants, the Courts
below have rightly relied on her statement e) all the miscreants were armed
with illegal guns in their hands and came to the spot along with a boy and two
girls demanding ransom, f) inasmuch as the appellants- accused killed five
persons including a woman, all between the age of 25-50 mercilessly, the award
of capital punishment is justified and no interference called for by this
have carefully perused the entire records including depositions and documents
and considered the rival contentions.
prosecution mainly relied on the evidence of PW 1 - Rajesh Kumar Tripathi, PW 2
- Sushil, PW 3 -Harnam, independent eye witness - PW 4 - Kiran, PW 5 - Dr. A.K.Verma-Post
Mortem Doctor, PW 7 - Dr. Sudarshan, who treated the injured witness, PW 8 -
S.I. - Ram Kripal Bharati, PW 9 - Sub-inspector of Police, PW 11 Vijay Kumar
Verma, an officer who accompanied and assisted the Magistrate in conducting the
test identification parade and one Rajni Kant Mishra, the then Reader, as a
court witness (CW 1). No one was examined on the side of the accused as defence
8) It is
true that either in the complaint or in the first information report, no one
was specifically named for the commission of offence. In other words, the
accused persons are not named in the FIR and it merely mentions `unknown
persons'. Though a suggestion was made to prosecution witnesses that the accused
persons are from the nearby villages, the same was stoutly denied and in such
circumstance, miscreants being outsiders, it would not be possible to name
those persons in the complaint itself without further verification. On the
other hand, the prosecution through their witnesses particularly, PWs 1 to 4,
established that it was the appellants, who along with few more persons
committed the offence by killing five persons mercilessly for non-payment of
ransom amount which they demanded for the release of five persons caught hold
by them. In view of the same, though none was named in the FIR, subsequently,
the name of the appellants came into light during investigation.
Kumar Tripathi who made the complaint-Ex.Ka-1 was examined as PW 1. He was examined
on 09.04.2001 and narrated that on the night of the incident, namely, on
21.12.1995 nearly at about 8.30 p.m. in the north of his land, Shiv Ratan, Ram
Kishore @ Nanhakkey Naney, Nanhakkey and Sushil were watering their respective
fields from the tubewell of Sundari, widow of Jai Narain. At that very moment,
eight miscreants, armed with guns, reached there. They also had two girls and a
boy with them. One by one, they caught hold of all the four persons and
enquired them about their lands and threatened to kill them if they failed to
bring Rs.10,000/- each. He further narrated that in the meantime, Harnam, Ganga
Dai, Chhotakkey and Hari Kumar Tripathi, all from his village who were
returning their home after watering their fields were also stopped by the
miscreants. He also reached the spot. The miscreants were flashing their
torches. The accused made all those persons to sit and asked to bring
Rs.10,000/- each. When they replied that they are poor and wherefrom they would
bring money to give them, all the accused persons assaulted Sushil, Shiv Ratan
and Harnam by butt of the gun. The remaining five persons were taken away by
accused persons towards west. All of them were told by the accused to come back
immediately with money failing which these five persons would be killed.
Sushil, Shiv Ratan and Harnam went to their village and informed the villagers
about it. With the help of the villagers, they started searching the abducted persons
who were taken away by the accused but could not found anyone. According to
him, in the night itself they tried to inform at Sandana Police Station by
telephone but they could not get the connection. Next day, early in the
morning, he along with Sushil, Shiv Ratan and Harnam went to Police Station by
bicycles. He prepared a complaint in his own handwriting under his signature.
The said complaint has been marked as Ex. Ka-
Thereafter, after sending the injured persons to hospital at Sandana for
treatment, he came back and with the help of villagers started searching for
the kidnapped persons. In the western side of the tubewell dead body of Hari
Kumar Tripathi was found lying in the sugarcane field of Laltu. At a distance
of 1 km. in the west of Village Fatehpur, near a pond, they found the dead
bodies of remaining four persons. These bodies were identified as Ram Kishore @
Chhotakkey Naney, Ganga Dai, Chhotakkey S/o Gaya Ram, Nanhakey. He along with
the others noticed that the neck of all the four persons had been cut. PW 1
further deposed that after recovering the dead bodies, his statement was
recorded and Daroga Ji (PW 8) I.O. prepared a sketch map of the place of occurrence.
He asserted that he had seen the faces of all the accused persons in the light
of the torch. However, he admitted that he could not go and attend the
identification parade which was conducted in the District Jail, Sitapur, due to
his illness. In cross-examination also, he asserted that he had seen the guns
in the hands of the accused and Sushil Kumar, Shiv Ratan and Harnam were
assaulted by the accused persons by the butt of the gun.
informed that he had witnessed the incident from the distance of 10 mts. He
also informed the Court that Hari Kumar Tripathi, who came from the western
side had lantern and torch and when he focused his torch on criminals they
assaulted him and snatched away his torch and extinguished the lantern.
other important witness heavily relied on by the prosecution is PW 2 Sushil
Kumar. He was an injured eye witness. He narrated before the Court that nearly
six years earlier i.e. on 21.12.1995, on the night of the incident, nearly
about 8.30 p.m. he along with his brother Ram Kishore @ Chhotkaney, Shiv Ratan
and Nanhakey were watering their fields from the tubewell. The said tubewell
was owned by Sundari Devi, widow of Jai Narain.
moment, eight miscreants reached there. They were armed with guns and torches.
Two girls, one aged 10-13 years and the other 18-20 years and a young boy was
also with them. All the miscreants came near the tubewell and caught hold four
of them and asked about their properties and wealth. They threatened that
unless they bring Rs.10,000/- each, they would be killed. In the meantime,
Harnam, his mother Ganga Dai, Chhotakey and Hari Kumar Tripathi came there from
also caught hold of by the miscreants and enquired about their properties. They
started beating Harnam, Shiv Ratan and him with the butt of the gun and
directed him along with the others to go to village and bring money.
Thereafter, Hari Kumar Tripathi, Ram Kishore @ Chhotakey and his mother Ganga
Dai and Nanhakey were taken away by them towards west. He also asserted that
the miscreants were flashing their torches regularly. They had been recognized
by PW 2 and others in the light of their torches. They were unknown to them. PW
2 along with others went to their village and informed the villagers about the
demand of the miscreants. Thereafter, they started searching the accused and
the persons who were taken away by the accused. PW 1 Rajesh had submitted a
written complaint to the police. Since PW-2 had sustained injuries at the hands
of the miscreants, he along with others went to Sandana hospital for treatment.
Due to absence of doctor, treatment could not have been availed and he was
given treatment only in Government Hospital on 27.12.1995.
further deposed that on return, he saw the dead body of Hari Kumar Tripathi in
the sugar cane field of Laltu nearly 200-250 yards away from the tubewell. The
other four dead bodies were lying in the boundary of Arhar fields about 1 km.
away near the pond. These dead bodies were of Ram Kishore @ Chottakey Naney,
Nanhakey, Chhotakey and Ganga Dai. He also deposed about his visit to District
Jail, Sitapur for test identification parade of miscreants.
informed the Court that he had identified three miscreants, namely, Guddu,
Mulla and Tulla, who were present in the Court. These persons had also been
identified in the jail. He further explained that these accused had been seen
for the first time by him at the time of incident and thereafter, he saw them
in the test identification parade. He also reiterated that before the incident,
these miscreants were neither known nor seen by him. In his cross-examination,
he reiterated that in the test identification parade which was conducted in
District Jail, Sitapur, he identified the three accused. He explained that all
three miscreants were not in one line and there were no specific marks of
identification on the faces of accused persons. The face of all the accused
were not similar. He also reiterated that when miscreants were beating him they
were flashing torches. He also denied the claim that the accused Mulla is a
labourer and residing in Mohmadpur half a kilo metre away from his village.
11) It is
seen that PW 2 corroborated the evidence of PW 1. It is further seen from his
evidence that he also sustained injuries by one of the miscreants and this is
also clear from his assertion and statement as well as the evidence of PW 7 -
Dr. Sudarshan. In his evidence, PW 7 has stated that he examined injured Sushil
Kumar - PW 2 and noticed the following injuries:
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".
to him, this injury was of simple nature, one week old and it was inflicted by
any blunt object. His report was marked as Ex K-15. Dr. Sudarshan - PW 7 has
also asserted that this injury could have been caused by the butt of a gun. It
is also relevant to point out that apart from the fact that he had been injured
at the hands of one of the accused persons which is evident from the statement
of PW 7 who treated him. PW 2 also participated in the test identification
parade which was held at District Jail, Sitapur. He also identified three
miscreants, namely, Guddu, Mulla and Tulla. He further asserted that except on
the date of occurrence of the incident, he had not seen them earlier and only
on the date of test identification parade, he identified these persons at the
jail. There is no reason to disbelieve his version that he did not see these
persons on any other occasion except on the date of occurrence and at the time
of identification parade. He being an injured eye witness as well as identified
the appellants in the identification parade, the trial Judge as well as the
High Court rightly accepted his version.
other reliable witness examined on the side of the prosecution is PW 3-Harnam.
He asserted that on the date and time of the incident, he witnessed the
occurrence along with PW 2. He also reiterated that those miscreants were
carrying country-made guns and torches which they were flashing. He also
sustained injuries. He was one of the four persons detained by the miscreants,
enquired about their status, land details and demanded Rs.10,000/- each and
when he informed the miscreants that he and others are poor people and
difficult to comply with their demand, they started beating him. He also
explained to the court that when the miscreants detained him and others for
about half an hour, he noticed the faces of the miscreants in the light of
their torches. Like PW 2, he also explained that in view of their inability to
pay the ransom as demanded by the miscreants, initially they killed one Hari
Kumar and thereafter killed other four-Nanhakey, Ram Kishore @ Chottakey Naney,
Chhotakey and Ganga Dai, by throwing their dead bodies 1 km. away from the spot
near a pond.
with PW 2 and others, PW 3 also reached Sandana Police Station at about 6 a.m.
PW 1 lodged a written complaint at the Police Station. He further explained
that apart from himself, the other injured persons, namely, PW 2 and others
were sent to Government Hospital, Sandana for medical examination.
to him, due to non-availability of doctor, they returned back to their village
and searched the kidnapped persons and found one dead body near a tubewell and
other four dead bodies one km. away from the tubewell near a pond.
the injury of PW 3, PW 7 - Dr. Sudarshan stated that he conducted the medical
examination of Harnam, PW 3, who was taken along with Sushil Kumar and Shiv
Ratan. He prepared a medical report in his own hand writing with his signature
which has been marked as Ex. K-16.
PW 2, PW 3 also asserted before the Court that none of the accused was known to
him earlier. He also explained that he had gone to jail for identification of
the accused. Before the Court, PW 3 identified, by putting his hand on the
accused Guddu, Tulla and Mulla who were standing in the dock and said that
these miscreants were involved in the incident and for the first time he had
seen these persons at the time of occurrence and second time in jail at the
time of test identification parade. Though he was cross-examined at length, his
evidence about the incident, the involvement of the accused, threat to kill the
persons in custody, recovery of dead bodies, identifying the accused in the
test identification parade, could not be shattered in any way. He being an
injured eye witness, corroborated the evidence of PW 2 and identified the
accused persons in the properly constituted test identification parade, his
evidence was fully relied on by the prosecution and rightly accepted by the
trial Court as well as by the High Court.
next witness relied on by the prosecution is PW 4 - Smt. Kiran. Learned amicus
curiae by pointing out the conduct of PW 4 in respect of her statement in the
earlier case in State vs. Kailash Chandra & Ors. submitted that the
reliance on her evidence before the Trial court and accepted by the High Court
cannot be sustained. She further pointed out that inasmuch as in the case of
State vs. Kailash Chandra & Ors. though she claimed to be a victim, she
deposed before the Court that the present accused Mulla and Guddu have nothing
to do with the earlier incident. In such circumstances, according to the amicus
curiae she is not competent to narrate the present incident and implicate the
very same accused. On going through her entire evidence, we are unable to
accept the stand taken by amicus for the following reasons: About the first
incident, namely, setting fire to her house, she informed the court that six
years earlier when she was at her matrimonial home at Surjapur, three criminals
came there and set the roof of her house on fire. At the time, when she was in
her house and male members had gone to extinguish the fire, the criminals
forcibly took her away with them. This incident took place at 1.00 a.m. in the
midnight. They had taken her to the nearby forest. She further explained, that
on the third day on which they had taken her away, after the sunset when it had
become dark, eight miscreants armed with guns and torches reached near the
tubewell of the village. She and other girl and a boy who were brought from
somewhere were with them. There the criminals had caught eight persons and made
them to sit at tubewell and they were asking them to bring Rs.10,000/- each
then only they would be released. The accused persons had assaulted two to
three persons by the butt of the gun and they were having torch lights. After
keeping them for one hour, they released three persons and told them to bring
Rs.10,000/- each and threatened that only then the remaining five persons would
be released. After waiting for sometime since nobody came from the village the
miscreants took away the said four men and one woman towards north. Nearly
after crossing two or three agricultural fields they killed one person by
slitting his throat by knife. Thereafter, about 1 km. in the southern side of
the village near a pond they took the remaining four persons, that is, three
men and one woman and killed them by cutting their throat and left the dead
bodies near a pond. She informed that after leaving the dead bodies, they all
however, managed to escape from the custody of the said criminals after 10-12
days. Among the eight persons who committed the crime at the tube-well one was
Asha Ram, Ram Sebak, Guddu, Mulla and Tulla whose names she came to know since
she was with them for 10-12 days. She asserted that Mulla had killed three
persons and Guddu had killed two persons. She pointed out that she can
recognize the accused Guddu, Mulla and Tulla by face and by name and she also
identified them when Mulla and Guddu were present in the Court.
17) It is
relevant to point out that just prior to the incident the very same accused, that
is, Mulla and Guddu set fire to her house and took her to the forest. She was
in the custody of miscreants for 10-12 days. It is true that at one stage she
complained that they attempted to rape her. However, in the said case, before
the Court she failed to mention their name and implicate them in the said
crime. In the present case, when she was examined, she explained that due to
threat and fear she made a statement in the earlier case disowning these
her explanation, particularly, because of the threat and fear she was forced to
make such statement and in view of the categorical statement about the present
occurrence implicating the miscreants including the present appellants Mulla
and Guddu, explaining all the details about keeping three youngsters in their
hands and five villagers demanding ransom for their release, identifying the
five dead bodies at different places, there is no reason to disbelieve her
rightly pointed out, the trial Judge has accepted her conduct in making a
statement about the earlier case and relied on her present statement with
reference to abduction and killing of five persons. The statement of PW-4 also
corroborates with the evidence of injured eye witnesses PWs 2 and 3. Further
she was in the clutches of these miscreants for a period of 10-12 days and
because of her familiarity of their faces, in categorical terms, she informed
the Court that it was Mulla, who killed three persons and Guddu, who killed two
persons by slitting their neck. Her explanation about her own case and detailed
narration in respect of the present case are acceptable and rightly relied on
by the Trial Court and accepted by the High Court.
from the evidence of PWs 1-4 about killing of five persons, medical evidence
also supports the case of prosecution. Dr. A.K.Verma, Medical Officer, District
Hospital, Sitapur who conducted autopsy on the five dead bodies was examined as
PW 5. He explained before the Court that on 22.12.1995 at about 8.00 p.m., he
conducted post mortem on the dead body of Hari Kumar Tripathi, Nanhakey, Ram
Kishore @ Chottakey Naney, Chhotakey and Ganga Dai, who were all residents of
village Sandana, Police Station Sandana, District Sitapur.
to him, the dead bodies had been brought by the constables and identified by
them. After post mortem, he prepared a report (Ex. K2-K6). The details are as
follows:- "The post mortem on the dead body of Hari Kumar Tripathi was
conducted by Dr. A.K. Verma on 22.12.1995 at 8.30 p.m. and he noted the
following ante mortem injuries on the person of the deceased:
Incised wound 14 x 2 cm. x tissue deep on front of neck (more towards right
side) 4.5 cm. below chin trachea, all blood vessels of both side nerves and
Incised wound 3 x 0.5 cm. side just above eye brow.
Incised wound 3 x 0.5 cm. skin deep on the nose.
Incised wound 2 x 0.5 cm. x skin cartilage deep upper part of the Pinna of
opinion of the doctor cause of death was due to shock and haemorrhage as a
result of ante mortem injuries.
mortem on the dead body of Chhotkanney was conducted by Dr. A.K.Verma on
22.12.1995 at 8.00 p.m. and he noted the following ante mortem injuries on the
person of the deceased:
wound 9 cm. x 1.5 cm. x tissue and bone deep. 1 cm. neck 6.5 cm. below 1 cm.
chin. All self tissues uncludy muscle, blood vessels, trachea and oseophagus
opinion of the doctor cause of death was due to shock and haemorrhage as a
result of ante mortem injuries.
mortem on the dead body of Chhotakkey was conducted by Dr. A.K.Verma on
22.12.1995 at 9.30 p.m. and he noted the following ante mortem injuries on the
person of the deceased:
Incised wound 8.5 cm. x 2 cm. x bone deep on part of neck just below the adamis
apple (Thyroid cartied) trachea, nerves, blood vessels of both sides divided
along with other tissues oseophagus also cut.
Incised wound 2 cm. x 0.5 cm. x bone deep dorsum of left ring finger at its
Incised wound 1.5 cm. x. 0.5 cm. x muscle deep over finger web between ring
finger and middle finger of right hand.
opinion of the doctor cause of death was due to shock and haemorrhage as a
result of ante mortem injuries.
mortem on the dead body of Nanhakey was conducted by Dr. A.K. Verma on
22.12.1995 at 9.30 p.m. and he had noted the following ante mortem injury on
the person of the deceased:
wound 9 cm. x 2 cm. x bone deep just above adamis apple (Thyroid cartied)
trachea, nerves, blood vessels of both sides divided along with other tissues
oseophagus also cut.
opinion of the doctor cause of death was due to shock and haemorrhage as a
result of ante mortem injuries.
mortem on the dead body of Gangadai was conducted by Dr. A.K. Verma on
22.12.1995 at 10 p.m.
had noted the following ante mortem injury on the person of the deceased:
wound 9.5 cm. x 2 cm. x bone and trachea deep over fold neck just above the
thyroid cartilage, trachea, blood vessels of both sides nerves and much and oseophagus
opinion of the doctor cause of death was due to shock and haemorrhage as a
result of ante mortem injuries."
the reports, he mentioned cut in the nerves and muscles of neck and blood
vessels apart from other injuries. He also opined that death was caused due to
shock and hemorrhage and approximately one day before the post mortem. Though
the police could not produce the knife used for killing the five persons, one
of the accused had admitted about possession of knife apart from unlicensed gun
at the time of the occurrence. There is no reason to disbelieve the assertion
of PWs 1 to 4 as well as the evidence of PW 7 who treated the injured witnesses
PWs 2 and 3 and the medical opinion of PW 5 about the cause of death of five persons.
let us consider the arguments of the learned amicus curiae on the delay in
conducting the test identification parade. The evidence of test identification
is admissible under Section 9 of the Indian Evidence Act.
Identification parade belongs to the stage of investigation by the police. The
question whether a witness has or has not identified the accused during the
investigation is not one which is in itself relevant at the trial. The actual
evidence regarding identification is that which is given by witnesses in Court.
There is no provision in the Cr. P.C. entitling the accused to demand that an
identification parade should be held at or before the inquiry of the trial. The
fact that a particular witness has been able to identify the accused at an
identification parade is only a circumstance corroborative of the
identification in Court.
Failure to hold test identification parade does not make the evidence of
identification in court inadmissible, rather the same is very much admissible
in law. Where identification of an accused by a witness is made for the first
time in Court, it should not form the basis of conviction. As was observed by
this Court in Matru v.
U.P., (1971) 2 SCC 75, identification tests do not constitute substantive
evidence. They are primarily meant for the purpose of helping the investigating
agency with an assurance that their progress with the investigation into the
offence is proceeding on the right lines. The identification can only be used
as corroborative of the statement in Court. (Vide Santokh Singh v. Izhar
Hussain, (1973) 2 SCC 406).
necessity for holding an identification parade can arise only when the accused
persons are not previously known to the witnesses. The whole idea of a test
identification parade is that witnesses who claim to have seen the culprits at
the time of occurrence are to identify them from the midst of other persons
without any aid or any other source. The test is done to check upon their
veracity. In other words, the main object of holding an identification parade,
during the investigation stage, is to test the memory of the witnesses based
upon first impression and also to enable the prosecution to decide whether all
or any of them could be cited as eyewitnesses of the crime. The identification
proceedings are in the nature of tests and significantly, therefore, there is
no provision for it in the Code and the Indian Evidence Act, 1872. It is
desirable that a test identification parade should be conducted as soon as
possible after the arrest of the accused. This becomes necessary to eliminate
the possibility of the accused being shown to the witnesses prior to the test
identification parade. This is a very common plea of the accused and,
therefore, the prosecution has to be cautious to ensure that there is no scope
for making such allegation. If, however, circumstances are beyond control and
there is some delay, it cannot be said to be fatal to the prosecution.
Subhash v. State of U.P. (1987) 3 SCC 331, the parade was held about three
weeks after the arrest of the accused. Therefore, there was some room for doubt
if the delay was in order to enable the identifying witnesses to see him in
jail premises or police lock-up and thus make a note of his features. Moreover,
four months had elapsed between the date of occurrence and the date of holding
of the test identification parade. The descriptive particulars of the appellant
were not given when the report was lodged, but while deposing before the
Sessions Judge, the witnesses said that the accused was a tall person with
shallow complexion. The Court noted that if on account of these features the
witnesses were able to identify the appellant Shiv Shankar at the
identification parade, they would have certainly mentioned about them at the
earliest point of time when his face was fresh in their memory. It is important
to note that since the conviction of the accused was based only on the
identification at the test identification parade, the Court gave him the benefit
of doubt while upholding the conviction of the co-accused.
also a case where the conviction of the appellant was based solely on the
evidence of identification. There being a delay in holding the test
identification parade and in the absence of corroborative evidence, this Court
found it unsafe to uphold his conviction.
State of Andhra Pradesh v. Dr. M.V. Ramana Reddy (1991) 4 SCC 536, the Court
found a delay in holding the test parade for which there was no valid
explanation. It held that in the absence of a valid explanation for the delay,
the approach of the High Court could be said to be manifestly wrong calling for
the case of Brij Mohan & Ors. v. State of Rajasthan, (1994) 1 SCC 413, the
test identification parade was held after three months. The argument was that
it was not possible for the witnesses to remember, after a lapse of such time,
the facial expressions of the accused. It was held that generally with lapse of
time memory of witnesses would get dimmer and therefore the earlier the test
identification parade is held it inspires more faith. It was held that no time
limit could be fixed for holding a test identification parade. It was held that
sometimes the crime itself is such that it would create a deep impression on
the minds of the witnesses who had an occasion to see the culprits. It was held
that this impression would include the facial impression of the culprits. It
was held that such a deep impression would not be erased within a period of three
Rajesh Govind Jagesha v. State of Maharashtra (1999 ) 8 SCC 428, the accused
was apprehended on 20th January, 1993, while the identification parade was held
on 13th February, 1993. It was also not disputed that at the time of identification
parade the appellant was not having a beard and long hair as mentioned at the
time of lodging of the first information report. It was also not disputed that
no person with a beard and long hair was included in the parade. The witnesses
were alleged to have identified the accused at the first sight despite the fact
that he had removed the long hair and beard. This Court held that the
Magistrate should have associated 1-2 persons having resemblance with the
persons described in the FIR and why it was not done was a mystery shrouded
with doubts and not cleared by the prosecution. In these circumstances, the
Court observed that the possibility of the witnesses having seen the accused
between the date of arrest and the test identification parade cannot be ruled
out. This case also rests on its own facts, and mere delay in holding the test
identification parade was not the sole reason for rejecting the identification.
the case of Daya Singh v. State of Haryana, (2001) 3 SCC 468, the test
identification parade was held after a period of almost eight years inasmuch as
the accused could not be arrested for a period of 7-1/2 years and after the
arrest the test identification parade was held after a period of six months. It
was pointed out that the purpose of test identification parade is to have the
corroboration to the evidence of the eye witnesses in the form of earlier
identification. It was held that the substantive evidence is the evidence given
by the witness in the Court and if that evidence is found to be reliable then
the absence of corroboration by the test identification is not material. It was
further held that the fact that the injured witnesses had lost their son and
daughter-in-law showed that there were reasons for an enduring impression of
the identity on the mind and memory of the witnesses.
Court in Lal Singh v. State of U.P., (2003) 12 SCC 554, while discussing all
the cases germane to the question of identification parades and the effect of
delay in conducting them held that:
will thus be seen that the evidence of identification has to be considered in
the peculiar facts and circumstances of each case. Though it is desirable to
hold the test identification parade at the earliest possible opportunity, no
hard and fast rule can be laid down in this regard. If the delay is inordinate
and there is evidence probablising the possibility of the accused having been
shown to the witnesses, the Court may not act on the basis of such evidence.
Moreover, cases where the conviction is based not solely on the basis of
identification in court, but on the basis of other corroborative evidence, such
as recovery of looted articles, stand on a different footing and the court has
to consider the evidence in its entirety."
the case of Anil Kumar v. State of Uttar Pradesh, (2003) 3 SCC 569, this Court
observed as under:
is to be seen that apart from stating that delay throws a doubt on the
genuineness of the identification parade and observing that after lapse of such
a long time it would be difficult for the witnesses to remember the facial
expressions, no other reasoning is given why such a small delay would be fatal
..A mere lapse of some days is not enough to erase the facial expressions of
assailants from the memory of father and mother who have seen them killing
another case of Pramod Mandal v. State of Bihar, 2004 (13) SCC 150, placing
reliance on the case of Anil Kumar (supra), this Court observed that it is
neither possible nor prudent to lay down any invariable rule as to the period
within which a Test Identification Parade must be held, or the number of
witnesses who must correctly identify the accused, to sustain his conviction.
These matters must be left to the Courts of fact to decide in the facts and
circumstances of each case. If a rule is laid down prescribing a period within
which the Test Identification Parade must be held, it would only benefit the
professional criminals in whose cases the arrests are delayed as the police
have no clear clue about their identity, they being persons unknown to the
victims. They therefore, have only to avoid their arrest for the prescribed
period to avoid conviction. Similarly, there may be offences which by their
very nature may be witnessed by a single witness, such as rape. The offender
may be unknown to the victim and the case depends solely on the identification
by the victim, who is otherwise found to be truthful and reliable. What
justification can be pleaded to contend that such cases must necessarily result
in acquittal because of there being only one identifying witness? Prudence
therefore demands that these matters must be left to the wisdom of the courts
of fact which must consider all aspects of the matter in the light of the evidence
on record before pronouncing upon the acceptability or rejection of such
identification parades are not primarily meant for the Court. They are meant
for investigation purposes. The object of conducting a test identification
parade is two- fold. First is to enable the witnesses to satisfy themselves
that the accused whom they suspect is really the one who was seen by them in
connection with the commission of the crime. Second is to satisfy the
investigating authorities that the suspect is the real person whom the
witnesses had seen in connection with the said occurrence.
Therefore, the following principles regarding identification parade emerge: (1)
an identification parade ideally must be conducted as soon as possible to avoid
any mistake on the part of witnesses; (2) this condition can be revoked if
proper explanation justifying the delay is provided; and, (3) the authorities
must make sure that the delay does not result in exposure of the accused which
may lead to mistakes on the part of the witnesses.
the light of the above principles, let us consider whether the test
identification parade conducted on 24.02.1996 at District Jail, Sitapur is
valid. It is contended by the learned amicus Curiae that the appellants were
arrested on 01.01.1996 and they were placed for identification only on
24.02.1996. It is further pointed out that the accused were put up for
identification after 63 days of the occurrence and 55 days after their arrest.
It is also pointed out that in the meantime, these persons were taken to court
and present before the test identification parade, innumerable persons noticed
them and in the absence of evidence that they were kept baparda at a time when
they were taken to court, the report has no value at all. It is true that
though the appellants were arrested on 01.01.1996 they were put up for
identification on 24.02.1996. However, merely because there is delay, the
outcome of the identification parade cannot be thrown out if the same was
properly done after following the procedure. In fact, when PWs 8 and 9 - I.O.and
S.I were examined, nothing was suggested to them regarding delay in conducting
the identification parade.
34) PW 6,
Suresh Kumar, while examining before the court explained in categorical terms
that all the accused were kept in baparda when they were taken to court for
remand. He also claimed that when persons connected with the incident came to
the Police Station, they were kept in baparda. In view of the assertion of the
official witness and in the absence of allegation against him, it is to be
accepted that the accused were not seen by these witnesses more particularly
PWs 2 and 3, who identified them in the identification parade.
Admittedly, the Magistrate before whom the identification parade was conducted
at the District Jail, Sitapur is no more and was not available for examination.
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 identification parade was conducted. PW 11 has stated that
witnesses PW 2 and PW 3 had correctly identified these accused persons.
further seen that the accused persons' thumb impressions and signatures were
obtained before starting of identification parade as well as after completing
the process. It is further seen that in the report, the Magistrate had put his
signature. PW 11 who is competent to speak about the proceedings of the learned
Magistrate and who recorded the test identification parade has also explained
the presence of PW 2 and PW 3, the procedure followed and identification by
them correctly identifying the accused Mulla and Guddu. After completing the
process, identification memo was signed by the Magistrate and he also put his
memo Ex. K-58 has been proved by PW 11.
materials, we hold that the test identification parade was properly conducted
and all required procedures were duly followed. The statement of witnesses PWs
2 and 3 clearly show that they identified the appellants as the accused who
involved in killing five persons on the night of 21.12.1995. In those
circumstances, merely because there was some delay, evidence of PWs 2 and 3 who
identified the appellants- accused coupled with the statement of official
witnesses PW 6 and PW 11 who accompanied the Magistrate clearly prove the fact
that test identification parade was conducted in accordance with the
no reason to disbelieve their version and we hold that the trial Court has
correctly appreciated their evidence and the High Court has rightly affirmed
Learned amicus curiae put-forth another feeble argument that in the absence of
proper light at the time of occurrence it is highly improper to accept the
version of prosecution witnesses particularly, PWs 2 and 3 identifying these
appellants. PW 1, in his cross examination, has stated that Harikumar Tripathi,
who came from the western side had lantern and torch and when he focused his
torch on criminals, they assaulted him and snatched away his torch and
extinguished the lantern. PW 2 has asserted that "the miscreants were
flashing their torches regularly. They have been recognized properly by us in
the light of their torches.
not known to us. They were unknown......"
deposed "when miscreants were beating me, they were flashing
torches......" PW 3 has also asserted by saying "the miscreants
detained us at about half an hour at this spot and I had seen the faces of
miscreants in the light of their torches....." In cross-examination, he
also reiterated "at first time, I had seen these persons at the time of
occurrence and second time in jail when I went for identification".
from the evidence of PWs 1 to 3, about the information that through their torch
lights they were able to recognize the faces of miscreants, PW 4 who was taken
away by the miscreants to the forest in respect of the first incident informed
the name of the accused correctly.
as her association with the accused was longer than others, she mentioned the
name of the accused without any difficulty. In those circumstances, the learned
trial Judge is perfectly right in holding that the prosecution witnesses were
able to correctly identify these persons and rightly rejected the defence plea.
Finally, we have to consider whether the death sentence awarded by the trial
Judge affirmed by the High Court is justifiable and acceptable. After finding
that the prosecution has established beyond reasonable doubt in respect of
offences under Sections 148, 364A, 365 and 302 IPC, the learned Trial Judge, by
giving adequate reasons, awarded death sentence to both the appellants which
was confirmed by the High Court. Now, we have to find out whether death
sentence is warranted in the facts and circumstances duly established by the
the constitutional validity of death penalty for murder provided in Section 302
of the Indian Penal Code and sentencing procedure embodied in sub-section 3 of
Section 354 of the Code of Criminal Procedure, 1873, was questioned, the
Constitution Bench of this Court in Bachhan Singh vs. State of Punjab (1980) 2
SCC 684, after thorough discussion, rejected the challenge to the
constitutionality of the said provisions and ruled that "life imprisonment
is the rule and death sentence is an exception".
above said decision of the Constitution Bench was considered by a three-Judge
bench in Machhi Singh & Others vs. State of Pubjab (1983) 3 SCC 470. The
discussion and the ultimate conclusion as well as instances/guidelines are
relevant:- "Death Sentence
reasons why the community as a whole does not endorse the humanistic approach
reflected in "death sentence-in-no-case" doctrine are not far to
seek. In the first place, the very humanistic edifice is constructed on the
foundation of "reverence for life" principle. When a member of the
community violates this very principle by killing another member, the society
may not feel itself bound by the shackles of this doctrine. Secondly, it has to
be realized that every member of the community is able to live with safety
without his or her own life being endangered because of the protective arm of
the community and on account of the rule of law enforced by it. The very
existence of the rule of law and the fear of being brought to book operates as
a deterrent of those who have no scruples in killing others if it suits their
ends. Every member of the community owes a doubt to the community for this
protection. When ingratitude is shown instead of gratitude by
"killing" a member of the community which protects the murderer
himself from being killed, or when the community feels that for the sake of
self-preservation the killer has to be killed, the community may well withdraw
the protection by sanctioning the death penalty. But the community will not do
so in every case. It may do so "in rarest of rare cases" when its
collective conscience is so shocked that it will expect the holders of the
judicial power centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death penalty. The
community may entertain such a sentiment when the crime is viewed from the
platform of the motive for, or the manner of commission of the crime, or the
anti-social or abhorrent nature of the crime, such as for instance:
of commission of murder
the murder is committed in an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse intense and extreme indignation
of the community. For instance, (i) when the house of the victim is set aflame
with the end in view to roast him alive in the house.
the victim is subjected to inhuman acts of torture or cruelty in order to bring
about his or her death.
when the body of the victim is cut into pieces or his body is dismembered in a
Motive for commission of murder
the murder is committed for a motive which evinces total depravity and
meanness. For instance when (a) a hired assassin commits murder for the sake of
money or reward (b) a cold-blooded murder is committed with a deliberate design
in order to inherit property or to gain control over property of a ward or a
person under the control of the murderer or vis-a-vis whom the murderer is in a
dominating position or in a position of trust, or (c) a murder is committed in
the course for betrayal of the motherland.
or socially abhorrent nature of the crime
When murder of a member of a Scheduled Caste or minority community etc., is
committed not for personal reasons but in circumstances which arouse social
wrath. For instance when such a crime is committed in order to terrorize such
persons and frighten them into fleeing from a place or in order to deprive them
of, or make them surrender, lands or benefits conferred on them with a view to
reverse past injustices and in order to restore the social balance.
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
Magnitude of crime
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.
Personality of victim of murder 48
37. When the
victim of murder is (a) an innocent child who could not have or has not
provided even an excuse, much less a provocation, for murder (b) a helpless
woman or a person rendered helpless by old age or infirmity (c) when the victim
is a person vis-a-vis whom the murderer is in a position of domination or trust
(d) when the victim is a public figure generally loved and respected by the
community for the services rendered by him and the murder is committed for
political or similar reasons other than personal reasons.
this background the guidelines indicated in Bachan Singh case1 will have to be
culled out and applied to the facts of each individual case where the question
of imposing of death sentence arises. The following propositions emerge from
Bachan Singh case1:
need not be inflicted except in gravest cases of extreme culpability.
Before opting for the death penalty the circumstances of the `offender' also
require to be taken into consideration along with the circumstances of the
Life imprisonment is the rule and death sentence is an exception. In other
words death sentence must be imposed only when life imprisonment appears to be
an altogether inadequate punishment having regard to the relevant circumstances
of the crime, and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having regard to the
nature and circumstances of the crime and all the relevant circumstances.
balance sheet of aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances have to be accorded full weightage
and a just balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised.
order to apply these guidelines inter alia the following questions may be asked
there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence? (b) Are the circumstances
of the crime such that there is no alternative but to impose death sentence
even after according maximum weightage to the mitigating circumstances which
speak in favour of the offender?
upon taking an overall global view of all the circumstances in the light of the
aforesaid proposition and taking into account the answers to the questions
posed hereinabove, the circumstances of the case are such that death sentence
is warranted, the court would proceed to do so."
Following the guidelines and principles enunciated in Bachhan Singh's case
& Machhi Singh's case, (supra), this Court in subsequent decisions applied
those principles and either confirmed the death sentence or altered the same as
life sentence vide Asharfi Lal &Others vs. State of Uttar Pradesh, (1987) 3
SCC 224, Ravji vs. State of Rajasthan, (1996) 2 SCC 175 and Ram Singh vs. Sonia
& Others, (2007) 3 SCC 1.
42) It is
settled legal position that the punishment must fit the crime. It is the duty
of the Court to impose proper punishment depending upon the decree of
criminality and desirability to impose such punishment. As a measure of social
necessity and also as a means of deterring other potential offenders, the
sentence should be appropriate befitting the crime.
Court in Bachhan Singh's case (supra) has held that:
real and abiding concern for the dignity of human life postulates resistance to
taking a life through law's instrumentality. That ought not to be done save in
the rarest of rare cases when the alternative option is unquestionably
Therefore, it is open for the court to grant a death penalty in an extremely
narrow set of cases, which is signified by the phrase `rarest of the rare'.
This rarest of the rare test relates to "special reasons" under
Section 354(3). Importantly, as the Court held, this route is open to the Court
only when there is no other punishment which may be alternatively given. This
results in the death penalty being an exception in sentencing, especially in
the case where some other punishment can suffice. It was in this context that
the Court had noted:
expression "special reasons" in the context of this provision,
obviously means "exceptional reasons" founded on the exceptionally
grave circumstances of the particular case relating to the crime as well as the
Panchhi v. State of U.P., (1998) 7 SCC 177, this Court also elucidates on
"when the alternative option is foreclosed" benchmark in the
When the Constitution Bench of this Court, by a majority, upheld the
constitutional validity of death sentence in Bachan Singh v. State of Punjab
this Court took particular care to say that death sentence shall not normally
be awarded for the offence of murder and that it must be confined to the rarest
of rare cases when the alternative option is foreclosed. In other words, the
Constitution Bench did not find death sentence valid in all cases except in the
aforesaid freaks wherein the lesser sentence would be, by any account, wholly
inadequate. In Machhi Singh v. State of Punjab a three-Judge Bench of this
Court while following the ratio in Bachan Singh case laid down certain
guidelines among which the following is relevant in the present case:
p.489, para 38)"
this court quoted Guideline no. 4 in para 38 of Machhi Singh (supra) which we
have extracted earlier.
the same case, this court held that the brutality of the murders must be seen
along with all the mitigating factors in order to come to a conclusion:
We have extracted the above reasons of the two courts only to point out that it
is the savagery or brutal manner in which the killers perpetrated the acts on
the victims including one little child which had persuaded the two courts to
choose death sentence for the four persons. No doubt brutality looms large in
the murders in this case particularly of the old and also the tender-aged
child. It may be that the manner in which the killings were perpetrated may not
by itself show any lighter side but that is not very peculiar or very special
in these killings. Brutality of the manner in which a murder was perpetrated
may be a ground but not the sole criterion for judging whether the case is one
of the "rarest of rare cases" as indicated in Bachan Singh case. In a
way, every murder is brutal, and the difference between one from the other may
be on account of mitigating or aggravating features surrounding the
Bachan Singh (supra) again, this Court discussed mitigating circumstances as
Dr Chitale has suggested these mitigating factors:
circumstances.--In the exercise of its discretion in the above cases, the court
shall take into account the following circumstances:
the offence was committed under the influence of extreme mental or emotional
age of the accused. If the accused is young or old, he shall not be sentenced
probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society.
probability that the accused can be reformed and rehabilitated. The State shall
by evidence prove that the accused does not satisfy the conditions (3) and (4)
in the facts and circumstances of the case the accused believed that he morally
justified in committing the offence. (6) That the accused acted under the
duress or domination of another person.
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.
do no more than to say that these are undoubtedly relevant circumstances and
must be given great weight in the determination of sentence."
Therefore, in the determination of the death penalty, para. 38 of Machhi
Singh's case (supra) must be paid due attention to it. The test for the
determination of the `rarest of the rare' category of crimes inviting the death
sentence thus includes broad criterions i.e. (1) the gruesome nature of the
crime, (2) the mitigating and aggravating circumstances in the case. These must
take into consideration the position of the criminal, and (3) whether any other
punishment would be completely inadequate. This rule emerges from the dictum of
this Court that life imprisonment is the rule and death penalty an exception.
Therefore, the Court must satisfy itself that death penalty would be the only
punishment which can be meted out to the convict.
the light of the above principles, let us examine the reasoning of the Trial
Judge and its confirmation by the High Court in awarding death sentence. Before
the Trial Court, High Court and even before us the learned amicus curiae
appearing on behalf of the accused Mulla and 54
Guddu argued that the offences alleged to have committed by these persons
cannot come in the category for which they may be punished with death sentence.
She also pointed out that neither they have any criminal history nor the
prosecution could show that the accused Mulla and Guddu were involved in
dacoity/gang or taken part in any criminal activities prior to the occurrence
of the present case. Learned amicus curiae further pointed out that even the
one incident pressed into service by the prosecution ended in acquittal. On the
other hand, the learned senior counsel appearing for the State by pointing
various instances how the five persons were killed mercilessly by these
accused, pleaded that no sympathy or leniency should be afforded to these
persons and prayed for confirmation of the death sentence as awarded by the
Trial Court and confirmed by the High Court. We have already quoted the
Constitution Bench decision in Bachhan Singh (supra) and three-Judge Bench
decision in Machhi Singh (supra) to the effect that in the case of murder,
"life imprisonment is a rule and imposition of death sentence is an
exceptional one" and the same should come within the purview of
"rarest of rare category". We have already noted that the accused
Mulla is of the age 50 years and Guddu is of the age 30 years at the time of
committing the offence in question. No material was placed or available about
the family background of these two accused and whether these persons are
married or not and about the family circumstance etc. Learned amicus curiae
fairly stated that no family member ever approached during the entire
proceedings enquiring these appellants. The perusal of the case records also
shows that no one is depending on them and no family responsibility is on the
shoulders of these accused persons.
coming to their background as to the criminality, the prosecution pressed into
service the earlier incident relating to the offences of abduction, murder,
mischief by firing led against these persons. The fact remained that ultimately
both of them were acquitted from those offences. Admittedly, prosecution has
not placed any other material about their criminal antecedents.
doubt, the aggravating circumstances against the appellants show that it is a
case of cold blooded murdering of five persons including one woman of the
middle age, the unfortunate victims did not provoke or resist. The murder of
five innocent persons were committed for ransom which was executed despite the
fact that the poor villagers were unable to pay the ransom as demanded, the
accused knowing fully aware of their inability and poverty of the victims.
52) As we
have noted above, along with the aggravating circumstances, it falls on us to
point to the mitigating circumstances in the case. In this case, we observe
three factors which we must take into account, 1) the length of the
incarceration already undergone by the convicts;
current age of the convicts; and finally, 3) circumstances of the convicts
53) As we
have noted above, old age has emerged as a mitigating factor since Bachhan
Singh (supra). This court in Swamy Shraddananda v. State of Karnataka (2008) 13
SCC 767 substituted death sentence to life imprisonment since the convicts were
64 years old and had been in custody for 16 years. Even in the present case,
one of the convicts is around 65 years old. The charges had been framed in 1999
and they have been in custody since 1996. They have been convicted by the
Sessions Court in 2005. Clearly, the appellants have been in prison for the
last 14 years.
Another factor which unfortunately has been left out in much judicial
decision-making in sentencing is the socio-economic factors leading to crime.
We at no stage suggest that economic depravity justify moral depravity, but we
certainly recognize that in the real world, such factors may lead a person to
crime. The 48th report of the Law Commission also reflected this concern.
Therefore, we believe, socio-economic factors might not dilute guilt, but they
may amount to mitigating circumstances. Socio- economic factors lead us to
another related mitigating factor, i.e. the ability of the guilty to reform. It
may not be misplaced to note that a criminal who commits crimes due to his
economic backwardness is most likely to reform.
court on many previous occasions has held that this ability to reform amount to
a mitigating factor in cases of death penalty.
the present case, the convicts belong to an extremely poor background. With
lack of knowledge on the background of the appellants, we may not be certain as
to their past, but one thing which is clear to us is that they have committed
these heinous crimes for want of money.
are shocked by their deeds, we find no reason why they cannot be reformed over
a period of time.
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:
The sentences of death in the present appeal are liable to be reduced to life
imprisonment. We may add a footnote to the ruling in Rajendra Prasad case.
Taking the cue from the English legislation on abolition,we may suggest that
life imprisonment which strictly means imprisonment for the whole of the men's
life but in practice amounts to incarceration for a period between 10 and 14
years may, at the option of the convicting court, be subject to the condition
that the sentence of imprisonment shall last as long as life lasts, where there
are exceptional indications of murderous recidivism and the community cannot
run the risk of the convict being at larger. This takes care of judicial
apprehensions that unless physically liquidated the culprit may at some remote
time repeat murder."
Court in Subash Chander v. Krishan Lal (2001) 4 SCC 458 considered the length
of life imprisonment, while going over the precedents germane to the question
and observed as follows:
Section 57 of the Indian Penal Code provides that in calculating fractions of
terms of punishment of imprisonment for life shall be reckoned as equivalent to
imprisonment for 20 years. It does not say that the transportation for life
shall be deemed to be for 20 years. The position at law is that unless the life
imprisonment is commuted or remitted by appropriate authority under the
relevant provisions of law applicable in the case, a prisoners sentenced to
life imprisonment is bound in law to serve the life term in prison. In Gopal
Vinayak Godse v. State of Maharashtra & Others 1961 Cri L J 736a , the
convict petitioner contended that as the term of imprisonment actually served
by him exceeded 20 years, his further detention in jail was illegal and prayed
for being set at liberty. Repelling such a contention and referring to the
judgment of the Privy Council in Pandit Kishori Lal v. King Emperor 1944 (1) 72
LR IndAp this Court held:
so, the next question is whether there is any provision of law whereunder a
sentence for life imprisonment, without any formal remission by appropriate
Government, can be automatically treated as one for a definite period. No such
provision is found in the Indian Penal Code, Code of Criminal Procedure or the
Prisons Act. Though the Government of India stated before the Judicial
Committee in the case cited supra that, having regard to s. 57 of the Indian
Penal Code, 20 year's imprisonment was equivalent to a sentence of
transportation for life, the Judicial Committee did not express its final
opinion on that question. The Judicial Committee observed in that case thus at
that the sentence is to be regarded as one of twenty years, and subject to
remission for good conduct, he had not earned remission sufficient to entitle
him to discharge at the time of his application, and it was therefore rightly dismissed,
but in saying this, their Lordships are not to be taken as meaning that a life
sentence must and in all cases be treated as one of not more than twenty years,
or that the convict is necessarily entitled to remission."
57 of the Indian Penal Code has no real bearing on the question raised before
us. For calculating fractions of terms of punishment the section provides that
transportation for life shall be regarded as equivalent to imprisonment for
twenty years. It does not say that transportation for life shall be deemed to
be transportation for twenty years for all purposes; nor does the amended
section which substitutes the words "imprisonment for life"
"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."
State of Madhya Pradesh v. Ratan Singh & Ors.1976 Cri L J 1192 this Court
held that a sentence of imprisonment for life does not automatically expire at
the end of the 20 years, including the remissions. "The sentence for
imprisonment for life means a sentence for the entire life of the prisoner
unless the appropriate Government choses to exercise its discretion to remit
either the whole or a part of the sentence under Section 401 of the Code of
Criminal Procedure", observed the court. To the same effect are the
judgments in Sohan Lal v. Asha Ram & Others AIR 1981 SC 174a , Hagirath v.
Delhi Administration 1985 Cri L J 1179 and the latest judgment in Zahid Hussein
& Ors. v.State of West Bengal & Anr. 2001 Cri L J 1692 ."
this Court held that life imprisonment would mean imprisonment for the rest of
the life of the convict, unless the State Government remits the sentence to 20
years. This position has been accepted by this Court on various occasions [See
Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC 296; Jayawant Dattatray
Suryarao v. State of Maharashtra, (2001) 10 SCC 109].
question came up again recently before this Court in Ramraj @ Nanhoo @ Bihnu v.
State of Chhattisgarh, 2009 (14) SCALE 533, where this Court considered the
variance in precedents and ruled as follows:
What ultimately emerges from all the aforesaid decisions is that life
imprisonment is not to be interpreted as being imprisonment for the whole of a
convict's natural life within the scope of Section 45 of the aforesaid Code.
The decision in Swamy Shraddananda's case (supra) was taken in the special
facts of that case where on account of a very brutal murder, the appellant had
been sentenced to death by the Trial Court and the reference had been accepted
by the High Court. However, while agreeing with the conviction and confirming
the same, the Hon'ble Judges were of the view that however heinous the crime
may have been, it did not come within the. definition of "rarest of rare
cases" so as to merit a death sentence. Nevertheless,' having regard to
the nature of the offence, Their Lordships were of the view that in the facts
of the case the claim of the petitioner for premature release after a minimum
incarceration for a period of 14 years, as envisaged under Section 433A
Cr.P.C., could not be acceded to, since the sentence of death had been stepped
down to that of life imprisonment, which was a lesser punishment.
16. On a
conjoint reading of Sections 45 and 47 of the Indian Penal Code and Sections
432, 433 and 433A Cr.P.C., it is now well established that a convict awarded
life sentence has to undergo imprisonment for at least 14 years. While Sections
432 and 433 empowers the appropriate Government to suspend, remit or commute
sentences, including a sentence of death and life imprisonment, a fetter has been
imposed by the legislature on such powers by the introduction of Section 433A
into the Code of Criminal Procedure by the Amending Act of 1978, which came
into effect on and from 18th December, 1978. By virtue of the non-obstante
clause used in Section 433A, the minimum term of imprisonment in respect of an
offence where death is one of the punishments provided by laws or where a death
sentence has been commuted to life sentence, has been prescribed as 14 years.
In the various decisions rendered after the decision in Godse's case (supra),
"imprisonment for life" has been repeatedly held to mean imprisonment
for the natural life term of a convict, though the actual period of
imprisonment may stand reduced on account of remissions earned. But in no case,
with the possible exception of the powers vested in the President under Article
72 of the Constitution and the power vested in the Governor under Article 161
of the Constitution, even with remissions earned, can a sentence of
imprisonment for life be reduced to below 14 years. It is thereafter left to
the discretion of the concerned authorities to determine the actual length of
imprisonment having regard to the gravity and intensity of the offence. Section
433A Cr.P.C., which is relevant for the purpose of this case, reads as follows:
433A. Restriction on powers of remission or commutation in certain cases.-
Notwithstanding anything contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a person for an offence for which
death is one of the punishment provided by laws or where a sentence of death
imposed on a person has been commuted under Section 433 into one of
imprisonment for life, such person shall not be released from prison unless he
had served at least fourteen years of imprisonment.
the present case, the facts are such that the petitioner is fortunate to have
escaped the death penalty. We do not think that this is a fit case where the
petitioner should be released on completion of 14 years imprisonment. The
petitioner's case for premature release may be taken up by the concerned
authorities after he completes 20 years imprisonment, including remissions
are in complete agreement with the above dictum of this Court. It is open to
the sentencing Court to prescribe the length of incarceration. This is
especially true in cases where death sentence has been replaced by life
imprisonment. The Court should be free to determine the length of imprisonment
which will suffice the offence committed.
we hold that despite the nature of the crime, the mitigating circumstances can
allow us to substitute the death penalty with life sentence.
we like to note that the punishment of life sentence in this case must extend
to their full life, subject to any remission by the Government for good
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.
FEBRUARY 08, 2010.