# MULLA & ANR v. STATE OF U.P

- **Citation:** [2010] 2 S.C.R. 633
- **Court:** Supreme Court of India
- **Decided:** 2010-02-08
- **Case number:** Criminal Appeal No. 396 of 2008
- **Bench:** P. Sathasivam, H. L. Dattu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mulla-anr-v-state-of-u-p-26625
- **Pages:** 52

## Headnote

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 socioeconomic 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 nonpayment 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]
H
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
MULLA v. STATE OF U.P.
635
identification parade due to his illness. In crossA
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

## Text

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[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 socioeconomic 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 nonpayment 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]
H
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
MULLA v. STATE OF U.P.
635
identification parade due to his illness. In crossA
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 eyewitness 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] [653C-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 crossD 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) [657D-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; 660B 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 appellantsaccused 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)
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
B
) 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]
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
G
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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 appellantaccused 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 socioeconomic 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
F
(1991) 4 sec 536
referred to
Para 24
(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
c
D
E
by the prosecution, Ms Ranjana Narayan, learned amicus
curiae raised the following contentions:
(a)
No eye-witness to the alleged incident;
(b)
Accused persons are not named in the FIR. In other
words, FIR was lodged against unknown persons;
(c)
delay in conducting the Test Identification Parade
(TIP);
(d)
Prosecution failed to establish motive for the
incident;
(e)
In any event, even if the Court accepts the
prosecution case, imposition of death sentence is
not warranted.
5. Mr. Pramod Swaroop, learned senior counsel for the
State of U.P. while disputing all the above contentions pointed
out that a) though the FIR was registered against unknown
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.
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.
E
F
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. Ka1 was examined as PW 1. He was examined on 09.04.2001
8 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,
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
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.
E
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
F
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 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
8
prosecution is PW 3-Harnam. He asserted that on the date and
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
: ...