2010 Supreme(SC) 141

2010 (1) Supreme 606
SUPREME COURT OF INDIA
P. Sathasivam and H.L. Dattu, JJ.
Mulla & Anr. — Appellant(s)
versus
State of U.P. — Respondent(s)
Criminal Appeal No. 396 of 2008
Decided on : 08-02-2010

IMPORTANT POINTS
1. 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.
2. 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.
3. 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.

Headnote:Indian Penal Code,1860-Sections 364A, 365 ,302,149-Prosecution of appellants along with other co accused persons for abducting five persons and killing them on their inability to pay ransom-Conviction of appellants by Trial Court awarding them Death sentence-Appeal thereagainst –Dismissed by High Court confirming death sentence-Appeal- It is true that either in the complaint or in the first information report, accused persons were not specifically named for the commission of offence-However 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-Apart from the evidence of PWs 1-4 about killing of five persons, medical evidence also supported case of prosecution- 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-Even though accused were put up for identification after 63 days of the occurrence and 55 days after their arrest- However, held that 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-Evidence on record that the test identification parade was properly conducted and all required procedures were duly followed- The statement of witnesses PWs 2 and 3 clearly showed that they identified the appellants as the accused who were involved in killing five persons -No reason to disbelieve their version – Again trial Judge was perfectly right in holding that prosecution witnesses were able to correctly identify accused persons and rightly rejected the defence plea that in the absence of proper light at the time of occurrence it was highly improper to accept the version of prosecution witnesses - This was because of evidence of PWs 1 to 3, that through their torch lights they were able to recognize the faces of miscreants-Appeal disposed of ( Para 8, 19, 20, 33 to 37)

        Test identification Parade-Evidentiary value of -The evidence of test identification is admissible under Section 9 of the Indian Evidence Act-The Identification parade belongs to the stage of investigation by the police - The question whether a witness has or has not identified the accused during 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 (Para 20)

        Test identification Parade –Delay in conducting of-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, 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 (Para 22)

        Test identification Parade –Principles governing- An identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses-This condition can be revoked if proper explanation justifying the delay is provided- Authorities must make sure that delay does not result in exposure of the accused which may lead to mistakes on the part of the witnesses (Para 33)

        Punishment –Proportionality of -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 (Para 42)

        Death sentence-Appeal against award of-Plea of appellants that offences alleged to have committed by these persons could not come in the category for which they may be punished with death sentence- No doubt, the aggravating circumstances against appellants showed that it was a case of cold blooded murdering of five persons including one woman of 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, accused knowing fully aware of their inability and poverty of the victims- In the instant case, convicts belonged to an extremely poor background- Appellants committed these heinous crimes for want of money-No reason why they could not be reformed over a period of time- Despite the nature of the crime,due to mitigating circumstances death penalty could be substituted with life sentence-Punishment of life sentence in this case must extend to their full life, subject to any remission by the Government for good reasons-Taking into account all the aggravating and mitigating circumstances, while confirming conviction, death sentence commuted into that of life imprisonment-Appeal disposed of (Paras 49 to 62)

       Facts of the Case :

        Appellants herein in the instant case was prosecuted along with other co accused persons for abducting five persons and killing them on their inability to pay ransom. Trial Court convicted appellants and awarded them Death sentence. Appeal thereagainst was Dismissed by High Court confirming death sentence.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        It is true that either in the complaint or in the first information report, accused persons were not specifically named for the commission of offence. However since 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. Hence in view of the same, though none was named in the FIR, subsequently, name of appellants came into light during investigation. Apart from the evidence of PWs 1-4 about killing of five persons, medical evidence also supported case of prosecution. There was 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. Even though accused were put up for identification after 63 days of the occurrence and 55 days after their arrest. However, held that 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. Evidence on record that the test identification parade was properly conducted and all required procedures were duly followed. The statement of witnesses PWs 2 and 3 clearly showed that they identified the appellants as the accused who were involved in killing five persons .No reason to disbelieve their version. Again trial Judge was perfectly right in holding that prosecution witnesses were able to correctly identify accused persons and rightly rejected the defence plea that in the absence of proper light at the time of occurrence it was highly improper to accept the version of prosecution witnesses - This was because of evidence of PWs 1 to 3, that through their torch lights they were able to recognize the faces of miscreants.

       Result : Appeal disposed of