Mulla & Anr. V/s State of U.P

Information Type: Judicial Information
Court: Supreme Court
Date of Judgment(s): 2010-02-08
Case No: 396 of 2008
Case Type: Appeal (Criminal)
Judge Name: P. Sathasivam & H.L.Dattu
Subject: Criminal Law-Capital Punishment
Statutes / Acts: Indian Penal Code 1860 (IPC), Code of Criminal Procedure 1973
Section: Penal Code, 1860 - 302/149, 365 and 148
Bench Strength: Double Bench
State of Appellant(s): Uttar Pradesh
History of Case No: 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.
Case Note / Description :

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 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. [Para 8] [649-E-H; 650-A] 1.2. PW 1 had asserted that he had seen the faces of all the accused persons in the light of the torch. However, he admitted that he could not go and attend the identification parade due to his illness. In cross- 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 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 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 occasion except on the date of occurrence and at the time of identification parade. He being an injured eye-witness as well as identified the appellants in the identification parade, the trial Judge as well as the High Court rightly accepted his version. He deposed about his 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 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, he identified the three accused. [Paras 10 and 11] [653-C-D; G-H; 654-A; 652- F-H; 653-A] 1.4. PW 3 asserted that on the date and time of the incident, he witnessed the occurrence along with PW 2. 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 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 identified, by putting his hand on the accused persons and said that these miscreants were involved in the incident and for the first time he had seen these persons at the time of occurrence and second time in jail at the time of test identification parade. In his cross-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 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] 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 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 they attempted to rape her. However, in the said case, before the court she failed to mention their names and implicate them in the said crime. In the present case, when she was examined, she explained that due to threat and fear she made a statement in the earlier case disowning these accused. Considering her explanation, particularly, because of the threat and fear she was forced to make such statement and in view of the categorical statement about the present occurrence implicating the miscreants including the present appellants, explaining all the details about keeping three youngsters in their hands and five villagers demanding ransom for their release, identifying the five dead bodies at different places, there is no reason to disbelieve her version. [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 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 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 present case are acceptable and rightly relied on by the trial court and accepted by the High Court. [Para 18] [657-D-F] 1.7. Medical evidence also supports the case of 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 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. [Para 19] [657-G- H; 660-C-D] 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 accept the version of prosecution witnesses 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 the first incident informed the name of the accused correctly. Inasmuch as her association with the accused was longer than others, she mentioned the name of the accused without any difficulty. In those circumstances, the trial Judge is perfectly right in holding that the prosecution witnesses were able to correctly identify these persons and rightly rejected the defence plea. [Paras 36 and 37] [668-B-G] 2.1. 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.

 
 
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